Delhi District Court
Harish Upreti vs Geeta on 4 March, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE5, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
CRIMINAL REVISION NO. 640/2019 (Treated as an Appeal)
IN THE MATTER OF:
Harish Upreti,
S/o Sh. Murlidhar Upreti,
R/o H. No. 110A, D1, 3rd Floor,
Ashoka Apartment, Gautam Nagar,
New Delhi110049. .......Revisionist
Versus
Geeta,
W/o Sh. Harish Upreti,
D/o Bishan Dutt,
R/o H. No. 25/34, Gali No.1B, BlockG,
Molarband Extn., 40 Feet Road, Badarpur
New Delhi110019. ........Respondent
Instituted on : 01.10.2019
Reserved on : not reserved
Pronounced on : 04.03.2021
JUDGMENT
1. Vide this judgment, I shall dispose of the instant revision petition filed by the revisionist/husband Harish Upreti, challenging the order dated 02.07.2019, passed by the learned Metropolitan Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 1 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:36:38 +0530 Magistrate01, Mahila Court, SouthEast District, Saket Courts, New Delhi in CT case No. 4459/2018 titled as Geeta vs. Harish Upreti filed under provisions of Domestic Violence Act, whereby revisionist was directed to pay interim maintenance of Rs.10,000/ per month to the respondent/complainant and Rs.5000/ each towards two minor children, from the date of filing of case and till its disposal.
2. At the outset, I may mention that since section 29 of D V Act provides for filing of an appeal against any order by an aggrieved person, therefore the present revision petition is being treated as an appeal. The limitation period for filing of said appeal is 30 days. The appeal in the instant case was filed on 30.09.2019 i.e. with delay of around two months. In the facts and circumstances of the case and in the interest of justice, the delay in filing of present appeal stands condoned. The instant appeal is being taken up for disposal on merit.
3. Brief facts may be taken note of: A complaint under section 12 of Domestic Violence Act was filed by respondent/wife Geeta with the averments that she is legally wedded wife of the appellant and the marriage between the parties held on 17.11.2009. Parties were blessed with two children. Both the children are admittedly minor and in custody of respondent/wife. As per respondent, she has been subjected to domestic violence by revisionist.
4. The respondent filed a petition under section 12 DV Act seeking various reliefs including monetary reliefs. The petition was Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 2 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:36:46 +0530 accompanied with an application under section 23 of DV Act for grant of various adinterim relief including interim maintenance.
5. The appellant was summoned vide order dated 22.05.2018 by Ld Trial Court and thereafter, both the parties were directed to file their respective income/expenditure affidavits. The said affidavits came be filed by both the parties. As per affidavit filed by respondent, her income is NIL and her total expenditures under different heads amounting to Rs.20,694/ per month. As per the income/expenditure affidavit of appellant (who is a government employee working in Dietetics Department of AIIMS), his monthly gross income/salary is Rs.46,993/ and net salary is Rs.36,693/.
6. Ld. Trial Court after considering the gross salary of appellant assessed his monthly income @ Rs.47000/ and awarded an interim maintenance of Rs.10,000/ per month to the respondent/complainant and Rs.5000/ each towards two minor children.
7. Revisionist is aggrieved with the said order and has assailed the impugned order on the strength of the arguments which can be summarized as under:
a) that Ld Trial Court erred in law by awarding the maintenance on the basis of gross salary instead of his net salary;
b) That respondent being a qualified woman is capable of earning and therefore, she is not Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 3 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:36:54 +0530 entitled for any maintenance;
c) That appellant has to take care of his old aged parents;
d) That awarded maintenance is quite exorbitant and is not justified in the facts and circumstances of the present case;
e) That the salary of appellant got stopped for considerable period as he could not join office due to his illness;
f) That it is respondent who has deserted the appellant and he is still willing to keep her and children in the matrimonial house.
8. On the strength of these arguments, appellant seeks setting aside of impugned order.
9. Per contra, Ld. Counsel for respondent has vehemently argued that there is no infirmity in impugned order and Ld. Trial Court has taken a reasoned view while passing the impugned order. It is argued that there is no dependent upon the appellant except respondent and minor children as parents of appellant have already expired. It is further argued that the deceased father of appellant was a government pensioner and was never dependent upon him. On the strength of these arguments, respondent seeks dismissal of present appeal.
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10. I have heard rival contentions and perused the record.
