Delhi District Court
(3) Ashish Jain vs Crl. A. No. 40/12; Deepak Jain & Ors. Vs. ... on 13 March, 2013
IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS
JUDGE03: NW : ROHINI : DELHI
Criminal Appeal No. 40/12
(1) Deepak Jain
s/o Sh. Satyendra Kumar Jain
permanent r/o H. No. 254C/13,
Shambhu Nagar,
near Nav Jagriti Public School,
Shikohabad, UP
presently residing at:
Flat no. B7, Pocket6,
Sector82, Kendriya ViharII,
Noida201304
(2) Satyendra Kumar Jain
s/o late Sh. Sahu Lal Jain,
r/o H. No. 254C/13,
Shambhu Nagar,
near Nav Jagriti Public School,
Shikohabad, UP
(3) Ashish Jain
s/o Sh. Satyendra Kumar Jain
permanent r/o H. No. 254C/13,
Shambhu Nagar,
near Nav Jagriti Public School,
Shikohabad, UP ..................Appellants
Versus
Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 1 of 11
Mrs. Runa Jain
w/o Sh. Deepak Jain
d/o Sh. Anil Kumar Jain,
r/o Flat no. 407, DDA Metro Apartment,
Jahangirpuri, Delhi33 ..................Respondent
JUDGEMENT
1. The appellants have filed this appeal u/s 29 of Protection of Women from Domestic Violence Act, 2005 r/w provisions of Cr.P.C. against the order dated 05102012 passed by the court of Ms. Vandana, Ld. MM, Mahila Court, NW, Rohini, Delhi in CC no. 229/04 of 2010 titled Mrs. Runa Jain Vs. Deepak Jain & ors. u/s 12 of Protection of Women from Domestic Violence Act (PWDV Act).
2. TCR has already been summoned. I have heard Ld. counsel for the appellants and Ld. counsel for respondent and have perused the entire record.
3. The petitioner/appellants have taken the grounds among others that the Ld. Trial Court has not correctly appreciated Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 2 of 11 that respondent has been residing in allotted accommodation of appellant no. 1 at Flat no. 407, DDA Metro Apartment, Jahangirpuri, Delhi along with her parents and maternal uncle. The appellant no. 1 has been paying three EMIs in respect of three housing loans for a sum of total Rs. 19,577/ which was earlier a sum of Rs. 16,700/. Appellant no. 1 was not even allowed to enter in the said house and appellant no. 1 has taken rented accommodation for a sum of Rs. 12,500/ which has now been revised to Rs. 13,750/ per month. Appellant no. 1 is working as Senior Engineer in BHEL and presently posted at Integrated Office Complex, Industry Sector, Lodhi Road, New Delhi and paying the monthly rent by depositing the same in the account of Sh. Gaurav Arora, husband of Mrs. Sugam Arora. The Ld. Trial Court has wrongly held in the impugned order that the appellant no. 1 has failed to clarify the said fact because the Ld. Trial Court never asked to clarify the same. Appellant no. 1 has duly filed his pay slip for the months of June 2011, January 2012 and September 2012 issued by Govt. Department. On the basis of salary slips, the Ld. Trial Court calculated the total amount in hand of appellant no. 1 as Rs. 63,809/ for the month of June Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 3 of 11 2011; Rs. 65,753/ for the month of January 2012 and Rs. 61,482/ for the month of September 2012. The Ld. Trial Court has wrongly held that average net salary of appellant no. 1 is Rs. 65,000/ per month approximately though the average net salary of appellant no. 1 is Rs. 62,000/ approximately.
