Delhi District Court
Balvinder Singh Nigah vs Unknown on 9 February, 2009
1 Crl. Appeal No. 47/2008
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE-03,NORTH, DELHI.
Crl. Appeal No. 47/2008
PS - Tilak Nagar
U/s D.V. Act
Court Concerned/Successor Court:
Ms. Kiran Bansal, M.M., Delhi
In the matter of:
Balvinder Singh Nigah
S/o Late Sh. Salig Singh
R/o Gali No. 27, WZ-73/1, Santgarh
MBS Nagar, New Delhi-110018
Versus
Ms. Madhu Nigah
D/o Sh. Ram Dayal Dagore
R/o House No.: A-254, J & K Block,
Dilshad Garden,
New Delhi-110095
Previously Resided At:
16-E, Mahavat Khan Road,
Railway Quarters, New Delhi-110002
ORDER
This is an appeal under section 29 of the Protection of Women from Domestic Violence Act, 2005 against the order dated 21.08.2008 passed by Ld. M.M., Delhi whereby the Ld. M.M. granted interim maintenance of Rs. 3,500/- per 2 Crl. Appeal No. 47/2008 month( Rs. 2,000/- for daughter Mridu Nigah and Rs. 1,500/- per month to the respondent/wife).
In Brief case of the petitioner is that the respondent/wife filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter called 'The Act') alleging therein that she was married to the appellant on 27.11.1986 and from the wedlock a female child namely Mridu Nigah was born on 12.06.1989. She further alleged that during her stay with the appellant she was tortured by appellant and his relatives. Beside other reliefs, the respondent also sought a relief of maintenance for herself and for daughter Mridu Nigah. The respondent has not alleged any income of the appellant U/s 12 of the Act. The appellant refuted the allegations of the respondent-wife and stated in the reply to the application that he has been suspended by his employer and he is just getting subsistence allowance for his livelihood. It is further stated that he is required to submit non-employment 3 Crl. Appeal No. 47/2008 certificate every month in his office which he has been doing. Except this subsistence allowance the appellant has no other source of income. The appellant has been paying Rs.500/- per month as maintenance allowance to daughter Mridu Nigah and Rs. 400/- to the Respondent/wife u/s 125 Cr.P.C. The old widow ailing mother of appellant is residing with the appellant who is economically and otherwise also dependent on the appellant. Moreover, the appellant has to incur lot of amount on false litigations filed by respondent against him. Sometime in September, 2003 settlement talks/meetings between the parties took place and respondent put a pre-condition for settlement that the appellant should get himself insured and make her daughter Mridu Nigah as nominee in the said policy. The appellant readily agreed to the proposal made by the respondent and got himself insured for Rs. 2 lacs and made daughter Mridu Nigah as nominee in the said policy accordingly. The appellant has been paying Rs. 1,000/- per month as 4 Crl. Appeal No. 47/2008 premium to the insurance policy. The appellant is just getting Rs. 5,000/- per month as subsistence allowance, out of which he is paying Rs.900/- as maintenance to the Respondent and his daughter Mridu Nigah and Rs. 1,000/- is given as premium by the appellant to the insurance company. From the balance amount of Rs. 3,100/- he looks after his day to day needs as well as he is to maintain his old widow mother. The mother of appellant is about 88 years of age and most of the balance amount left with the appellant is incurred by him on medication/therapies.
One of the grounds for appeal is that Whether the Ld. Trial court can grant interim maintenance without considering the domestic incident report from the Protection officer?Whether a daughter who has already attained maturity, can claim maintenance under the Act? It is further argued that whether the Ld. Trial Court ought to have granted maintenance without assigning any reason specially when the respondent and her daughter were getting interim maintenance U/s 125 Cr.P.C. It is further stated that 5 Crl. Appeal No. 47/2008 whether the Ld. trial court ought to have granted interim maintenance of Rs.3,500/- per month (Rs.2,000/- for daughter Mridu Nigah and Rs. 1500/- to respondent wife) specially when the petitioner was just getting a subsistence allowance for his livelihood? Whether the Ld. Trial court should have granted interim maintenance to the daughter Mridu Nigah without impleading her as party in the application? Whether the Ld. Trial Court should have granted interim maintenance from the date of order or from the date of application? It is therefore prayed that the appeal of the appellant be accepted and order dated 21.08.2008 be set aside.
After filing of the appeal, notice was issued to the respondent also. The respondent appeared but did not file any reply to the appeal.
I have heard the counsel for the parties and have carefully perused the record.
