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[Cites 10, Cited by 0]

Delhi District Court

Chetan Kaushik vs Priyanka Kaushik on 24 April, 2024

CA No. 54/2024
Chetan Kaushik Vs. Priyanka Kaushik

24.04.2024
Pr.   Sh. Gaurav Singh, Counsel for the appellant (through VC).
      Respondent in person.


ORDER:

-

1. This is an appeal u/s 29 of the Protection of Women from Domestic Violence Act, 2005 (in short DV Act). The appellant has impugned the order dt. 12.02.2024 whereby the appellant has been directed to pay interim maintenance @ 6,000/- per month to the respondent w.e.f. 29.07.2021 till the disposal of the complaint or till such time the respondent is entitled to receive the same whichever is earlier.

2. The said interim maintenance was awarded u/s 23 of D.V. Act in a complaint filed u/s 12 of the said Act.

3. The appellant is aggrieved by the fact that the said order for interim maintenance was made effective from 29.07.2021 (which is the date of filing of the original complaint u/s 12 of the said Act) and not from the date of filing of the application u/s 23 of DV Act (the said application, as per record was actually moved on 14.10.2023).

4. Before proceeding further, it shall be relevant to note a few facts for the adjudication of the present appeal. On 29.07.2021 a complaint u/s 12 of the DV Act was moved by the respondent inter-alia against the appellant and his family members praying various reliefs against him and his family members. The said petition was not accompanied with any application u/s 23 of the Page 1/9 DV Act praying any interim maintenance.

5. After notice in the main complaint, the Ld. Trial court, vide order dated 08.04.2022 directed the parties to file their respective income affidavits in terms of the judgment titled as Rajnesh Verma Vs Neha passed in criminal appeal no.730/2020 passed by the Hon'ble Supreme Court. The said direction was again reiterated on 02.01.2023 and was eventually complied on 08.02.2023 by both the parties i.e. the appellant and the respondent.

6. Thereafter both the parties argued on the issue of interim maintenance on 08.02.2023 and 11.05.2023. On the said issue written arguments were also filed by the appellant on 09.06.2023. Subsequently, on 16.08.2023 (when the matter was listed for orders on the point of interim maintenance), the Ld. Trial Court noted that even though the matter is listed for orders on the point of interim maintenance u/s 23(2) of the DV Act (wrongly stated as CrPC in order dt. 16.08.2023 passed by the Ld. Trial Court), no formal application in this regard was on file. Thus, vide order dt. 14.09.2023 an appropriate application in this regard was directed to be filed by the concerned court. In pursuance thereto, the complainant moved a formal application in this regard on 14.10.2023 and a copy of the same was supplied to the appellant. It is pertinent to note that no reply of the said application was filed by the appellant before the Ld. Trial Court and his counsel, on 19.12.2023, submitted before the trial court that his written arguments filed earlier may be treated as his reply to the application moved by the complainant / respondent herein u/s 23 of the DV Act. Thereafter, based on record on 12.02.2024, the Ld. Trial Court awarded interim maintenance to the complainant Page 2/9 w.e.f. 29.07.2021 (i.e. the date of the filing of the original complaint).

7. Now, the short point raised by the appellant in this appeal is that if the application u/s 23 of the DV Act was filed by the complainant on 14.10.2023, could the court award interim maintenance to the complainant / respondent herein w.e.f 29.07.2021. It is the argument of the appellant that the same could not have been done as the same is in the teeth of the judgment passed by the Hon'ble Supreme Court in the matter of Rajnesh Vs. Neha and another (2021) 2 SCC 324. It is the argument of the appellant that in para 109 and 113 of the said judgment, it has been held by the Hon'ble Supreme Court that the right to claim maintenance must date back to the date of the filing of the application. It is further argued that the date of filing of application referred to in the said judgment is essentially, the date of filing of interim application u/s 23 of the DV Act (which admittedly was filed on 14.10.2023 in this case). The appellant argued that since there was no application u/s 23 of the DV Act prior to 14.10.2023, the Ld. Trial court committed error by awarding interim maintenance w.e.f 29.07.2021. He, thus prays for setting aside of the said order dt 12.02.2024.

