Delhi District Court
Kumar Gaurav Kataria vs Deepika Kataria on 9 February, 2023
IN THE COURT OF MS. VRINDA KUMARI,
ADDITIONAL SESSIONS JUDGE-02, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 95/2022
CNR NO. DLST01-003652-2022
IN THE MATTER OF
Kumar Gaurav Kataria
S/o Sh. Ishwar Singh Kataria,
R/o 167, Tyagi Mohalla,
Chattarpur, New Delhi-110074 ........ Appellant
Versus
Deepika Kataria
W/o Sh. Kumar Gaurav Kataria,
D/o Sh. Khem Chand Chaudhary,
R/o 97, Janta Flats, Vivek Vihar,
Near B-Block Market,
Delhi-110095 ......Respondent
DATE OF INSTITUTION : 25.04.2022
DATE OF RESERVING JUDGMENT : 01.12.2022
DATE OF PRONOUNCEMENT : 09.02.2023
JUDGMENT
1. The present appeal u/s 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the DV Act) has been preferred against the Impugned Order dated 20.12.2021 pronounced Crl. Appeal No. 95/2022 Kumar Gaurav Kataria Vs. Deepika Kataria 09.02.2023 Pg No. 1 of 7 by Ld. M.M.-01, Mahila Court (South), Saket in CT No. 8764/2018 titled as Deepika Kataria Vs Kumar Gaurav Kataria & Ors.
2. I have heard the arguments on behalf of both the parties and have perused the record carefully including TCR.
3. Respondent-aggrieved was awarded interim maintenance vide Order dated 15.09.2020 of Ld. Trial Court. The aggrieved was awarded maintenance amount in sum of Rs. 9,500/- per month including rent and an amount of Rs. 5500/- per month for the minor child. As per the income affidavit of the appellant-husband, his monthly net income was Rs. 39,057/-. While passing this Order, the fact that ad-interim maintenance had also been granted to the aggrieved by Ld. Family Court was also considered. The contention of the appellant-husband that his monthly salary had decreased was also considered. The interim maintenance Order dated 15.09.2020 of Ld. Trial Court remained unchallenged.
4. The Trial Court Record shows that an appeal bearing CA No. 85/2022 was preferred by the appellant-husband but the same was withdrawn on 11.04.2022. The Order dated 11.04.2022 of Ld. Special Judge-NDPS/ASJ (South) vide which the said appeal was dismissed as withdrawn is part of the Trial Court Record. It is not clear as to which Order was challenged by the appellant-husband in CA No. 85/2022. In the present appeal also, there is no reference to CA 85/2022.
Crl. Appeal No. 95/2022 Kumar Gaurav Kataria Vs. Deepika Kataria 09.02.2023 Pg No. 2 of 7
5. The Order dated 15.09.2020 was sought to be modified by the appellant-husband vide a separate application u/s 25 of the DV Act. The said application was dismissed vide the impugned Order dated 20.12.2021.
6. The impugned Order has been assailed by the appellant- husband primarily on the ground that because of Covid-19 Pandemic, the employer company suffered losses in its monthly business and it did not require all the employees to work on regular basis because of lack of work. It is contended that the appellant-husband does not have a regular job and he gets his emoluments on daily basis. It is submitted that he was earning net salary of Rs. 39,000/- per month in the year 2018 but now his salary has substantially reduced. It is submitted that now he is not in a position to pay an interim maintenance in sum of Rs. 9,500/- plus Rs. 5,500/- to the aggrieved-wife and his minor child, more so, when interim maintenance in sum of Rs. 10,000/- in terms of the Order of Ld. Family Court has already been awarded in favour of the respondent-aggrieved.
7. The appellant placed on record his salary slips for the months of July, August and September 2020 before Ld. Trial Court to show change in his circumstances.
8. Perusal of the Trial Court Record shows that initially the appellant placed on record salary slips for the months of November 2018, Crl. Appeal No. 95/2022 Kumar Gaurav Kataria Vs. Deepika Kataria 09.02.2023 Pg No. 3 of 7 December 2018 and April 2019. Perusal of these salary slips would show that in the month of November 2018, appellant earned gross pay in sum of Rs. 42,002/- (Net pay of Rs. 39,057/-). In the month of December 2018, appellant earned gross pay in sum of Rs. 42,002/- (Net pay of Rs. 39,057/-). In the month of April 2019, appellant earned gross pay in sum of Rs. 45,754/- (Net pay of Rs. 37,378/-). The salary slips show that amounts towards PF and LWF were deducted from his gross salary. In April 2019 amount towards VPF was additionally deducted. The salary of the appellant includes HRA, Special Allowance and Statutory Bonus.
