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Delhi District Court

Sunil Madan vs Rachna Madan And Ors on 25 November, 2023

IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
     SOUTH DISTRICT, SAKET COURTS : DELHI

CRL. APPEAL No. 185/2023
CNR No. : DLST01-006455-2023

SUNIL MADAN, AGED ABOUT 63 YEARS,
S/O LATE SH. BR MADAN,
R/O 32-B, EMPIRE ESTATE,
SULTANPUR, MG ROAD,
NEW DELHI-110030            .........APPELLANT

                                   VERSUS

1.        RACHNA MADAN
          W/O MR. SUNIL MADAN
          R/O S-243, GROUND FLOOR,
          GREATER KAILASH-I, NEW DELHI

2.  UMBERINE MADAN
    D/O MR. SUNIL MADAN,
    R/O S-243, GROUND FLOOR,
    GREATER KAILASH-I, NEW DELHI
                            ........ RESPONDENTS
DATE OF INSTITUTION       :         12.07.2023
ARGUMENTS HEARD ON        :         08.11.2023
DATE OF JUDGMENT          :         25.11.2023

JUDGMENT

1. This is a criminal appeal preferred by the appellant (Respondent/Husband before the Ld. Trial Court) against the impugned order dated 01.06.2023 passed by the court of Ld. Metropolitan Magistrate-02 (Mahila Court), in MC 5/2016 titled as Rachna Madan Vs. Sunil Madan, under Section 29 of the Protection of Women from Domestic Violence Act 2005 (hereinafter referred to as 'the D.V. Act') whereby the application under Section 25 (2) of the CA No. 185/2023 Sunil Madan Vs. Rachna Madan and Ors. Page 1 of 10 DV Act, 2005 of the appellant seeking reduction of interim maintainance was dismissed.

2. The facts in brief of the appeal as pleaded are that complainant (respondent herein) had filed a complaint Under Section 12 of Protection of Women from Domestic Violence Act in 2005. During the proceedings of the said case the parties entered into a settlement on 06.11.2013 and as per the agreement arrived between applicant and respondents, the appellant is paying Rs. 80,000/- to the respondents towards accommodation. Further, vide order dated 09.11.2017, interim maintenance of Rs. 55,000/- was fixed and appellant was directed to pay the same to respondent no.1. Thereafter, appellant filed an application for reducing the amount of Rs. 80,000/-on the ground of change in facts and circumstances, but same was dismissed vide order dated 23.07.2019. Appellant again filed an application for reducing the amount of Rs. 80,000/- paid towards residence to Rs.40,000/-, amount for maintenance from Rs. 55,000/- to Rs. 27,500/- and also for refund of amount since year 2013. The said application was dismissed vide impugned order dated 01.07.2023. Hence, the instant appeal has been filed.

3. The said impugned order has been challenged by the appellant primarily on following grounds:-

i. Trial Court has failed to refer to the deposition of CW-1 Ms. Rachna Madan, wherein she has categorically stated in her cross examination on CA No. 185/2023 Sunil Madan Vs. Rachna Madan and Ors. Page 2 of 10 05.04.2023 that respondent no. 2 has been working for gain since 2013.

ii. Trial Court has also failed to take into consideration the deposition of respondent no.1, that respondent no. 2 is married since 12.03.2022 and once it has come that respondent no. 2 is married and is of age about 32 years, she is not entitled to any maintainance.

iii. Trial Court by holding that order dated 09.11.2017 granting interim maintainance was only qua the respondent no. 1 and not respondent no. 2 has ignored the directions passed by Hon'ble High Court, wherein Trial Court was specifically directed to determine, whether respondent no. 2 is entitled for any maintenance or not.

iv. Trial Court failed to appreciate that respondent no. 2 is aggrieved in this case and the order dated 09.11.2017 include respondent no. 2 also. It also erred in not taking note that respondent no. 2 is actively taking part in litigation against the appellant even after attaining majority.

v. The trial Court has also not considered the ITR of appellant which was filed at the direction of Court itself.

