Delhi District Court
Ca No. 42/14. Dr. Nihal Singh vs . Dr. (Mrs.) on 21 November, 2014
CA No. 42/14. Dr. Nihal Singh Vs. Dr. (Mrs.)
Priyanka Singh Badalia & Another.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
CA No. 42/2014.
Dr. Nihal Singh,
S/o Sh. Pratap Singh,
R/o J37, 1st Floor,
JBlock, Saket,
New Delhi110017. ... Appellant.
Vs.
1. Dr. (Mrs.) Priyanka Singh Badalia,
W/o Dr. Nihal Singh and
D/o Sh. K.S. Badalia,
2. Baby Harsha,
D/o Dr. Nihal Singh,
Both resident of:
H740, Palam Extension,
Sector 7, Dwarka,
New Delhi110077. ... Respondents.
Date of Institution. : 2.7.2014. Date of Arguments. : 19.11.2014. Page No. 1 of 19. Contd... ... ...
CA No. 42/14. Dr. Nihal Singh Vs. Dr. (Mrs.) Priyanka Singh Badalia & Another.
Date of Order. : 21.11.2014. 21.11.2014. Present: Appellant (husband) is present.
Respondent no. 1 (wife) is present for herself as well as for respondent no. 2 (her minor daughter). The case is fixed for order on the present appeal for today.
Arguments were addressed by Sh. Pramod Kapur, ld. counsel for appellant and respondent no. 1 on her behalf as well as on behalf of respondent no. 2, on 19.11.2014.
I have perused the entire record including TCR, written arguments and case laws filed on behalf of both the parties, carefully.
:: ORDER ::
1. The challenge in the present criminal appeal u/s 29 of Protection of Women from domestic Violence Act, filed by the appellant is to the impugned order dated 3.6.2014 of Ms. Charu Gupta, ld. MM (Mahila Court2), Dwarka Courts, Delhi, in complaint case no. 1003/1/11, titled as "Priyanka Singh Badalia Page No. 2 of 19. Contd... ... ...
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& Another Vs. Nihal Singh & Others" whereby the appellant (husband) was directed to pay a sum of Rs. 10,000/ per month to the respondent no. 1 towards her maintenance, Rs. 10,000/ per month towards rent/alternative rental accommodation and Rs. 5,000/ per month towards maintenance of their minor daughter (respondent no. 2 herein), from the date of filing of petition i.e. 6.5.2011, till the disposal of the petition on merits. It was further ordered that considering the rising inflation, the aggrieved person shall be entitled to 10% yearly increase in the awarded maintenance.
2. The appellant is the husband of the respondent no. 1 and father of the appellant no. 2 (minor daughter).
3. The case of the appellant is that the interim maintenance awarded by the ld. Trial Court, is excessive in view of the fact that the appellant is unemployed having no source of income. Ld. counsel for appellant had further submitted that the ld. Trial Court has not properly considered the judgment of Hon'ble Supreme Court in the case of "Jasbir Kaur Sehgal (Smt.) Vs. District Judge, Dehradun & Others", V (1998) SLT 551, and inspite of the fact that the appellant has categorically Page No. 3 of 19. Contd... ... ...
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mentioned in his affidavit that he is unemployed, the ld. Trial Court erred in relying upon his previous contractual employment, when he was earning Rs. 45,000/ per month. He had also argued that admittedly the respondent no. 1 is a graduate in BSc (H), Master in Physiotherapy and MA (English) and a professional MPT Orthopedician and was running her own physiotherapy clinic untill October 2010, therefore in view of the judgment of Hon'ble Delhi High Court in the case titled as "Sanjay Bhardwaj & Others Vs. State & Another", 171 (2010) DLT 644, both the parties stand on equal footing, are professional degree holder and since the respondent no. 1 has capacity to earn and is deliberately not earning, therefore the appellant is not liable to pay any amount to the respondents. The ld. counsel for appellant had prayed for setting aside the maintenance amount as mentioned in the prayer clause of the appeal. He had relied upon the following judgments:
(i) Sanjay Bhrdwaj & Others Vs. State & Another, 171 (2010) DLT 644.
(ii) Poonam Vs. Mahender Kumar, Crl. MP No. 18899/2009.
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(iii) Balwant Singh Vs. Jagdish Singh & Others, Civil Appeal No. 1166 of 2006.
