Delhi District Court
Rohit Sharma vs Ms. Nupur Dua on 9 October, 2021
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Appeal No. 72/2021
CNR No.: DLCT01-006880-2021
Rohit Sharma
S/o Sh. Birbal Sharma
R/o A-297, 2nd Floor, Vijay Vihar,
Phase-I, Delhi
..... Appellant
VERSUS
Ms. Nupur Dua
W/o Sh. Rohit Sharma
R/o 56/18, Old Rajinder Nagar,
New Delhi-110060
..... Respondent
Date of Institution : 18.05.2021
Date of Arguments : 30.09.2021
Date of Judgement : 09.10.2021
JUDGEMENT
1. The criminal appeal under Section 29 of 'The Protection of Women From Domestic Violence Act, 2005' (Hereinafter referred to as 'the Act') is directed against order dated 14.10.2020 (In short 'the impugned order') arising from the complaint case vide CC No. 9000/2018 titled as 'Nupur Dua vs. Rohit Sharma & Ors.' whereby Ld. MM-01 / Mahila Court (Central District), Tis Hazari Courts, Delhi (In short 'the trial Court') directed the appellant to pay interim maintenance in the sum of Rs. 5,00,000/- (Five Lakh) per month to the respondent from the date of filing of the application till final disposal of the case.
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 1 of 32 FACTS:
2. The facts preceding to institution of the criminal appeal are that the respondent filed an application under Section 12 of the Act against the appellant and his family members alongwith an application under Section 23 of the Act for interim maintenance. The respondent was married with the appellant on 30.04.2017. According to the respondent, she was subjected to physical and mental cruelty for not bringing sufficient dowry and particularly, Audi or BMW car. There are allegations and counter-allegations against each other with which we are not presently concerned. The respondent left the shared household on 12.03.2018. The respondent is residing with her parents.
3. The case of the respondent is that she is a fashion designer. She is presently unemployed and dependent upon her parents. The appellant is a commission agent (fruits) having 'Shop No. C-536, Azadpur Mandi, Delhi'. The appellant alongwith his father, elder brother and paternal uncle (who are arraigned as the respondent No. 2 to 6 before the trial Court) are engaged in joint family business under the trade name 'M/s. Pragati Fruit Agency', 'M/s. Jagdish Kumar & Bros.' and 'M/s. Aman Brothers' and their business income is kept in a common pool. The annual turnover of the said business is more than Rs. 50,00,00,000/- (Fifty Crore) and joint income is not less than Rs. 5,00,00,000/- (Five Crore). The monthly income of the appellant is about Rs. 10,00,000/- to Rs. 11,00,000/- per month.
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4. According to the respondent, the appellant and his family members are leading wholesale suppliers to mother dairy in Delhi - NCR. The appellant is a frequent flyer. He visited several countries including Russia, Thailand, Macau, Hong Kong, Bangkok, USA etc. The appellant and his family members are having bank accounts in HDFC Bank and Punjab National Bank and other banks. The appellant is living a luxurious life and has luxury cars, namely, Honda Accord, TOYOTA Corolla, Innova, Hyundai i 10, Maruti D'Zire. The appellant is having a luxury mobile phone make i-Phone 10.
5. In the application under Section 12 of the Act and the application under Section 23 of the Act, the respondent is seeking maintenance in the sum of Rs. 5,00,000/- (inadvertently mentioned as Rs. 50,00,000/- per month in the application) per month besides expenses for 'food, clothing, shelter and medical expenses' in the sum of Rs. 1,00,000/- per month, as under:
PRAYER:-
a.....
b. To direct to the respondents to pay Rs. 50,00,000/- (Rupees Fifty Lacs Only) per month to the complainant as maintenance for the life time; c. To direct the respondents to pay for food, clothing, shelter and medical expenses @ Rs. 1,00,000/- (Rupees One Lac Only) per month from the filing of the present petition and for the life time to the complainant;
d. Costs and litigation expenses of Rs. 2,00,000/- (Rupees Two Lacs Only) be also granted in favour of the complainant.
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6. According to the appellant, the respondent is running a boutique, namely, 'Noor-E-Mania' from her parental house. The appellant never objected the respondent from carrying the said business. The respondent deserted the appellant without assigning any reason on 12.03.2018. The parents of the appellant has debarred him from their business and movable as well as immovable properties and therefore, the appellant is residing in a rented accommodation. The appellant is working as an agent (fruits) on commission basis and earning Rs. 25,000/- to 30,000/- per month. The income of the appellant is dependent upon the season and climate. The respondent is a 'qualified fashion designer' and running the said boutique. The respondent is not dependent on her parents and she has sufficient means to maintain herself. The respondent is having several movable and immovable properties including FDRs. The appellant has no sufficient means and he is facing great hardship in maintaining himself. The appellant never neglected or refused to maintain the respondent and he offered an amount of Rs. 10,000/- per month for day-to-day expense of the respondent but she refused and therefore, the appellant deposited the said amount in the account of the respondent till February, 2019. The respondent has a well established business. The respondent has sufficient means to maintain herself. He stated that the respondent is not entitled to interim maintenance.