4. TCR was called for which has been perused.

5. I have heard arguments advanced by Ld. counsels for both the parties.

6. Ld. counsel for the appellant in support of his said grounds of the appeal, further argued that appellant cannot be purportedly burdened to pay the interim maintenance without looking into the subsequent change in circumstances.

7. Per contra, Ld. Counsel for the respondent contended that the application of appellant was not maintainable as the order for maintenance has already attained finality and the Trial court had no jurisdiction to alter it. He also submitted that there is no legal and factual infirmity in the impugned order.

8. The first contention of Ld. Counsel was that the amount of Rs.80,000/-, which was awarded for providing accommodation to both respondent no. 1 and 2 needs to be reduced in view of the fact that respondent no. 2 is now an Australian Citizen and not sharing residence with respondent no. 1. In this respect, Ld. Trial court has made following observations:-

"As regards the reduction of amount towards rent in lieu alternate accommodation, Ld. Predecessor of this Court has already decided this aspect via detailed order passed on 23.07.2019 by way of which the same request of respondent was declined. Hence, I do not see any reason to interfere with CA No. 185/2023 Sunil Madan Vs. Rachna Madan and Ors. Page 4 of 10 the order passed by Ld. Predecessor of this Court."

9. I have perused the order dated 23.07.2019 passed by Ld. MM. The application was filed by the appellant herein for reduction of amount of Rs. 80,000/- and direction to aggrieved to move to an accommodation with maximum rent of Rs. 45000/- The contention of appellant has been dealt in detail in order dated 23.07.2019 and even the facts and circumstances prior to the order dated 06.11.2013, wherein parties entered into settlement and appellant agreed to give Rs. 80,000/- to respondents for accommodation has also been taken into consideration. Further, in the opinion of court the previous orders were superseded by settlement between the parties. The fact, respondent no. 2, the daughter is not residing with the respondent no. 1 was also taken into consideration while passing the said order. The Trial Court has correctly observed that, the contention of appellant has already been dealt vide order dated 23.07.2019, which was passed on an application filed by appellant for reduction of amount.

10. Trial court records reflects that on 06.11.2013, the statements of both the appellant and respondent were recorded and they both agreed upon that appellant shall pay to the respondent no. 1 an amount of Rs. 80,000/- per month for making her own arrangements for residence for self and for respondent no. no. 2 during the pendency of case. Both the parties voluntarily decided the amount for accommodation of respondent no. 1 & 2 and it is no where CA No. 185/2023 Sunil Madan Vs. Rachna Madan and Ors. Page 5 of 10 mentioned in the said order that in case one of the respondents leave the house, it will be decreased proportionally. It is also to be noted that the rentals have increased manifold since 2013 when both the parties entered into settlement. In the year 2019 appellant has shown his gross income, Rs. 1,20,000/- per month. The order dated 23.07.2019 was passed only after considering the income of respondent. The Trial Court has rightly referred to the order dated 23.07.2019 as same contentions were already decided in detail in said order which has attained finality as same being not challenged.

11. I do not find any reasons to take a view different from one taken by Ld. Trial Court.

12. Next argument of Ld. Counsel was that the respondent no. 2 is now gainfully employed and also married, hence not entitled for maintenance and the order dated 09.11.2017 requires modification by reducing the amount proportionately as same was awarded for maintenance of both respondent no. 1 & 2 .

13. The claim of appellant was dealt by Trial Court in following manner:-

"Further, as Regards the amount of maintenance awarded to complainant, it is the case of respondent that the amount of Rs.