4. The Ld. Trial Court failed to appreciate that when appellant no. 1 was residing with respondent, appellant had taken a loan of Rs. 12,44,000/ in the year 2007 from Delhi Cooperative Housing Finance Corporation Ltd. for purchasing the flat bearing no. 407, DDA Metro Apartments, Jahangirpuri, Delhi and appellant no. 1 has been depositing the EMI of Rs. 12,500/ per month regularly. The appellant had also taken a loan of Rs. 1,11,000/ on 30062007 for the purpose of court fees and has been paying the EMI of Rs. 1500/ per month. The Ld. Trial Court has not correctly appreciated that appellant had also taken a loan of Rs. 5,39,000/ from DCHFC Ltd. for the purpose of improvement of said house and appellant no. 1 has been depositing the EMI of Rs. 5577/ at present. Despite paying EMIs of Rs. 19,577/ in respect of all three loans, the fruits of the said loans are being enjoyed by Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 4 of 11 the respondent as she has been residing in the said flat along with her parents, maternal uncle and her other family members and the entire flat is in her possession. After paying Rs. 19,577/ as EMIs, a sum of Rs. 3251 of car loan EMI, and Rs. 12,500/ being rent, the appellant no. 1 is left with Rs. 26,672/ in hand and the Ld. Trial Court should have considered the said amount correctly. The Ld. Trial Court failed to appreciate that appellant no. 1 was also paying the EMI of Rs. 6983/ and Rs. 4167/ in respect of two loans till the year 2010 and 2011. Ld. Trial court failed to appreciate that after meeting all the aforesaid EMIs and expenses explained above, the appellant no. 1 will be able to pay a sum of Rs. 6000/ to 7000/ per month as maintenance to respondent besides the fact that respondent is residing in the flat of appellant no. 1. The Ld. Trial Court has wrongly held that only usual deductions must be allowed while calculating salary. In the case of Bhushan Kumar Meen Vs. Mansi Meen @ Harpreet Kaur, the Hon'ble Supreme Court has categorically held that from the salary, the necessary deductions including the home loan are required to be deducted and thereafter the remaining amount will be considered for the purpose of deciding the maintenance of wife. Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 5 of 11 The Ld. Trial Court has not correctly appreciated the facts and circumstances of the present case and wrongly fixed the maintenance of Rs. 24,000/ per month.
5. The Ld. Counsel for appellants argued that the appellant no. 1 is paying the EMIs of Rs. 19,577/ in respect of three housing loans. The appellant no. 1 was also paying rent of Rs. 12,500/ for the rented accommodation and subsequently after enhancement of the rent, Rs. 13750/ which have not been deducted while calculating the net income in hand by the appellant no. 1 out of his total salary. The Ld. Trial Court has wrongly calculated the total amount in hand of the appellant no. 1 as Rs. 65,753/. Further, the Ld. Trial Court has also wrongly calculated the average net salary of appellant no. 1 as Rs. 65,000/ per month. Whereas, the average net salary of the appellant no. 1 is about Rs. 62,000/ per month. The Ld. Trial Court has also not considered and even not appreciated that the appellant no. 1 is required to pay total sum of Rs. 35,328/ of EMI amount of Rs. 19,577/ for the three home loans, Rs. 3,251/ EMI for car loan and Rs. 12,500/ rent for the rented accommodation which has to Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 6 of 11 be deducted after the net amount of Rs. 62,000/. The Ld. Trial Court further wrongly considered that only usual deductions have to be allowed while calculating salary. The Ld. counsel for appellants, in support of his arguments, has relied upon the judgements reported in the case of Bhushan Kumar Meen Vs. Mansi Meen @ Harpreet Kaur in Crl. Appeal no. 879 of 2009; Madhusudan Bhardwaj and Ors. Vs. Mamta Bhardwaj, 2009 CRI. L.J. 3095 and Paredhei Kothari Vs. Ashish Sud, 2010 LE (Del)
516.