8. The respondent / complainant argued that the impugned order does not suffer from any infirmity in as much as it was only an oversight that a formal application u/s 23 of the DV Act could not be filed earlier and both the parties had infact argued on different dates before the Ld. Trial Court on the point of interim maintenance which clearly shows that the parties contested the issue of interim maintenance. It is his argument that infact parties had filed their respective income affidavits before the Ld. Trial Page 3/9 Court in terms of the judgment titled as Rajnesh Vs. Neha and another (2021) 2 SCC 324 and this clearly shows that the parties were contesting the issue of interim maintenance. It is his argument that once parties had argued on the point of interim maintenance, the filing of formal application u/s 23 of the DV Act was a mere formality and therefore the award of interim maintenance made w.e.f the date of filing of the main petition (as distinguished from the date of moving of formal application u/s 23 of the DV Act) by the Ld. Trial Court cannot be faulted. The respondent / complainant thus prays for dismissal of the appeal.

9. Arguments heard. Record perused.

10. There is no dispute between the parties that they had filed their respective income affidavits before the Ld. Trial Court on 08.02.2023. This was in terms of the judgment titled Rajnesh Vs. Neha and another cited supra. Thereafter both the parties addressed the arguments on the issue of interim maintenance on 08.02.2023 and 11.05.2023. Again, as per trial court record written submissions were also filed on the said issue by the appellant herein before the Ld. Trial Court on 09.06.2023.

11. Thus, from the above it is evident that till 16.08.2023, both the parties proceeded under the assumption that the issue of interim maintenance is to be adjudicated between the parties and an application on this count u/s 23 of the DV Act is pending before the Ld. Trial Court. It was on 16.08.2023 that the Ld. Trial Court observed that no formal application in this regard is before the court and thereafter vide order dt 14.09.2023 a direction was given to the complainant to file a formal application. Subsequently, on 14.10.2023 the said application was moved. As already noted, the said application was eventually decided vide Page 4/9 impugned order dated 12.02.2024.

12. In my opinion, there was no infirmity committed by the Ld. Trial Court by awarding interim maintenance w.e.f. 29.07.2021 i.e. the date of filing of original petition and not w.e.f. 14.10.2023 i.e. the date of moving of formal application u/s 23 of the DV Act. This is because u/s 28 (2) of the DV Act, liberty is granted to the Trial Court to lay down its own procedure for dealing with an application u/s 12 of the DV Act or u/s 23(2) of the DV Act. It means that the legislature has granted enough liberty to the trial court for dealing with the applications under the said provisions without delimiting its power in any manner. It means that a trial court can lay down any procedure it deems fit, while dealing with the application under said provisions and therefore no infirmity can be said to have been committed by the Trial Court by hearing arguments on interim maintenance on various dates (when there was no formal written application u/s 23 of the DV Act on record) or thereafter calling upon the respondent / complainant to file a written application in this regard. The DV Act does not mandate that a written application is necessary for grant of interim order and thus, in a given case, even an oral plea can be considered by the court for grant of interim maintenance u/s 23(2) read with 28(2) of the DV Act. Section 23 (2) of the DV Act only mandates that for an exparte order, the affidavit as mandated in law may be considered by the court before grant of interim order under the various provisions mentioned therein. In this case, no exparte order was granted to the respondent.

13. As noted above both the parties had argued at length on the issue of interim maintenance and subsequently, the Ld. Trial Page 5/9 Court, in its wisdom, asked the complainant / respondent herein to file a written application. This shall not mean that the issue of interim maintenance was not being considered by the Ld. Trial Court at all. Infact, before the written application u/s 23 of the DV Act was filed, both the parties had argued the issue of interim maintenance on different dates. Thus, in my opinion, the Ld. Trial Court could have decided the issue of interim maintenance even on an oral plea in this regard without calling upon for a written application in this regard.