4. Per contra, it is the case of the respondents that in the previous criminal appeal filed by the respondents herein against the interim maintenance order, Court of Sh. S.C. Rajan, ld. Special Judge (NDPS), Dwarka Courts, Delhi, vide his order dated 19.12.2012, had directed the ld. Trial Court to decide the interim relief to the respondents, after assessing the income of the appellant. It is further the case of the respondents that in the previous interim relief order dated 24.6.2011 by Ms. Shelly Arora, the then ld. MM, Dwarka Courts, Delhi, she had awarded Rs. 15,000/ per month to Baby Harsha (respondent no. 2 herein), but the same has now been drastically reduced to 1/3rd i.e. Rs. 5,000/ per month vide impugned order, without any cogent or germane reason and it is not possible to arrange reasonable schooling for Baby Harsha and to provide her other support including medical facilities within such a meager amount of Rs. 5,000/ on monthly basis. It is further the case of the respondents that the status of the family of the appellant, who are residing in the posh colony of Saket, South Delhi, Page No. 5 of 19. Contd... ... ...
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which was the matrimonial home of the respondent no. 1, has not been kept in view inspite of the fact that the joint family of appellant has admitted owning three big residential properties in Saket, a big house in Chirag Delhi and a house in Maidangarhi apart from many other precious properties purchased by disposing off the ancestral properties in which the appellant had definite share being a coparcner. It is also the case of the respondent no. 1 that she had demanded a residence in the properties owned by the joint family in Saket, where other members of the appellant's family are residing and not the rent for hiring residence. The respondents had also relied upon the judgment in the case of "Ashish Dixit & Others Vs. State of UP & Another", Criminal Appeal No. 43 of 2013, of Hon'ble Supreme Court to claim vide the said judgment, the Trial Courts were directed to proceed against the husband, father in law and mother in law of the complainant for the purpose of complaint u/s 12 of the aforesaid Act. Ld. counsel for respondents had relied upon Section 2 (q) of the said DV Act and judgment in case titled as "Sou. Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade & Otehrs", 2011 (2) Scale 94, to argue that female relatives of husband or the male partner can be made respondents in Domestic Violence Act Page No. 6 of 19. Contd... ... ...
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cases. He had further relied upon the judgment in the case of "Jagdev Singh Vs. Paramjit Kaur & Others", CRR No. 2937 of 2010 (O & M) dated 12.9.2013, to claim the father in law is also liable to pay maintenance to the aggrieved person. It is prayed on behalf of the respondents that the present appeal may be dismissed. The respondents have relied upon the following judgments:
(i) Suresh Vs. Jaibir, (2009) 154 PLR 86.
(ii) Harbans Lal Malik Vs. Payal Malik, 2010 (3) LRC 177 (Del).
(iii) Nivendran & Others Vs. Nivashini Mohan & Another, AIR 2010 (NOC) 688.
(iv) Chandrakant Nivruti Wagh & Others Vs. Manisha C. Wagh & Another.
(v) Razia Begum Vs. State NCT, Delhi, 2010 (4) LRC 86 (Del).
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(vi) Ashish Dixit & Others Vs. State of UP & Another, 2013 STPL (Web) 44 SC.
(vii) Jagdev Singh Vs. Paramjit Kaur & Others, CRR No. 2937 of 2010 (O & M) dated 12.9.2013.
(viii) Sou. Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade & Others 2011 (2) Scale 94.
(ix) Sanjay Bhardwaj & Others Vs. State & Another, 171 (2010) DLT 644.
(x) Sukrit Verma & Another Vs. State of Rajasthan & Another.
5. In her affidavit, respondent no. 1 claimed herself to be a graduate in BSc (H), Master in Physiotherapy and MA (English) and a professional MPT Orthopedician, but is claiming herself to be unemployed. As per order of the ld. Trial Court, the respondent no. 1 has admitted that she was running her own physiotherapy clinic untill October 2010. Still her earning at that point of time has not been mentioned. She has also Page No. 8 of 19. Contd... ... ...
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claimed to own furniture, fixture, plant and machinery worth Rs. 5 lacs approximately and several other LIC policies.
6. On the other hand, as per the affidavit filed by the appellant, he is a qualified MBBS Doctor, but claims himself to be unemployed since February 2013. However he has conceded that immediately prior to his being unemployed i.e. till January 2013. he was earning Rs. 45,000/ per month. However admittedly he has not disclosed whether he voluntarily resigned from his job or otherwise lost his job. In his incomes, he has also disclosed his assets to include an FDR for sum of Rs. 4.50 lacs, which is jointly in the name of the appellant and his father. He has also disclosed himself to be the owner of one motorcycle worth Rs. 20,00025,000/ and claims investment in several LICs. He has denied owning any immovable property in his name, but has also not denied living jointly with his parents in the property owned by them. The ld. Trial Court has observed that it transpired from the affidavit of the appellant, that the mother of the appellant is owner of four immovable properties while one of the properties is owned by the father of the appellant. The appellant has not denied his joint residence or the shared household at the property situated at J37, Sadh Page No. 9 of 19. Contd... ... ...
