Delhi District Court
Smt. Laxmi vs Sh. Jawahar Singh on 10 September, 2010
IN THE COURT OF MS. SHUCHI LALER,
MM (MAHILA COURTS), KKD DELHI
CASE NO. 33/05
IN THE MATTER OF
Smt. Laxmi
w/o Sh. Jawahar Singh
d/o Sh. Mohan Lal
r/o H. no. 13, Gali. 1, Village Johripur, PO Gokalpuri Delhi94.
.......... petitioner
Versus
Sh. Jawahar Singh,
s/o Sh. Ram Kishan
r/o Village Janwa, PO Janwa, Tehsil Ballabgarh, Distt. Faridabad,
Haryana.
.......... respondent
Date of institution : 20012005
Date on which the judgment has been reserved : 10092010
Date of judgment : 10092010
PETITION U/S 125 CR.P.C. FOR THE MAINTENANCE
ON BEHALF OF THE PETITIONER
JUDGEMENT
Vide this judgment, I shall decide the petition U/s 125 Cr.P.C. for grant of maintenance moved by petitioners wherein it is stated that petitioner no. 1 got married to the respondent on 21.02.1991 as per Hindu Rites and Customs at Delhi. It has been stated that the respondent and his case no. 33/5 Page no. 1/8 family members were not satisfied with the dowry given in the marriage and after six months of the marriage the respondent and his family members started taunting the petitioner no. 1 and harassed her. On 24.07.1992 the petitioner no. 1 gave birth to a male child namely Abhisek. On his birth the respondent and his family members demanded valuables however the parents of the petitioner no. 1 refused to fulfill their demand and the petitioner no. 1 had to report the matter to P. S. Gokalpur Delhi and a case u/s 498 A/406/34 IPC was registered against the respondent and his family members. However the matter was compromised and the petitioner no. 1 remained in her matrimonial home till 18.12.04. During the period of her stay at her parental home the petitioner no. 1 had filed a petition for maintenance and the Court had granted maintenance allowance to her and the minor child Abhisek @ Rs. 625 per month. The petitioner no. 1 was taken back by the respondent from the Court in the maintenance case and the petitioner no. 1 joined the company of the respondent in her matrimonial home. The petitioner no.1 has stated that after joining the company of the respondent three children namely Miss Suvidha, Miss Aishvarya and Master Anirudh were born and out of the four children of the parties two children are residing with the respondent and two children petitioner no. 2 and 3 are residing with the petitioner no. 1. It has been alleged that on 18.12.04 at about 9.00 am the respondent, his brother Om Prakash his uncle Ram Ratan and Ram Prasad gave merciless beatings to case no. 33/5 Page no. 2/8 petitioner no. 1 as they claimed divorce for the respondent for which the petitioner no. 1 declined and they threatened to kill petitioner no. 1 if she would not give divorce to the respondent. It has also been alleged that the Almirah of the petitioner no. 1 was ransaked by her brother in law and they had stolen all gold and silver ornaments worth Rs. 1,00,000/ and cash amount of Rs. 10,000/. The petitioner no. 1 had reported the matter regarding theft to P. S. Chayasa Distt. Faridabad and the petitioner no. 1 was medically examined. It has been alleged that on 18.12.04 when the petitioner no. 1 was beaten mercilessly she also made a written complaint to DCP Haryana and she stayed for two days and nights at railway station Ballabgarh and her parents also reached there and approached the concerned police official to take action against the respondent and his family members. The concerned police officials visited the matrimonial home of the petition no. 1 three times but the house was found lock and the petitioner no. 1 had to returned back to her parental house in wearing clothes. It has been stated that the petitioner no. 1 along with the petition no. 2 and 3 is residing at her parental home and the parent of the petitioner no. 1 are bearing their expenses. The petitioner no. 1 has stated that she has no source of income and is completely dependent upon her parents. It has been claimed that the respondent is employed as a technician in M.R.I. Department of All India Institute of Medical Science, New Delhi and has no other liability except to maintain the petitioner and the two minor children case no. 33/5 Page no. 3/8 who are residing with him and as such maintenance @ Rs. 2500/ per month for each petitioner is prayed.
2. Reply has been filed wherein the factum of marriage has been admitted. The respondent has denied the allegations of dowry, harassment and torture. The respondent has stated that the petitioner no. 1 withdrew her maintenance case on 26.02.1997 and joined the respondent in the matrimonial home where she remained with the respondent till 18.12.04. The respondent has stated that the police has registered a case u/s 498A/323/506 IPC based on the self inflicted injuries by the petitioner no. 1 and the respondent has to face trial in the said case. The respondent has stated that the petitioner no. 1 has deserted him. The respondent has stated that the petitioner no. 1 is gainfully employed and she is associated with the polio eradication programme being conducted by Govt. of Delhi. The respondent has admitted that he is an employee of AIIMS however, he has claimed that his gross salary is Rs. 9,258/ per month and after deductions his net salary was Rs. 3,570/ till November 2004. The respondent has also stated that he has to commute between Delhi and his Village Tehsil Ballabgarh Distt. Faridabad which involves a monthly expense of Rs. 500600/.
