IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Appeal No.204410/16
Ms. Parveen Raza
W/o Syed Intekhab Ali
D/o Late Sh. M.Y. Salim Raza
R/o H.No.82, COT, GF,
New Delhi . . . . Appellant
Through : Shri Dalip Singh,Advocate
Syed Intekhab Ali
S/o Dr. Anwar Ali
R/o 915, Haveli Azam Khan,
Gali No. Mochiyan,
Delhi 110006. . . . . Respondent
Through : Shri A.H. Khan, Advocate
Date of Institution : 11.09.2015
Date when arguments were heard : 20.02.2017 & 14.03.2017
Date of Judgment : 17.03.2017
1. The present appeal filed by appellant under section 29 of The Protection of Women from Domestic Violence Act, 2005 (in short ‘The PWDV Act’) seeks to challenge order dated 27.03.2015 passed by learned Metropolitan Magistrate (in short MM), Mahila Court, South East District, Saket Courts, New Delhi in CC No.6/2/12 Police Station Hazrat Nizamuddin titled as “Parveen Raza Vs. Syed Intekhab Ali”.
2. Appellant had filed complaint under section 12, 18, 19 and 20 of The PWDV Act before the court of learned MM. Alongwith her complaint, she also filed an application for seeking interim relief for maintenance. The application of appellant was decided by learned MM vide order dated 10.06.08. Learned MM was pleased to direct the respondent to pay interim maintenance of Rs.5,000/ per month of appellant from the date of filing of the petition.
3. Both the parties, feeling aggrieved by order of learned MM dated 10.06.08, challenged the same in appeal. The appeals preferred by both the parties was heard by learned Appellate Court and was disposed off vide common judgment dated 06.02.10. The appeal preferred by both the parties was dismissed being devoid of merit.
4. Thereafter, appellant filed an application before the court of learned MM for seeking enhancement / modification of order dated 10.06.08 in the maintenance amount. In her application, the appellant prayed to enhance the maintenance amount from Rs.5,000/ to Rs.25,000/. The application of appellant was decided by learned MM vide order dated 27.03.15. The amount of maintenance was enhanced by 10% every year pending from 2012 till the date of order.
5. Feeling aggrieved and dissatisfied by the impugned order dated 27.03.2015, the appellant has filed the present appeal.
6. On notice, respondent appeared through his counsel to contest the appeal. Respondent also filed detailed written reply to the appeal of appellant.
7. I have heard and considered the submissions advanced by Shri Dalip Singh, learned counsel for appellant and Shri A.H. Khan, learned counsel for respondent and carefully perused the material on record of the case.
8. Relevant portion of the impugned order is reproduced hereunder for ready reference and for better appreciation of the rival contentions of both the parties: “Now the complainant has failed to file any document in support of this application to show an increase in the earning capacity of the respondent or an increase in her expenditure. Similarly, the respondent has also failed to place on record any document to show his present earnings.
However, this court cannot be oblivious to the realities prevailing in the society and inflation is one such reality. Cost of living has indeed gone up since 2008 and the living standing which could be maintained with Rs.5,000/ per month in 2008 cannot be maintained with the same amount four years later. Also it is to be kept in mind that unless any specific disability or peculiar circumstances exist, in the normal course of events, the earning capacity of an able bodied person would only increase with time (till of course he becomes physically weak or old). Therefore, an annual increase of 10% in the amount decided in 2008 is certainly warranted considering that the inflation rate varies between 6 to 11% in India as per government statics, which are anyways on the conservative side.
Therefore, the application is allowed and the respondent is hereby directed to pay monthly maintenance to the complainant by enhancing it 10% for every year beginning from 2012 till today. It is clarified that only an increase of 10% is allowed per year. Say for instance in 2011 the JD paid Rs.5,000/ so in 2012 he will pay Rs.5,000/ + (10% of 5,000) = 5,500/. Then in 2013 he will pay Rs.5,500/ + (10% of 5,500) = 6,050/ and then in 2014 he will pay Rs.6,655/ and so forth.”
9. A bare reading of the above order shows that the appellant failed to file any document in the court of learned MM to show that there was an increase in the earning capacity of respondent or there was any increase in her expenditure. Learned MM took note of the practical realities prevailing in the society and taking note of the cost of living in the year 2008 and in the year 2012, was pleased to enhance the maintenance at reasonable rate payable to appellant. Learned MM has rightly observed in her order that inflation rate varies between 6 to 11% in India as per government statics. Therefore, the enhancement of maintenance @ 10% per year is fully justified.
10. The appellant herself is a well educated lady having post graduation degree i.e. MA, B. Ed. and LL.B. and is reported to be more qualified than the respondent. She can earn herself on her own. She is not supposed to sit idle at home and be parasite on the earnings of respondent.
11. For the reasons discussed above, I do not find any infirmity or patent illegality or perversity in the impugned order dated 27.03.15 passed by learned MM. The said order is based on sound reasoning.
No ground for interference in the order of learned MM is made out. The appeal preferred by appellant lacks merit and same deserves to be dismissed. It is ordered accordingly.
12. A true copy of judgment along with TCR be sent back to learned trial court concerned. Appeal file be consigned to record room.
Announced in the open court today i.e 17.03.2017
(RAJ KUMAR TRIPATHI)
Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi