Delhi District Court
Avinash Choudhary vs Sangeeta on 19 September, 2025
IN THE COURT OF SHRI PAWAN KUMAR
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL NO. 270/2025
CNR NO. DLS01-011878-2025
IN THE MATTER OF:
Avinash Choudhary
S/o. Sh. Barm Nath Choudhary
R/o. 840, Tinkori Banarjee Road,
Kabaddi Club, Chandan Nagar,
West Bengal - 712137.
.......Appellant
Versus
Sangeeta
W/o. Sh. Avinash Choudhary
D/o. Sh. Rajendra Choudhary
R/o. H. No. G-1/284 C, Gali No. 8,
Sangam Vihar, Delhi.
........Respondent
Instituted on : 04.08.2025
Reserved on : Not reserved
Pronounced on : 19.09.2025.
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JUDGMENT
01. The instant appeal has been filed challenging the impugned order dated 03.04.2025 passed by the Court of Ms. Chhaya Tyagi, Ld. JMFC-02, Mahila Court, South District, New Delhi in Ct. Case No. 1693/2022 Sangeeta v. Avinash Choudhary & Ors.
02. The brief facts of the case are that, an application under Section 12 Domestic Violence Act has been filed by the respondent. The impugned order was passed on the application filed by the respondent under Section 23 of Domestic Violence Act. Vide impugned order, the Ld. Trial Court granted interim maintenance of Rs. 6,000/- to the respondent to be paid by the appellant from the date of the petition.
03. During pendency of said petition, the application of respondent/wife seeking interim monetary relief stood disposed of by Ld Trial court vide impugned order with following observations:-
"06. As per income affidavit of complainant, she is residing at her parental house, incurring monthly expenses of Rs. 10,000/-, has tow loans of Rs. 50,000/- and Rs. 1,00,000/- from cousin brother. Respondent is earning Rs. 25,000/- from private job and Rs.50,000/- as kerosene oil distributor. No proof of earning of respondent placed on record by complainant.
07. It is not understandable how R-1 without any savings, any income and any assets is incurring monthly expenses of Rs. 12,000/-. Hence, as per respondent's own admission that he is not just maintaining himself but his father, mother and sister and CA No. 270/2025 Avinash Choudhary v. Sangeeta Page No. 2 of 13 servicing loan without income and without any savings. Hence, income of respondent is assessed at minimum wages rate of Rs. 18,066/- for unskilled labour in Delhi.
08. Respondent no. 1 is directed to pay an amount of Rs. 6,000/- per month as interim maintenance towards the complainant with effect from the date of filing this case till its disposal. The aforesaid amount of maintenance and monthly rent be deposited in the bank account of the complainant/aggrieved on a monthly basis on or before 10th day of English calendar month. Any amount towards maintenance already paid shall stands adjusted. No grounds are made out for any other relief at this stage."
04. Before adverting to the merits of the appeal, the appellant has filed an application for condonation of delay under Section 5 of the Limitation Act. The impugned order was passed on 03.04.2025 and the present appeal was filed on 04.08.2025. Admittedly, there is delay of 90 days in filing the present appeal. It is submitted that the appellant is a resident of Kolkata and due to paucity of funds, he could not engage a counsel to file the appeal.
05. It is admitted that the appellant is the resident of West Bengal. On perusal of the record, it appears that financial condition of the appellant is not sound and he has to bear the expense of multiple litigations filed by the respondent. Taking the liberal view in terms of Section 5 of the Limitation Act, there is sufficient cause explaining the delay in preferring the present appeal. In order to impart substantial justice, the application for condonation of delay is allowed.
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06. Appellant is aggrieved with the said order and has assailed the same on various grounds which can be summarized as under:-
(i) that the impugned order is contrary to law being based on baseless and unreasoned presumptions;
(ii) that Ld Trial Court passed the impugned order in an arbitrary, mechanical and hasty manner without taking into account the fact that the appellant is jobless and he has the responsibility of his old age parents and unmarried sister.
(iii) that Ld Trial Court failed to consider the affidavit of income and expenditure of appellant wherein he specifically stated therein that he is unemployed;
(iv) that Ld Trial Court failed to appreciate the fact that respondent/wife is educated and qualified lady and has capacity to earn;
(v) that Ld Trial Court failed to correctly assess the income of the appellant and it was fixed as per the minimum wages of unskilled labour in Delhi, whereas the appellant is resident of West Bengal;
(vi) that Ld Trial Court failed to correctly assess the interim maintenance as the appellant has the responsibility of parents and unmarried sister;
07. The notice was issued to the respondent and it was returned back with the report 'refused'. In view of the report on the notice of the petition, the court proceeded to hear the petition in the absence of the respondent.
08. The Ld. Counsel for the appellant argued in the line of CA No. 270/2025 Avinash Choudhary v. Sangeeta Page No. 4 of 13 the grounds of appeal. It is submitted that the respondent is a well educated girl and earlier she was working in a hospital drawing monthly salary of Rs. 15000/-. It is further argued that the appellant is a resident of West Bengal and Ld. Trial Court has wrongly assessed his income on the basis of minimum wages applicable in Delhi. It is further argued that the income of the appellant has been wrongly apportioned while granting interim maintenance of Rs. 6000/-, as the parents and unmarried sister of the appellant are dependent on him.
09. I have perused the record and heard the submissions.
10. At the outset, I may observe that the parties are at idem regarding factum of marriage between them. It is evident from record that respondent/wife has alleged that she was subjected to domestic violence by appellant and his family members. However, same has been denied by appellant. 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 course of trial after parties lead their respective evidence. Since, the respondent 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.