3. Replication has been filed by the petitioners wherein the assertions to the contrary have been controverted and have reiterated the facts in the petition.
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4. Vide order dated 01.12.2006 the respondent was directed to pay interim maintenance @ Rs. 1,000/ per month to petitioner no. 1 and Rs. 500/ per month each to petitioner no. 2 and 3 from the date of petition.
5. In support of her case the petitioner no. 1 has examined herself as PW 1 and tendered her evidence by way of affidavit which is Ex. PW 1/A wherein she has reiterated the facts stated in the petition. In rebuttal the respondent has examined himself as RW1 and tendered his evidence by way of affidavit which is Ex. RW1/A.
6. I have heard the Ld. Counsels for parties and perused the record with their assistance.
7. In order to decide the claim of maintenance the following are required to be proved:
a. relationship with the respondent wife/child/father/mother as the case may be.
b. the ground for her residing separately, which should be reasonable and sufficient to make her entitled for the relief, c. the factum of neglect on behalf of the respondent, d. incapability of petitioner to survive on her own and capability of respondent to make provision for the maintenance.
a). The respondent has not disputed the relationship in his reply and the same stands admitted.
case no. 33/5 Page no. 5/8
b) & c). As regards the grounds for living separately, the petitioner no.
1/PW 1 has deposed that she was harassed, humiliated & tortured in furtherance of demand of dowry and she had made a complaint against respondent and his family members under section 498A/406/34 IPC, however, the matter was compromised and she returned to her matrimonial home. PW 1 testified that after return to her matrimonial home she was again harassed and tortured and on 18.12.2004 at 9 am the respondent, his brother and uncles had given her merciless beatings and threatened to kill her if she will not divorce the respondent. PW 1 in her cross examination denied the suggestion that no such incident dated 18.12.2004 happened, PW also stated that her medical examination was conducted and the medical record is in PS Chhayesse, Distt. Faridabad, Haryana. The respondent has not come up with any material substantive for residing separately except claiming that petitioner no. 1 left the company of the respondent out of her own will. The respondent has himself admitted in his cross examination that criminal case u/s 498A/323/506 IPC is pending adjudication the is Faridabad court against him and his family members. The respondent has not claimed to have made any arrangement for the maintenance of the petitioners during the period of separation. In view of above it is established on record that petitioner no. 1 has sufficient reasons to reside separately from the respondent and the respondent has neglected to maintain the petitioners case no. 33/5 Page no. 6/8 even otherwise the respondent cannot be allowed to shied away from his responsibility towards minor daughter and minor son/petitioner no. 2 and 3 qua whom the relationship is not disputed.
d.) As regards the incapability of petitioners to survive on their own, the petitioner no. 1/PW 1 has deposed that she has no source of income and the petitioners are dependant on the parents of petitioner no. 1. Though the respondent has claimed that the petitioner no. 1 is employed with the Polio Eradication Programme conducted by the Govt. of Delhi, the respondent has not led any cogent evidence to establish the said employment. In her cross examination the petitioner no.1/PW 1 has denied the suggestion that she is associated with the polio eradication programme. The petitioner no. 2 & 3 being minor children are incapable to survive on their own without any arrangement being made for them. In view of the above, the factum of petitioners being incapable to survive on their own stands proved.
8. Keeping in view the foregoing reasons & discussion the petitioners are entitled to claim maintenance to the respondent. Now coming to the quantum of maintenance. It is as admitted case of the parties that the respondent is employed with All India Institute of Medical Science, New Delhi. As per the payslips of the respondent on record, the net salary of the respondent in the month of March ,2005 was Rs. 5,084/, in the month of August, 2007 it was Rs. 5,930/ and in the month of August, 2009 the case no. 33/5 Page no. 7/8 net salary of the respondent was Rs. 13,680/. The petitioners are entitled to maintenance from the date of petition i.e 20.01.2005. The average net salary of the respondent would be Rs. 9,000/ per month approximately. The respondent has the liability to maintain his parents, two children who are in his custody apart from the petitioners. Having regard to the income of the respondent and his responsibilities and liabilities the present petition is decreed with the direction to the respondent to make an arrangement of Rs. 1,500/ per month in favour of petitioner no. 1 and Rs. 1,000/ per month in favour of each petitioner no. 2 and 3 from the date of petition.(Total Rs. 3,500/ per month to be paid by the respondent to petitioners). The amount is received subsequent to any orders shall be adjusted.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SHUCHI LALER)
ON 10092010 MM/MAHILA COURTS
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