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 4 of 32 THE IMPUGNED ORDER:
7. The relevant part of the impugned order is as under:
"It is pertinent to note that the primary responsibility to maintain a married lady is upon her husband. Moreover, the benign provisions of the Protection of Women against Domestic Violence Act, 2005 have been enacted for the effective protection of rights of women guaranteed under the Constitution who are victims of any kind of violence within the family. In her application, complainant is seeking Rs. 50,00,000/- per month from respondent No. 1 as expense but in her written submissions filed before the Court and through oral clarifications, it has been submitted that complainant is seeking Rs. 5,00,000/- per month as interim maintenance from respondent No. 1.
Respondent No. 1 has admitted his income to the tune of Rs. 30,000/- per month. It is submitted by respondent No. 1 that complainant is running her boutique from her parental home and is earning handsomely. Though, no documentary proof has been filed. Complainant has categorically deposed that she does not have any independent source of income. However, from the income affidavits filed by both the parties, photographs filed on record and by their respective admissions also, it is evident that parties belong to the uber rich class. Even though respondent No. 1 has mentioned that he is earning only Rs. 30,000/- per month and is separated from joint family business, from the documents available on record filed during relevant period in the name of respondent No. 1, show the income of respondent No. 1 approximately to the tune of Rs. 39,00,000/- per month. From the affidavit filed by complainant, it is evident that she is admittedly dependent upon her parents for her monthly expenses of Rs. 5,10,000/- which has not been denied by respondents. Prima facie both the parties have filed documents which show multiple international holidays taken by now the estranged couple.
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 5 of 32 Since, complainant has not substantiated the earning of the respondent No. 1 with any documents, in view of the material available on record, this Court finds that respondent No. 1 is duty bound to maintain the complainant and he cannot shy away from his responsibility. Parties do not have any child as admitted by both of them. Thus, relief is granted in favour of complainant. As per the status of parties, this Court deems it appropriate that respondent No. 1 shall pay Rs. 5,00,000/- each month to the complainant to maintain herself from the date of filing of the present application till the complainant is legally entitled to receive the same or till final disposal of the case."
GROUNDS OF APPEAL:
8. Feeling aggrieved and dissatisfied with the impugned order, the appellant preferred the appeal on the grounds, as under:
"a. The impugned order was passed without appreciating the facts of the case;
b. The trial Court did not consider that the respondent left the appellant without any reason whereas the appellant made efforts to bring her back but she refused to join him;
c. The trial Court did not consider that the appellant has paid an amount of Rs. 1,30,000/- to the respondent since the date of separation, in the absence of any direction from any Court, in order to save his marriage;
d. The trial Court wrongly concluded monthly income of the appellant as Rs. 39,00,000/- per month without considering the material on record;
e. There is no document, on the file of the Court, reflecting monthly income of the appellant as Rs. 39,00,000/- per month;
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 6 of 32 f. Photographs pertaining to foreign visits are relating to the period before marriage of the appellant with the respondent and after marriage, the appellant went to U.S.A. only with the respondent on honeymoon;
g. The appellant was helping his parents in their business and trying to set up his business and in that connection, he had to travel the said foreign destinations and the said tours were related to business and not vacation / holiday tours. The family of the appellant borne expenses of the said travelling and on account of the allegations levelled by the respondent, the appellant is doing separate business;
h. The appellant is a matriculate and struggling to establish his business of fruits. His ITRs for the period from 2016-2020 would show that his annual income is around Rs. 3,00,000/- to 4,40,000/-;
i. The trial Court wrongly assessed income of the appellant as Rs. 39,00,000/- per month whereas the respondent has stated, in the petition, that the appellant is earning Rs. 10,00,000/- to 11,00,000/- per month;
j. The appellant's tie with his family is severed and he is ousted from the family business and he is residing in a rented accommodation at Rs. 9,000/- per month;
k. The appellant is engaged in the seasonal business pertaining to fruit and his income is not fixed and he is earning an amount of Rs. 30,000/- per month from the said business;
l. The trial Court wrongly ignored the material on record while concluding that the respondent is not earning anything and dependent upon her father on the basis of her affidavit whereas she has graduated from 'Pearl Academy of Fashion' and holding a certificate of NIFT and running a high end boutique 'M/s Noor-E-Mania' from her parental house in Rajinder Nagar, Delhi and the photographs relating to social media i.e. Facebook, Instagram and exhibition of the garments at 'International Garment Fair, 2020' organized by IIGF;
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 7 of 32 m. The trial Court did not consider regular income of the respondent from her fashion designing business and the entries reflected in statement of her bank account;
n. The trial Court did not consider that the respondent has regular income of interest on her various fixed deposits (FD) and recurring deposits (RD) which would also show that she has earning huge income;
o. The trial Court did not consider the bank accounts of the respondent maintained in 'Axis Bank' and 'HDFC Bank' reflecting deposits in the sum of Rs. 8,02,758/- for the period from 01.04.2015 to 26.11.2018 and Rs. 3,20,000/- from 23.08.2017 to 27.11.2018;
p. The trial Court did not consider that the respondent has not shown any document pertaining to her expenses in the sum of Rs. 5,20,000/- per month and the source from where she is arranging such amount for her monthly expenses;
q. The trial Court did not consider that the respondent did not place any document regarding the claim of expenditure in the sum of Rs. 3,50,000/- per month towards groceries, Rs. 1,00,000/- towards servants, Rs. 50,000/- towards medicines and Rs. 10,000/- towards club; and r. The appellant is not the owner of any of the firms. 'M/s Pragati Fruits' and 'M/s Aman Brothers' are run by the family members of the appellant and 'M/s Aakarshan Fruits' is not related to the appellant. "
APPEARANCE:
9. I have heard arguments of Mr. Pradeep Rana, Advocate with Mr. Mohit Aggarwal, Advocate for the appellant and Mr. Maninder Singh, Ld. Senior Advocate with Mr. Karanbir Singh, Advocate for the respondent and examined the trial Court record and the case law relied.
