Delhi District Court
P.S. Rajouri Garden vs Ms. Anita on 1 August, 2018
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IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
Criminal Appeal no. 55/2/17
U.I.D. NO. 229/2017
P.S. Rajouri Garden
Sh. Yash Pal
S/o Late Sh. Mani Ram
R/o E114, Ground Floor,
EBlock, J J Colony,
Raghubir Colony, New Delhi27. ......... Appellant
Versus
Ms. Anita
D/o Sh. Raghu Nath
R/o E114, First Floor,
EBlock, J J Colony,
Raghubir Colony, New Delhi27. ....... Respondent
Date of filing: 26.08.2017
Date of arguments: 25.07.2018
Date of order: 01.08.2018
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JUDGEMENT
01.08.2018
1. This is an appeal against the order dated 01.08.2017 in the complaint case titled as Anita versus Yash Pal passed by the court of Ms. Swati Katiyar, Ld. Metropolitan Magistrate, Mahila Court, West Delhi.
2. A petition under Section 12 of Protection of Women from Domestic Violence Act (hereinafter referred as DV Act) was filed by the respondent / wife against the appellant/husband. An application under Section 23 of DV Act was also filed. The Ld. Trial court after hearing the arguments was pleased to allow the application under Section 23 of DV Act vide order dated 01.08.2017. The Ld. Trial Court considered that from all the source, the income of the respondent No. 1 (appellant herein) is not less than Rs. 50,000/ per month and accordingly, directed him to pay Rs. 25,000/ per month to the respondent/ wife and for minor child.
3. The appellant / husband being aggrieved by the order of the Ld. UID No. 229/17 Yash Pal versus Anita 2 of 12 3 Trial Court on the application under Section 23 of DV Act, has filed the present appeal. It is stated that the impugned order has been passed mechanically without going through the documents available on record. That the appellant/husband had placed on record several documents that he is earning Rs. 23,000/ per month. It is prayed that the impugned order may kindly be recalled or revised.
4. The notice of the appeal was issued to the respondent/wife. The respondent put the appearance and strongly opposed the appeal.
5. It is pertinent to mention that this court vide order dated 21.02.2018, directed the appellant/husband to make the payment of Rs. 8,000/ towards maintenance and the appellant/husband has cleared the arrears.
6. I have carefully perused the material on record and have gone through the submissions made by Sh. Pradeep Kumar, Ld. Counsel for the appellant and Sh. Pawan Kumar Jain, Ld. Counsel for the respondent.
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7. It is submitted by Ld. Counsel for the appellant/husband that the impugned order is passed contrary to the law. That the Ld. Trial Court has wrongly assumed the income of Rs. 50,000/ per month without any basis. That the respondent/wife had not placed on record any document to show any other income of the appellant/husband. It is also stated that the respondent/wife is already earning a sum of Rs. 7,500/ as she is working in Aanganwari. It is prayed that the order of the Ld. Trial court may kindly be set aside.
8. On the other hand, it is submitted by Ld. Counsel for the respondent / wife that there is no illegality or infirmity in the order of the Ld. Trial Court. That the appellant/husband has a business and having huge income. It is stated that the respondent / wife is getting a meagre amount of Rs. 4,840/ per month which is not sufficient for her maintenance. It is submitted that earlier she was getting a monthly remuneration of Rs. 2,500/ only. It is prayed that the appeal may kindly be dismissed.
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9. The respondent/ wife has alleged that the appellant/husband is having the following income:
(i) That the appellant/husband is a man of means and working in family business of manufacturing electrical equipments under the name and style of M/s Amit Bakelite.
(ii) That the appellant/husband is getting Rs. 2,00,000/ per month from shop No. 2, Shiv Mandir Market, Tagore Garden, New Delhi.
(iii) That the appellant/husband is having a bank balance. That there is a family property of around 100 sq. yards at Chandan Vihar, Delhi.
(iv) A plot of 100 sq. yards in Vijay Vihar, Delhi.
(v) Two plots of 25 sq. yards at Raghubir Nagar, New Delhi and another plot of 12.5 sq. yards at Raghubir Nagar, New Delhi.
10.It is stated by the respondent / wife that she is getting Rs. 2,500/ per month. The respondent/wife had also filed the affidavit of asset, income and expenditure. The monthly expenditure UID No. 229/17 Yash Pal versus Anita 5 of 12 6 disclosed by the respondent/wife is Rs. 10,000/ per month.
11.In reply, the submissions of the respondent/wife were denied by the appellant/husband. It is stated that the respondent/wife is earning Rs. 8,000/ per month which is sufficient for her to meet her day to day expenditure. The submissions of the respondent/wife regarding the earning of appellant/husband are totally denied. The appellant/husband in his affidavit of asset, income and expenditure has admitted his monthly income of Rs. 23,000/ per month from the occupation of small business. The appellant/husband has also filed alongwith his affidavit the income tax return for the assessment year 201516 and his bank statement.
12.The relevant observation of the Ld. Trial court is reproduced as: "The bank statement of Respondent No. 1 shows the closing balance of Rs.
