Delhi District Court
Unnati Didwania vs Sumit Walia on 16 October, 2024
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 22/2024
CNR No. : DLST01-000280-2024
DATE OF INSTITUTION- 12.01.2024
Sh. Sumit Walia,
S/o Late Sh. Ramesh Walia,
R/o B-172, DLF Summit, DLF Phase V,
Sector 54,
Gurugram-122001 (Haryana) .......... APPELLANT
VERSUS
Smt. Unnati Didwania,
W/o Sh. Sumit Walia,
D/o Sh. Hemant Didwania,
R/o W-15K/5A, Western Avenue,
Sainik Farms,
New Delhi-110062
Also At:
173, Western Avenue,
Sainik Farms,
New Delhi-110062 ........... RESPONDENT
and
CRL. APPEAL No. 50/2024
CNR No. : DLST01-000960-2024
DATE OF INSTITUTION- 06.02.2024
Unnati Didwania
D/o Mr. Hemant Didwania,
R/o House No. 5A, Lane W-15K,
PURSHOTTAM
PATHAK Western Avenue, Sainik Farms,
New Delhi-110062 ........... APPELLANT
Digitally signed
by PURSHOTTAM VERSUS
PATHAK
Date: 2024.10.16
17:07:02 +0530
CA No. 22/2024 and CA No. 50/2024 Page 1 of 27
1. Sumit Walia,
S/o Late Shri Ramesh Walia,
R/o B-172, Sumit Society,
Sector-54, Gurugram,
Haryana,
Also At:
A-1301, Green Home,
Plot No. 4, Sector-52,
Gurugram-122001
Haryana
Also At:
Samsung India Electronics Pvt. Ltd. (Head Office)
20th to 24th Floor, Two Horizon Centre,
Golf Course RD, DLF Phase-5,
Sector 43, Gurugram,
Haryana 122202
2. Mrs. Promila Walia
W/o Late Shri Ramesh Walia,
R/o B-172, Summit Society,
Sector 54, Gurugram,
Haryana ..........Proforma Respondent
ARGUMENTS HEARD ON : 04.07.2024
DATE OF JUDGMENT : 16.10.2024
JUDGMENT
1. Vide these common judgments I shall dispose of instant two appeals, wherein appeal bearing CA No. 22/2024, titled as Sumit Walia Vs. Unnati Didwania and Digitally signed by appeal bearing CA no. 50/2024 titled as Unnati Didwania PURSHOTTAM Vs. Sumit Walia & Anr. are cross appeals, filed under PURSHOTTAM PATHAK PATHAK Date:
2024.10.16 17:07:14 +0530 CA No. 22/2024 and CA No. 50/2024 Page 2 of 27 provisions of Domestic Violence Act by the parties challenging the order dated 12.12.2023, passed by the Ld. Metropolitan Magistrate-01, Mahila Court, South District, Saket Courts, New Delhi, whereby the claim of wife of amount of Rs.1,00,000/- for residence was declined and husband/respondent was directed to pay an interim maintenance of Rs.1,00,000/- per month to the wife/ complainant.
2. The facts preceding these appeals are that a complaint under section 12 of Domestic Violence Act was filed by wife/ Unnati Didwania against the husband and mother along with an application under Section 23 DV Act with the averments that marriage of complainant/ wife was solemnized with respondent/ husband on 25.02.2017 at Rajasthan. After marriage, she started residing in shared household bearing no. 5A, Lane W-15K, Western Avenue, Sainik Farms, New Delhi-110062. No child was born out of said wedlock. As per wife, she was subjected to domestic violence by the husband and his mother. As per wife, she has been sustaining herself with great hardships and thus, she claimed interim relief of maintenance from respondent/ husband.
3. Vide impugned order, Ld Trial Court while deciding the application for interim relief, observed as follows:-
" Further, I shall deal with the claim of amount of Rs. 3 Lakh for residence which has been made by the aggrieved. It is to be kept Digitally in mind that the aggrieved is residing in the shared household itself. signed by PURSHOTTAM In her pleadings, she has stated that the aggrieved and respondent no.
PURSHOTTAM PATHAK
PATHAK Date:
2024.10.16
1 started residing in the said house after marriage. It has been 17:07:20 +0530 pleaded by the aggrieved that the above said house was given by her parents. In her application and arguments, she states that she needs a CA No. 22/2024 and CA No. 50/2024 Page 3 of 27 sum of Rs. 1 lakh for either obtaining an alternative accommodation or for paying such sum to her parents. Ld. Counsel for the respondent has argued that the sum quoted is extremely exorbitant and in fact the aggrieved does not need any amount towards her residence as she is residing in the shared household and rather the respondent has moved out and is currently residing with his mother in a flat in Gurgaon.