6. Ld. counsel for respondent has argued that appeal is time barred. No bonafide and genuine reasons have been explained for delay in filing of the appeal. There is no illegality in the order passed by the Ld. Trial Court and in this regard, he has referred para no. 4 of his reply to the appeal filed by the appellants which mentions that the appellant no. 1 had furnished his affidavit whereby he showed his income as Rs. 81,367/ per month. The statutory deductions are income tax amounting to Rs. 8,451/, CPF contribution amounting to Rs. 6120/ aggregating to Rs. 14,571/. The PF loan, car loan, credit card liability etc. are not Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 7 of 11 the statutory deductions. Therefore, the Ld. Trial Court has considered all these elements and assessed the net average income of the appellant no. 1 to the tune of Rs. 62,000/ per month. It is further mentioned that the Ld. Trial Court however took his disposable income for the purpose of grant of maintenance only to the extent of Rs. 48,000/ per month. The Ld. Trial Court has rightly directed the appellant no. 1 to make payment of Rs. 24,000/ per month to the respondent and minor son of the parties towards the maintenance. The Ld. counsel for the respondent has further argued that the appellant no. 1 is residing in posh area. Whereas, the respondent is residing in Jahangirpuri area which cannot be considered as posh area. Therefore, the same standard of living should also be available and given to the respondent being the wife of appellant no. 1 and their minor son. The son of the respondent is also school going and medical expenses, uniform expenses and house expenses are also there to be incurred by the respondent. So far as car loan is concerned, the car is the asset of the appellant no. 1, therefore, no question arises for deducting any EMI of car loan from the salary of appellant no. 1. During arguments, the Ld. counsel for Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 8 of 11 respondent referred page no. 46 of the documents filed along with the appeal with the list of documents which is salary slip of the appellant no. 1 for the month of December 2012 which reveals net pay of appellant no. 1 as Rs. 49,268/ and in addition to the above, lease rental @ Rs. 20,930/ per month is paid. Meaning thereby, the appellant no. 1 is taking net pay in hand more than Rs. 70,000/ per month but the Ld. Trial Court has only taken disposable income of the appellant no. 1 for the purpose of granting of maintenance only to the extent of Rs. 48,000/ per month. Ld. counsel for respondent, in support of his arguments, has relied upon the judgements reported in the case of Kuku Ram Vs. Ram Beti, 2012 (1) CC Cases (HC) 241; Kishore Shelar Vs. Sheetal Kishor Shelar, II (2011) DMC 315; Rajeev Preenja Vs. Sarika & Ors in Crl. MC no. 3089/2008 and Crl. MA no. 11390/2008; Smt. Sheetal Hitesh Thawkar Vs. Hitesh Vijay Thawkar & Anr. 2013 (1) CC Cases (HC) 145; Ishpal Singh Kahai Vs. Ramanjeet Kahai, II (2011) DMC 250.
7. I have carefully perused the entire record and found that the Ld. Trial Court has considered after going through the Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 9 of 11 records of the parties that appellant no. 1 is getting net pay of Rs. 42,645/. The appellant no. 1 himself admitted that he was also getting the amount of Rs. 15,345/ per month from self lease. The Ld. Trial Court, after statutory deductions, assessed the net income of appellant no. 1 approximately Rs. 65,000/ per month. However, the Ld. Trial Court considered that appellant no. 1 failed to clarify that the rental amount had been deposited in the account of Gaurav Arora. The Ld. Trial Court further considered that even considering the fact that appellant no. 1 is making the payment of Rs. 16,700/ per month towards housing loan apart from statutory deductions, the appellant no. 1 must be getting in hand Rs. 48,000/ per month. The respondent is not working anywhere and she is not in a position to earn a livelihood. Therefore, in view of the principle laid down in the case of Annurita Vohra Vs. Sandeep Vohra, 2004 (3) AD 252, the appellant no. 1 herein was directed to make the payment of Rs. 24,000/ per month to the respondent herein and his male child towards the maintenance. In the case of Kishor Shelar (Supra), it was held that only usual deductions must be allowed while calculating salary. It is apparent from the record that the Ld. Trial Court has rightly assessed the amount of Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 10 of 11 Rs. 48,000/ which the appellant no. 1 is getting in hand after statutory deductions from the salary. The aforesaid judgements relied upon by the Ld. counsel for the appellants are not applicable to the facts and circumstances of the present case. Accordingly, this appeal is devoid of any merits and the same is dismissed. TCR along with copy of this order be sent back and thereafter appeal file be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT on 13032013 Crl. A. No. 40/12; Deepak Jain & Ors. Vs. Mrs. Runa Jain Page 11 of 11