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Delhi District Court

Sushil Kumar vs Nirmala Devi on 10 December, 2015

  IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
    ASJ­02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA 
                     COURTS, DELHI


Crl. (A) No.20/15


1. Sushil Kumar
   S/o. Sh. Bhajan Lal
   R/o.7/488, Resettlment Colony,
   Block No.7, Khichripur,
   Delhi­110091.                               ............        Appellant


                                 Versus

1. Nirmala Devi
   W/o. Sushil Kumar
   D/o. Ram Avtar
   R/o. House in Gali No.5,
   H­Block, Khora Colony,
   Distt. Ghaziabad, U.P.                      ............     Respondent

                                    ORDER

1. By this order I shall dispose of an appeal filed by the husband challenging the order dated 01.4.2015 passed by Ld. MM granting the maintenance of Rs. 4500/­ to the CA No.20/15 Page 1 of 5 Sushil Kumar vs. Nirmala Devi petitioner and her two minor children.

2. The order has been challenged on the ground that appellant is not earning the amount as assumed by Ld. Trial Court. He is in the work of pressing the cloths and hardly earns Rs. 5000/ to 6000/­. Ld. ADJ Court, where the proceedings under Hindu Marriage Act, were pending, after consideration of this fact awarded the maintenance of Rs. 3000/­ to the appellants. He also argued that appellant is not liable to pay the money for the period when the respondent stayed with him under a compromise and also the amount already paid by him in matrimonial case, needs to be adjusted in the maintenance granted.

3. Ld. Counsel for respondent argued that amount already paid has to be adjusted as per law and there is no dispute as that. On the quantum of maintenance he argued that the order is as per minimum wages act and the appellant being an able bodied man cannot be expected to be earning less than the minimum wages.

CA No.20/15 Page 2 of 5 Sushil Kumar vs. Nirmala Devi

4. Arguments heard and record perused.

5. On the quantum of maintenance there cannot be any dispute that income of appellant, in absence of any document of work/ salary/ income, will have to be decided as per the minimum wages Act; which was done by Ld. Trial Court and rightly so. After assuming the income @ Rs. 8632/­ Ld Trial Court has granted only 4500/­ to the petitioner which is only half of his income. The arguments of Ld. Counsel on lesser maintenance granted by Ld. ADJ Court, cannot be made a ground to reduce the maintenance as the order passed by Ld. ADJ was in 2010/ 2012 and the order in the present case has been passed in 2015.

6. A relevant fact, however, is that the appellant cannot be presumed to be earning as per the Minimum Wages Act of 2014 in 2010­11­12 & 13. Another relevant fact is that the maintenance order passed by Ld ADJ in 2012 also appears to be an order passed by the consent of the parties. It is, therefore deemed appropriate to let the maintenance @ Rs 3000/ as CA No.20/15 Page 3 of 5 Sushil Kumar vs. Nirmala Devi granted by Ld ADJ to continue till Decmber 2013 and to direct the payment of maintenance @ Rs 4500/ w.e.f. 1/1/2014.

7. The other issue raised by appellant is of a compromise arrived at Mediation Cell under which the parties lived together. The appellant says in the appeal that parties lived together in a rented accommodation after the settlement on 30/05/2013. He, however, himself says that respondent left the house on 27/09/2013. She as such lived with him for four months. Respecting the mediation settlement and assuming that respondent would have lived with the appellant for four months, the maintenance for the period of aforesaid 4 months at best can be directed to be reduced from the amount which the appellant is liable to pay the appellant.

8. On the aspect of the payments made in the Ld. ADJ Court, it is settled law that payment made in one court towards maintenance are adjustable against the maintenance granted by the other Courts. The appellant , can therefore, file the details of payment made by him to the respondent in the court of Ld. CA No.20/15 Page 4 of 5 Sushil Kumar vs. Nirmala Devi ADJ, which shall accordingly be adjusted in the maintenance granted by Ld. MM.

9. With aforesaid directions, the appeal stands disposed of. The Demand drafts deposited by the appellant in the Court be released to the respondent against proper acknowledgment for adjustment towards maintenance.

10. Trial Court record, if any, be sent back with a copy of this order. Appeal file be consigned to record room. Announced in the open court on 10.12.15 (ANURADHA SHUKLA BHARDWAJ) ASJ­02, (EAST) SPL. JUDGE (NDPS) KKD COURTS, DELHI/10.12.15 CA No.20/15 Page 5 of 5 Sushil Kumar vs. Nirmala Devi