I am satisfied with the argument raised by the Ld. Counsel for the respondent. Since the aggrieved and respondent right after their marriage started residing in the very premises in which the aggrieved in residing today, that household shall be considered as her shared household. It is to be kept in mind that the aggrieved has not pleaded that she was giving a sum of Rs.1 lakh as rent to her parents when she and the respondent no. 1 were residing in such household. Thus, it is incomprehensible as to how all of a sudden such a hefty amount of sum is sought to be paid to the parents of the aggrieved. Moreover, if the aggrieved wishes to claim right of residence in the house situated at Gurgaon which, as per her, belongs to respondent, she can do so, however, she has not made that prayer. She has merely stated that she needs a sum of rs. 1 lakh to either find an alternative accommodation or to pay such sum to her parents. The same is not tenable. The aggrieved is residing in the shared household and is not incurring any expenditure on accommodation, no amount of interim maintenance towards resident of the aggrieved is warranted......
.......The respondent no. 1 in his income affidavit has stated that he is earning an income of Rs.7,30,000/- per month. He has annexed his salary slip since May 2021 till September 2021 showing the said salary being received by him. Ld. counsel for the aggrieved in his written submissions had pointed out that the said income declared by him is false. He made the said submission by relying upon the CTC of respondent which the respondent had filed along with documents in compliance of order dated 02.09.2022 and as per the counsel of the aggrieved, the salary of the respondent is Rs. 17,34,666/- per month. He has also submitted that he has huge amounts in his EPF account and received an incentive of Rs.36,45,634/- in February 2022 and that he also has other benefits and performance bonus. It is pertinent to note that the CTC as relied upon by the Ld. counsel for the aggrieved is not inclusive of the compulsory deductions, while salary slips are inclusive of compulsory deductions. As per the latest salary slip of the respondent i.e. of September 2023, his net pay is shown as Rs.8,52,000/-. It has been argued by Ld. counsel for the respondent that the stress which has been laid upon by the Ld. counsel for the aggrieved upon the variable pay / incentives is misplaced as the Digitally same are performance based and not committed earnings. signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: For ascertaining an average monthly income of the respondent which 2024.10.16 17:07:25 +0530 could also taken into account the variable components of his salary, the court had called for the salary slip of the respondent since 2017 CA No. 22/2024 and CA No. 50/2024 Page 4 of 27 till date. The respondent had produced his salary slip along with a written note which was filed on 04.12.2023. As per the salary slip of the year 2017, his monthly average salary is Rs.6,35,700/-, for 2018, it is Rs.7,07,074/-. The average monthly salary slips of 2019 were only placed for the months January to April 2019. The average monthly salary for the year 2020 could not be determined as the salary slips of 2020 were only placed for the months January 2020 and May to December 2020. For the year 2021, it is Rs.8,85,897/-, for the year 2020, it is around Rs. 10 lakhs and for the year 2023, it is around 11 lakhs.
Now, it remains to be determined whether the aggrieved is liable to claim Rs.3 lakhs (apart from Rs. 1 lakh sought for accommodation which has already been declined) from the respondent at the stage of interim, even if the monthly salary of respondent as of today is around Rs.11 lakhs. The aggrieved has to justify her expenses for claiming the sum of Rs. 3 lakhs (apart from Rs. 1 Lakh sought for accommodation which has already been declined), which has clearly not been done.
Accordingly, considering all the facts and circumstances, a sum of Rs.1,00,000/- is deemed just, reasonable and adequate till the final adjudication of the case on the anvil of the evidence led by the parties. Hence, the respondent is directed to pay a sum of Rs.1,00,000/- per month for the maintenance of the aggrieved from the filing of the application u/s 23 PWDV Act till further orders. The respondent is directed to deposit the amount of maintenance in the bank account of aggrieved by 10th of every month. The arrears are directed to be cleared within six months."
4. On the one hand, the husband has preferred appeal bearing CA no. 22/2024 seeking setting aside the impugned order on following grounds:-
i. that the impugned order passed by Ld. MM suffers from serious illegality and proceeds on an incorrect assumption in law as well as on facts.
ii. that the Ld. Trial Court while computing the quantum of interim maintenance acted in material Digitally irregularity without appreciating the documents on signed by record filed by respondent /husband.
PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK Date:
2024.10.16
17:07:30
+0530
CA No. 22/2024 and CA No. 50/2024 Page 5 of 27
iii. that the Ld. Trial court on the one hand agreed
with the contention of the respondent / husband that the appellant/ wife is not entitled for maintenance towards residence, however, on the other hand went on to award maintenance of Rs.1 lakh ignoring the other averments made by the wife/ complainant.
iv. that the Ld. MM observed that wife/ complainant is admittedly earning Rs.1 lac per month however, awarded a sum of Rs.1 lac without any reason and justification.
v. Ld. Trial Court has not considered the fact that complainant/ wife has disclosed her assets to be of Rs.2,11,06,482/- on her latest income affidavit, which shows that she is a woman of means, having no liability, thus did not deserve any further maintenance.
vi. that the Ld. Trial Court has ignored the fact the complainant/wife is having sufficient bank balance of Rs.17 lakhs approx and FDRs which shows that she is having sufficient financial assets and income support.
vii. that the Ld. Trial Court has not considered the fact that the complainant/ wife has claimed her expenses to be Rs.11,000/- per month for domestic help, Rs.35,000/- per month for two guards, Rs. 5,000/- per month for Mali, Rs. 20,000/- per month Digitally signed by PURSHOTTAM for driver and Rs. 15,000/- per month for three dogs PURSHOTTAM PATHAK and Rs. 9 lakhs per annum for holidays, which under PATHAK Date:
2024.10.16 17:07:35 +0530 CA No. 22/2024 and CA No. 50/2024 Page 6 of 27 no circumstances can amount to maintenance for her subsistence.
viii. that the Ld. Trial Court has applied guess work and without any basis or reason awarded hefty and exorbitant amount of Rs.1 lakh per month as maintenance from the date of application.
ix. that the Ld. Trial Court failed to appreciate that the respondent could not establish a prima facie case of domestic violence and therefore, she was not entitled to any reliefs under D. V. Act.
x. that the Ld. Trial Court did not appreciate the settled law that where the wife is earning a good amount of salary, she is not entitled to maintenance only to bring her at par with the income of the husband.
xi. that the Ld. Trial Court failed to take into account the entire submission made by the respondent/ husband in his reply, while deriving inference to compute quantum of maintenance in favour of the wife/ complainant.
xii. that the wife has been earning hefty amount from her piano classes, interest income and income from various companies and the Trial Court without appreciating and analysing the said fact granted the Digitally signed by maintenance of Rs.1 lakh per month to the PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.10.16 complainant from the date of application. 17:07:41 +0530 CA No. 22/2024 and CA No. 50/2024 Page 7 of 27 xiii. that from the impugned order it is clear that the complainant/ wife has concealed her actual income from the court and has taken different stands for the same income of Rs.1 lakh per month which she has been getting from her piano classes.
xiv. that the Ld. Trial Court failed to appreciate the fact that the complainant/ wife had to show the lack of sufficient independent income to support her, however, she has failed to place any document on record and hence impugned order is liable to be set- aside.
5. On the other hand, the wife has filed the appeal bearing CA No. 50/2024, seeking enhancement of interim maintenance to the tune of Rs. 3 lacs per month and Rs.1 lac per month towards rented accommodation as prayed by her in application u/s 23 PWDV Act 2005, assailing the impugned order on various grounds which can be summarized as under:-
i. that the impugned order has been passed in a mechanical manner and without due consideration of the facts and circumstances of the case.
ii. that the Ld. Trial Court did not deliberate upon and give any finding on the written submission filed by the wife/ complainant while passing the impugned order.
Digitally signed by PURSHOTTAM iii. that the impugned order has been passed PURSHOTTAM PATHAK PATHAK Date: 2024.10.16 17:07:47
without considering the objective and purpose of +0530 CA No. 22/2024 and CA No. 50/2024 Page 8 of 27 award of interim maintenance as per settled law on the issue.
iv. that the Ld. Trial Court erred in declining the claim of Rs. 1 lac towards residence prayed for by the wife/ complainant on an incorrect premise that in her pleadings she has stated that she along with respondent no. 1 started residing in house bearing no. 5A, Lane W- 15K, Western avenue, Sainik Farm, which belongs to her parents and when she continues to reside, it is incomprehensible as to how all of a sudden such a hefty amount of sum is sought to be paid to the parents of aggrieved.
v. that the Ld. Trial Court remained oblivious of the settled legal position that after solemnization of marriage, it is not the legal obligation of the parents of a married daughter to maintain her rather, it is the duty of husband to maintain his wife and the legal obligation to provide shelter cannot be burdened upon the parents of the appellant.
vi. that the Trial Court has lost the sight of the specific pleadings by wife/ complainant that residence at the parental house of the wife/ complainant was only a temporary arrangement on the assurance of the husband /respondent no.1 to purchase a bigger accommodation and hence, the Digitally question of giving a sum of Rs. 1 lac as rent to her signed by parents does not arise.
PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK Date:
2024.10.16
17:07:52
+0530
CA No. 22/2024 and CA No. 50/2024 Page 9 of 27
vii. that the Ld. Trial Court while acknowledging
that the objective of grant of interim maintenance is to enable the aggrieved to maintain a decent lifestyle to which she is accustomed has completely overlooked the lifestyle to which the complainant was accustomed to during her co-habitation with the respondent no. 1.
viii. that the Ld. Trial court erred in opining that the aggrieved may claim her right of residence in the house situated at Gurugram, while the Ld. Trial Court had already observed that the parental house of wife/ complainant is the shared house hold since the wife/ complainant and the respondent no. 1 resided together in the said house.
ix. Ld. Trial Court erred in observing that the wife/ complainant is getting monthly income of Rs. 1 lakh from freelance piano classes and rejected the contention of the wife/ complainant without considering the expenses being undertaken by the wife/ complainant for piano classes.
x. that the Ld. Trial Court has overlooked the additional affidavit dated 01.11.2022 which categorically stated that the income generated by the wife/ complainant from all her sources was around Rs. 1 lac per month.
Digitally signed by PURSHOTTAM xi. that the Ld. Trial Court has erred in PURSHOTTAM PATHAK overlooking the significance of CTC of the husband/ PATHAK Date:
2024.10.16 17:07:57 +0530 respondent no.1 which includes HRA, leave travel CA No. 22/2024 and CA No. 50/2024 Page 10 of 27 allowance, special allowance, festival allowance, variable pay, performance bonus etc and only relied upon the salary slip of the husband/ respondent no.1.
xii. that the Ld. Trial Court while passing the impugned order has erred in observing that the aggrieved person has failed to justify her expenses for claiming the sum of Rs.3 lakhs per month as interim maintenance.
xiii. that the Ld. Trial Court while passing the impugned order remained completely silent on the fact that the husband/ respondent no. 1 has placed on record his annual salary compensation review of 2022 which is clearly indicative of the fact that total CTC of the husband/ respondent no.1 is Rs.1,96,15,999/- + Rs.12,00,000/- conveyance as per salary slip totaling to Rs.2,08,15,999/- per annum, thereby making his salary Rs.17,34,666/- per month.
xiv. that the Ld. Trial Court completely overlooked the bank account statement of the husband / respondent no. 1 which indicate that he has been living an extravagant lifestyle whereas the wife/ complainant has been unable to maintain herself without borrowing money from her parents. Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK
6. I have heard Ld counsel for both the parties and PATHAK Date:
2024.10.16 17:08:04 +0530 perused the record.CA No. 22/2024 and CA No. 50/2024 Page 11 of 27
7. Ld. Counsel for the husband/respondent argued on the similar line of grounds as taken in the instant appeal. It was forcefully argued that the impugned order is not sustainable in the eyes of law as Ld. Trial Court wrongly assessed the income of respondent/husband @ Rs.11,00,000/- per month. It was further argued that the wife is well educated and is earning more than Rs.1,00,000/-. It is urged that complainant/wife herself has committed various acts of cruelty upon the husband and as such, respondent/husband is not liable to pay maintenance to her. He also argued that the wife has never been subjected to domestic violence. It was urged that the expenses as claimed by complainant/wife are exaggerated, unsubstantiated by documents and are duplicate in nature.
8. It was vehemently argued that as per income affidavit of complainant/wife, her expenses are not more than Rs.3 lacs per month, which are also on higher side as the few expenses are not necessary for maintenance and are luxuries. It was further argued that the purpose of grant of maintenance is to provide sustenance to the wife / child and not make a profit out of same. It was further argued that Ld Trial Court failed to consider the fact that complainant/wife has not approached the court with clean hands rather concealed and suppressed material facts as well has made false and inconsistent statements.
9. It was argued that the claim of complainant/wife that Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK respondent/husband has assets worth several crores is PATHAK Date:
2024.10.16 17:08:09 +0530 entirely false and baseless. It was argued that Ld Trial CA No. 22/2024 and CA No. 50/2024 Page 12 of 27 Court failed to consider the settled principle of law that the purpose of grant of interim maintenance is not to equalize the income of the parties but to look for genuine needs of dependents. On the strength of these arguments, husband/respondent seeks setting aside of impugned order.
