Delhi District Court
Deepak Sharma vs Shalu Sharma on 14 August, 2023
IN THE COURT OF MS. KIRAN BANSAL:
ADDITIONAL SESSIONS JUDGE-04: SHAHDARA:
KARKARDOOMA COURT: DELHI.
CA No. 79/2023
ID/CR No. 20/23
Deepak Sharma
S/o. Shri Pardeep
R/o H. No. 37, First Floor,
Shatabdi Puram, Ghaziabad, UP. ............... Appellant
Versus
Shalu Sharma
W/o Shri Deepak Sharma
R/o H. No. 4/1750, Gali No.2,
Mahavir Block, Bholanath Nagar,
Shahdara, Delhi-32. ............... Respondent
Date of Institution: 29.05.2023
Date of Arguments: 11.08.2023
Date of Judgment: 14.08.2023
CA No.79/23 Deepak Sharma Vs. Shalu Sharma Page 1 of 9
JUDGMENT
1. Present Appeal has been filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against the order dated 01.05.2023 passed by Ld. MM, Mahila Court in complaint No.194/2022 titled as Smt. Shallu Sharma Vs. Shri Deepak Sharma & Anr.
2. Brief facts as stated in the appeal are that appellant and respondent got married on 28.11.2020. It was stated that the appellant was discharging his matrimonial duties towards the respondent but the respondent started fighting and abusing the parents of appellant and refused to cook their food. It is alleged that she refused to stay with the parents of the appellant and when the appellant told this to his parents, the parents of the appellant got upset and debarred the appellant. Thereafter, the appellant took a rental accommodation in Ghaziabad.
3. The respondent wife and the appellant then resided in a rental house wherein the respondent gave birth to a female child on 27.10.2021, who is in the custody of respondent wife. After the birth of female child, again the respondent started quarreling with the respondent on petty issues. Both the parties lived together lastly on 03.11.2021.
4. As per the appellant, the respondent has deserted him and has filed a false complaint under the Protection of Domestic Violence Act. The Ld. Trial court has granted ad-interim maintenance of Rs.5,000/- on 25.01.2022 which was paid by the appellant regularly till 25.08.2022. Thereafter, the interim application was decided vide the impugned order 01.05.2023 in which the interim maintenance of Rs.10,000/- has been CA No.79/23 Deepak Sharma Vs. Shalu Sharma Page 2 of 9 granted to respondent wife from the date of filing.
5. The appeal has been preferred on the ground that the impugned order is bad in law and against the principles of natural justice and the trial court has failed to consider the facts and circumstances of the case. The main argument of the Ld. Counsel for the appellant is that it is the respondent who has herself chosen to live separately from the appellant and has left the company of the appellant without any reasonable cause and therefore, she is not entitled to the maintenance.
6. It is further stated that at the time of passing of ad-interim order on 24.06.2022, the appellant was working in Gurukul School and was earning around Rs.33,500/- per month but unfortunately in the month of October, 2022, the school administration has terminated the services of the appellant. The copy of the termination letter is stated to be attached. As per the appellant, he is presently unemployed. He has also filed a suit under Section 9 of the HMA in Ghaziabad. It is stated that the appellant has filed copy of last three years' statement, termination letter, request for re-joining but could not get his previous job. It is stated that the ld. Trial Court has ignored the said records while allowing the interim application in favour of the respondent/wife and, therefore, the impugned order is liable to be set aside. It is also stated that respondent/wife is highly qualified being MA/BEd and giving private tuitions and earning around Rs.25,000/- to Rs.30,000/- and this fact has not been considered by the Ld. Trial Court. It is further stated that the present counsel was appointed by the appellant after filling of his reply in the Trial Court. The appellant/husband in his affidavit has shown expenditure of Rs.20,000/- upon him along with rent of CA No.79/23 Deepak Sharma Vs. Shalu Sharma Page 3 of 9 his house and Rs.40,000/- on his parent out of his salary of Rs.33,500/- and when the counsel discussed the matter with the appellant, then the appellant told that Rs.40,000/- stated to be given to the parents is wrongly mentioned instead of Rs.10,000/- being a typographical mistake and the ld. Trial Court ignored this fact of argument that the figure of Rs.40,000/- is a typing mistake. It is further stated that the ld. Trial Court failed to consider the fact that no domestic violence have occurred upon the respondent/wife at any time. On these grounds the appellant has prayed that order dated 01.05.2023 to be set aside.
