Delhi District Court
Vinod Jaiswal vs Renu Chaudhary And Anr on 26 March, 2025
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR No. DLCT01-011547-2023
CA No. 204/2023
Vinod Jaiswal
S/o. Sh. Mewalal
R/o. Flat No. 903, 9th Floor,
Reviera A Wing Buidling, Casa Bella Society,
Palava City, Shill Phata Road,
Dombivali East, Thane,
Maharashtra-421204.
..........Appellant
Vs.
1. Smt. Renu Chaudhary
W/o. Sh. Vinod Jaiswal
D/o. Sh. Shamsher Bahadur
2. Baby Riddhi Chaudhary
D/o. Sh. Vinod Jaiswal
Through her natural Guradian Mother
Both residents of :
House No. 110, 25 Foota Road,
Darshan Vihar, Burari,
Delhi-110084.
..........Respondents
Date of institution of Appeal : 17.08.2023
Date on which order reserved : 16.01.2025
Date on which order pronounced : 26.03.2025
CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 1 of 14
ORDER
1. This an appeal u/s. 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as PWDV Act) filed by the appellant Vinod Jaiswal against the impugned order dated 18.07.2023 in Ct. Case No. 1087/2022, titled as 'Renu Chaudhary Vs. Vinod Jaiswal' passed by the Court of Ms. Reetika Jain, Ld. MM-03 (Mahila Court), Central District, Tis Hazari Courts, Delhi vide which interim maintenance of Rs. 13,000/- per month has been awarded in favour of respondent no.1 and Rs. 10,000/- per month has been awarded in favour of the child till they are legally entitled to receive the same.
2. The brief facts of the case are that the revisionist and respondent no.1 were married on 21.04.2019 at Bhadhohi, U.P. as per Hindu Rights and Customs and after marriage, they started residing in Mumbai. As per allegations, she was subjected to domestic violence due to which her father brought her to the parental house and thereafter, she lodged complaints against the appellant. The girl child remained in the custody of the respondent no.1. Respondent no.1 filed an interim application u/s. 23(2) of PWDV Act for grant of interim maintenance and vide order dated 18.07.2023, and vide impugned order, the ld. Trial Court allowed the application of the CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 2 of 14 appellant no.1.
3. Aggrieved by the impugned order, the appellant has filed the present appeal u/s. 29 of PWDV Act for setting aside the impugned order dated 18.07.2023. Ld. Counsel for the appellant has filed the present appeal on the following grounds :-
a) That the Ld. Trial court has failed to appreciate the fact that both the parents of appellant/husband are senior citizens who are totally dependent on the appellant for their survival and maintenance regarding food, clothing and medical expenses. Both the parents needs at least 5000/- Rupees per month. The age of father and mother of the appellant is 71 and 69 Years respectively.
The copy of Aadhar cards of the parents is annexed collectively as annexure- A4. The Ld. Trial court has not taken into consideration the expence incurred by the appellants his parents for their maintenance, while calculating the amount of maintenance to be awarded to the respondent/wife.
b. That the Ld. Trial Court has failed to appreciate the fact that respondent/wife is highly academically and technically qualified person and she has every capability to earn her livelihood. The judgement of the Hon'ble Apex Court titled as Rajnesh Vs Neha & anr. (2021) 2 SCC, page 324, relied upon by the Hon'ble Trial Court is totally misplaced as the fact and circumstances of that case were entirely different from the fact of the present case. The law laid down by the Hon'ble Apex Court is not in dispute. c. That the Ld. Trial court has failed to appreciate the fact that, when able bodied male does not work then his income is assumed as per minimum wages received by a unskilled labourer, then why an income of female able bodied person be not assumed, even if she is not earning, more so when she is highly academically and technically qualified person. In the present case the income of the husband after adjusting all his liabilities or expenses is so meagre that the amount of maintenance awarded by Ld. Trial Court to the respondent/wife is totally unjustified. The law laid down by the Hon'ble Supreme Court in Sunita Kachwaha & Ors. vs Anil Kachwaha (2014) 16 SCC 715, relied by the Hon'ble Trial Court is totally correct but the law has not been properly interpreted and applied in the present facts of the case. It is correct to say that merely because the respondent/wife was earning some income, it could not be a ground to reject her claim for maintenance but in the CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 3 of 14 present case the appellant/husband is less qualified then the respondent and after adjusting all other liabilities, the income appellant/husband is not enough to support the respondent/wife when she lives separately from the appellant/husband, that too, without any just and reasonable ground. When a respondent/wife resides with appellant/husband in matrimonial house, the total expenses would naturally be less in running the house hold than when they live separately.