14. As far as the argument of the appellant based on the judgment of Hon'ble Apex Court titled as Rajnesh Vs. Neha and another cited supra is concerned, suffice is to say that the Hon'ble Apex Court in the said matter has directed that the date of filing of application should be treated as the date for award of maintenance. When the Hon'ble Apex Court laid that the date of filing the application should be treated as date of maintenance, it essentially meant the main petition for maintenance and not an interim application. It is abundantly clear from the reading of the said judgment that the Hon'ble Supreme Court was dealing with the issue of the date of award of maintenance as a whole and not with interim applications. In the said judgment, the Hon'ble Supreme Court took note of various dates being considered by different courts for award of maintenance in matrimonial cases and in exercise of its power under Article 142 of the Constitution of India held that while awarding maintenance under various Acts including u/s 12 of DV Act, the date of application for maintenance shall be the date from which the said award of maintenance shall be construed. This was done to avoid variance in the approach of different courts while calculating maintenance.

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The Hon'ble Supreme Court was dealing with award of substantive final maintenance under different statues and the overlap of the said statues and not with the award of interim maintenance. Thus, the contention of the appellant that the date of interim application should be the date of award of interim maintenance is misplaced. This is because the respondent / complainant has prayed for final maintenance in the main petition filed on 29.07.2021 and thereafter she also filed her affidavit of income in terms of the judgment Rajnesh Vs. Neha and another cited (supra). The requisite affidavit was also filed by the appellant in terms of the said judgment. Then the parties argued on the point of interim maintenance. Only because a formal written application was filed by the complainant (that too at the direction of the Ld. Trial Court ) for the award of interim maintenance shall not mean that she cannot be granted interim maintenance from the date of her original petition i..e 29.07.2021. On a holistic reading of the judgment passed in the matter of Rajnesh Vs. Neha and another cited supra by the Hon'ble Supreme Court would show that the Hon'ble Supreme Court took note of the fact that right of maintenance is given to a woman for avoiding destitution and vagrancy in a given case. The right of the husband is protected and is balanced by allowing full disclosure of rights and liabilities of the parties by asking them to file their respective affidavits in terms of the said judgment. Thus, the intent of the said judgment is that both the parties should fairly disclose their financial position before the court and after considering the same, the court was directed to award maintenance from the date of the application under the relevant Act including u/s 12 of the DV Act. The said award has Page 7/9 to be from the date of the main application / petition because once the litigant has approached the court, the time taken in the disposal of the said application / petition is not in the hands of said applicant at all. The said fact has been taken note of by the Hon'ble Supreme Court in its said judgment. By no stretch of imagination, can the same be treated to be date of interim application.

15. I am further pursuaded to hold so because if today the argument of the appellant is accepted and interim maintenance is awarded w.e.f. the date of filing of written application u/s 23 of the DV Act, can the appellant be allowed to argue at a later stage that no final maintenance can be granted to the complainant w.e.f. from filing of the original petition as there was no application for interim maintenance. As noted above, there is a specific prayer for award of final maintenance in the petition and it shall be absurd to argue that no final maintenance can be granted by the court at the time of disposal of the case. The interim maintenance awarded today shall be subject to the final outcome of the main petition which shall have to be granted, if at all, from the date of filing of the main petition. This shall be in terms of the judgment relied upon by the appellant. In other words, in my considered opinion, whether it is the case of interim maintenance or final maintenance, the ratio of the case of Rajnesh Vs. Neha and another cited supra lays that the date of filing of the main petition shall be treated as the date of award of maintenance in a given case. Any argument to the contrary, shall be in the face of the ratio of the said judgment and is therefore liable to be rejected.

16. In my opinion, Ld.Trial court committed no irregularity of Page 8/9 procedure or in law to call for any interference by this court. Accordingly the impugned order dt.12.02.2024 is upheld. Appeal is accordingly dismissed.

Let the copy of this order along with trial court record be sent back to the concerned trial court for necessary information and for proceeding with the case as per law.

The appeal file be consigned to the record room.

        Digitally
        signed by
BALWANT BALWANT
        RAI BANSAL              (Balwant Rai Bansal)
RAI
BANSAL
        Date:                  Special Judge, NDPS
        2024.04.24
        12:57:14          Shahdara Distt./KKD/24.04.2024
        +0530




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