7. No formal reply to the appeal has been filed by the counsel for respondent and counsel for respondent has straightaway advance argument. Ld. Counsel for appellant has relied upon the following judgments and also advanced his arguments.
(i) Bhushan Kumar Meena Vs. Mansi Meen @ Harpreet Kaur, Criminal Appeal No. 879 of 2009;
(ii) Sanjay Bhardwaj & Ors. Vs. State & Anr., decided on 27 th August, 2010
8. Heard. Perused the record.
9. As far as domestic relationship between the parties is concerned, the same is admitted. As far as, the argument of expenditure of Rs.40,000/- on the parents being wrongly mentioned and same being typographical error in the affidavit of appellant is concerned, perusal of TCR shows that in the reply to the application filed by husband, he has admitted that he is working as accountant with Gurukul School, Dasna, CA No.79/23 Deepak Sharma Vs. Shalu Sharma Page 4 of 9 Ghaziabad, U.P. and earning around Rs.33,000/- per month. The payslip for the month of May, 2022 is also filed. No written application was filed for correction of the said typing mistake before the ld. Trial Court. The oral averments, if any, in this regard whether made or not at the time of argument is not known to the present court. The ld. Trial Court has rightly observed in the impugned order that respondent had claimed in his affidavit that he is spending Rs.40,000/- on his parents. If the mentioning of Rs.40,000/- per month was a typing mistake, nothing stopped the respondent/husband for moving an application for correction of said typing mistake. In the absence of any written application for correction of alleged typing mistake, the ld. Trial Court has rightly taken note of the same.
10. The next argument of appellant that there was no proof of any domestic violence, however, one MLC of the respondent/wife prepared on 03.11.2021 at Dr. Hedgewar Arogya Sansthan Hospital is available on record in which there is alleged history of assault. The MLC mentions that on examination it was found that respondent had "abrasion, bruise swelling over right upper eye lid; multiple abrasion bruise over right side of neck; bruise and swelling over right cheek; bruise and tenderness over lower back". 03.11.2021 is the date, when parties lastly resided together. At this stage of deciding the interim application, this copy of MLC is sufficient to form a prima facie opinion that complainant/wife was subjected to domestic violence. In this respect, the ld. Trial Court in its impugned order has also rightly observed as follows:
".....Complainant has made several allegations of torture, abuse and harassment, while she was living with respondent CA No.79/23 Deepak Sharma Vs. Shalu Sharma Page 5 of 9 in her complaint. Although, the said allegations cannot be decided without trial, but they are prima facie sufficient to show commission of domestic violence during subsistence of domestic relationship. Thus, the complainant is entitled to seek interim relief under the act...."
11. Another argument of ld. counsel for appellant is that it is the respondent/wife who has deserted the appellant and is living separately without any reasonable cause, therefore, she is not entitled to maintenance. However, it is a matter of trial as to whether the respondent/wife has left the house/company of the appellant without any reasonable cause or not and detailed appreciation of the facts is not warranted at the stage of deciding the interim application. Moreover, if the husband or the family members are committing domestic violence upon the complainant/wife, then it cannot be said that she had left the company of the respondent without any reasonable cause.
12. Though, in the appeal, it has been stated that the ld. Trial Court has granted Rs.10,000/- as maintenance to the wife, however, perusal of the impugned order shown that Rs.5,000/- has been granted to the complainant and Rs.5,000/- has been granted for maintenance of minor child. The amount cannot be said to be excessive in as much as the ld. Trial Court has mentioned that this amount shall include also the amount necessary for arrangement of an alternative accommodation.