d. That the Ld. Trial court has failed to appreciate the fact that the judgment relied by the Hon'ble trial court titled as Dr. Kulbhushan Kunwar vs Rajkumari, (1970) 3 SCC 129 is highly misplaced and erroneous for three reasons. Firstly, that Judgment deal with the provisions U/s 125 Cr. P. C. Secondly, the facts of that case were totally different from the fact of the present case. Thirdly, section 125 Cr. P. C. stipulate that if any person having sufficient means neglect or refused to maintain his wife, his legitimate or illegitimate minor child, who are otherwise unable to maintain themselves, shall be obligated to do so. The main conditions for invoking section 125 of Cr. P. C. are that, firstly, the person from whom maintenance is being demanded should have sufficient means. Secondly, the husband should have refused or neglected to maintain his wife, legitimate or illegitimate minor child. Thirdly, the persons who are claiming maintenance are unable to maintain themselves. In the present case the appellant/husband has no sufficient means to maintain his wife in case she lives separately from the appellant/husband as per the calculation given below. The respondent/wife is able to maintain herself and her child as she highly qualified and capable of earning of her livelihood. It is settled principal and law that the income of the able bodied persons would be presumed if they are capable of earning, even if they are not earning a single penny. Moreover, the appellant/husband have never ever neglected or refused to maintain her wife and child. The respondent/wife has herself left the matrimonial home without any justified reasons, and appellant/husband, in order to bring her back, filed a civil suit for restitution of conjugal right U/s 9 of HMA before the Ld. Second Joint Civil Judge, Senior Division, Kalyan, Maharashtra.
e. That the Ld. Trial court has failed to appreciate the fact that the total salary of the appellant/husband as per the salary slip of December 2022 is Rupees 50,015/-. It is submitted that appellant/husband has taken housing loan of Rupees 25 Lac from ICICI Bank for a period of 220 Months for which he has to pay an EMI of 22, 310/- Per month. He had also taken a personnel loan of Rupees 2 Lac from HDFC Bank for a period of 3 Years for which he has to pay an EMI of 6,548/- Per Month. He has also taken a TOP UP/Home loan of Rupees 3, 12, 000/-, from ICICI Bank for CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 4 of 14 which he has to pay an EMI of Rupees 5241/- per Month. There for total EMI's amount paid comes to Rupees 34099/- per month. The appellant/husband has to further incur expenses of rupees 5000/- (approx) on his medical bills. He is suffering from cardiac, liver and diabetes problems. The appellant/husband has to incur approximately Rupees 5000/- for his grocery and kitchen expenses. He also has to pay Rupees 5000/- to his parents as submitted earlier. Therefore total monthly expenses of the appellant/husband is Rs. 49,000/- Per month. Hence, the appellant/husband is left with only Rupees 1000/- per Month.
f. That the Ld. Trial Court has failed to appreciate the fact that appellant/husband has four dependents i.e. one wife, one child and mother and father. Therefore the income of the appellant/husband has to be apportioned in 6 equal parts and two parts are to be given to appellant/husband (one part as his share and other part for earning the income), one part each to each of the dependent. Now applying the above principal, income of 50000/- is to be apportioned in 6 equal parts which comes to 8,333/- only, therefore, even without considering any expenses of the appellant/husband, the amount of maintenance payable to wife and minor child comes to Rupees 8333/- each. If the available income to the appellant/husband is to be considered, then the income of appellant/husband, after deduction of EMI's of Loan amount, comes to approximately Rupees 16000/- only. Therefore, dividing 16000 into 6 equal parts the amount available for maintenance to respondent/wife and child comes to Rupees 2666/- each. Hence by all calculations, the amount of maintenance awarded by the Ld. Trial Court to the respondent/wife and her child is totally incorrect and unjustified.
