No Maintenance, Should consider husband’s ability to pay and his liabilities.

IN THE COURT OF SH.AMIT BANSAL,ADDITIONAL SESSION JUDGE­04
(NORTH­WEST DISTRICT) ROHINI COURTS, DELHI

IN THE MATTER OF :­C.A. No. 41/14( Old CA No. 23/13)

Smt. Rekha Rani W/O Sh. Harish Kumar,D/O Sh. Prem Chand,R/O F­76, Prashant  Vihar,Delhi­110085
Through her father/ Authorized Representative,Mr. Prem Chand, Also At:R/O A­1/164, Sector­4,Rohini, Delhi­110085.……Appellant/Wife

Versus

1. Sh. Harish Kumar ( husband),R/O C­38/1, Block­C,Vihay Vihar, Phase­II,Delhi­110085.

2. Sh. Subhash Chand ( Mama Sasur),R/O H.No. 735, Sector­13,Hissar, Haryana.

3. Sh. Nanu Ram ( Brother­in­law) R/O L­119, Vijay Vihar,1  of 15 Phase­II, Chuna Bhatti Ke Pas,Delhi­110085.

4. Sh. Ashok Kumar ( Brother­in­law),H.N. Y­565­66, Sultan Puri Road,Nangloi, Delhi­110041.…….Respondents

Date of receiving of file in the court : 30.01.2014
Date of hearing of arguments: 31.10.2014
Date of order:    11.11.2014
11.11.2014
O R D E R

1. This order shall dispose of the present appeal which arises out of the impugned order dated 31.05.13 passed by Ld. MM , Mahila Courts, vide which she declined interim maintenance to the complainant/ wife . In the present order the parties are referred to as husband or wife as per their marital status.

The respondents No.2 to 4 are relatives of respondent No.1/ husband and are only proforma parties. As per record the notice of appeal was issued only to respondent No.1/ husband as respondents No.2 to 4 were only impleaded as proforma parties.

2. The present appeal has been filed u/s 29 of The Protection of Women from Domestic Violence Act, 2005(in short DV Act) against the impugned order dated 31.05.13 passed by Ld. MM, Mahila Court, Rohini Courts in D.V. Petition No. 1308/1 of 2008, titled as Rekha Rani Vs. Harish Kumar & Ors. wherein the Ld. Trial Court dismissed the interim application/plea of the appellant for grant of interim maintenance on the ground that in view of the financial status of the husband it would be gross injustice upon the husband, if he is ordered to provide maintenance out of his salary despite having sufficient source of income available to his wife.

3. Ld. Counsel for the appellant/ wife argued that the present appeal has been filed through Mr. Prem Chand i.e. father of the complainant, who has been permitted by the Ld. Trial Court vide order dated 21.02.12 to represent the complainant as the complainant is of unstable mental condition and is not in a position to continue the present matter herself. He submitted that the respondents No.2 to 4 in the present appeal have been impleaded only as proforma parties and no relief is claimed against them in the present appeal. He submitted that the appellant/ wife got married to respondent No.1 / husband on 23.04.1998. He argued that there was dowry demand by the respondent No.1 and other respondents from the parents of the appellant and the appellant was subjected to corresponding cruelties .

He contended that a son Master Mayank @ Mohit was born out of the wedlock on 28.11.2002 but even thereafter the situation did not improve and there were further subsequent dowry demands by the respondents. He submitted that the appellant was finally thrown out of her matrimonial home by respondent No.1 in February, 2007. He argued that the respondent No.1 while filing his affidavit of assets and liabilities concealed his actual income, assets and liabilities. He argued that the impugned order is bad in law as the Ld. Trial Court did not take into consideration that the appellant was abandoned by respondent No.1/ husband in February, 2007 and since then she has been living at the mercy of her old father without any support from the respondent No.1 or other respondents. He further argued that the present mental condition of the appellant requires continuous support from the respondent No.1 and the father of the appellant is unable to support her for her day to day needs including medical needs and daily care. He argued that the father of the appellant is unable to fulfill her financial needs including her special medical needs. He further argued that in view of the present medical condition of the appellant, she is unable to look after or draw any income from property bearing No. A­1/64, Sector­4, Rohini, Delhi and the said property cannot be considered to be an income drawing asset or a source of income, in view of the medical condition and mental condition of the appellant. He argued that while passing the impugned order, the Ld. Trial Court failed to appreciate that even as per Minimum Wages Act, 1948, the Govt. of NCT of Delhi has passed an order dated 16.04.2013 wherein the minimum wages of an unskilled labour is fixed at Rs. 7722/­ per month and the Ld. Trial Court could have assumed said monthly income of the respondent No.1/ husband. He contended that while passing the impugned order the Ld.