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 8 of 32 CONTENTIONS OF THE APPELLANT:
10. Mr. Pradeep Rana, Advocate for the appellant contended that the respondent sought an amount of Rs.
5,00,000/- per month as interim maintenance and the trial Court directed the appellant to pay interim maintenance, as prayed by the respondent. He contended that the respondent, in para No. 21 of the applicant under Section 12 of the Act, stated that the appellant is earning Rs. 10,00,000/- to 11,00,000/- per month. He referred 'STATEMENT OF EXPENDITURE' contained in 'PART- V' of the affidavit of income and expenditure filed by the respondent to contend that the respondent has claimed an amount of Rs. 3,50,000/- towards 'food, clothing and shelter' and Rs. 1,00,000/- towards 'Domestic servants' under the head of 'Household expenditure', Rs. 10,000/- towards 'Public transport' under the head of 'Transport', Rs. 50,000/- towards 'Doctor' under the head of 'Medical expenditure' and Rs. 10,000/- towards 'Club' under the head of 'Entertainment and recreation'. He contended that the said claim is highly exaggerated, unreasonable and unfounded. He contended that the respondent has not produced any material regarding the said expenses. He contended that the trial Court committed error in examining the balance-sheets of ITRs of the appellant. He contended that the trial Court wrongly assessed monthly income of the appellant as Rs. 39,00,000/- per month and there is no such document on record which can show that the appellant is earning such high income.
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11. Mr. Pradeep Rana, Advocate for the appellant referred ITRs for the assessment year 2016-17, 2017-18 and 2018-19 to contend that the amount mentioned as 'Balance b/f' is considered as monthly income of the appellant. He contended that the respondent is a fashion designer and she did course of fashion designing from a high end institute, namely, 'Pearl Academy of Fashion'. He referred printouts from social media pages to contend that the respondent is running a boutique 'Noor-E-Mania' from her parental house in Rajinder Nagar. He contended that the respondent participated in 'India International Garment Fair' organized by IIGF in the year 2020. He contended that the respondent has regular income from her business of fashion designing. He referred statement of bank account of the respondent that there are entries pertaining to diwali bonus to the staff, credit entries pertaining to receipt of amount on regular intervals. He contended that the appellant alongwith the respondent went to USA on honeymoon for the period from 17.01.2018 to 06.02.2018 and the said expenses were borne by his parents. He contended that foreign visits were in fact business related visits and the parents of the appellant borne the expenses thereof. He contended that the appellant is now debarred from his family business and he is residing in a rented accommodation and earning Rs. 30,000/- per month. He contended that the respondent is not entitled to seek maintenance.
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 10 of 32 CONTENTIONS OF THE RESPONDENT:
12. Mr. Maninder Singh, Ld. Senior Advocate for the respondent contended that the impugned order was passed on 14.10.2020 and whereas the appeal was filed on 18.05.2021.
He contended that the appeal is barred by limitation. He contended that the reasons mentioned in the application seeking condonation of delay in filing of the appeal are contrary to the record. He contended that the appellant has made false statement that he came to know about the impugned order on 09.03.2021. He referred order dated 21.11.2020 and 28.01.2021 to demonstrate that Ld. Counsel for the appellant appeared on 21.11.2020 and 28.01.2021. He contended that the appellant appeared in person on 28.01.2021 before the trial Court. He contended that the appellant has not stated any cause much less than sufficient cause for seeking condonation of delay in filing of the appeal.
13. Mr. Maninder Singh, Ld. Senior Advocate for the respondent contended that the appellant filed a criminal revision petition vide Crl. Revision No. 69/2021 against the impugned order on 12.03.2021. He contended that the appellant has not filed order dated 20.03.2021 and 24.03.2021 passed in the said revision petition. He contended that the Revisional Court, vide order dated 20.03.2021, stayed the operation of the impugned order subject to deposit of 10% of the entire arrears of interim maintenance within 3 days in the form of FDR in the name of the trial Court.