10. To Corroborate the arguments, Ld. counsel for the husband has relied upon certain judgments: Ranjeeta Vs. State of UP and another 2023 AHC 100373, Mamta Jaiswal Vs. Rajesh Jaiswal, Manu/MP/0398/2000, Rajanti Vs. Phool and Ors. Manu/RH/0216/1989, Sanjay Bharadwaj & Ors Vs. The State & Anr. Crl. M. C. No. 491/2009, Niharika Ghosh Vs. Shankar Ghosh, MAT. APP (F.C.) 248/2019, Kamal Singh Vs. Kanta Bangari, Manu/DE/8321/2023, Amit Sharma Vs. Shelkka Sharma and Ors., MANU/DE/1997/2022, Hemlataben Vs. State SCR.A/2080/2010 and Rajnesh Vs. Neha and Ors. Manu/SC0833/2020.
11. On the other hand, Ld. counsel for the wife/ complainant argued that the Ld. Trial Court has wrongly awarded the maintenance of only Rs.1,00,000/- per month to her. He also argued that the husband respondent has various sources of income beside his salary of Rs.17,34,666/- per month and has given false declaration that he is having annual income of Rs.11,00,000/- per month. It was further argued that respondent/husband is deliberately concealing his true income.
Digitally signed by 12. It was urged that respondent/husband has compelled PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.10.16 17:08:15 the complainant/wife to live in a state of destitution and +0530 CA No. 22/2024 and CA No. 50/2024 Page 13 of 27 has failed to provide for dignified standard of life rather she is constrained to seek financial help from her father.
13. It was argued that it is settled law that husband is under legal and moral obligation to maintain his wife and child, if any. It was argued that complainant/wife is accustomed to similar lifestyle that she enjoyed during cohabitation with respondent/husband. It was argued that respondent/husband has withheld his true income from the court and assessment of his monthly income @ Rs.
11,00,000/- lacs by Ld Trial Court is on a very lower side. It was urged that a monthly sum of Rs.3 lacs is required for the maintenance of complainant/wife for affording her same lifestyle and status which she was enjoying prior to souring of relationship between parties.
14. Ld counsel urged that at present, the complainant/wife has been compelled to cut down her expenses considerably as no maintenance is being provided to her. It was argued that it is not the legal obligation of parents of a married daughter to maintain her, rather it is the husband who is legally bound to maintain her. It was argued that the observations made by the Ld. Trial Court that the wife seeking shelter at parental home is not entitled to any rent is bad in law.
15. In support of his contentions, Ld. counsel for the complainant/ wife has relied upon certain judgments:
Shailja & Anr. Vs. Khobbanna (2017 SCC Online SC 269), Digitally signed by PURSHOTTAM Sunita Kachwaha and Ors. Vs. Anil Kachwaha, (2014) 16 PURSHOTTAM PATHAK PATHAK Date:
2024.10.16 17:08:21 SCC 715, Kripa Narayan Vs. Mamta Pathak 2016 SCC +0530 CA No. 22/2024 and CA No. 50/2024 Page 14 of 27 OnLine Del 4780, Radhika Narang & Ors. Vs. Karun Raj Narang & Anr. (2009)108 DRJ 421 (DB), Meenu Chopra Vs. Deepak Chopra 2001(59) DRJ 761, Rani Seth Vs. Sunil Sethi 211 SCC OnLine Del 1632, Prabha Tyagi Vs. Kamlesh Devi (2022) 8 SCC 90, Rajnesh Vs. Nea & Anr. Criminal Appeal No. 730 of 2020 (Arising out of SLP (Crl.) No. 9503 of 2018), Prashant Kaila Vs. Himani Kapila HMA No. 585/18 and Himani Kapila Vs. Prashant Kapila dated 05.08.2021 passed by Hon'ble High Court.
16. I have heard the rival contentions and perused the record.
17. At the outset, I may observe that the factum of marriage has not been disputed by the parties. The complainant/ wife alleged that she was subjected to domestic violence by the respondent/ husband and his mother. However, the same has been denied by the respondent/husband. It is a settled law that serious disputed questions of fact (requiring evidence) cannot be gone into at the time of deciding an application for grant of interim maintenance and as the same can only be decided during the course of trial after parties lead their respective evidence. Since, the respondent/wife has made allegations of she being subjected to domestic violence by appellant, a prima facie case for domestic violence is made out in the instant case. Therefore, the observation of Ld Trial Court on this count cannot be faulted with. Hence, the said plea Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK of appellant/husband stands rejected without being any PATHAK Date:
merit.
2024.10.16 17:08:25 +0530 CA No. 22/2024 and CA No. 50/2024 Page 15 of 27
18. Coming to the contention of Ld. Counsel for the wife/complainant that the Ld. Trial Court erred in declining the claim of Rs. 1 lac towards residence. Section 17 of the D.V. Act grants an aggrieved woman the right to live in the "shared household". Section (2)s defines "shared household" to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.
