Delhi District Court
Rahul Vashishth vs Ms. Navita Vasishth on 7 December, 2018
IN THE COURT OF SH. ASHUTOSH KUMAR, SPECIAL
JUDGE02 (P.C.ACT), CBI, NORTHWEST DISTRICT,
ROHINI COURT, DELHI
In the matter of:
Criminal Appeal no. 126/2018
Rahul Vashishth
S/o Sh. Jitender Nath Vashishth
R/o C37, UPSIDC Colony,
Industrial Area, Sikandrabad,
Distt. Bulandshaher, U.P.
...........Appellant
Versus
1. Ms. Navita Vasishth
W/o Sh. Rahul Vashishth
R/o B5/7, First Floor,
Rana Pratap Bagh,
Delhi110007.
2. Jitender Nath Vashishth
R/o B5/7, Ground Floor,
Rana Pratap Bagh,
Delhi110007.
3. Ms. Meena Vashishth
W/o Sh. Jitender Nath Vashishth
R/o B5/7, Ground Floor,
Rana Pratap Bagh,
Delhi110007.
............Respondents
Date of Institution : 07/08/2019
Date of reserving the order : 07/12/2018
Date of order : 07/12/2018
AND
CA No: 126/2018 & CA NO. 171/18 1 of 16
In the matter of:
CA no. 171/2018
1. Jitender Nath Vashishth
S/o late Pandit Shadi Lal,
R/o B5/7, Ground Floor,
Rana Pratap Bagh, Delhi110007.
2. Meena Vashishtha
W/o Sh. Jitender Nath Vashishth
R/o B5/7, Ground Floor,
Rana Pratap Bagh, Delhi110007.
.........Appellants
Versus
1. Navita Vashishth
W/o Sh. Rahul Vashishta
R/o C27, UPSIDC Colony,
Industrial Area, Sikandranbad,
District Bullandshahr, U.P.
......Respondents
Date of Institution : 15/09/2018
Date of receiving the appeal by
transfer: 29/10/2018
Date of reserving the order : 07/12/2018
Date of order : 07/12/2018
In (CA no. 126/18)
Present: Appellanthusband with ld. Counsel Sh. Ashwani
Kumar Sood.
Respondent no. 1wife in person with Ms. Akanksha
Bhatia, ld. Proxy counsel for main counsel Sh. Rajiv
Thukral for respondent no.1.
Sh. Rajeev Kumar, ld. Counsel for respondents no.
2 & 3.
In (CA no. 171/18)
Sh. Rajeev Kumar, ld. Counsel for appellants no. 1 &
2 .
Respondent no.1wife in person with Ms. Akanksha
Bhatia, ld. Proxy counsel for main counsel Sh. Rajiv
Thukral for respondent no.1.
Respondent no.2 in person with ld. Cunsel Sh.
Ashwani Kumar Sood.
CA No: 126/2018 & CA NO. 171/18 2 of 16
Amended affidavit of assets, liabilities, income &
expenditure has been filed by the appellanthusband (CA no.
126/18) as ld. Counsel for the said appellant had claimed on last
date of hearing that certain typographical/clerical errors had
crept into the affidavit dated 09/10/2017 of the appellant
husband. Copy supplied to opposite side.
Certain clarifications sought from ld. Counsel for the
appellanthusband (CA no. 126/18).
Ld. Proxy Counsel for respondent no.1wife (CA no.
126/18) has stated that arguments have already been addressed
and that the main counsel does not wish to address further and
accordingly order on appeals may be passed.
Along with appeal no. 171/18, titled as "Jitender
Nath Vashishth & Anr. Vs Navita Vashishth", an application for
condonation of delay has also been filed. In view of the reasons
mentioned in the application and in the interest of justice, the
delay is condoned.
Perused the record including the TCR and written
submissions filed on behalf of the parties.
ORDER
1. Vide this common order, I shall dispose of Criminal Appeal No. 126/18, titled as " Rahul Vashishth Vs Navita Vashishth & Ors." and Criminal Appeal No. 171/2018, titled as "Jitender Nath Vashishth & Anr. Vs Navita Vashishth & Anr.".