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14. Mr. Maninder Singh, Ld. Senior Advocate for the respondent contended that the appellant failed to comply the said order and therefore, the Revisional Court vacated the stay, vide order dated 24.03.2021. He contended that the appellant withdrawn the said criminal revision petition on 23.04.2021. He contended that the appellant is indulging in 'forum shopping'. He contended that the appellant has approached this Court with unclean hands and his conduct does not entitle him any relief. He contended that as on date, interim maintenance to the extent of Rs. 2,10,00,000/- is due from the appellant. He contended that the respondent preferred a contempt case vide CONT. CAS (C) 398/2021 titled as 'Nupur Dua vs. Rohit Sharma' and in that proceedings, the appellant had undertaken to pay an amount of Rs. 5,00,000/- to the account of the respondent, vide order dated 12.07.2021. He contended that the impugned order is a reasoned order and it does not suffer from any illegality warranting any interference by this Court.
15. Mr. Maninder Singh, Ld. Senior Advocate for the respondent contended that the appellant belongs to 'uber rich class'. He contended that the appellant has concealed his true income. He contended that the respondent has incurred huge medical expenses for treatment of facial paralysis and COVID. He contended that the respondent has undertaken courses to upgrade her skills. He contended that the trial Court has the discretion to assume the income of the appellant from ITRs and bank statements as he has not disclosed his true income.
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16. Mr. Maninder Singh, Ld. Senior Advocate for the respondent contended that the appellant has raised false plea that he is residing in a rented accommodation. He referred income tax returns (ITRs) and bank statements of the appellant to demonstrate that the appellant is earning huge amount. He contended that the appellant is residing with his parents and in that regard, he referred affidavits filed by the appellant as well as seizure memo of stridhan. He contended that the appellant is still associated with his family business and he has taken the plea that his relation with his family and the said business is severed to conceal his true income. He contended that the marriage of the appellant with the respondent was solemnized at 'The Nikunj' and ring ceremony was performed at 'The Maurya Sheraton'. He contended that the appellant is a frequent flyer to foreign destinations and he stayed for 20 days in USA from 17.01.2018 to 06.02.2018 on honeymoon. He contended that the respondent is entitled to the same standard of living and comfort to which she is accustomed to. He contended that the appellant is under legal responsibility to provide the same comfort and standard of living to which the respondent is accustomed. He contended that the respondent is not the owner of 'M/s. Noor-E-Mania' and she has no income from the said boutique. He contended that the trial Court rightly assessed monthly income of the appellant as Rs. 39,00,000/- per month and considering the status and standard of living of the parties, assessed maintenance @ Rs. 5,00,000/- per month.
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 13 of 32 PLEA OF LIMITATION:
17. The impugned order was passed on 14.10.2020. The criminal appeal was filed on 17.05.2021. As regards issue of limitation is concerned, it can be stated that In Re Cognizance for Extension of Limitation in SMW (C) No. 3/2020, the Hon'ble Supreme Court of India, vide order dated 27.04.2021, excluded the period of limitation from 15.03.2020 till 14.03.2021.
18. In the meanwhile, the appellant preferred criminal revision petition No. 69/2021 on 15.03.2021 which was dismissed as withdrawn on 23.04.2021.
19. Hon'ble Supreme Court of India, vide order dated 27.04.2021, restored the order dated 23.03.2020 and extended the period of limitation till further order.
20. Therefore, the limitation period for filing of the criminal appeal was extended till 14.03.2021. On 15.03.2021, the appellant filed the criminal revision petition No. 69/2021 which he had withdrawn on 23.04.2021. The said period from 15.03.2021 to 23.04.2021 is excluded under Section 14 of 'The Limitation Act, 1963'. Moreover, the Hon'ble Supreme Court of India restored the order dated 23.03.2020 and extended the period of limitation till further order, vide order dated 27.04.2021. Therefore, the criminal appeal is within limitation. Accordingly, the application under Section 14 read with Section 5 of 'The Limitation Act, 1963' is disposed off with the observation that the criminal appeal is within limitation.
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 14 of 32 THE PLEA OF FORUM SHOPPING:
21. The fact that the appellant filed the criminal revision petition No. 69/2021 before the Sessions Court on 15.03.2021 wherein the Revisional Court stayed the operation of the impugned order subject to deposit of 10% of the arrears of the interim maintenance, vide order dated 20.03.2021, and the appellant did not comply the said order and withdrawn the criminal revision petition on 23.04.2021 and filed the present criminal appeal cannot be considered as 'forum shopping' by the appellant. The impugned order is an appealable order. The impugned order is not a revisable order. The criminal revision petition was not maintainable against the impugned order. The Revisional Court was not the statutory forum for challenging the impugned order. A plea of 'forum shopping' cannot be pressed into service, if the appellant approached a right forum for redressal of his grievance. This Court does not find any merit in the plea that the appellant is indulging into 'forum shopping'. ANALYSIS OF THE IMPUGNED ORDER:
22. The trial Court has passed the impugned order on the following grounds:
(a) The parties belong to uber rich class;
(b) The income of the appellant is approximately Rs. 39,00,000/- per month;
(c) The respondent's affidavit show that she is dependant upon her parents for her monthly expenses in the sum of Rs. 5,10,000/-;
(d) There are documents regarding multiple international holidays by the parties; and
(e) The status of the parties.
