Delhi District Court
Smt. Aruna Sharma vs Sh. Sanjay Kumar Sharma on 5 October, 2015
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA COURTS,
DELHI
Crl. (A) No. 2/15
Smt. Aruna Sharma
W/o Sh. Sanjay Kumar Sharma
D/o Sh. Ram Phal Sharma
R/o Flat No. 1A, Pocket - C,
DDA SFS (HIG) Flats,
Mayur Vihar, Phase III,
Delhi 110096. ............Appellant
Versus
1. Sh. Sanjay Kumar Sharma
S/o Sh. Ram Mehar Sharma
2. Ram Mehar Sharma ( Father in law)
3. Smt. Premwati ( Mother in law)
4. Rajeev @ Pintoo ( Dever)
5. Smt. Geetanjali ( Devrani)
W/o Sh. Rajeev @ Pintoo,
All R/o H No. 63, Jarnail EnclaveI,
New Defence Colony, Behind Lucky Dhaba,
Zirakpur, District. Mohali, Punjab.
............ Respondents
CA No. 2/15 Page 1 of 8
ORDER
1. By this order I shall dispose off the appeal filed by the appellant challenging the order of Ld. Trial Court dt. 26.09.14, whereby maintenance was granted to the child of parties but declined to the appellant.
2. The parties were married on 10.12.08. The child was born out of wedlock on 30.10.09. The appellant has been residing separately from 31.03.12. She has filed complaint at CAW Cell. She prays that she is unemployed while the respondent is earning RS.9,50,000/ per month. The order declining the maintenance to her has been challenged interalia on the ground that Trial Court did not consider the fact that the appellant who was earlier working had to leave her job due to her medical condition. She was suffering from Ovarian cyst. She had to leave her last job which she was doing in April, 2003 to September, 2003 under the scale of 16802175 per month from teaching in a Pvt. School namely A.C National Public School, Zirakh Pur. Thereafter, she could not get a job.
3. Ld. Trial Court ignored the medical documents of appellant. Respondent is earning approximately Rs.2,00,000/ per CA No. 2/15 Page 2 of 8 month which is much more than what appellant earned at any point of time. The appellant is entitled to live in equal status as the respondent. The maintenance granted to the child is also a meager amount of Rs.15,000/ though the respondent is earning approximate Rs.7,00,000/ per month.
4. Arguments heard. Record perused.
5. The appeal has been challenged on ground of limitation. It was argued that there was delay of 72 days, which has not been explained.
6. Ld. Counsel for the appellant argued that the appellant had initially filed a revision petition, which can legally be filed within 90 days from the date of order. The revision was filed with a delay of 12 days only. Later on, however, the revision was converted into appeal u/s. 29 of D.V.Act with the permission of the court. Since the appeal is to be filed within 30 days so the period of delay has become 72 days as of now.
7. It was argued that initial delay of 12 days was on account of illness of father of appellant. It was also argued that technicalities CA No. 2/15 Page 3 of 8 as per placed judgments should not come in the way of substantial justice. He relied upon judgment of Hon'ble High Court in 2009 (1) JCC 671 titled M/s. Kotak India Pvt. Ltd. Vs. State. The Hon'ble High Court in the said judgment held that petitioner is the complainant and it does not stand to get anything by resorting to delay. Adoption of strict standard of proof fails to protect public justice and pedantic approach needs to be avoided.... Even if there is no explanation of each day delay in pursuing the matter by the complainant, the court would not refuse to examine the case on merit by putting a sheet of technicalities but would rather condone the delay.
8. The delay is of 12 days if the ground being taken by the appellant is accepted. She says that she could not engage a counsel as her father was unwell and he was to give the instructions to the Advocate. For the stated reasons, the delay is condoned.
9. On merit it was argued that the appellant was working long back. In between she married and got a child. Later on she developed Ovarian Cyst due to which she had to leave her job. Her medical condition does not permit her to go out and work and these facts have not been considered by the Trial Court. The respondent CA No. 2/15 Page 4 of 8 has not disclosed his actual earning. He has disclosed the liabilities but not his income.