Trial Court failed to appreciate that the respondent No.1 had sufficient resources to maintain the appellant. He submitted that in the impugned order the Ld. Trial Court wrongly held the legal duty of husband to maintain his wife as a moral duty only and further erroneously held that the responsibility of maintaining the appellant was an additional burden on the respondent No1/ husband. He contended that the son of the parties is also mentally unstable and the appellant required as much medical and financial support as that of her son, who is in the custody of respondent No.1/husband. He submitted that the appellant has no income whatsoever and even the old father of the appellant does not have sufficient resources or means or capacity to look after the appellant. He argued that employability and employment ought not to be misunderstood as being the same.

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He argued that in this context the income from the above said flat is to be considered as due to mental disorder of the wife/ owner , she is not in a position to let out or to earn any income from the above said property. He relied upon the judgment of Hon’ble Delhi High Court dated 20.11.13 in FAO 68/2013 in case titled as Ruchi Rai Sehmbey Vs. Simon Jason Sehmbey @ Haminder Sehmbey. He further relied upon the judgment of Hon’ble Delhi High Court in case titled as Annurita Vohra Vs. Sandeep Vohra I (2004) DMC 568 and submitted that the income has to be equitably apportioned for maintenance of the appellant wife. He also referred to the judgment of Ho’ble Delhi High Court in case titled as Monika Garg Vs. Vilamb Garg 188 (2012) DLT 279 and submitted that the income of husband could be assessed on the basis of minimum wages. He thus prayed that the impugned order be set aside and some interim maintenance be fixed for the appellant/ wife to be paid by the respondent No.1/ husband.

4. Ld. Counsel for the respondent No.1/ husband contended that the impugned order was passed by the Ld. Trial Court after considering the complete facts of the case and it does not require any interference by this court. He argued that the appellant has got serious mental health issues and is mentally unstable and the present appeal is an abuse of the process of the law. He argued that the respondent No.1 is taking care of the minor son of the parties, who unfortunately is also suffering from serious mental health issues. He submitted that the respondent No.1/ husband is earning only about Rs.4500/­ per month , is only 8th pass and has no other source of income. He argued that the respondent No.1 is having a responsibility of a small child who is a mentally disabled kid and is also having the responsibility of his old age ailing mother. He submitted that the respondent No.1/ husband is spending about Rs.1600/­ on rent, electricity and water charges and is also bearing medical expenses of about Rs.1300/­ per month for his old ailing mother and mentally disabled son. He submitted that there was no domestic violence committed by the respondents against the appellant. He further denied that the respondents ever demanded any dowry or committed any dowry related violence against the appellant. He contended that through out the marriage, the appellant had not been in a proper mental condition where she could be threatened or pressurized for any alleged dowry demand. He submitted that the respondent No.1 along with their son were living in the matrimonial home bearing No. A­1/64, Sector­4, Rohini, Delhi but they were thrown out of the said house by the parents of the appellant. He denied that the appellant was thrown out of her matrimonial home by the respondent No.1/ husband in February, 2007. He submitted that the appellant can get fixed handsome monthly rental income of Rs. 15,000/­ per month, from the above said property, whereas, the income of respondent No.1/ husband is not even sufficient to look after his old age mother and mentally unstable child. He submitted that when as per the affidavit of respondent No.1 he is earning Rs.4500/­ per month then there is no requirement to assess his income under the Minimum Wages Act, 1948. He relied upon the judgment of Hon’ble Delhi High Court in case titled as Vijay Verma Vs. State NCT of Delhi i.e. judgment dated 13.08.10 in Crl. M.C. No. 3878/ 2009 and submitted that the purpose of the DV Act is to give remedy to the aggrieved persons against the domestic violence and the domestic violence can take place only when one is living in shared house hold with the respondents and the act of abuses, emotional or economic, physical or sexual, verbal or non verbal , if committed, when one is living in the same shared house hold constitute domestic violence. He thus prayed that the present appeal be dismissed.