55,000/- was ordered towards maintenance of complainant and her daughter. Further, daughter CA No. 185/2023 Sunil Madan Vs. Rachna Madan and Ors. Page 6 of 10 has been gainfully employed since 2013 and has also married in 2022, she is not entitled to receive maintenance from respondent and has accordingly sought modification of order dated 17.11.2017. I have perused order dated 17.11.2017 as well as other material available on record. The order dated 17.11.2017 is very clear and left no room for ambiguity. Vide order dated 17.11.2017 , the amount of Rs. 55,000/- was exclusively ordered to be paid to the complainant only. The fact of daughter living and studying in Australia was well within the knowledge of this Court as simultaneously adequate arrangements were being worked out towards educational expenses of the daughter. It is also noted that this amount of Rs.

55,000/-was not decided by this Court independently on the basis of material available on record. This court noted that respondent himself was paying Rs.

33,000/- to complainant voluntarily towards maintenance and Rs.

22,000/- as directors hip fee which he later on stopped paying. Hence, after considering the bank statements of respondent and lavish life style enjoyed by respondent, this Court only reaffirmed and directed respondent to pay Rs.

33,000/- towards personal expenses of the complain and Rs. 22,000/- towards household expenses. There is CA No. 185/2023 Sunil Madan Vs. Rachna Madan and Ors. Page 7 of 10 no mention that the above said amount was awarded in favour of aggrieved and her daughter conjointly. I do not see any merit in the contention of respondent."

14. Vide order dated 09.11.2017 an application filed by respondent no. 1 for fixation of maintenance amount was decided. The operative part of said order is "Thus in totality of the above said facts this court is of view that a sum of Rs. 33,000/- which respondent was contributing is towards personal expenses of the aggrieved are reasonable and justified but overall considering the previous income of aggrieved, her medical condition her household expenses and the household expenses of respondent, also considering the previous income from directorship fees, this court is of the view that grant of further sum of Rs. 22,000/- as maintenance towards household expenses of the aggrieved would meet the end of justice. Hence in total apart from Rs. 80,000/- which respondent is paying towards the residence right of aggrieved he is directed to pay a sum of Rs. 55,000/- as maintenance to aggrieved." The order dated 09.11.2017 makes it clear that maintenance was fixed qua respondent no. 1 only and not respondent no. 2.

15. I am of the view that reasoning given by Trial Court is justified. Hence, this contention of appellant is without any merit.

16. The appellant has also contended that trial court has ignored the directions passed by Hon'ble High Court to determine wherein respondent was entitled of maintenance or not.

17. The appellant had filed a quashing petition against respondent no. 1 and 2 for quashing complaint no. 2222/1 which was disposed vide order dated 02.06.2012. In para 16 of said order, it has been observed that "with regard to claim of educational expenses of their daughter, the petitioner had been maintaining that this being his responsibility, he shall bear all the expenses of education and maintenance of his daughter till the marriage or able to maintain herself that aspect will also be further determined by MM as from material available on record, it is not gathered as to whether the daughter shall continues to be entitled for maintenance by petitioner ".

18. When the order dated 09.11.2017 was passed at that time the respondent no. 2 had already attained majority and was also living in Australia. This aspect was taken into consideration by the Ld. MM while passing the said order and only after that maintenance was fixed. Hence, there is no force in the contentions of Ld. counsel that directions of Hon'ble High Court were ignored. Even otherwise, if the directions were not complied in the order dated 09.11.2017, the appellant cannot be allowed to challenge the said order in the present appeal which has been filed against the order dated 01.06.2023. Hence, I do not find any force in the contention of Ld. counsel.

19. In view of the abovesaid discussion, I find no infirmity in the impugned order dated 01.06.2023. The revision petition is devoid of merits and same is dismissed.

20. A copy of this Judgment along with TCR be sent to the Ld. Trial Court.

21. The revision file be consigned to the Record Room after due compliance.

ANNOUNCED IN THE OPEN COURT TODAY ON THIS 25th DAY OF NOVEMBER, 2023 (This judgment contains total 10 signed pages) (PURSHOTAM PATHAK) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA No. 185/2023 Sunil Madan Vs. Rachna Madan and Ors. Page 10 of 10