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 15 of 32 LEGAL PRINCIPLES:
23. In Rajnesh vs. Neha & Anr, Crl. Appeal No. 730/2020 decided on 04.11.2020, Hon'ble Supreme Court of India taken note of the factors for determining maintenance, as enumerated in the judgement of Hon'ble Delhi High Court in Bharat Hegde vs. Santosh Hegde, as under:
"1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he / she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.P.C. is adjustable against the amount awarded u/s 24 of the Act."
24. Besides the aforesaid factors, Hon'ble Supreme Court of India in Rajnesh vs. Neha (supra) enumerated the additional factors relevant for determining the quantum of maintenance, as under:
"(a) Age and employment of the parties;
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(b) Right to residence;
(c) Where wife is earning some income;
(d) Maintenance of the minor child; and
(e) Serious disability or ill health."
STATUS OF THE PARTIES:
25. The marriage of the appellant was solemnized with the respondent at 'The Nikunj' on NH-08, near Shiv Murti, Delhi. The ring ceremony was performed at 'The Maurya Sheraton' at Dhaula Kuan. The appellant was given a 'TOYOTA Fortuner Car', 2017 Model, registration No. DL 10CJ 0173 in the marriage. The appellant went to USA for honeymoon from 17.01.2018 to 06.02.2018. The appellant admitted that he was a frequent flyer to foreign destinations. The appellant made 7 visits between 2015 to 2017 to foreign countries comprising Russia, Thailand, Macau, Hong Kong, Bangkok etc. In the appeal, the appellant stated that the said visits were business related trips as he was trying to set-up his own business and in that regard, he had to travel to the said destinations. He stated that his parents and family had taken care of his travelling expenses. However, he has not placed anything on record that the said international travels were in connection with setting up of any business and they were sponsored by his parents and family. It is relevant to note that no such plea was taken in the written statement filed by the appellant. He merely denied that he used to visit frequently various countries including Russia, Thailand, Macau, Hong Kong, Bangkok, USA etc. Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 17 of 32
26. In the marriage card of the appellant, the name of the firms, namely, 'M/s Pragati Fruit Agency', 'M/s. Jagdish Kumar & Brothers', 'M/s. Madan Lal & Brothers' and 'M/s Aman Brothers' are mentioned. It may be noted that proprietor of 'M/s Pragati Fruit Agency' is Mr. Balbir Sharma, father of the appellant. Mr. Jagdish Sharma and Mr. Aman Sharma are real uncle and brother of the appellant.
27. At this stage, it will be relevant to note that the appellant, in the written statement, made admissions regarding the standard of living of the respondent, as under:
"Preliminary Objections:
4. That it is submitted that the applicant herein is residing in a well furnished accommodation situated in very posh locality of Delhi and have all the sources to maintain her being the business women and the applicant has all the luxuries at her disposal....
7.....It is further submitted that at present the applicant is residing with her parents in posh locality of Delhi situated at Old Rajinder Nagar, Delhi and is capable to take care of all her day to day needs being business women.....It is further submitted that the applicant belong to very high status family and having all luxuries / amenities at her disposal to lead her life comfortably....."
28. In the written submissions filed before the Court of Ld. MM, Tis Hazari Courts, Delhi for grant of bail, the appellant stated that he had borne the expenses of USA visit, as under:
"17.01.2018 - 06.02.2018: Parties went to honeymoon to United States of America and the husband bore all the expenses (Rs. Ten Lakhs Only)."
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29. In the affidavits of income and expenditure, the respondent has disclosed her status as 'upper middle class' whereas the appellant disclosed his status as 'lower middle class'.
30. In view of the afore-said discussion, it is evident that the appellant and the respondent have been living in posh colonies of Delhi. The marriage was solemnized lavishly at most expensive venues in Delhi. The appellant was a frequent flyer to foreign destinations. The appellant incurred the expenses of honeymoon in USA from 17.01.2018 to 06.02.2018. The appellant is a member of family owning several proprietorship firms engaged in business of commission agency in fruits and having shop in Azadpur Mandi, Delhi. The appellant does not belong to 'uber rich class'. The appellant and the respondent belong to 'upper middle class'.
ANNUAL INCOME OF THE APPELLANT:
31. The contention that the appellant is debarred by his parents from the joint family business and he is working as an agent 'fruits' on commission basis and earning Rs. 25,000/- to Rs. 30,000/- per month and residing in a rented accommodation, vide rent agreement dated 17.08.2018, would not cut the ice.
32. Reliance on the rent agreement dated 17.08.2018 for a period of 11 months w.e.f. 05.07.2018 in respect of Property No. A-4/57 (Ground Floor), Sector-15, Rohini, Delhi-110089 @ Rs. 9,000/- p.m. is totally misplaced.