g. That the Ld. Trial court has failed to appreciate the fact that the respondent/wife had left the company of appellant/husband without any justified reason and on his own volition. The appellant/husband had repeatedly demanded her to return to matrimonial home.
h. Because the Ld. Trial court has failed to appreciate the fact that it is the respondent/wife who have been committing cruelties upon the appellant/husband as has been explained in earlier paragraphs of this appeal.
i) That the Ld. Trial court has failed to appreciate the fact that respondent/wife is very lazy person and she get up only after 8 am in the morning and is always reluctant to do routine house hold work. She do not prepare any breakfast, lunch or dinner in the house, Whenever appellant/husband demanded her to do normal house hold work, she got irritated and start quarreling with the CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 5 of 14 appellant/husband. This behavior of the respondent/wife led her to leave the matrimonial home so that she could live her life as per own whims and fancies. She has filed the cases against the appellant/husband only to harass him and extort money from him.
j. That the appellant/husband craves the leave of this Hon'ble court to advance any other arguments at the time of hearing of this appeal.
4. It is contended by the ld. Counsel for the appellant that the appellant wanted the respondent no.1 to live with him and therefore he had filed petition u/s. 9 Hindu Marriage Act at Bombay which was transferred to Delhi. It is further contended that the expenses are different when the husband and wife live together which are higher when the duo live separately. It is further contended that the parents of the appellant are old aged and the ld. Trial Court had not considered that the appellant is liable to be maintain his parents. It is further argued that the complainant is well qualified having vocational educational qualification and has capacity to earn. It is further contended that the appellant has taken several loans which are to be repaid in EMIs which should be detected from the earning of the appellant for calculating his income while deciding maintenance. It is prayed that the impugned order of the ld. Trial Court may kindly be set aside.
5. To the contrary, the ld. Counsel for respondents argued that the appellant is a bank employee and his salary is subject to 20% enhancement every year. It is further argued that the appellant has taken loans on his liability CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 6 of 14 for which the deductions are not permissible. It is further argued that the parents of the appellant are residing in village in house having ten rooms and a cyber cafe. It is further argued that the elder brother of the appellant is taking care of the parents. It is further contended that the child was born on 28.03.2021 and it was not possible for the respondent no.1 to earn while her child is in her lap. It is prayed that the present appeal may kindly be dismissed. Ld. Counsel for the respondents has also filed written submission which are as follows:-
1. That the detained speaking order, have been passed by the Ld. Presiding Judge Mahila Court, by giving at every step a reasoned order citing the rulings on the maintenance under the Domestic Violence Act, 2005 and there is no scope at all for the respondent husband to go for appeal on flimsy grounds and taking the alibi that apart from responsibility of respondent wife he is stated, his equally spending Rs.5,000/- per month to his parents living in Serajatpur U.P., whereas the fact is contrary to what he is stated because he is having three flats in Mumbai and his holding managerial post in CSB Bank Ltd. at Mumbai branch.
2. That the respondent husband getting a salary of Rs.50,015/- as per salary slip of December, 2022. Apart from monthly salary as per the pay slip the respondent husband also gets Rs.5,000/- a month towards medical expenses and over and above the monthly salary the managerial level of post which his holding gets PRP (Performance Related Pay) which is usually 80% to 70% of annual basic pay as a onetime incentive payable to his category of executives.
3. That the pleas of respondent husband that he has taken house a loan of Rs 25,00,000/- from ICICI Bank for a period of 220 months and for which he has to pay an EMI of Rs.22,310/-. The additional plea of respondent husband that he is taken additional personal loan of Rs.2,00,000/- from HDFC and its EMI repayment comes to Rs.6,548/- per month apart from these two loans he has advanced another argument that he has also taken top up home loan of Rs.3,12,000/- from ICICI Bank for which respondent husband is liable to pay an EMI of Rs.5,241/- per month.
CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 7 of 14
4. That the each and above aspects of the respondent husband and petitioner wife please have been equally considered and after that a reasoned speaking order for interim maintenance has been passed by the Ld. Presiding Judge, Mahila Court on 18.07.2023 and in crus criteria for determining quantum of maintenance has been deliberated by the Hon'ble apex Court in case titled as Rajnesh Vs. Neha & Anr., Crl. Appeal No. 730/2020 (arising out of SLP (CH) No. 9503 /2018, dated 04.11.2020 The factors which would weight with the Court inter-alis 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. ...... Secondly, for the plea that respondent is having liability on his head as he has loans to pay off 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 at 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 permitted." etc. are permitted."
On this aspect, the pertinent observations of Hon'ble Supreme Court in Dr. Kulbhushan Kunwar Vs. Raj Kumari, (1970) 3 SCC 129, Crl. Rev. No. 640/ 2019 (Treated as an appeal) 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 .......
5. That the husband has evaded medical expenses incurred by the respondent wife parents on first occasion while she was on her family way and unfortunately the new born baby was aborted prematurely and the thereafter she was again on her family way entire delivery expenses incurred in Aruna Asaf Ali Hospital (Government Hospital) amounted to more than 6 lakhs were incurred by her parents and the careless appellant husband forwarded to his wife the credit number of his credit card whereas CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 8 of 14 while working in bank respondent husband knows very well by mentioning Credit Card Number is not chargeable anywhere.
6. That although the interim maintenance orders speaks of maintenance allowance wife and female baby child amounting to Rs.13,000/- and Rs.10,000/- respectively in favour of complainant wife for all ancillary purposes including medical expenses, food, clothing and residence / rent and Rs.10,000/- to the child from the date of filing of present petition till they are legally entitled to receive the same.
7. 7. That as per the citation of reported judgment of Hon'ble Supreme Court 2008 Legal Eagle (SC) 1446 titled as Rajesh Burmann Versus Mitul Chatterjee (Burman). As per the citation of above reported Hon'ble Supreme Court Judgment it was held that the wife was entitled to medical expenses which order was slightly modified by the High Court upholding her right reimbursement from her husband. to get medical reimbursement from her husband.
The respondent wife hereby submits that all medical bills are with the respondent wife and the Hon'ble Court may be pleased to order by enhancing the interim maintenance order by directing reimbursement of medical expenses to the tune of Rs.6,00,000/- to be realized from the appellant husband.
That the contention of appellant husband that he is paying Rs.5,000/- per month to his parents is belied by the fact that parents are residing in native place Sehajatpur in eight rooms accommodation in a plot of 200 sq. yds. and is running a cyber café as well as a daily need shop and the Maruti Swift Car given in marriage is being run by his parents as a private taxi and his elder brother who is permanently settled their, takes care of the parents.
6. Ld. Counsel for respondent has filed the following judgment i.e. MAT. APP. (F.C.) 248/2019 & CM APPL. 20720/2022 to support his arguments.
7. This Court has heard the rival contentions advanced on behalf of both the parties and has perused the record.
8. The PWDV Act is a special legislation meant to protect the women against the menace of domestic violence. It is a self contained Code which deals with the cases CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 9 of 14 constituting domestic violence and provides for the remedies available to the victim. One of the objectives of enactment of PWDV Act is to provide for a remedy under the civil law to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. PWDV Act has been enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution of India.
9. It is important to mention Section 25 of PWDV Act which provides that if the Magistrate is satisfied that there is a change in circumstances requiring alteration, modification or revocation of any order made under this Act, he may for the reasons to be recorded in writing, pass such order as he may deem appropriate.
10. In the present case, the marriage between the parties and the child being born out of the wedlock is not in dispute. The child is presently incustody of respondent no.1. The respondent no.1 has raised allegations of domestic violence. The allegations are to be taken on their face value which are yet to be proved during the trial. The respondent no.1 is definately a aggrieved party in the present case and is entitled to the reliefs as provided in DV Act, one of them being monetary relief.