2. The challenge in both the criminal Appeals i.e. 126/18, titled as " Rahul Vashishth Vs Navita Vashishth & Ors."
CA No: 126/2018 & CA NO. 171/18 3 of 16 and Criminal Appeal No. 171/2018, titled as "Jitender Nath Vashishth & Anr. Vs Navita Vashishth & Anr.", u/s 29 of the Protection of Women from Domestic Violence Act, 2005 is to the impugned order dated 29/06/2018 passed by Ms. Aakanksha Vyas, ld. MM (Mahila Court), NorthWest, Rohini Courts, Delhi, in C.C. no. 16897/16, titled as "Navita Vs Rahul Vashishth", PS Bharat Nagar, whereby interim maintenance in the total sum of Rs. 50,000/ per month was awarded to original complainant Navita Vasishth (respondent no.1 in CA no. 126/18 & CA no.171/2018) towards maintenance of herself and her son inclusive of food, clothing and necessaries from the date of filing of the original petition till the final disposal of the petition, to be paid by respondent no.1 Rahul Vashishth of the said petition (appellant in CA no. 126/2018) on 10th of every month and it was directed that arrears of maintenance shall be cleared within six months and that amount awarded in any other proceedings shall stand adjusted.
3. The relevant part of the impugned order of ld. Trial Court is as under: ".......Appreciation of submissions made by parties: Having canvassed the relevant averments of the petitioner and respondent no.1 in their pleadings as well as during arguments. I now proceed to appreciate the same for the purpose of determining the quantum of interim maintenance. The respondent no.1 has not filed any documentary proof to show that the petitioner is earning around Rs. 30,000/ per month as alleged by him. In support of his averment that his monthly income is only around 18,313/ per CA No: 126/2018 & CA NO. 171/18 4 of 16 month, the respondent no.1 has strongly relied upon his appointment letter of Gautma Udyog and ITR for the financial year 20162017 (as per which his gross annual income was Rs. 1,82,118/). He has also relied upon his ITR for the financial year 20152016 (as per which his gross annual income was Rs. 2,79,537/), ITR for financial year 20142015 (as per which his gross annual income was Rs. 2,22,190/) and ITR for financial year 20132014 (as per which his gross annual income was Rs. 3,32, 765/) to show that his monthly income has never been as high as alleged by the petitioner. The respondent no.1 also relied upon his ITRs to show that he is the proprietor of only M/s Atul Foggers, though, according to him, the same has now been closed due to non renewal of license. The respondent no.1 has relied upon copies of various documents filed along with his application u/s 340 Cr.P.C. to show that most of the properties enumerated by the petitioner do not belong to him and he has also relied upon the copy of the RCs of the cars enumerated by the petitioner to show that the said cards do not belong to him. In support of his submission that he is residing as a paying guest, he has relied upon the copy of rent agreement placed by him on record.
The petitioner has alleged that respondent no.1 is earning more than Rs. 3 lacs per month from various companies which he is running with his father, details whereof are mentioned in the preceding paragraph. The petitioner has also alleged that respondent no.1 is also having rental income from various properties of around Rs. 2 lacs per month. No document to CA No: 126/2018 & CA NO. 171/18 5 of 16 substantiate the alleged income of respondent no.1 has been furnished by the petitioner.
However, the averments of the petitioner as reproduced in the preceding paragraph exhibit the status of respondent no.1 which is a relevant factor while determining the quantum of interim maintenance to be awarded to the petitioner. Reliance is placed upon the judgment in the case titled Bharat Hegde Vs Saroj Hegde 140 (2007) DLT 16. Reliance is also placed upon the judgment of Hon'ble Delhi High Court in the case titled Anupam Gupta Vs. Sumeet Gupta, (judgment dated 30.05.2011) where the court has enumerated various factors to be considered while arriving at an assessment with respect to the income of a spouse. Amongst others, bank account details, properties, purchased, locality of residence and school where the child is studying, have been held to be material factors.
Having said so, it is pertinent to note that in his reply as well as the application filed by him u/s 340 Cr.P.C. against the petitioner, although the respondent no.1 denied having any concern with the companies, properties as well as the vehicles enumerated by the petitioner, he did admit that four out of the five companies listed by the petitioner belong to his father. He also admitted that seven out of the nine properties listed by the petitioner belong either to his father or his mother and the three cars mentioned by the petitioner also belong to his father. Further he also admitted that the matrimonial house also belongs to his father. It has also come on record in the income affidavit of the petitioner that the minor son is CA No: 126/2018 & CA NO. 171/18 6 of 16 studying in Colombo Public School and the monthly expenditure incurred regarding the school alone is Rs. 13,400/ per month which shows that the child had been admitted to a good school although, the respondent no.1 in his income affidavit denied all knowledge of the school where the minor son is studying as well as expenditure pertaining to the school. The bank statement filed by respondent no.1 of his account in PNB Azad Pur for the period 09.12.2016 to 31.07.2017 and more importantly for the period 22.12.2013 to 12.12.2016 shows significant withdrawals which are not possible if the respondent no.1 was earning only Rs. 17000 20,000/ per month every year during the period 2013 to 2017 as shown in his ITRs. The above mentioned facts clearly show that the respondent no.1 belongs to an affluent family enjoying high status in society.