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5. The appellant herein is the wife who filed an application U/S 12 of the DV Act against her husband i.e. respondent No.1 and four other persons and also sought an interim maintenance. The said interim maintenance was declined by the Ld. Trial Court by the impugned order dated 31.05.13. As per record, vide order dated 21.02.12 the Ld. Trial Court upon an application filed by the complainant for representation through her father directed that the complainant will be represented through her father.

It is an admitted fact that the marriage between the appellant and respondent No.1 was solemnized on 23.04.1998 and on 28.11.02 a son was born out of the wedlock. It is further an admitted position that the appellant/ wife and the minor son of the parties are unfortunately suffering from mental disorder. It is also an admitted fact that the said minor son aged about 12 years is residing with respondent No.1 at a rented accommodation.

Perusal of record shows that the father of the appellant i.e. Authorised Representative of the appellant filed an affidavit before the Ld. Trial Court mentioning that the appellant has no source of income and was totally dependent for her survival, medical needs and other necessities on her parents. It was also mentioned that she does not possess any cash, jewellery, bank account and other valuables in her name . It was, however, mentioned in the said affidavit that the appellant is the owner of residential property measuring 32 sq. meters bearing No. A­1/64, Sector­4, Rohini, Delhi. As far as the affidavit of respondent No.1/ husband is concerned, his educational qualification is mentioned as 8th pass and his occupation was mentioned as a private job. One mentally disordered son and a mother are shown as dependents upon him. His salary is mentioned as Rs.4500/­ per month and the expenditure on rent and maintenance including electricity, water and gas have been mentioned as Rs.1600/­ per month. His household expenses including kitchen, clothing etc. have been mentioned as Rs.1800/­ per month whereas the medical/ hospitalization expenses qua old ailing mother and mentally disordered son have been mentioned as Rs. 1300/­ per month.

6. There are allegations and denial regarding the demand of dowry and consequent cruelties upon the wife by her in­laws. In the present case, it is an admitted fact that unfortunately the appellant and the minor son of the parties are mentally unstable and the said son is living in a rented accommodation with respondent No.1.

The impugned order shows that the Ld. Trial Court mentioned that it was only a moral duty of the husband to provide maintenance to his wife and children. The Ld. Trial Court has committed an error of law in this regard by mentioning that it was only a moral duty of a husband to provide maintenance to his wife and children, as it is the legal duty of the husband to provide maintenance to his wife.

In the present matter, the respondent No.1 / husband has himself admitted in his affidavit that he is earning Rs.4500/­ per month. The Ld. Trial Court vide impugned order declined the interim maintenance on the ground of financial status of the husband, on the ground that he was taking care of his widowed mother and mentally retarded child at a rented accommodation and on the ground that the appellant/ wife can easily maintain her out of the rent of her own property.

