Delhi District Court
Amit Gupta vs Rachna Rani on 7 October, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Appeal No. 195/2022
CNR No.: DLCT01-013566-2022
Amit Gupta
S/o Sh. Suresh Gupta
R/o 416, Moti Nagar, Unnav
Uttar Pradesh
..... Appellant
VERSUS
Rachna Rani
W/o Sh. Amit Gupta
R/o 4601, Gali Chaudhary Sunder Singh
towards Roshanara Road
Delhi-110007
..... Respondent
Date of Institution : 24.09.2022
Date of Arguments : 01.10.2022
Date of Judgment : 07.10.2022
JUDGMENT
1. The criminal appeal under Section 29 of 'The Protection of Women From Domestic Violence Act, 2005' (Hereinafter referred to as 'DV Act') is directed against order dated 05.04.2022 (In short 'the impugned order') in complaint case vide CC No. 16604/2017 titled as 'Rachna Rani vs. Amit Gupta & Ors.' whereby Ld. MM-03 (Mahila Court), Central, Tis Hazari Courts, Delhi (In short 'the trial Court') directed the appellant to pay interim maintenance in the sum of Rs. 3,977/- per month to the respondent and Rs. 3,977/- to minor child from the date of filing of the application under Section 12 DV Act till the disposal of the petition.
Crl. Appl. No. 195/2022 Amit Gupta vs. Rachna Rani Page No. 1 of 10 BRIEF FACTS:
2. The facts preceding to institution of the criminal appeal are that the respondent (Hereinafter referred to as 'the complainant') filed an application under Section 12 DV Act against the appellant and his family members for reliefs under Section 18, 19, 20, 22 and 23 DV Act alongwith an application under Section 23 (1) DV Act for interim maintenance on averments that the complainant was married to the appellant on 31.01.2009. They were blessed with a male child on 26.07.2012. The complainant alleged that she was subjected to physical and mental cruelty for bringing insufficient dowry. There are allegations and counter-allegations with which we are not presently concerned. The complainant is residing with her parents since 19.05.2014.
3. The case of the complainant is that she is not employed. She has no source of income. She is dependent upon the appellant for maintenance. The appellant is running a mobile shop in Jeevan Park, Delhi and earning Rs. 40,000/- per month. The appellant has no other liability. The appellant has movable and immovable properties and huge amount in his bank balance. The appellant is legally bound to maintain the complainant and the minor child. The appellant is not maintaining the complainant and her minor child. The complainant is seeking an amount of Rs. 30,000/- as interim maintenance. In reply, the appellant denied his earning in the sum of Rs. 40,000/- per month.
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4. Ld. Counsel for the appellant contended that the trial Court passed the impugned order in a mechanical manner without due application of judicial mind. He contended that the impugned order is illegal and 'biased'. He contended that the complainant instituted the said complaint on 19.12.2017 after more than three years is indicative of the fact that the complaint case is an afterthought. He contended that the trial Court passed the impugned order without considering 'income and expenditure' affidavit of the appellant. He contended that the appellant was not afforded a fair opportunity of hearing. He contended that the complainant is claiming her monthly income from stitching work as Rs. 5,000/- per month whereas in her 'income affidavit', she is claiming expenditure to the extent of Rs. 20,000/- per month. He contended that the minor child is studying in government school and receiving free education. He contended that the complainant concealed her bank account with IDBI Bank. He contended that the trial Court did not consider that the appellant is a labour and earning Rs. 9,000/- per month and it is very difficult for him to pay Rs. 7,954/- per month as interim maintenance. He contended that the trial Court did not consider income affidavit of the appellant. He contended that the trial Court committed patent error in assuming monthly income of the appellant as Rs. 15,000/- per month and fixed interim maintenance in the sum of Rs. 7,954/- per month without waiting for 'new income and expenditure' affidavit of the appellant.
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5. On examination of the impugned order, it is seen that the trial Court passed the impugned order on the following grounds:
(a) The appellant disclosed his income as Rs. 8,000/-
per month. However, the appellant is an able bodied person and he is not expected to earn less than minimum wages;
(b) The appellant is deemed as an 'unskilled work' and his income is assessed as Rs. 15,908/- per month, as per minimum wages applicable to Delhi; and
(c) The trial Court awarded an amount of Rs. 7,954/- as interim maintenance to the complainant and minor child as two parts of the said amount.
POINTS FOR CONSIDERATION:
(a) Whether the appellant was not afforded an opportunity being heard?
6. The complainant filed an application under Section 23 (1) DV Act for seeking interim maintenance alongwith the complaint.
7. The appellant filed reply to the said application under Section 23 (1) DV Act. Thereafter, the appellant filed 'income and expenditure' affidavit.
8. The trial Court heard arguments of Ld. Counsel for the appellant and the complainant, and passed the impugned order.
9. Therefore, there is no merit in the contention of the appellant that the trial Court did not afford him an opportunity of being heard.
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(b) Whether the trial Court passed the impugned order without considering 'income and expenditure' affidavit of the appellant?
10. The trial Court directed the appellant to file 'income and expenditure' affidavit vide orders dated 18.07.2018, 31.10.2018, 10.07.2019, 20.08.2019, 27.09.2022 and 09.12.2019.