9. Later, appellant-husband placed salary slips for the months of July 2020, August 2020 and September 2020 on Trial Court Record along with his application u/s 25 of the DV Act. The salary slip for the month of July 2020 shows that his gross pay was Rs. 48,888/- and his net pay was Rs. 40,521/-. In the month of August 2020, appellant worked for 23 days and therefore he earned gross pay in sum of Rs. 35,722/- and net pay in sum of Rs. 29,252/-. PF, VPF, LWF were deducted from the gross salary. In the month of September 2020, the appellant worked for 18 days. His gross pay was Rs. 28,888/- and his net pay was Rs. 23,652/-.
10. It is noted that these salary slips except the one for September 2020 pertain to a time period prior to 15.09.2020 when the interim maintenance Order was passed. As already mentioned above, while pronouncing the interim maintenance Order dated 15.09.2020 the contention that the monthly salary of appellant had decreased was Crl. Appeal No. 95/2022 Kumar Gaurav Kataria Vs. Deepika Kataria 09.02.2023 Pg No. 4 of 7 considered by Ld. Trial Court. As also noted above, this Order was not challenged by the appellant.
11. The appellant has also placed salary slips for the months of August 2021, September 2021 and October 2021 in the Trial Court Record. In August 2021, appellant earned gross salary in sum of Rs. 46,591/- (Net pay in sum of Rs. 38,161/-). In month of September 2021, he worked for 23 days and earned gross pay in sum of Rs. 36,910/- (Net pay in sum of Rs. 30,226/-). In the month of October 2021, he worked for 23 days and earned gross pay in sum of Rs. 35,722/- (Net pay in sum of Rs. 29,252/-).
12. In the present appeal, the appellant has placed on record salary slips for the months of January 2022, February 2022 and March 2022. In the month of January 2022, the appellant worked for 13 days and earned gross pay in sum of Rs. 20,132/- (Net pay in sum of Rs. 15,522/-). In the month of February 2022, the appellant worked for 11 days and earned gross pay in sum of Rs. 18, 913/- (Net pay in sum of Rs. 15,475/-). In the month of March 2022, payable days of the appellant were zero and therefore no pay was paid to him.
13. There is nothing to show that the appellant had been laid off by his employer company in the month of March 2022. It is also noted that the appellant has placed on record only selective salary slips. He has placed only three salary slips for each of the years 2020 and 2021. His Crl. Appeal No. 95/2022 Kumar Gaurav Kataria Vs. Deepika Kataria 09.02.2023 Pg No. 5 of 7 bank account statements and even the Income Tax Returns are not part of the Trial Court Record. The salary slips show that the salary of the appellant was being remitted to the HDFC bank account. No plausible reason has been shown as to why the Income Tax Returns or the bank statements of account of the appellant could not have been placed on record. These are material documents. It can also not be lost sight of the fact that the appellant is a project CAD technician. The contention of the appellant that it was on account of his employer company suffering losses that the number of his payable/ work days has reduced is subject matter of trial. A prima facie view regarding loss of income in absence of material documents cannot be taken. Besides, it is well settled that an able bodied person is obliged to earn by legitimate means and maintain his wife and minor children.
14. The grant of ad-interim maintenance by Ld. Family Court is not a change in circumstance as envisaged in section 25 of the DV Act. Ld. Trial Court had considered this contention in the Order dated 15.09.2020. Since the interim maintenance Order dated 15.09.2020 was not challenged, it is not now open to challenge that Order on merits in the present appeal.
15. In view of above discussion, the Court does not find any ground to interfere with the findings of Ld. Trial Court in its well reasoned impugned Order dated 20.12.2021. The present appeal is, accordingly, dismissed.
Crl. Appeal No. 95/2022 Kumar Gaurav Kataria Vs. Deepika Kataria 09.02.2023 Pg No. 6 of 7
16. File be consigned to Record Room.
PRONOUNCED IN OPEN COURT ON THIS 09 th DAY OF FEBRUARY 2023 Digitally signed VRINDA by VRINDA KUMARI KUMARI Date: 2023.02.10 17:18:43 +0530 (VRINDA KUMARI) ASJ-02/SOUTH/SAKET COURTS NEW DELHI/09.02.2023 Crl. Appeal No. 95/2022 Kumar Gaurav Kataria Vs. Deepika Kataria 09.02.2023 Pg No. 7 of 7