The first plea of the petitioner is that the Ld. Trial Court granted the interim maintenance without considering 6 Crl. Appeal No. 47/2008 the domestic incident report from the protection officer. Ld. Counsel for the petitioner argued that it was incumbent upon the Ld. Trial Court to call for the report of protection officer and thereafter only after considering the domestic incident report, the court can pass the order for interim maintenance. So far as the notice to the protection officer is concerned, then same has been duly sent by the Trial Court as is revealed from the order sheet dated 17.01.2007 of Ld. Trial Court. The protection officer has also filed the status report and domestic incident report in the present case. Though there is no mention in the impugned order dated 21.08.2008 that the report of the protection officer has been perused but merely because the same has not mentioned, no presumption can be raised that the Ld. M.M. did not consider the domestic incident report. Furthermore, section 12 of the Protection of women from Domestic Violence Act reads as under:
"Application to Magistrate: An aggrieved person or a Protection Officer or any other person on behalf 7 Crl. Appeal No. 47/2008 of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider."
The proviso to this section provides that a Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
Perusal of the record shows that in the order dated 21.08.2008, it has been mentioned by the Ld. M.M. that reply to the application under section 12 has also been filed by the respondent and though this act does not provide for any specific procedures to be followed in the cases U/s Domestic Violence Act, but the principles of natural justice cannot be dispensed with and an opportunity should be given to both the parties to lead their evidence and as the leading of evidence would take time, the interim protection 8 Crl. Appeal No. 47/2008 be granted to the applicant/complainant. Thus, both the parties were given an opportunity of being heard by the Ld. M.M. and merely because the fact that she has perused the domestic incident report, has not been mentioned in the order sheet, is no ground to presume that the same was not considered.
Next plea taken by the petitioner is that the daughter has already attained the age of maturity and, therefore, she cannot claim maintenance in the act. It may be mentioned that in the Domestic Violence Act, no difference is made between a minor and major for the purpose of maintenance and furthermore it is not the plea of the petitioner that the daughter has also started earning. Now-a-days the fees in the public schools as well as in the private institutions for pursuing any professional course after 12th class is known to everybody and therefore, by no set of imagination, it can be presumed that the respondent shall be able to maintain herself and her daughter in a sum of Rs. 9 Crl. Appeal No. 47/2008 900/- only. So far as the maintenance under section 125 Cr.P.C. is concerned, then in section 26 of the Domestic Violence Act, it has been clearly mentioned that:
Relief in other suits and legal proceedings:
(1)Any relief available under section 18,19,20,21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceedings was initiated before or after the commencement of this Act.
(2)Any relief referred to in sub-section(1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3)In case any relief has been obtained by the aggrieved person in any proceedings other than a proceedings under this Act, she shall be bound to inform the magistrate of the grant of such relief.
Thus, the perusal of this section shows that if any other relief under this Act which has also been sought in any other legal proceedings then the pendency of the legal proceedings before a civil court, family court or a criminal court is no bar for claiming any relief under section 10 Crl. Appeal No. 47/2008 18,19,20,21 and 22 of the Domestic Violence Act and, therefore, there was no bar for the court to grant interim maintenance to the daughter Mridu Nigah without making her a party in the application. Now coming to the amount of interim maintenance granted by the court. The court has granted Rs, 2,000/- for the minor daughter and Rs. 1500/- for the respondent which is not a hefty amount. According to the petitioner, he is under suspension from his job since December 1991 and he has to give a certificate to his employer regularly that he is not employed anywhere for the grant of the subsistence allowance and he is also paying premium of Rs, 1,000/- per month towards life insurance policy. So far as the subsistence allowance of Rs. 5,000/- is concerned, then already as per the petitioner he is paying Rs. 1,000/- for the premium policy and Rs. 900/- as maintenance to the respondent and their daughter. He has to incur expenses on the litigation started by respondent. In such circumstances, he has failed to show how he maintain 11 Crl. Appeal No. 47/2008 himself and his old widow mother out of the balance amount of Rs. 3,100/- in a city like Delhi. It seems that the petitioner has clearly concealed his true income from the trial court in order to avoid the payment of maintenance. Therefore, in such circumstances, the court was left with no other option but to act on probabilities and the amount of Rs. 3,500/- as granted by the court is not exaggerated or is not on higher side. Furthermore, the question of the career of the minor daughter is also involved and at this stage a mere sum of Rs. 2000/- cannot be said to be a very hefty amount for the maintenance of her daughter aged around 18 years. She is to be married in the near future and her career is also to be seen in this case. Therefore, in such circumstances, the amount of Rs. 3500/- granted by Ld. M.M. is not on the higher side. There is no infirmity or illegality in the order dated 21.08.08 passed by Ld. M.M. Therefore, the present appeal filed by the appellant is 12 Crl. Appeal No. 47/2008 dismissed. There shall be no order as to cost. Parties are directed to appear before the Ld. Trial Court on 30.03.2009. Trial Court Record alongwith copy of this order be sent back. Ahlmad to send the TCR back before that date. Appeal file be consigned to Record Room.
(MADHU JAIN) Additional Sessions Judge-3 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 09.02.2009. 13 Crl. Appeal No. 47/2008