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33. Such a self-serving document would not advance the case of the appellant. Moreover, it is seen that the appellant was served with the notice of the application under Section 12 of the Act on 21.06.2018 and thereafter, the said rent agreement was brought into existence on 17.08.2018. It is relevant to note that the appellant did not appear on 30.07.2018 before the trial Court after service of notice and he appeared with his counsel on 27.08.2018. The said document was created just to make out the case that the appellant is not residing at 'H. No. BU-181, Pitampura, Delhi'. The notice of the caveat was served upon the appellant at 'H. No. BU-181, Pitampura, Delhi'. It is further relevant to note that in the criminal revision petition filed on 15.03.2021, the address of the appellant is mentioned as 'H. No. BU-181, Pitampura, Delhi'. In the affidavit filed before the Hon'ble High Court of Delhi, the appellant mentioned his address as 'A-297, Second Floor, Vijay Vihar, Phase-I, Delhi' which was sworn on 12.07.2021. The manner in which the appellant is changing his address from time to time from the date of institution of the application under Section 12 of the Act give rise to the inference that he is intentionally creating evidence to demonstrate that he is not residing at 'H. No. BU-181, Pitampura, Delhi'. Moreover, such change of address cannot have any impact on the assessment of income and expenditure of the appellant for deciding the quantum of interim maintenance to which the respondent is entitled to as per the standard of living she is accustomed to.
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34. The appellant pleaded that he is earning Rs. 30,000/- per month as commission agent 'fruits'. It is already noted that the marriage of the appellant and the respondent was solemnized in expensive venues. It is already noted that the marriage card of the appellant mentioned that his family owned several proprietorship firms. It is already noted that the parties are living in posh colonies and belong to upper middle class.
35. It is not uncommon that husband does not disclose his true income to the Court. In maintenance cases, the Court is always compelled to estimate the income of the husband by employing guess work. The Court may take guidance from the status of the parties, their standard of living, their expenditure and the material, if any, brought on record.
36. In the affidavit of income and expenditure of the appellant, he stated that he has taken loan of Rs. 15,00,000/- from his uncle. He has neither stated the purpose of loan, the mode of transfer of loan, the name of the lender and the manner of use of the said loan. He stated that his investments are being managed by his uncle. He has not stated the investments made by him. He stated that stocks, shares, debentures and mutual funds are managed by his uncle. He has simply escaped response to the said investments and stocks held by him by taking shield under the plea that the said affairs are being managed by his uncle. It gives rise to the impression that he did not want to disclose his true income.
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37. In Income Tax Return (ITR) for the assessment year 2016-17, an amount of Rs. 33,93,515.35/- is shown as 'Balance b/f', an amount of Rs. 1,80,000/- as 'Income', an amount of Rs. 18,635/- is shown as 'Bank Interest' and Rs. 96,000/- as 'Salary'. It further mentions that an amount of Rs. 32,02,856/- was invested in stocks, shares including an amount of Rs. 29,17,800/- as 'Advance for Orchad (Mango)'. It further mentions cash in hand as Rs. 2,33,868.96/- besides deposit in bank accounts. It means the appellant had liquidity in the sum of Rs. 39,76,429.22/- at his disposal. In Income Tax Return (ITR) for the assessment year 2017-18, 'Balance b/f' enhanced to amount of Rs. 36,29,369.22/-. 'Income' enhanced to Rs. 2,45,000/-, 'Bank Interest' enhanced to Rs. 51,752/- and 'Salary' enhanced to Rs. 1,40,000/-. It further mentions that an amount of Rs. 18,28,639/- was invested in stocks, shares including an amount of Rs. 14,84,911/- as 'Advance for Orchad (Mango)'. It further mentions that an amount of Rs. 50,000/- was advanced to 'M/s. Akarshan Fruits', Rs. 1,00,000/- to 'K.K. Offset Printer', Rs. 9,28,709/- to 'M/s. Aman Brothers' and Rs. 6,26,347/- to 'M/s. Pragati Fruit Agency'. It mentions that cash in hand as Rs. 64,652.56/- besides deposit in bank accounts. It means the appellant had liquidity in the sum of Rs. 38,43,115.39/- at his disposal. In Income Tax Return (ITR) for the assessment year 2018-19, an amount of Rs. 45,14,868.39/- is shown in the category of 'Loan & Advances', 'Current Assets' and 'Investment'.
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38. In Income Tax Return (ITR) for the assessment year 2019-20, amount of Rs. 6,22,254/- and Rs. 12,62,644/- are show as 'Loan & Advances' to 'M/s. Aman Brothers' and 'M/s. Pragati Fruit Agency'. 'Current Assets' and 'Investment' fallen decreased drastically to Rs. 20,88,140/-. The income is increased to Rs. 3,83,301/- from Rs. 2,51,894/-. It mentions 'Balance b/f' as Rs. 33,14,868.39/-.
39. Income Tax Return (ITR) for the period immediately preceding the marital discord is ITR for the assessment year 2017-18 which was filed on 15.03.2018. From the said Income Tax Return, it is seen that the appellant had shown Rs. 4,37,999/- as 'income', 'bank interest' and 'salary'. He made investment in the sum of Rs. 18,28,639/-. He had an amount of Rs. 36,29,369/- as 'Balance b/f'. In that assessment year, he had shown 'Loan and Advances', as noted above, in the sum of Rs. 17,05,056/-. He had 'Current Assets' in the form of cash in hand and bank deposits in the sum of Rs. 3,09,420/-. Rounding of the said figure, Rs. 38,44,114/- is the annual income of the appellant.