In the case titled Manpreet Singh Bhatia Vs. Sumita Bhatia 234 (2016) DLT 95 (DB), it has been held although in the context of section 24 HMA that where there was sufficient means in the family of the husband on the strength of which he got married, he has to share the burden to support his wife during the course of annulment of such marriage. In the said case maintenance in the sum of Rs. 25,000/ per month each was awarded by the trial court to the wife and the child which was challenged by the husband. The case of the husband was that he earned only Rs. 10,000/ per month and that his parents supported him. The Delhi High court however observed in the facts of that case that the husband was well off and they had four luxury cars i.e. Mercedes Benz, Honda City, CA No: 126/2018 & CA NO. 171/18 7 of 16 Toyota Altos and Mahindera SUV 500 and a house in Rajouri Garden built up on a plot of land admeasuring 100 sq yards and further that prior to estrangement, the minor daughter of the couple was studying in G D Goenka Public School. It was therefore held that it was a classic case where one can safely say that the husband is not telling the truth regarding his income.
Taking cue from the aforementioned case, in the present case also it can be prima facie concluded that the parties were enjoying a good financial status prior to their estrangement. Now it is the case of R1 that he has been disowned by his parents in February, 2015 and now he is on his own working as advisor to M/s Gautma Udyog, Sikandrabad, Bulandshahar, UP and earning a partly monthly income of 18313/ from all sources and living in a rented accommodation. However this submission has to be accepted with pinch of salt as it is common knowledge that after a matrimonial dispute crops up, the earning spouse tends to get disowned by his parents. In any event, it does not appear to be believable that despite having enjoyed a good financial status in the past and having been proprietor of his own concern of pesticides namely Atul Foggers and serving as Director in other companies (For instance Atul Pesticides Pvt. Ltd.) and hence having good work experience, the respondent no.1 is now earning only Rs. 10,000/ per month. It is also pertinent to note that even though the respondent no.1 has stated that he was disowned by his parent in February, 2015, his ITR for the financial year 201516 i.e. Assessment year 201617 reflects income from salary from Atul CA No: 126/2018 & CA NO. 171/18 8 of 16 Pesticides Pvt. Ltd. Which is stated by him to be the company of his father, in the sum of Rs. 1,40,000/. The ITR for the previous financial years i.e. Financial year 201314 and 201415 also reflects income of respondent no.1 as salary from Atul Pesticides Pvt. Ltd. Further, the petitioner has placed on record photocopy of certain documents pertaining to Atul Pesticides Pvt. Ltd. which reflect that respondent no.1 had been a director in the said company. Thus, the association of respondent no.1 with Atul Pesticides Pvt. Ltd. prior to February, 2015 and even thereafter is evident. The Ld. Counsel for respondent placed great emphasis upon the ITRs of R1. However, it has been held in a catena of judgments that the income reflected in the ITR cannot be accepted at face value in a country like India, where compliance with Tax norms is a rarity as there is a tendency to conceal income.
9. Accordingly in the circumstances of the case, I assess the income of respondent no.1 to be atleast 80,000/ per month. In Annurita Vohra v. Sandeep Vohra 110 (2004) DLT 546, it has been held that the family resource cake must be divided amongst all the family members with one extra portion for the earning member. In the present case, the petitioner and the minor son are the dependents of R1. Therefore at this stage taking into account the status of the parties, their educational qualification and the admitted income of the respondent no.1, I deem it fit to award interim maintenance in the total sum of Rs. 50,000/ per month to the petitioner towards maintenance of herself and her son inclusive of food, clothing and necessaries from the date of the filing of the CA No: 126/2018 & CA NO. 171/18 9 of 16 petition till the final disposal of the petition. Amount awarded in any other proceedings shall stand adjusted.
The interim maintenance amount is payable on the 10th of every month and arrears of maintenance shall be cleared within six months. Nothing discussed herein shall tantamount to any opinion on the merits of the case."