1,50,018.07/ and there has been deposits of Rs. 20,000/, Rs. 25,000/, Rs. 41,500/ and Rs. 49,000/ on different dates in the said account. Respondent has not explained any of the said deposits. It is also admitted by the UID No. 229/17 Yash Pal versus Anita 6 of 12 7 respondent that he is working jointly with his brother in the said M/s Amit Bakelite.
Considering the financial status, social strata to which the parties belongs, I consider that the income / source of income of respondent No. 1 is not less than Rs. 50,000/ per month. The respondent No. 1 has failed to provide maintenance to the applicant".
13.In the present case the appellant/husband has filed on record an affidavit admitting his monthly income of Rs. 23,000/ per month which is corroborated with the income tax return for the relevant year filed by him. However, the Ld. Trial court was pleased to enter into the guess work considering some entries in the bank statement of the appellant/husband. The Hon'ble Supreme Court and Hon'ble High Courts, time and again have expressed that in the matrimonial litigations, the husbands are in a habit to conceal their actual income and the wives are in a habit to disclose the exaggerated income. Therefore, the courts are expected to enter into some guess work to assess the actual income to consider grant of maintenance. However, where the submissions of the parties regarding income/maintenance are supported with the documentary proof, the courts are not UID No. 229/17 Yash Pal versus Anita 7 of 12 8 expected to enter into guess work unless documentary evidence is rebutted with cogent reasons. The appellant/husband in the present case has filed his affidavit admitting his income of Rs. 23,000/ per month. The respondent/wife had not placed on record any other document to rebut this admitted income of the appellant/husband. There is no other material produced on record by the respondent/wife regarding any other income of the appellant/husband except the bald averment without any proof.
14.The Ld. Trial court has considered the deposit of Rs. 20,000, 25,000/, 41,500/ and Rs. 49,000/ as reflected in bank statement as income of the appellant/husband.
15.The appellant/husband had filed affidavit of one Amit Kumar, his brother and Ms. Rekha Rani, his sister. In both the affidavits it is that in October, 2016, they were exploring the possibility of settlement and there was a suggestion of the Mediator that both the parties, i.e., wife and husband should shift to a mortgage property on security amount of Rs. 2,50,000/. That Sh. Amit UID No. 229/17 Yash Pal versus Anita 8 of 12 9 Kumar had made the payment of Rs. 95,000/ to the appellant as assistance in November 2017 which was returned to him as settlement could not be arrived. The sister of the appellant has stated that the appellant had taken a sum of Rs. 65,000/ from her which was returned to her in July, 2017.
16.The contention of the appellant regarding the income of Rs. 23,000/ is supported with ITR of the relevant year. The amount received by him in his bank account as discussed by the Ld. Trial court is also explained by filing the affidavit of his brother and sister.
17.It is not out of place to mention that deposit of any amount in the bank account of a person could not always be considered as his income. All the deposits in the account of a person who is doing the business could not be considered as his net profit. Therefore, the Ld. Trial Court has wrongly considered the amount deposited in the account of the appellant/husband as his net income.
18.The Ld. counsel for the respondent/wife has contended that an UID No. 229/17 Yash Pal versus Anita 9 of 12 10 amount of Rs. 65,000/ and Rs. 95,000/ was taken in November, 2017 and repaid in July, 2017 which is apparently false. However, the appellant/husband in reply to the application under Section 340 Cr.PC has explained that said amount was taken in November 2016 but wrongly written as November, 2017 due to typographical mistake. The explanation furnished by the appellant/husband in this regard seems to be bonafide and appears due to typographical mistake. Therefore, the contention of the Ld. Counsel for the respondent / wife in this regard is not tenable.
19.In view of the above discussions, I am inclined to consider the income of the appellant/husband @ Rs. 23,000/ per month. Accordingly, the impugned order dated 01.08.2017 passed by the Court of Ms. Swati Katiyar, Ld. Metropolitan Magistrate, Mahila Court, West, Delhi is required to be modified.
20.In view of the discussions made above and in view of the principal laid down in Annurita Vohra versus Sandeep Vohra UID No. 229/17 Yash Pal versus Anita 10 of 12 11 2004(3) AD 252, the impugned order dated 01.08.2017 is accordingly modified and the appellant/husband is directed to pay Rs. 11,500/ per month to the respondent/wife and minor children till they are legally entitled as interim maintenance towards foods, clothing, house hold expenses, rent/alternate accommodation/ electricity bill, water bill all inclusive from the date of impugned order till the final disposal of the case before the Ld. Trial Court. The amount if any paid in this court or in any other proceeding by the appellant/husband as maintenance to the respondent/wife and minor children shall be liable to be adjusted.
21.With these observations, the appeal filed by the appellant/husband against the impugned order dated 01.08.2017 passed by the Court of Ms. Swati Katyar, Ld. Metropolitan Magistrate, Mahila Court, West Delhi is allowed. The order of the Ld. Trial Court dated 01.08.2017 is accordingly modified.
22.Trial court record be sent back alongwith attested copy of this UID No. 229/17 Yash Pal versus Anita 11 of 12 12 order.
23.File be consigned to Record Room after completion of necessary formalities.
Announced in the open court today, i. e. 01st August, 2018 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI This judgment contains 12 pages and all pages bears my signatures.
(DEVENDER KUMAR JANGALA)
ASJ03, WEST/DELHI
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