19. Section 19 (1) (f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
20. So far as residence order is concerned, it is the contention of wife/complainant herself that she is residing in the same house in which she lived with her husband after their marriage. As per admission by wife herself, made in her complaint under section 12 DV Act, the address -5A, Lane W-15K, Western Avenue, Sainik Farms, is the shared household. There is no positive proof of any apprehension for dispossession from the said house. In fact Digitally signed by PURSHOTTAM she has shown her intention to retain that house by asking PURSHOTTAM PATHAK PATHAK for payment of Rs.1 Lakh from husband/respondent, which Date:
2024.10.16 17:08:31 +0530 CA No. 22/2024 and CA No. 50/2024 Page 16 of 27 she want to give as rent to her parents, who are the owners of that house.
21. Complainant / wife is still residing in the same house and has not not taken any alternative accommodation on rent. She has also not claimed any right to residence in her husbands house, situated at Gurgaon and same has also not been denied by Trial court as the Trial court in the impugned order has observed that, if she wishes to claim right of residence in house situated at Gurgaon, she can do so. The wife has not been able to show as to how the findings of Ld. Magistrate are illegal.
22. Ld. Counsel has tried to argue that the Ld. Trial court overlooked the fact that residence at parental home of appellant was only a temporary arrangement. In my opinion, this cannot justify an inference that same is not the shared household or that wife is paying any rent to her parents. Moreover, during the arguments in appeal, Ld. Counsel has not been able to show anything that wife is paying rent to her parents. There was no occasion for the Ld. Trial court to assume that complainant needs to pay rent to her parents for the house in which she is living since marriage.
23. Trial court is fully justified in her reasoning that aggrieved is residing in the shared household and is not incurring any expenditure on accommodation, no amount Digitally of interim maintenance towards residence of aggrieved is signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
warranted. In the available circumstances, I am of view 2024.10.16 17:08:36 +0530 CA No. 22/2024 and CA No. 50/2024 Page 17 of 27 that no relief as prayed for complainant could have been granted by Ld. Magistrate.
24. Now the legality of award of interim maintenance @ Rs. 1 lac per month by impugned order shall be decided by this court. Before considering respective contentions of parties, I may mention here that while fixing an interim maintenance, court has to take a prima facie view of the matter and need not to critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same, the evidence would be required. But, at the same time, an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial. It is also pertinent to note here that as per the dictionary meaning of the word 'maintenance', it includes all such means of living as would enable one to live in the degree of comfort, suitable and becoming to his situation of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expenses or other proper cognate purposes. For computing the maintenance, the following tests have been laid down by Hon'ble Apex Court in Jasbir Kaur Sehgal vs. District Judge, Dehradun & Ors. 1997 (7) SCC 7, wherein it has been observed that:-
"No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having Digitally signed by regard to his reasonable expenses for his own maintenance and of PURSHOTTAM PURSHOTTAM PATHAK those he is obliged under the law and statutory but involuntary PATHAK payments or deductions. The amount of maintenance fixed for the Date:
2024.10.16 17:08:41 +0530 wife should be such as she can live in reasonable comfort CA No. 22/2024 and CA No. 50/2024 Page 18 of 27 considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."
25. Further, Hon'ble Apex Court in case titled as Rajnesh Vs Neha & Anr, Crl. Appeal No. 730/2020 (arising out of SLP (Crl) No. 9503/2018, dated 04.11.2020 has held as under :
"Criteria for determining quantum of maintenance (i) The objective of granting interim / permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non working wife."
26. In Manish Jain v Akanksha Jain, this Court held that :-
"the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it. Digitally signed by On the other hand, the financial capacity of the PURSHOTTAM PURSHOTTAM PATHAK husband, his actual income, reasonable expenses for his own PATHAK Date:
2024.10.16 maintenance, and dependent family members whom he is obliged to 17:08:45 +0530 maintain under the law, liabilities if any, would be required to CA No. 22/2024 and CA No. 50/2024 Page 19 of 27 be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. (ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.
The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meager that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort"
27. Further, the Delhi High Court in Bharat Hegde v Smt. Saroj Hegde, 140 (2007) DLT 16, laid down the following factors to be considered for determining maintenance :
1. Status of the parties.
2. Reasonable wants of the claimant.
3.The independent income and property of the claimant.