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Nagar, Ground Floor, which is owned by the father of the appellant, while first floor is in the name of mother of the appellant, as he has not cited expenses of any rental accommodation in his expenditures.
7. The ld. Trial Court rightly relied upon the case of Hon'ble Supreme Court in the case of "Kirtikant D. Vadodaria Vs. State of Gujarat, (1996) 4 SCC 479, wherein it was observed that there is an obligation for the husband to maintain his wife which does not arise by reason of any contract express or implied but out of jural relationship of husband and wife, consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife.
8. The respondent no. 1 holds almost an equivalent degree of qualification as the appellant, be a ground to be considered in deciding the quantum of maintenance. However the same does not disentitle her from claiming maintenance from her husband for herself and for their child, to which both of them owe equal Page No. 10 of 19. Contd... ... ...
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responsibilities. Further the ld. Trial Court rightly opined about that reasonableness of the ground of unemployment of complainant (respondent no. 1 herein) and had accordingly opined that tender age of daughter of the complainant and responsibility to look after her, is sufficient reason for her to be unemployed. Thus the ld. Trial Court rightly opined that the unemployment by choice of the complainant is not a sole ground to deny her maintenance, where the same is reasonably explained.
9. Further the ld. Trial Court rightly relied the judgment of Hon'ble Supreme Court of India in the case titled as "Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel & Others", Criminal Appeal No. 502 of 2008, wherein it was held that maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter in law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is cosharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother in law can neither be a subject matter of attachment nor during the life Page No. 11 of 19. Contd... ... ...
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time of the husband, his personal liability to maintain his wife, can be directed to be enforced against such property. Thus the ld. Trial Court rightly concluded that the respondents are not entitled to maintenance out of the movable or immovable assets of the parents of the appellant.
10. However as regards her right to residence, the ld. Trial Court rightly opined that Section 17 of DV Act entitled her the right to reside in a shared household irrespective of her right, title or beneficiary interest in the same. In this regard, it further correctly observed that decision of Hon'ble Supreme Court in the case of "S.R. Batra Vs. Taruna Batra", (2007) 3 SCC 169, would not stand in her way, where the husband i.e. appellant is sharing the household and living jointly with his parents, though such relief shall not be available against the parents of the appellant. Such a husband cannot be allowed to shun his responsibility to provide an alternative residence of equal level merely on the ground that he himself is dependent on his parents. The respondent no. 1 would be legally entitled to enjoy an accommodation of equal nature as that enjoyed by her husband under the veil of dependency. Accordingly the ld. Trial Court correctly held that the complainant is entitled to Page No. 12 of 19. Contd... ... ...
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maintenance and accommodation for herself and her daughter from appellant alone, till the final disposal of present petition.
11. The ld. Trial Court further rightly relied upon the case of "Jasbir Kaur Sehgal (Smt.) Vs. District Judge, Dehradun & Others", V (1998) SLT 551, to opine that the law makes provision to strike a balance between the standard of living, status and luxuries that were enjoyed by a spouse in the matrimonial home and after separation and the needs of the parties, capacity to pay etc. must be taken into account while deciding quantum of maintenance
12. Further the ld. Trial Court also rightly relied upon the case of "Jasbir Kaur Sehgal (Smt.)" (supra) that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore, some guesswork on the part of the court is permissible. Considering the diverse claims made by the parties one inflating the income and the other suppressing, an element of conjecture and guesswork does enter for arriving at the income of the husband. It cannot be done by any mathematical precision.
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13. The ld. Trial Court also rightly relied upon the case titled as "Neeta Rakesh Jain Vs. Rakesh Jeetmal Jain", II (2010) DMC 275 (SC), wherein Hon'ble Supreme Court opined that in the matter of making an order for interim maintenance, the discretion of the Court must be guided by the criterion provided in the section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status, the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the Court may not be necessary, but, at the same time, the Courts has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the status.
14. Since the respondents had cited the various incidents when she was subjected to domestic violence by the appellant and his family members, therefore the ld. Trial Court rightly held that the same prima facie established that the complainant was subjected to Domestic violence by the appellant and his family members.