10. Ld. Counsel for the respondent on the other hand argued that appellant does not clearly says as to what is being challenged. The appellant says that the order be set aside, however, the order includes the maintenance granted to the minor child. It is not clarified as to what is the stand of the appellant on the maintenance granted to the child since if the order is set aside the whole of the order will go. It was further argued that the appellant did not disclose the duration and the salary of her past service, which compelled the court to conclude that she was capable of working. She is a qualified girl. The respondent is earning in dollars but is spending in dollars as well. Her medical documents do not say that she is incapable to work.
11. Ld. Counsel for the appellant relied upon the judgment of Hon'ble Supreme Court in 2014 (12) JT 107, Sunita Kachwaha & Ors. Vs. Anil Kachwaha. The Hon'ble Supreme Court in the said matter held that merely because the appellant wife is a qualified postgraduate, it would not be sufficient to hold that she is in a position to maintain herself. In the said matter the husband had CA No. 2/15 Page 5 of 8 alleged the wife was working, however, nothing was placed on record to substantiate the claim. He has also relied upon the judgment of Hon'ble Delhi High Court 2015 (3) CLJ 570 Delhi, titled Seema @ Swati Vs. Shyam Tandon, wherein the Hon'ble High Court held that wife was entitled to same standard of living as her husband. In 208 (2014) DLT 455 DB tilted Ruchi Rai Sehmbey Vs. Siman Jason Sehmbey, wherein it was held that "
In the opinion of the Court, employability and employment ought not to be misunderstood as being the same. That at a particular point of time, a spouse may have enjoyed the benefit of income might be a relevant consideration in the given set of circumstances as for instance the kind of remuneration he or she might have earned and capacity to save, etc. It is not in dispute that the wife is unemployed since her marriage and her employment with the British High Commission ended 78 years ago. There is no material on the record to say that she is likely to get employment in the near future and particularly of the nature of job she had earlier when she would have perhaps been suitable for the job".
12. The main grievance of the appellant is that Ld. Trial Court did not consider the fact that the employment of appellant in the past was of the year 200203. She also did not consider that the CA No. 2/15 Page 6 of 8 appellant could not pursue a job because of her illness.
13. The record reveals that the appellant herself has not disclosed before the trial court, the period of her past employment. She has filed an affidavit where she writes that she was doing teaching job in past. After that she does not write when where and how. She did not even disclosed what was she earning from the job.
14. Ld. Trial Court having concluded at the interim stage when there is no other evidence on record, that she was working in past and therefore could work, cannot be faulted with. She claims that she was unwell and so could not work again. As held by Ld. Trial Court, no where in the petition running in 71 pages has the appellant written that she is unable to work due to her illness. The illness is of cyst in ovary, as claimed by the petitioner. Apparently, none of the documents filed by her show that the appellant was unable to work on account of her illness. She anyway did not claim that she was unable to work due to her illness, in her petition.
15. In view of the facts as they the order passed by Ld. Trial Court cannot be termed as incorrect as it was passed on the basis CA No. 2/15 Page 7 of 8 of pleadings that were before it. The appellant after having disclosed that she worked in past as a Teacher, did not disclose when and why she left the job. Again she did not claim that her illness was such which had rendered her jobless. The appellant however, has disclosed these facts before this court. As per the law the trial court is the first court which has to consider these new facts pleaded by the appellant before the appellate court.
16. The appeal is remanded back for the stated reason for consideration of the pleas raised by the appellant in the appeal, which were not specifically pleaded before the trial court. Ld. Trial Court after hearing the plea of appellant shall decide her entitlement of maintenance, if any. Trial Court record be sent back with a copy of this order. Appeal file be consigned to record room. Announced in the open court on 05/10/15 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) SPL. JUDGE (NDPS) KKD COURTS, DELHI/05.10.15 CA No. 2/15 Page 8 of 8