11. At the outset, I may observe that the parties are at idem regarding factum of marriage between them. The paternity of the children is also not in dispute. The complainant has alleged that she was subjected to domestic violence by respondent. However, same has been denied by respondent. 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 complainant 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.
12. Now the legality of award of interim maintenance @ Rs.20,000/ per month (Rs.10,000/ in favour of respondent and Rs.5000/ each in favour of both minor children) 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 Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 5 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:37:11 +0530 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."
13. 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 Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 6 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:37:21 +0530 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 nonworking 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 maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 7 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:37:36 +0530 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 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"
14. Further, 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 nonapplicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
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6. Nonapplicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the nonapplicant.
9. Some guess work is not ruled out while estimating the income of the nonapplicant when all the sources or correct sources are not disclosed.
10. The nonapplicant 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.
15. Firstly, I shall deal with various pleas as taken by respondent while assailing the impugned order. One of the grounds on which respondent seeks setting aside of impugned order is that respondent is a well qualified woman and she is capable of earning. It has been forcefully argued by Ld counsel for appellant that being well qualified, respondent is capable of earning and therefore, no maintenance could be awarded to her. This issue is no more 'res integra' in view of settled position of law. Hon'ble Apex Court in case titled as Rajnesh Vs Neha & Anr (Supra) has 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 judgments.
In Shailja & Anr. v Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient 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 Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 9 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:37:53 +0530 herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.
In Sunita Kachwaha & Ors. v Anil Kachwaha 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 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 ablebodied 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 Prakash Bodhraj v Shila Rani Chander Prakash. 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 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.
16. Further, 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 : Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 10 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:38:04 +0530
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 Petitionerwife."
17. In view of aforesaid legal position, plea of appellant that respondent is capable of earning is without any merit. The other contention of appellant i.e. it is the respondent who has deserted Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 11 of 18 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:38:12 +0530 him, can only be decided after parties lead their evidence and suffice it would be to observe that at this stage, there are no palpable reasons to disbelieve the version of respondent that she has been forced to leave the matrimonial house due to commission of domestic violence by appellant.
18. It is next contended on behalf of appellant that the salary of appellant had got stopped for considerable period as he could not join office due to illness. No such proof of illness has been placed on record by appellant. Be that as it may, admittedly, appellant is working in AIIMS as a permanent employee and drawing gross salary of Rs.46,933/. Therefore, even if, respondent could not draw salary due to his illness, his earning capacity cannot be lost sight of. Reliance is placed upon judgment of High Court of Madras in case Janagarajan Vs Gowri Nandhini, CRP (PD) (MD) No.1693 of 2015 and M P (MD) No.1 of 2015, dated 18.07.2018, wherein it was held as under : "On perusal of the averments raised in the petition, it is seen that the petitioner has stated that he was driven out of the job due to recession and has been struggling to eek out his livelihood. This contention exfacie cannot be accepted, because even if the husband is not earning and if he has the physical capacity to earn, it is his duty to maintain. It is a settled law that the husband cannot escape from his liability to pay maintenance, which includes interim maintenance also to the wife and children by merely citing the reason of financial constraint. It is appropriate to quote the decision of the Hon'ble Supreme Court reported in Shamima Farooqui vs. Shahid Khan, (2015) 5 SCC 705, whereunder, it Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 12 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:38:21 +0530 has been held as under:
16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai[14], it has been ruled that: Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v.
Veena Kaushal falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves."