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15. From the impugned order of the ld. Trial Court, it appears that the ld. Trial Court had relied upon the previous income of Rs. 45,000/ per month of the appellant (husband) in awarding the aforesaid total interim maintenance. The said amount was ordered inspite of the fact that the appellant has mentioned in his affidavit that he is presently unemployed. It appears that the said amount was ordered prima facie considering the fact that the appellant, who is a qualified doctor, has the capacity to earn Rs. 45,000/ per month on the basis of his previous income and had himself not resigned from his previous job, as no document of his termination was produced.
16. Out of the aforesaid deemed income of the appellant, total interim maintenance amount of Rs. 25,000/ cannot be said to be excessive or exorbitant by any stretch of imagination.
17. As observed by Hon'ble Supreme Court in Neeta Rakesh Jain's case (supra), detailed and elaborate exercise is not needed at the time of passing of interim maintenance order. Page No. 15 of 19. Contd... ... ...
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18. Also in case titled as "Abhijit Bhikaseth Auti Vs. State of Maharashtra & Another", MANU/MH/1432/2008, in para no. 20 and 21, it was held as under: "20. ... ... ... The orders contemplated by Section 23 are discretion orders. The Apex Court had an occasion to deal with the power of the Appellant Court and scope of appeals against interim orders which are discretionary in nature. In the case of Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai Rambhai Patel & Others, MANU/SC/3725/2006 :
2006 (33) PTC 281 (SC) the Apex Court dealt with an appeal provided under Rule 1 (r) of Order XLIII of the Code of Civil Procedure, 1908 against an interim order of injunction. Paragraph nos. 125 and 126 of the said judgment read thus:
125. We are not oblivious that normally the appellate Court would be slow to interfere with the discretionary jurisdiction of the trial Court.
126. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate Courts will usually not interfere with it. However, the appellate Courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the Court has ignored the settled principles of law regulating the Page No. 16 of 19. Contd... ... ...
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grant or refusal of interlocutory injunctions. This principle has been stated by this Court time and time again.
(Emphasis added)
21. In view of what is held by the Apex Court, while the Court of Session deals with an appeal from an order made under Section 23, the Court of Session will be governed by the aforesaid constraints. Thus, the scope of appeal against an order under Section 23 will be limited. While dealing with an appeal against an ex parte ad interim order, the Sessions Court will be very slow in interfering with such orders unless the orders are perverse or patently illegal. However, the scope of an appeal against a final order on application under Section 12 (1) of the said Act will not be governed by the aforesaid constraints."
19. The interim order has been passed by the ld. Trial Court as an interim measure and the same was a discretionary order and no material has been brought before this Court that the said discretion has not been judicially exercised. Further the disputed questions of facts can only be decided by means of evidence. The final maintenance order can be passed only after conclusion of trial. Both the parties would get ample opportunities to lead evidences in support of their respective cases. It is the legal and moral duty of the appellant (husband) to take care of his wife (respondent no. 1) and his minor Page No. 17 of 19. Contd... ... ...
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daughter (respondent no. 2), at least financially. No justifiable prima facie material has been placed before me to form a contrary opinion to that of the ld. Trial Court.
20. Thus in view of the aforesaid discussion and in view of the ratio of law laid down in aforesaid case, I am of the considered opinion that the ld. Trial Court has not passed the impugned order arbitrarily, capriciously, perversely or has not ignored the settled principles of law regulating the grant or refusal of interim injunction. Judgments cited by both the parties do not help their cases for changing the maintenance amount. Considering the facts and circumstances, no case for setting aside of interim maintenance amount as prayed for, is made out. Hence, there is no illegality or infirmity in the impugned order. No interference in the impugned order is called for. Accordingly the present appeal is dismissed. However it is clarified that the interim maintenance order shall be subject to the outcome of the final order by the ld. Trial Court and the ld. Trial Court will not be influenced by this order or by its interim maintenance order passed by it, while passing the final order on merits. The appeal is disposed of accordingly. Page No. 18 of 19. Contd... ... ...
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21. A copy of this order alongwith TCR be sent to the ld. Trial Court, for information and further proceedings as per law for the date already fixed before it i.e. 10.12.2014 (as stated by the appellant and respondent no.).
22. Parties are directed to appear before the ld. Trial Court on the given date and time.
23. Appeal file be consigned to record room. Announced in the open Court on 21.11.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 19 of 19. Contd... ... ...