11. The husband has the responsibility to take care of the maintenance of the wife and children who cannot CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 10 of 14 maintain themselves and do not have sufficient income.
12. Though, the appellant has argued that the respondent no.1 is well qualified to earn but he has not provided any proof to show that the respondent no.1 is earning or is employed anywhere. Capacity to earn and actual earning are to two separate things. It is also not shown that the respondent no.1 was into some employment or she was earning before the marriage. More so, she is having the custody of the minor child and she cannot be expected to earn while she is having minor child to take care.
13. In 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.
14. Counsel for appellant has also argued that the parents of the appellant are senior citizens and they are dependent upon the appellant. Admittedly, the parents of the appellant are residing in native village. It is not alleged that the other brothers of the appellant are not taking care of the parents. It is also not alleged that the parents of the CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 11 of 14 appellant are not having any agriculurual land in their name. No fard or document regarding agriculture ownership of land in the village has been produced by the appellant. Thus, it cannot be assumed that the parents of the appellant are dependent upon the appellant.
15. It is further contended by Counsel for the appellant that the appellant has taken housing loan of Rs. 25 Lacs for which he is paying EMI of Rs. 22,310/- per month and has also taken personal loan of Rs. 2 Lacs for which he is paying EMI of Rs. 6,548/- per month and that he has also taken one top up of home loan of Rs. 3,12,000/- for which he has to pay EMI of Rs. 5,241/- per month which comes out to be of Rs. 34,099/- per month. It is further contended that the appellant has to incur Rs. 5,000/- on his medical bills and Rs. 5,000/- for his grocery and kitchen and by spending all this, he is left with only Rs. 1,000/- per month. This contention of the Counsel for the appellant does not sound convincing as the deductions towards compulsary contributions like GPF etc.are only permissible. The deductions towards house rent, electricity bills, EMIs of loan are not permitted to be deducted while calculating the income for deciding the quantum of maintenance. This Court is fortified by the observations of Hon'ble Delhi High Court in Nitin Sharma vs. Sunita Sharma and Ors., Crl. Rev. No. 322/2020 decided on 18.02.2021 wherein it was observed CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 12 of 14 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 compulsary contributions like GPF, EPF etc. are permitted and no deductions towards house rent, electric charges, repayment of loan, LIC payments etc. are permitted."
16. It is not contended that the appellant is not able bodied.
He is well employed in the bank earning near about Rs. 50,000/- per month as admitted by him. He is under obligation to provide the same standard of living to his wife and children which they were enjoying before separation. The Ld. TrialCourt has assessed the income of the appellant to be average median of his admitted salary which comes to approximately Rs. 52,000/- and by applying the settled principles of law, considering the appellant having two dependents i.e. the respondent no.1 and the child, the said amount could have been divided into four parts and the respondent no.1 and the child being entitled to one part each which comes out to be Rs. 13,000/- each. However, the ld. Trial Court considering the overall facts and circumstances, the financial condition, status of parties and responsibilities, directed the appellant to pay Rs. 13,000/- per month to the respondent no.1 and Rs. 10,000/- to the child for all their needs and expenses till they are entitled to receive the same. This Court finds no error, illegality or infirmity int CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 13 of 14 the impugned order passed by the ld. Trial Court as the same is detailed and well reasoned order.
17. Accordingly, the appeal is dismissed and the impugned order dated 18.07.2023 passed by the ld. Trial Court is hereby upheld.
18. Parties are directed to appear before the ld. Trial Court on for further proceedings.
19. Copy of this order be sent to the concerned Court for information and necessary action as per law.
20. Appeal file be consigned to Record Room.
Announced in the open Court on 26th March, 2025 (SUSHIL ANUJ TYAGI) ASJ-04/CENTRAL/DELHI 26.03.2025(VR) Digitally signed by SUSHIL SUSHIL ANUJ TYAGI ANUJ Date:
TYAGI 2025.03.26 16:07:00 +0530 CA No. 204/2023 Vinod Jaiswal Vs. Renu Chaudhary and Anr. Page No. 14 of 14