13. Another argument is that respondent/wife is well qualified and is giving tuitions and therefore, she is capable of maintaining herself and in support of the argument that the respondent/wife is capable of earning and CA No.79/23 Deepak Sharma Vs. Shalu Sharma Page 6 of 9 is giving tuitions, ld. counsel for appellant has filed copy of whatsapp chat allegedly between the respondent/wife and her sister in law i.e. sister of the appellant. The said chats were not filed before the ld. Trial Court and the ld. Trial Court could not have looked into this document. Moreover, along with this whatsapp chat a certificate under Section 65 B of Indian Evidence Act is filed. However, the certificate is signed by the counsel Vaibhav Kumar Singh for the appellant. If this whatsapp chat is to be relied upon, certificate under Section 65 B of Indian Evidence Act should have been given by the sister of appellant. No certificate of the sister of the appellant has been filed under Section 65 B of Indian Evidence Act and therefore, to come to any prima facie opinion regarding the working status of the respondent/wife, the photocopy of whatsapp chat cannot be relied upon. Moreover, the appellant is at liberty to prove this fact during the trial that respondent/wife is working and is earning. Also, ld. counsel for respondent/wife during course of arguments submitted that the respondent/wife has responsibility of a minor child and, therefore, she is unable to work as she cannot leave behind the child alone.
14. The last leg of the argument of ld. counsel for appellant is that he has lost his job and in this respect, he has also relied upon the above said judgments. The present court has perused the said documents on which the appellant is relying in support of his plea that he is no more working and his letter to the school for re-employment has not been considered. He has relied upon one letter alleging issued to him by the school, terminating his services, the photocopy of which is available on record. This letter is undated and is signed by one Parul. Parul does not seems to be the Principal of the school in as much as no designation of the person who has CA No.79/23 Deepak Sharma Vs. Shalu Sharma Page 7 of 9 issued this letter has been mentioned. In this letter, it is also mentioned that the school can no longer employee appellant due to his prolonged illness. No such document has been filed by the appellant to show that he was suffering from any prolonged illness. Who is Parul and what is her designation and what authority she has to issue such letter, is not explained. The letter written by the appellant dated 24.11.2022 to the Principal, Gurukul School, Ghaziabad to allow him to work and for re-employing him is also signed by Parul and words 'not accepted' are mentioned. If the letter was addressed to the Principal, it is only the Principal, who has authority either to accept or reject the same. The language of the termination letter also somewhere does not inspire confidence. This does not seems to be a language written by any school or by any person authorized on behalf of school. Even if the school does not wish to continue with the employment of the appellant/respondent, they will not mention in termination letter the following lines:
".....but now, if you do not work properly then someone else will do the work in your place...."
15. What is the authority/designation of Parul to have 'not accepted' the request of the appellant for re-employment, also remains unexplained. Both the letters i.e. letter for termination and for reconsideration of his employment seems to have written by the same person, as the same are in same font and style. In his letter of reconsideration, appellant has mentioned that he has been fired because of his illness, however, in his entire appeal, he has not mentioned as to what illness, appellant has been suffering from.
CA No.79/23 Deepak Sharma Vs. Shalu Sharma Page 8 of 916. In view of above discussion, these documents i.e. letter of termination and for reconsideration of employment by the appellant cannot be considered at this stage. The appellant shall be at liberty to prove this fact during the trial that his services were terminated by the school by summoning concerned record/witness from the concerned school. Also, even if this argument of ld. counsel for appellant is accepted that the appellant was paying only Rs.10,000/- to his parents and not Rs.40,000/- then also the appellant cannot be said to be burdened excessively as he should at least pay Rs.10,000/- to his wife and daughter also. The judgments relied upon are also of no help in as much as, the present court feels that the documents regarding termination of employment and regarding reconsideration of re-employment being not accepted, prima facie, do not inspire confidence and do not seem to have been issued by any person duly authorized on behalf of school.
17. After considering the documents and material placed on record, I do not find any irregularity, illegality or impropriety in the impugned order of the Ld. Trial Court. The Ld. Trial Court has appreciated all the facts and has passed a reasonable detailed order. Appeal is devoid of any merits and is accordingly dismissed. A copy of this order be sent to Ld. Trial Court alongwith trial court record. Appeal file be consigned to record room.
Announced in the open court on 14.08.2023 (KIRAN BANSAL) ASJ-04/Shahdara/KKD Courts Delhi/14.08.2023 CA No.79/23 Deepak Sharma Vs. Shalu Sharma Page 9 of 9