4. The number of persons, the non applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.
10. The non applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act.
Digitally signed by PURSHOTTAM
28. Firstly, I shall deal with various pleas as taken by PURSHOTTAM PATHAK PATHAK Date:
2024.10.16 17:08:51 +0530 respondent/husband while assailing the impugned order CA No. 22/2024 and CA No. 50/2024 Page 20 of 27 dated 12.12.2023. One of the grounds on which husband/ respondent seeks setting aside of impugned order is that complainant/wife is a well qualified woman and she is capable of earning and rather she is earning being a piano Teacher. It is claimed that she is also having earnings from interest income and income from various companies. In rebuttal, it was argued on behalf of complainant/wife that complainant/wife is working as a piano teacher from which she has having earning of Rs.47,000/- per month, she is earning Rs.21,000/- per month as salary from the company and Rs.11,500/- per month as interest. However, that amount is not sufficient for her to maintain the lifestyle what she was maintaining at the time when she was living with her husband. It is a trite preposition of law that simply because the wife is earning or capable of earning, her claim cannot be rejected inlimini. It has to be found out as to whether the amount if any, she is earning, is sufficient to meet her creature comforts; to keep her body soul together; to keep the wolf from the door; and to keep the pot boiling. It is also a cardinal principle of matrimonial law that a wife is entitled to same life style which is commensurate with the status of her husband. Reliance is placed upon judgment of Rajnesh Vs Neha & Anr (supra) wherein it has been held as under:-
(c) Where wife is earning some income The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband.
The Courts have provided guidance on this issue in the following Digitally signed by judgments.
PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK Date:
2024.10.16
In Shailja & Anr. V. Khobbanna , 39 this Court held that merely 17:08:56 +0530 because the wife is capable of earning, it would not be a sufficient CA No. 22/2024 and CA No. 50/2024 Page 21 of 27 ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home.40 Sustenance does not mean, and cannot be allowed to mean mere survival.41 InSunita Kacchwaha & Ors. V. Anil Kachwaha 42 the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance. The Bombay High Court in Sanjay Damodar Kale V. Kalyani Sanjay Kale 43 while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance. An able- bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakah Bodhraj V. Shila Rani Chander (2018) 12 SCC 199.
See also Decision of the Karnataka High Court in P. Suresh V. S. Deepa & Ors. , 2016 Cri LJ 4794.
Chaturbhuj V. Sita Bai, (2008) 2 SCC 316. Vipul Lakhanpal V. Smt. Pooja Sharma, 2015 SCC OnLine HP 1252. (2014) 16 SCC 715.
2020 SCC OnLine Bom 694.
Prakash.44 The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
This Court in Shamima Farooqui V. Shahid Khan 45 cited the judgment in Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife."
29. Further, Hon'ble High Court of Delhi in case titled as Kanupriya Sharma Vs. State and Anr., Crl Revision petition 849/2018, CRL MA No. 33234/2018 has observed Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
as under:-
2024.10.16 17:09:00 +0530 CA No. 22/2024 and CA No. 50/2024 Page 22 of 27 "Further, it may be seen that claim of maintenance by a wife under Section 125 Cr.P.C. is qualified by the expression "unable to maintain herself".
There are no such qualifying words under the DV ACt. Under section 12 of DV Act, an aggrieved person can approach the Magistrate seeking one or more of the reliefs under the DV ACt. Under section 20 DV Act, the magistrate has powers to direct Respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may inter alia include the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 Cr.P.C. or any other law for the time being in force. Undersection 20(2) the monetary relief granted has to be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
The grant of maintenance under the DV Act has not been made dependent upon the expression "unable to maintain herself". Further, the expression "unable to maintain herself" does not mean capable of earning.
In the present case, whether Petitioner is actually earning or qualified and capable of earning are again two different things. As noticed above, no material has been produced by Respondent no. 2 to show that the Petitioner is gainfully employed or receiving any salary and actually earning. The pleas raised by the Respondent no. 2 would be required to be established at trial. Till Respondent no. 2 establishes by leading cogent evidence that Petitioner is gainfully employed and receiving salary, there is no justification to deny maintenance to the Petitioner-wife".
30. Therefore, the contentions of respondent/husband that complainant/wife is not entitled for any maintenance from husband as she is earning, is without merit. Further, her earning cannot said to be sufficient to afford her the same life style and comfort which is commensurate with life style of respondent/husband.
31. The respondent/husband in the instant case claims his income to be around Rs.11,00,000/- lacs per month. After Digitally going through the record, I am of the very firm view that signed by the respondent/husband is a man of means as apart from PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.10.16 17:09:05 +0530 salary, he is having income from various sources. The said CA No. 22/2024 and CA No. 50/2024 Page 23 of 27 admitted facts and documents placed on record speaks volume about his economic capacity. Therefore, seen in the aforesaid facts and circumstances, the assessment of monthly income of respondent/husband @ Rs.11,00,000 by Ld Trial Court can by no stretch of imagination said to be excessive and rather I may add that Ld Trial Court has taken a conservative view while assessing monthly income of respondent/husband @ Rs.11,00,0000/-.
