IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
Criminal Appeal No. 98/2017
CNR NO. DLST010029202017
Smt. Seema ……….appellant
w/o Sh. Amit
D/o Sh. Ganga Singh
r/o H. No. 16/157, Shahid Camp Dakshin Puri, New Delhi 110062
Amit ……….respondent no. 1
s/o Sh. Ashok Kumar r/o H. NO. 891,
Gali no. 4, Jwala Puri, New Delhi The Stae (Govt. of NCT) ……….respondent no. 2
Date of Institution : 19th April 2017
Date of arguments : 15th May 2017
Date of order : 20th May 2017 J U D G M E N T
This Criminal Appeal under Section 29 of the Protection of Women from Domestic Violence Act 2005 (hereinafter referred as Act) has been preferred against the order aged 23.03.2017 passed by Learned Metropolitan Magistrate, New Delhi whereby trial Court granted interim maintenance on the application 23 (1) of Protection of Woman from Domestic Violation Act, 2005 and directed respondent Amit to pay the interim maintenance of Rs. 2,500/ per month to the appellant.
Aggrieved with the said order, appellant preferred the present appeal with the submissions respondent Amit is working in a band party and this fact was admitted by him in his written statement and trial Court ignored this fact and did not pass the order on interim maintenance to the appellant Seema and her minor children. Learned trial Court did not appreciate the fact that respondent Amit did not disclose the details of the immoveable properties as well as his place of working in his income affidavit. Moreover, it is the settled law that an able bodied person earns according to Minimum Wags Act, prevailing in Delhi. Learned trial Court failed to consider the fact that while passing the order of interim maintenance that the appellant Seema has no source of income and is depended upon her parent and it is very difficult to survive in Delhi when the price index of day to day house hold goods and rationing are increasing day by day.
Learned trial Court failed to provide maintenance i.e. fooding, clothing and medicines to the appellant Seema and her minor children, since the date of filing of the complaint. The interim maintenance should have been passed from the date of filing of complaint and not from the date of order.
4. Learned trial Court has failed to consider the fact that appellant Seema has no source of income and her children were totally dependent upon the earning of her old aged father. Learned Metropolitan Magistrate overlooked the documents filed by respondent Amit i.e. application dated 30.11.2015 addressed to Commissioner of Police and medical documents i.e. discharge summary dated 21.11.2015 of Safdarjung Hospital are the false evidence as no such incident ever took place as appellant/complainant Seema is residing separately from her husband since 09.09.2015. The written statement filed by respondent Amit, there is no mention of such kind of incident took place on 18.11.2015.
Learned Trial Court failed to consider the fact that impugned order is nonspeaking and ambiguous in nature and overlooked the fact that complainant/Seema and respondent/Amit have resided in domestic relation and complainant has no source of income while the kids are school going and they have the need of food, clothing and medicines but trial Court has provided the educational expenses only to the children while the maintenance is to be provided to the appellant Seema and her minor children
Therefore, a prayer to enhance the interim maintenance to the appellant seema and her minor children to the tune of Rs. 3,000/ each per month from the date of filing of the petition.
7. After assigning of this present appeal, notice was issued to respondents but respondent no. 1 could not appear even though the notice was served affixation. Therefore, the matter proceeded for arguments.
Having herd the submissions and gone through the record and relevant portion of law.
The relief sought may also include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent.
Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in passing of the order by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) , or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
The Appellate Court cannot reassess the evidence at large and come to a fresh opinion as to the innocence or guilt of the accused, so as to interfere with a concurrent findings of fact by the Courts below. But even in cases of concurrent finding, the Court may interfere on the following reasons:
(i) Where there has been in the trial, a violation of the principles of natural justice;
(ii) Where the conclusions reached by the Courts below are to patently opposed to the well established principles of judicial approach as to amount to a miscarriage of justice.
(iii) Where the Courts have committed an error of law or of the forms of legal process or procedure by which justice itself has failed;
(iv) Where there has been an improper reception or rejection of evidence which, if discarded or received, would leave the conviction unsupportable;
(v) Where there has been a misreading of vital evidence or the Court omits to notice very important points in the accused’s favour which would swing the balance to the other way;
(vi) When there are two versions before the Court, that version which is supported by objective evidence should be preferred, unless properly explained by the other side. At any rate, in such a case, if the defence version is supported by objective evidence, the accused should be entitled to benefit of doubt.
In the case of Kripal Singh vs State of UP AIR 1965 SC 712 where there has been in the trial, a violation of the principles of natural justice Seema vs Amit ors. page no. 5 of 8 CA No. 98/2017 if the order is perverse or inadequate and had resulted in the miscarriage of justice, the Appellate Court may interfere and pass the appropriate order instead of remanding the case for reconsideration.
The monetary relief granted while disposing of the application under subsection (1) of Section 12 of the Act, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited,
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure 1973 (2 of 1974) or any other law for the time being in force.
The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
15. The Court has power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
The respondent is working in a band party and earns Rs. 15,000/. Though it seems that he has concealed his actual income, which is contrary to the Minimum Wages Act. For the person like respondent, whose earning must be Rs. 17,000/ plus per month as per the recent Minimum Wages Notification. Appellant has to take care of her and two minor children.
Therefore, the amount of Rs. 2500/ per month payable by the respondent to the appellant to meet the expenses is very less and meagre as to consider the day to day expenses and cost of living is increasing.
In view of aforesaid discussions and the judgments cited, it will be appropriate that the appellant be granted interim maintenance to the sum of Rs. 2,500/ per month for her personal expenses, in addition to the interim maintenance already granted by the trial court for the minor children from the date of the appeal filed, which seems to be just, fair and sufficient to meet the end of justice. With these observations and directions, appeal stands disposed of.
Trial Court Record be sent back to the Trial Court concerned along with copy of this order for compliance.
20. Appeal file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Dr. Satinder Kumar Gautam)
open Court on Special Judge (NDPS)/ASJ
20th May 2017) South District: Saket