19. As per affidavit filed before Ld. Trial Court, the net salary of appellant is Rs.36,693/ per month. However, Ld Trial Court assessed the monthly income of appellant @ Rs.47,000/ on the basis of his gross salary. In my considered view, Ld Trial Court erred in law by not taking into account the compulsory deductions from the gross income of appellant while assessing his monthly income. Reliance is placed upon judgment of Hon'ble Delhi High Court in Nitin Sharma vs Sunita Sharma & Ors., Crl Rev. P. 322/2020, decided on 18.02.2021 wherein it has been held as follows : "24. In the opinion of this Court, while calculating the quantum of maintenance, the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF, EPF etc. are permitted and no deductions towards house rent, electric charges, repayment of loan, LIC payments etc. are permitted. On this aspect, the pertinent observations of Hon'ble Supreme Court in Dr. Kulbhushan Kunwar v. Raj Kumari (1970) 3 SCC 129, Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 13 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:38:29 +0530 which have been followed by a Bench of Punjab & Haryana High Court in Seema & Anr. Vs. Gourav Juneja 2018 SCC OnLine P & H 3045, are as under: "12. Section 125 Cr.P.C. stipulates that if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor child, who are otherwise unable to maintain themselves, shall be obligated to do so. A moral duty and a statutory obligation is cast upon the husband to maintain his wife, minor children, parents who otherwise are not capable of maintaining themselves. A person cannot be permitted to wriggle out of his statutory liability by way of availing huge loans and reducing a substantial amount of his salary for repayment of the same every month. Deductions that are made from the gross salary towards long term savings, which a person would get back at the end of his service and such as deductions towards Provident Fund, General Group Insurance Scheme, L.I.C. Premium, State Life Insurance can be deemed to be an asset that he is creating for himself. In arriving at the income of a party only involuntary deductions like income tax, provident fund contribution etc. are to be excluded. Therefore, such deductions cannot be deducted or excluded from his salary while computing his "means" to pay maintenance. In the case of Dr. Kulbhushan Kunwar v. Raj Kumari (1970) 3 SCC 129 : 1971 AIR (SC) 234 while deciding the question of quantum of maintenance to be paid, the argument raised that deduction not only of incometax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant was not allowed. Only deductions towards incometax and contributions to provident fund which had to be made compulsorily were allowed. The relevant portion of Dr. Kulbhushan Kunwar's case (supra) reads as under: "19. It was further argued before us that the High Court went wrong in allowing maintenance at 25% of the income of the appellant as found by the Income Tax Department in assessment proceedings under the Income Tax Act. It was contended that not only should a deduction be made of incometax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant. In our view some of these deductions are not allowed for the purpose of Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 14 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:38:37 +0530 assessment of "free income" as envisaged by the Judicial Committee. Income Tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant's practice as a physician would be deductible only so far as allowed by the incometax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car."
13. In a nutshell, a husband cannot be allowed to shirk his responsibility of paying maintenance to his wife, minor child, and parents by availing loans and paying EMIs thereon, which would lead to a reduction of his carry home salary."
20. As per the salary slip of the appellant, Rs.12,800/ (approx) is being deducted towards GPF contribution/Income Tax/Health / Insurance Scheme. Therefore, the net salary of appellant comes to Rs.34000/ (approx) as per the salary slip of appellant. The appellant himself claims his net monthly income @ Rs.36,693/ in his income affidavit. Therefore, seen in the aforesaid background, the observations of Ld Trial Court whereby it assessed monthly income of appellant @ Rs.47,000/ cannot be sustained in the eyes of law and the net monthly income of appellant is assessed @ Rs.37,000/ (approx) in the instant case based upon his affidavit and salary slip.
21. 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.
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22. Since, the monthly income of appellant has been assessed @ Rs.37,000/, therefore the interim maintenance to the respondent and the minor children has to be commensurate with 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 Crl Rev No. 640/2019 (Treated as an appeal) Harish Upreti vs. Geeta Page No. 16 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.03.04 12:38:51 +0530 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."
23. The principle of apportionment has been reiterated recently by Hon'ble Delhi High Court in Nitin Sharma v. Sunita Sharma, 2021 SCC OnLine Del 694, decided on 18022021.
24. Appellant is admittedly having no other dependent members apart from respondent and minor children as it has been fairly submitted by Ld counsel for appellant that parents of appellant are no more. In view of the aforesaid formula, two portions are to be retained by appellant whereas one portion each to be awarded to respondent/wife and both minor children. Therefore, once the principles of apportionment is applied to the family resource cake i.e. monthly income of Rs.37000/, then also, the award of interim maintenance to the tune of Rs.20,000/ (all inclusive) in favour of respondent and both minor children who are staying with her, turns to be on lower side, thereby repelling the contentions of appellant.
25. Therefore, in view of the aforesaid discussions, though the net monthly income of appellant is assessed @Rs.37,000/, however it is held that there is no infirmity in the impugned order whereby appellant has been directed to pay interim maintenance of Rs.20,000/ (Rs.10,000/ for respondent and Rs.5000/ each for both the minor children). The appeal is devoid of any merit and stands dismissed.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.03.04
12:39:05 +0530
26. TCR be sent back along with copy of this judgment.
27. Appeal file be consigned to record room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.03.04
12:39:11 +0530
Announced in the open (Anuj Agrawal)
court on 4th March, 2021 Additional Sessions Judge05,
South East, Saket Courts, New Delhi
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