4. As per "affidavit qua assets, liabilities, income and expenditure" dated 09/10/2017 filed by Rahul Vashisht (appellant in CA no. 126/2018), in partI bearing heading "personal information relating to deponent", at serial no. 10 bearing heading "monthly income", he has admitted his personal income approximately as Rs. 18,313/ per month, out of which, he receives Rs. 15,000/ per month on account of salary from the month of April, 2017 including Rs. 39,758/ per annum from other sources as mentioned in ITR for the year 201718. It is further mentioned in the said affidavit at serial no. 11 bearing heading "monthly expenditure" that his monthly expenditure is Rs. 17,100/ per month, which includes Rs. 4000/ per month being sent by cheque to the complainant/wife (respondent no.1 in CA no. 126/2018 & respondent in CA no. 171/2018).
4.1. In part IV bearing heading "statement of income", at serial no. 40, para (iv) bearing heading "gross income including the salary, DA, commissions/incentives, bonus, perks etc.", appellanthusband has claimed that he receives Rs. 15,000/ per month on account of salary from the month of April, 2017 CA No: 126/2018 & CA NO. 171/18 10 of 16 including Rs. 39,758/ per annum from other sources as mentioned in ITR for the year 201718.
4.2. In the said affidavit, in Part IV, at serial no. 42 (ii) bearing heading "information and particulars with regard to your shareholding, involvement in the affairs and management of the firm/company", it is mentioned by Rahul Vashishth (appellant husband in CA no. 126/2018) that he is having 8000 shares of Rs. 10/ each in Atul Pesticides (P) Ltd. but the said company is in big loss and he is having dues worth Rs. 4,40,000/ towards the said company. In part IV, at serial no. 42 (vi) bearing heading "list of immovable assets, land and building etc. of the firm/company", it is mentioned that the companies M/s Atul foger and Pest Eradicator have been closed in December 2016 due to nonrenewal of license and the asset relating to the said firms was one van which was sold for Rs. 40,000/ in the month of October,2017. In part IV, at serial no. 43 bearing heading "income from other sources", (iv) bearing heading "interest on investments including deposits, NSC, IVP, KVP, Post office schemes, PPF, loans etc.", Rahul Vashishth (appellant in CA no. 126/2018) has claimed that he is having PPF no. 886 Ledger Folio no. 5/164, Rs. 390803.36 p. Perusal of said affidavit further reveals that in partIV, at serial no. 45 pertaining to "total income", no amount has been mentioned and only words "NA" are mentioned.
4.3. In the aforesaid affidavit, in partV bearing heading "statement of expenditure", Rahul Vashishth (appellant in CA no.
CA No: 126/2018 & CA NO. 171/18 11 of 16 126/2018) has claimed at serial no. 46 (i), bearing heading "housing" that he is paying rent of Rs. 1800/ per month for the rented house in Sikandarabad. In partV, at serial no. 46 (iii), he has claimed that he has to incur expenditure of Rs. 8820/ per annum for repair/maintenance of property at M6, Gupta Tower, Azadpur Commercial Complex, Azadpur, Delhi. In partV (iv), it is mentioned that he is paying property tax of Rs. 1,639/ per annum. He has claimed his total expenditure at serial no. 60 as Rs. 17,100/ per month. In partV, at serial no. 51, bearing heading "Insurance", in sub para (i), the appellanthusband has claimed that he had taken loan on three LIC policies of Rs. 77,000/, 1,74,000/ and Rs. 45,000/, totaling to Rs. 2,96,000/. At serial no. 51 (iv), appellanthusband has claimed that he has to pay Rs. 5,743/ per annum for mediclaim. In part V, serial no. 60 bearing heading "total expenditure", an amount of Rs. 17,100/ per month is mentioned.
4.4. In partVI bearing heading "statement of assets", at serial no. 67 bearing heading "movable assets", subpara (i) bearing heading "motor vehicles (list cars, motorcycles, scooters etc. along with their brand and registration number)", it is mentioned that one Maruti Van, Model 2007 bearing no. DL8CH 9923 was sold for Rs. 40,000/ in the month of October, 2017.