40. Income Tax Return is relevant but not conclusive in determining the annual income of the appellant. Statement of the bank account of the appellant maintained in HDFC Bank for the period from 01.01.2017 to 31.12.2017 shows credit card payments at regular intervals ranging from Rs. 25,253/- to Rs. 1,15,696/-. It further shows regular transfers to unexplained destinations.
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41. From Income Tax Return for the assessment year 2017-18, as discussed above, it is evident that the appellant had earned an amount of Rs. 4,37,999/-. He made investment in the sum of Rs. 18,28,639/-. He advanced loan in the sum of Rs. 17,05,056/-. It means the said amount was available to him during the said assessment year. Having computed the said amount, he had earned an amount of Rs. 39,71,694/-. It may be relevant to note that 'Balance b/f' in the assessment year 2018-19 increased to Rs. 38,43,115.39/-. It is further relevant to note that loan amount advanced to 'M/s. Pragati Fruit Agency' increased to Rs. 12,62,644/- and this fact is further confirmed by Income Tax Return of 'M/s. Pragati Fruit Agency' for the assessment year 2017-18 and 2018-19. It is relevant to note that 'M/s. Pragati Fruit Agency' in Income Tax Return for the assessment year 2016-17, 2017-18 and 2018-19 mentioned 'unsecured loan' in the sum of Rs. 17,36,500/-, Rs. 20.35,500/- and Rs. 22,58,300/- respectively. It does not stand to reason that the appellant is earning Rs. 25,000/- to Rs. 30,000/- per month, he could advance an amount of Rs. 18,84,898/- during the financial year 2018-19. It is further relevant to note that in the affidavit of income and expenditure, the appellant mentioned his income as Rs. 30,000/- per month and expenditure as Rs. 21,000/- per month whereas he made investments in stocks and shares in the sum of Rs. 3,04,179/-. The contention that the appellant is earning Rs. 25 - 30,000/- per month is patently false.
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42. In view of Income Tax Return for the assessment year 2017-18, as discussed above, and the standard of living, the nature of expenditure and the status of the parties, the annual income of the appellant is assessed as Rs. 54,00,000/-. AVOCATION AND INCOME OF THE RESPONDENT:
43. The respondent has done course in fashion designing from 'Pearl Academy of Fashion', certification from NIFT (Hauz Khas). Ld. Counsel for the appellant contended that the respondent is running the boutique 'Noor-E-Mania' and earning Rs. 2,00,000/- per month. He contended that the respondent has income from her joint family business. In that regard, he referred statement of bank account of the respondent in HDFC Bank to contend that an amount of Rs. 20,000/- was credited on 17.10.2017 as 'Diwali Bonus Staff', Rs. 5,000/- on 20.12.2017 and Rs. 7,000/- on 10.01.2018 by 'MOHITOWANI' and an amount of Rs. 16,335/- was credited on 22.02.2018 by 'KHUSHBOO ARTS'. He contended that there are several credit entries reflecting transfer of substantial amount between the period from 25.09.2017 to 27.11.2018.
44. There was no material placed before the trial Court that the respondent was running the boutique 'Noor-E- Mania'. Before this Court, an attempt was made to demonstrate that the respondent is appearing as proprietor of 'Noor-E- Mania' on social media pages and participated in online exhibition organized by IIGF.
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45. Ld. Counsel for the respondent filed an affidavit of the respondent that she has no taxable income. According to registration certificate vide registration No. 07AAPFN3028GIZ8, 'Noor-E-Mania' is shown as partnership firm of Ms. Kajal and Sakshi Dua. IIGF, vide letter dated 30.07.2021, stated that 'M/s. Noor-E-Mania' did not participate in 62nd, IIGF. Moreover, such isolated credit entries in the bank account of the respondent cannot be considered as certain, consistent and regular income. It may be that the respondent is earning some amount from her avocation but that cannot be considered as her regular income. Moreover, a qualified person cannot be expected to sit idle at the mercy of her spouse for maintenance. She has to make her both ends meet. Such credit entries in the bank account of the respondent would not fall under the category of income. Capacity of earning and actual earning are two different concepts and this proposition of law is laid down in the case of Kanupriya Sharma vs. State & Anr., (2019) 261 DLT 349 by the Hon'ble High Court of Delhi that actual earning or qualified and capable of earning are two different things. In Shailja & Anr. vs. Khobbanna, (2018) 12 SCC 199, Hon'ble Supreme Court of India held that whether the appellant is capable of earning or whether she is actually earning are two different requirements and merely because the appellant is capable of earning is not a sufficient reason to reduce the maintenance. Therefore, there is nothing on record that the respondent is employed and has regular source of income to maintain herself.
Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 26 of 32 ASSESSMENT OF INTERIM MAINTENANCE:
46. As already noted above, the appellant and the respondent belong to upper middle class. The respondent is entitled to the same standard of living and comfort to which she is accustomed to. The respondent is unemployed. She is residing with her parents. She is dependent upon her parents. She is entitled to seek just and reasonable maintenance from the appellant so that she can live with the same comfort and standard of living as she was living with the appellant.