32. It is a settled law that a wife is entitled to the same status and life style which she was enjoying prior to severing of relationship. Therefore, interim maintenance has to be commensurate with her needs as well as income of her husband. Though, the exact income of respondent/husband shall be assessed during course of trial only, however in view of the material available on record, the assessment of monthly income of respondent @ Rs. 11,00,000/- (by Ld. Trial Court) cannot be faulted with. Therefore, considering the economic capacity of respondent/husband and the life style and the status which wife was enjoying prior to separation, award of interim maintenance @ Rs.1,00,000/- cannot said to be without any legal/factual basis so as to take a contrary view. Therefore, the appeal filed by respondent/husband is without any merit.
33. Now to the appeal filed by complainant/wife; in her appeal, she has challenged the impugned order on the Digitally signed by ground that the interim maintenance awarded to her is on a PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.10.16 lower side and has prayed for enhancement of same @ 17:09:11 +0530 CA No. 22/2024 and CA No. 50/2024 Page 24 of 27 Rs.3 lacs per month. However, as mentioned herein above, the findings of Ld Trial Court regarding monthly income of respondent/husband @ Rs.11,00,000/- have not been disturbed by this court. I may add at the cost of repetition that the said findings of Ld Trial Court (having not been disturbed by this court) are only prima facie in nature and exact income of respondent/husband shall be decided by Ld Trial Court during course of trial only. Though, the complainant/wife claims interim maintenance @ Rs.3 lacs per month and for justifying the said claim, she has given the details of expenses under different heads in her income affidavit.
34. Perusal of Trial Court record reveals that two income/liability affidavits came to be filed by wife/complainant in the Ld Trial Court. In both the affidavits, wife/complainant had shown her expenditure @ Rs.3,00,000/- per month under different heads against a monthly income of around Rs. 1,00,000/- from all sources. However, it is evident that wife/ complainant has taken inconsistent stand with regard to her income thereby raising serious doubts about her bonafide affidavit thereby downsizing her income.
35. In my view, downsizing of income by wife/complainant is nothing but a desperate attempt on her part to wriggle out of her admission that her monthly income from Piano classes is Rs.1,00,000/- per month. Digitally signed by PURSHOTTAM Therefore, it is evident that she has withheld her true PURSHOTTAM PATHAK PATHAK Date:
2024.10.16 17:09:16 +0530 income from court. That being the case, the income of CA No. 22/2024 and CA No. 50/2024 Page 25 of 27 wife/ complainant cannot be less than what is shown at the time of filing of complaint and later on under different heads and the assessment of her monthly income @ Rs.1,00,000/-(by Trial Court), is quite justified.
36. I am desisting myself from scrutinizing in detail the different heads of said expenses. However, suffice it would be to say that on a cursory reading of said affidavits, the expenses (under different heads) appear to be on higher side and exorbitant. It appears that same have been claimed to make out a case for monthly maintenance @ Rs.3 lacs. Therefore, the claim of complainant/wife for enhanced interim maintenance is also liable to be rejected.
37. I may hasten to add here that Ld Trial Court is yet to assess exact monthly income of both the parties and has only given a prima facie findings regarding the income / maintenance vide impugned order. The exact monthly income of the parties is yet to be assessed by Ld Trial Court which would only happen during course of trial. At this stage, I have no reason to substitute my own view (in the capacity of being Appellate Court) with that of Ld Trial Court that too at interim stage.
38. In view of the above observation, the appeal bearing no. CA No. 22/2024 and 50/2024 are accordingly dismissed.
39. Both the appeals are disposed of in terms of PURSHOTTAM PATHAK aforesaid observations.
Digitally signed by PURSHOTTAM PATHAK Date: 2024.10.16 17:09:22 +0530 CA No. 22/2024 and CA No. 50/2024 Page 26 of 2740. Both the appeal files be consigned to record room after due compliance. One copy of judgment under signature of undersigned be placed in CA No. 50/2023 and digitally signed copies be placed in the other appeal.
41. TCR be sent back to Ld Trial Court along with a copy of this judgment.
42. Copy of this judgment be given dasti to parties.
43. All the appeal files be consigned to record room after Digitally signed by PURSHOTTAM due compliance. PURSHOTTAM PATHAK PATHAK Date: 2024.10.16 17:09:29 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 16th DAY OF OCTOBER, 2024 SAKET COURTS: N.D (This judgment contains total 27 signed pages) CA No. 22/2024 and CA No. 50/2024 Page 27 of 27