11. Now the legality of award of interim maintenance @ Rs.6,000/- per month by impugned order shall be decided by this CA No. 270/2025 Avinash Choudhary v. Sangeeta Page No. 5 of 13 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 test 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 regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort 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."
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12. 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. 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.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own CA No. 270/2025 Avinash Choudhary v. Sangeeta Page No. 7 of 13 maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to 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 spiraling 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."
13. Furthermore, the Delhi High Court in Bharat Hedge 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.
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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. 17."
14. Having discussed the various principle of law, I shall now examine whether Ld. Trial Court erred in law (as contended by appellant) by assessing the income of appellant/husband to the tune of Rs.18,066/- per month and awarding monthly interim maintenance @ Rs.6,000/- based thereon or the impugned order is justified in the facts and circumstances of the present case.
15. Firstly, I shall deal with various pleas as taken by appellant while assailing the impugned order. One of the grounds on which appellant seek setting aside of impugned order, is that respondent/wife is educated and qualified lady and has capacity to earn. However, no such proof regarding earning of complainant/respondent was brought on record by the appellant. This issue is no more 'res integra' in view of settled position of law. Hon'ble High Court of Delhi in case titled as Kanupriya Sharma Vs State & Anr, Crl. Rev. Pet. 849/2018, Crl. M.A. No. 33234/2018, has observed as under :-
CA No. 270/2025 Avinash Choudhary v. Sangeeta Page No. 9 of 13 "28. 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'.
29. 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. Under section 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.
30. 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.
31. 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."
16. In view of aforesaid legal position, plea of appellant that respondent/wife is capable of earning is without any merit. The appellant failed to submit any evidence to prove that the respondent/wife was gainfully employed and was drawing salary.
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17. Appellant/husband has also taken the plea that he is not having any source of income. However, the said plea is without any merit. As rightly observed by Ld Trial Court vide impugned order, it is improbable that a person who has been married would have no income for supporting his spouse, parents and unmarried sister. The observation of Ld Trial Court on this count cannot be faulted with and the plea taken by appellant/husband that he has no source of income, is found to be without any merit.
18. Now to the legality of interim maintenance: In the instant case, as evident from record apart from bare assertions in their respective affidavits, none of the parties brought on record any proof regarding their income/expenditure. Therefore, in such circumstance, the Ld Trial Court was left with no option but to make a guess work regarding monthly income of appellant/husband. However, in the instant case, Ld Trial Court went on to assess (albeit by guess work) the monthly income of appellant/husband @ Rs.18,066/- on the basis of applicable minimum wages for unskilled labour in Delhi. The submission of Ld. Counsel for the appellant carry force that minimum wages of Delhi are not applicable to the appellant as he is resident of West Bengal. It is admitted in the petition that in the memo of the parties, the address of the appellant is of West Bengal. The minimum wage of unskilled labour residing in municipality areas in West Bengal is recorded as Rs. 12,499/-.
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19. Once the income of appellant/husband is assessed @ Rs.12,499/-, the interim maintenance to the respondent/wife has to commensurate to the said income. At this stage, it would be relevant to discuss the principle of apportionment as laid down by Hon'ble Delhi High Court in Annurita Vohra vs. Sandeep Vohra, 110, (2004) DLT 546, wherein it was held as under :-
"In other words the court must first arrive at the net disposable income of the Husband or the dominant earning spouse. If the other spouse is also working these earnings must be kept in mind. This would constitute the Family Resource Cake which would then be cut up and distributed amongst the members of the family. The apportionment of the cake must be in consonance with the financial requirements of the family members, which is exactly what happens when the spouses are one homogeneous unit. Ms. Geeta Luthra, learned counsel for the Respondent had fervently contended that normally 1/5th of the disposable income is allowed to the Wife. She has not shown any authority or precedent for this proposition and the only source or foundation for it may be traceable to Section 36 of the Indian Divorce Act, 1869. This archaic statute mercifully does not apply to the parties before the Court, and is a vestige of a bygone era where the wife/woman was considered inferior to the husband as somewhat akin to his chattels. The law has advanced appreciably, and for the better. In the face of Legislatures reluctant to bring about any change over fifty years ago the Courts held that the deserted wife was entitled to an equal division of matrimonial assets. I would be extremely loath to restrict maintenance to 1/5th of the Husband's income where this would be insufficient for the Wife to live in a manner commensurative with her Husband's status or similar to the lifestyle enjoyed by her before the marital severance. In my view, a satisfactory approach would be to divide the Family Resource Cake in two portions to the Husband since he has to incur extra expenses in the course of making his earning, and one share each to other members."
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20. In view of the aforesaid formula, two portions are to be retained by appellant whereas one portion to be awarded to wife and other dependent member (s), if any. Therefore, considering the principle of apportionment as laid down by Hon'ble Delhi High Court in Annurita Vohra (supra), complainant is entitled to one portion (of the monthly income of appellant) whereas appellant is permitted to retain two portions of his monthly income and one portion shall go to each parent. Therefore, respondent/wife is entitled to Rs. 2500/- per month as interim maintenance.
21. With these observations, appeal filed by appellant/husband Avinash Choudhary stands partly allowed. The interim maintenance as awarded vide impugned order stands reduced to Rs.2500/- per month, which shall be payable by appellant/husband from the date of filing of application by the complainant before Ld Trial Court till disposal of main petition. The maintenance shall be all inclusive.
22. TCR be sent back along with copy of this judgment.
23. Appeal file be consigned to record room after due compliance. Digitally signed by Pawan Pawan Kumar Kumar Date:
2025.09.19 16:14:30 +0530 Announced in the open (PAWAN KUMAR) court on 19th September 2025 Additional Sessions Judge-05, South, Saket Courts, New Delhi CA No. 270/2025 Avinash Choudhary v. Sangeeta Page No. 13 of 13