5. The "affidavit qua assets, liabilities, income and expenditure" dated 09/10/2017 filed by appellanthusband (CA no. 126/18) before ld. Trial Court is inherently contradictory. In partI bearing heading "personal information relating to CA No: 126/2018 & CA NO. 171/18 12 of 16 deponent", at serial no. 10, appellanthusband has admitted his personal income approximately as Rs. 18,313/ per month, while in partIV, bearing heading "statement of income", para (iv) bearing heading "gross income including the salary, DA, commissions/incentives, bonus, perks etc.", it is mentioned that he receives Rs. 15,000/ per month on account of salary from the month of April, 2017 but at serial no. 45 pertaining to "total income", no amount is mentioned and only words "NA" are mentioned, which are inherently contradictory and cannot be true. It cannot be said that the said serial no. 45 relating to total income, was not applicable to the appellanthusband. Furthermore, Part (iv) bearing heading "interest on investments including deposits, NSC, IVP, KVP, post office schemes, PPF, loans etc.", the appellanthusband has claimed that he is having PPF account no. 886 ledger folio no. 5/164 having amount of Rs. 390803.36 p. but it is not clear as to what is the annual interest from the said PPF account. Ld. Counsel for the appellanthusband has stated that out of the said amount, Rs. 36,261/ per annum is interest from the PPF account. It is also mentioned as discussed above that appellanthusband is having three loan LIC policies, one of Rs. 77,000/, another Rs. 1,74,000/ and the third one is Rs. 45,000/, but nowhere it is mentioned as to how much total EMI he is paying on the said loans. Ld. Counsel for the appellant husband has stated that in the amended affidavit filed today, no EMI qua the same paid is mentioned as the loan amount including interest, will be deducted from the matured policy amounts. The aforesaid inherent contradictions in the affidavit dated 09/10/2017 of the husband should have been noticed by CA No: 126/2018 & CA NO. 171/18 13 of 16 the ld. Trial Court and the learned Trial Court ought to have sought clarification from the appellanthusband and directed him to file fresh correct affidavit of assets, liabilities, income and expenditure. It is beyond comprehension as to when there were so many inherent contradictions in the aforesaid affidavit, which ld. Counsel for the appellanthusband claimed was due to typographical/clerical error, still how the learned Trial Court assessed the monthly income of the appellanthusband after considering the total monthly income on the basis of the said affidavit. Furthermore, ld. Trial Court has merely relied upon the judgment of Hon'ble Delhi High Court in the case of Manpreet Singh Bhatia Vs. Sumita Bhatia 234 (2016) DLT 95 (DB), wherein it was held that where there was sufficient means in the family of the husband on the strength of which he got married, he has to share the burden to support his wife during the course of annulment of such marriage. However in the said judgment cited by learned Trial Court, it is mentioned that besides four luxury cars, husband and his family were having plot of land measuring 100 square yards in Rajouri Garden, whereas in fact in the said citation, plot is mentioned to be of 1000 square yards. No doubt some amount of guess work is permitted in assessing the monthly income of the husband. Once the total monthly income of the husband was not clear from the aforesaid affidavit of husband filed before ld. Trial Court, it has not been mentioned by learned Trial Court as to how merely on the basis of judgment relied, it arrived at the magical figure of income of at least Rs. 80,000/ per month of the husband and why not at least 60,000/ or at least Rs. One lac per month. Since the aforesaid fresh corrected CA No: 126/2018 & CA NO. 171/18 14 of 16 affidavit has been filed by the appellanthusband, therefore in my considered opinion, it would be appropriate if the same is considered by the learned Trial Court afresh in view of the aforesaid contradictions pointed out in the previous affidavit of the husband. Hence the impugned order dated 29/06/2018 is set aside and the matter is remanded back to learned Trial Court to pass order on interim maintenance application after considering the amended affidavit of husband and giving opportunity to parties to address arguments. In view of the fact that lot of time has elapsed and the fact that interim maintenance awarded to the wife is a benevolent provision for destitute women, the matter be sent back to learned Trial Court for arguments afresh on the interim maintenance application, for 10/12/2018 at 2.00 p.m. Learned counsels for parties have undertaken that they shall address the arguments before learned Trial Court on said date and time. Ld. Trial Court is also requested to make endeavour to decide the said interim maintenance application application within 15 days, in view of the fact that already some delay has occured in the grant of interim relief claimed by the respondent no.1wife.
6. Both the appeals are accordingly disposed of.
7. One signed copy of this order be placed in each of the criminal appeal files.
8. Copy of this order alongwith TCR be sent back to Ld. Trial Court.
CA No: 126/2018 & CA NO. 171/18 15 of 16
9. Appeal files be consigned to Record Room.
Digitally signed by
ASHUTOSH ASHUTOSH KUMAR
Announced in the Open Court (Ashutosh Kumar)
KUMAR Date: 2018.12.07
16:59:07 +0530
on 7th of December, 2018 Special Judge02 (P.C. ACT), CBI
Distt. N/W, Rohini Courts, Delhi
CA No: 126/2018 & CA NO. 171/18 16 of 16