47. Though, the respondent, in the affidavit of income and expenditure, has claimed an amount of Rs. 3,50,000/- towards 'groceries / food / personal care / clothing / water / electricity / gas'. However, she has not filed any evidence that she is incurring the said expenses towards 'food, clothing and residence'. The said amount is highly unreasonable and unsubstantiated. It may be relevant to note that the respondent claimed an amount of Rs. 1,00,000/- towards 'food, clothing, shelter and medical expenses' in prayer clause 'c' of the application under Section 12 of the Act and the application under Section 23 of the Act, as reproduced above. The said amount of Rs. 1,00,000/- towards 'food, clothing and residence' is just and reasonable and commensurate to the standard of living of the appellant and the respondent.
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48. The respondent has claimed and amount of Rs. 1,00,000/- towards 'domestic help'. However, she has not produced any material that she is incurring the said expenses. Moreover, the claim for the said expenses is on higher side. The respondent is entitled to Rs. 20,000/- towards 'two domestic helps' for kitchen as well as washing of clothes, house cleaning etc.
49. The respondent will also be entitled to an amount of Rs. 10,000/- towards 'electricity charges, water charges and gas charges'.
50. The respondent claimed Rs. 10,000/- towards 'travelling expenses'. The said amount is just and reasonable.
51. The respondent has claimed an amount of Rs. 50,000/- per month towards 'medical expenditure'. However, the respondent did not produce any material before the trial Court that she is suffering from any ailment which require frequent medical expenses. Before this Court, the respondent has produced medical record pertaining to her treatment qua 'facial nerve paralysis' since 12.07.2019. She has also filed a final bill dated 13.10.2020 in the sum of Rs. 49,400/-. She has also filed certain bills regarding diagnosis and visits to Health Centre for the period from 04.12.2020 to 07.04.2021. She has also filed a medical bill in the sum of Rs. 23,606/- dated 04.12.2020. The said expenses will be covered under the grant of amount of Rs. 10,000/- per month under the head of 'medical expenditure'.
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52. Ld. Counsel for the respondent relied upon judgement in Rekha Sabharwal vs. Jitender Sabharwal, 2018 SCC OnLine Del 12448, Jasbir Kaur Sehgal vs. District Judge, Dehradun & Ors., (1997) SCC 7, Kanupriya Sharma vs. State, (supra) and Sonu vs. Premlata, (2016) 234 DLT 337 to contend that the monthly income should be split into 3 units and 2 units will be retained by the appellant and one by the respondent.
53. Applying the afore-said ratio, the respondent is entitled to interim maintenance in the sum of Rs. 1,50,000/- per month from the date of filing of the application till the disposal of the case.
54. In Rajnesh vs. Neha & Anr., (supra), Hon'ble Supreme Court of India held as under:
"(ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.
The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort."
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55. Even otherwise, the amount of Rs. 1,50,000/- is just and reasonable, and commensurate with the status of the parties and standard of living in which the respondent was ordinarily living. Such an amount cannot be considered as highly exaggerated or oppressive and unbearable for the appellant.
56. Mr. Pradeep Rana, Advocate for the appellant did not press the contention that Ms. Amrita Sharma, Advocate did not appear and submit arguments on behalf of the appellant on the application under Section 23 of the Act. CONCLUSION:
57. The trial Court committed an apparent error of law in considering the 'Balance b/f' as monthly income of the appellant. The trial Court did not consider the pleadings as well as affidavits of income and expenditure filed by the parties and the documents filed on record. The trial Court has not given any reason for reaching to the conclusion that the income of the appellant is Rs. 39,00,000/- per month. The trial Court has not given justification for allowing interim maintenance in the sum of Rs. 5,00,000/- per month. The impugned order suffers from material illegality and non-consideration of the relevant material on record. The impugned order deserves to be modified.
58. Accordingly, the criminal appeal filed by the appellant is allowed. The impugned order dated 14.10.2020 is modified.
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59. The appellant is directed to pay interim maintenance in the sum of Rs. 1,50,000/- per month to the respondent from the date of filing of the application till the disposal of the case. The amount paid by the appellant, if any, shall be adjusted.
A copy of this order be sent to Ld. trial Court alongwith trial Court record for information and necessary compliance. Appeal file be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date: 2021.10.11
14:28:24 +0530
Announced in the open Court SANJAY SHARMA-II
on this 09th October, 2021 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
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Rohit Sharma vs. Nupur Dua
CNR No.: DLCT010068802021
Cr. Appeal No. 72/2021
09.10.2021
Present : None.
It is 08.00 p.m.
Vide separate judgement, the criminal appeal filed by the appellant is allowed. The impugned order dated 14.10.2020 is modified. The appellant is directed to pay interim maintenance in the sum of Rs. 1,50,000/ per month to the respondent from the date of filing of the application till the disposal of the case. The amount paid by the appellant, if any, shall be adjusted. TCR be sent to the trial Court. Appeal file be consigned to record room.
Digitally signedSANJAY by SANJAY SHARMA SHARMA Date: 2021.10.11 14:29:01 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi 09.10.2021 Crl. App. No. 72/2021 Rohit Sharma vs. Nupur Dua Page No. 32 of 32