In this regard, it is pertinent to note that it is an admitted position on behalf of the appellant herself that she is the owner of residential property measuring 32 sq. meters bearing No. A­1/64, Sector­4, Rohini, Delhi. In the case titled as Puneet Kaur Vs. Inderjeet Singh Sawhney III (2011)DMC 487, the Hon’ble Delhi High Court has mentioned 11 factors which are to be taken into consideration while deciding an application U/S 24 of The Hindu Marriage Act, which also includes the independent income and property of the claimant, the number of persons the non applicant has to maintain, reasonable wants of the claimant, the non applicant’s liabilities, if any, payment capacity of the non applicant and the provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant. This court cannot be oblivious of the fact that the appellant is owning a residential property in Sector­4, Rohini, Delhi and if, the said property is given on rent then the appellant can earn sufficient income to provide for her food, clothing, medical requirement etc. In this regard, it seems that the Ld. Trial Court rightly came to the conclusion that the father of the appellant/ wife could have let out the property of the complainant/ wife , his representative or guardian as being done here in the present case. The appellant/ wife has failed to show any substantial or reasonable cause as to why said property is lying vacant. The judgment of Hon’ble Delhi High Court in case of Ruchi Rai Sehmbey (supra) , as relied upon by Ld. Counsel for appellant to show that employability and employment should not be misunderstood as being the same, is distinguishable on the facts of the case because in that case the said observation was given as the wife in that case was earlier employed in British High Commission but was unemployed since her marriage, her employment with British High Commission ended 7­8 years back and there was no material on record to say that she was likely to get employment in the near future and particularly of the nature of job she had earlier done.

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Coming back to the present case, although the appellant/ wife has reasonable wants regarding food, clothing, shelter, medical attendance etc., however, it seems that she could provide for her requirements by leasing out the above said property which is admitted to be owned by her. In this context the payment capacity of the husband/ respondent No.1 and his liabilities are also to be seen as mentioned in the judgment of  Puneet Kaur ( supra) .  It is an admitted fact that the respondent No.1 is looking after his old aged widowed mother and his mentally unstable/ retarded minor son. In his affidavit, he has mentioned his salary as Rs.4500/­ per month whereas the medically expenses of his mother and mentally retarded son have been shown as Rs.1300/­ per month. The rent, electricity and water charges have been shown as Rs.1600/­ per month , household expenses including kitchen, clothing etc. have been mentioned as Rs.1800/­ per month and is stated to be doing a private job. Keeping in view the said figures, it is evident that the husband is earning a meager salary and all of it is spent upon the above said heads of expenditure. As discussed above, the payment capacity of the non applicant and his liabilities have also to be considered while fixing the maintenance. In view of the above said discussion and affidavit of the husband/ respondent No.1, it seems that after providing for minimum basic necessities and liabilities, he is left with practically almost nothing. Nothing has been brought on record by the appellant/ wife to show that the said affidavit of husband is false or that the husband is earning more than the said income or that he has no such liabilities.

There is no reason on record to disbelieve the affidavit of respondent No.1/ husband. When the husband/ respondent No.1 has specifically mentioned his total monthly income in his affidavit and there is no reason on record to disbelieve his affidavit, therefore, the submissions of Ld. Counsel for wife/appellant that the income of the husband should be assessed as minimum wages shall not help the appellant/ wife and the monthly income can be taken as Rs. 4500/­ per month as mentioned in the affidavit. The judgment of Monika Garg ( supra) as relied upon by Ld. Counsel for appellant/ wife is distinguishable on the facts of the case and shall not be of any help to the appellant/ wife.

As far as the judgment of Hon’ble Delhi High Court in  Annurita Vohra ( supra) is concerned, the same is also distinguishable on the peculiar facts of the present case because in the present case the appellant/ wife is the owner of the above said residential property which can be used by her for getting a reasonable rental amount to maintain herself and further after deducting the expenditure and considering the liabilities of the husband, nothing is left with him at all after taking into account his monthly income as disclosed in the affidavit.

7. Keeping in view the above said discussion, it is held that there is no illegality or impropriety in the impugned order and nothing has been brought on record to set aside the same. Accordingly, the impugned order dated 31.05.13 is upheld and the present appeal without any merits is dismissed.

8. The appeal is disposed off accordingly. The  Trial Court Record be sent back with a copy of the present order and the appeal file be consigned to Record Room.

Announced in the open Court on: 11th  day of November, 2014

(Amit Bansal)
Addl. Sessions Judge­04 (N/W)
Rohini Courts:Delhi

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