11. The appellant filed 'income and expenditure' affidavit on 08.01.2020.
12. Thereafter, the trial Court, vide order dated 06.04.2021, directed the complainant and the appellant to file 'income and expenditure' affidavit alongwith bank statement and income tax returns for three years in terms of judgment of Hon'ble Supreme Court of India in Rajnesh vs. Neha dated 04.11.2020.
13. The complainant filed the said affidavit on 20.01.2022. However, the appellant did not file the said affidavit on 20.01.2022 and 05.04.2022.
14. Therefore, the appellant cannot raise any grievance that the impugned order was passed without considering his 'income and expenditure' affidavit.
15. In any case in his first 'income and expenditure' affidavit, the appellant claimed that he was employed as a 'waiter' at Panchwati Hotel, Gujarat at emoluments in the sum of Rs. 8,000/- per month and in his second affidavit, he claimed his income to the extent of Rs. 9,000/- per month from his avocation as a 'helper' in Sai Engineering Works. Crl. Appl. No. 195/2022 Amit Gupta vs. Rachna Rani Page No. 5 of 10
16. Therefore, there was hardly any difference between both the affidavits regarding 'income and expenditure' of the appellant and there was no material prejudice to the appellant on account of non-consideration of his subsequent affidavit.
17. Therefore, there is no merit in contention of the appellant that the impugned order was passed without considering subsequent 'income and expenditure' affidavit of the appellant.
(c) Whether the trial Court rightly assessed monthly income of the appellant as Rs. 15,908/- per month as per minimum wages, applicable to 'unskilled workers'?
18. The case of the complainant is that the appellant is running a mobile and computer repair shop in Jeevan Park, Delhi and earning Rs. 40,000/- per month. It is further case of the complainant that she has no source of income. In her 'income and expenditure' affidavit, the complainant stated that she studied upto 9th standard and she is dependent upon her widow mother and brother. The complainant stated that she is doing stitching work and earning approx. Rs. 5,000/- per month. The complainant is maintaining the minor child and bearing his educational and other expenses. She is claiming an amount of Rs. 30,000/- per month. The appellant claimed, in first affidavit, that he is earning Rs. 8,000/- per month from his avocation as a 'waiter' at Panchwati Hotel, Gujarat whereas in his second affidavit, he claimed that he is earning Rs. 9,000/- per month from his avocation as a 'helper' with Sai Engineering Works.
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19. The fact that the complainant is earning an amount of Rs. 5,000/- approx. from stitching work is not sufficient to dis-entitle her from maintenance. Such earning is not a regular earning. She is not supposed to sit idle and make herself totally dependent upon the appellant.
20. In Sonata Parashar vs. Tushar Goyal, 2022 SCC OnLine Del 2705, Hon'ble High Court of Delhi held, as under:
"90. 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 judgments:
90.2. In Sunita Kachwaha v. Anil Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] 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.
90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale [Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694] while relying upon the judgment in Sunita Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589], 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."
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21. Therefore, there is no credible material regarding avocation and earning of the appellant. The appellant is an able bodied person. He is around 40 years old. He is not suffering from any ailment or disability preventing him from engaging in any gainful employment. Therefore, the trial Court did not commit any error in evaluating his income on the scale of minimum wages, as applicable to 'unskilled workers' in Delhi.
22. In Anju Garg and Another vs. Deepak Kumar Garg, 2022 SCC OnLine SC 1314, Hon'ble Supreme Court of India held, as under:
"10.....The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able- bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute.....
13.....The respondent being an able-bodied, he is obliged to earn by legitimate means and maintain his wife and the minor child....."
23. The appellant is legally and morally bound to maintain the complainant and minor child. The complainant has no independent source of income to maintain herself and minor child. She is dependent upon her mother and brother. The complainant is maintaining the minor child. The appellant is liable to pay reasonable maintenance to the complainant and minor child. The trial Court granted interim maintenance in the sum of Rs. 3,977/- per month each to the complainant and minor child (total amount of Rs. 7,954/- per month).
Crl. Appl. No. 195/2022 Amit Gupta vs. Rachna Rani Page No. 8 of 10 CONCLUSION:
24. This Court does not find any justiciable reason to interfere with the impugned order.
25. Accordingly, the criminal appeal filed by the appellant is dismissed.
26. A copy of judgment alongwith trial Court record be sent back to trial Court.
27. Appeal file be consigned to record room.
Digitally signedSANJAY by SANJAY SHARMA SHARMA Date: 2022.10.07 15:21:32 +0530 Announced in the open Court SANJAY SHARMA-II on this 07th October, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Appl. No. 195/2022 Amit Gupta vs. Rachna Rani Page No. 9 of 10 Amit Gupta vs. Rachna Rani CNR No.: DLCT010135662022 Crl. Appeal No. 195/2022 07.10.2022 Present : Mr. Kulbhushan Kataria, Advocate with the appellant.
Vide separate judgment, the criminal appeal filed by the appellant is dismissed. The appeal file be consigned to record room. Digitally signed SANJAY by SANJAY SHARMA SHARMA Date: 2022.10.07 15:21:46 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi 07.10.2022 Crl. Appl. No. 195/2022 Amit Gupta vs. Rachna Rani Page No. 10 of 10