Smt Sunita vs The Executive Engineer on 13 July, 2017

IN THE COURT OF SH. JAGDISH KUMAR ,
ADDITIONAL SESSIONS JUDGE (WEST-02) , DELHI.

Criminal Appeal No.54193/2016

Smt Sunita
W/o Sh Gyan Chand,
D/O Shri Ramesh,
R/o RZ R-36, Chanakya Place-II
Janak Puri C-I, PS Dabri
New Delhi-110059 ………….. Appellant

Versus

Sh Gyan Chand
S/O Late Sh Hira Lal,
R/o A-152, Ground Floor
Chattarpur Enclave, Phase-I
New Delhi

Second address

Through Secretary.
NDMC, Palika Kendra,
Sansad Marg,
New Delhi-110001

or

The Executive Engineer
Room No.101, First Floor,
Meter Reading Branch, Commercial Department,
NDMC, Shahid Bhagat Singh Marg,
Gole Market, New Delhi-110001 ………Respondent

Date of Institution : 23.10.2016
Date of Assignment : 26.10.2016
Date of Arguments : 02.05.2017
Date of Judgment : 13.07.2017

JUDGMENT

1. The present appeal has been filed under section 29 of the
Protection of Women from Domestic Violence Act, 2005

CA 54193 / 16 Sunita Vs Gyan Chand Page 1 of 9
(hereinafter called “the Act”) assails the order dt. 24.09.2015
(hereinafter called ‘impugned order’) as passed by Ld. MM/Mahila
Court-01, Tis Hazari,Delhi, (hereinafter called the Ld. Trial Court),
whereby which the Ld. Trial Court on the petition being filed by the
appellant U/S 12 of Protection of Women from Domestic Violence
Act, 2005 has directed the respondent to pay Rs.11,500/- pm as
maintenance and declined the relief of compensation and legal
expenses.

2. Brief facts leading to the present appeal are that the
appellant/ complainant has filed a complaint U/S 12 of Protection
of Women from Domestic Violence Act 2005, against the
respondent before Ld. MM/ Delhi. While disposing of the petition
u/s 12 of the Act, vide impugned order dated 24.09.2015, the Ld.
Trial Court, after examining the parties and hearing arguments has
directed the respondent to pay Rs. 11,500/- pm as maintenance
and has declined the prayer of appellant for compensation and
legal expenses.

3. Ld. counsel for the appellant Shri Manoj Sharma has
vehemently argued that the Ld MM has failed to appreciate the
fact that respondent is a Govt servant and having a salary of
Rs.46,000/- pm and having no other liability except to maintain his
legally wedded wife. It is argued that order of maintenance of
Rs.11,500/- pm from the date of order is having ambiguity for
fixation as the order of interim maintenance was passed on
14.11.2011. It is argued that the Ld Trial Court is erring in denying
the order qua compensation and legal expenses.

4. On the other hand, Ld. Counsel for respondent has argued
that the Ld. Trial Court has not committed any error while passing

CA 54193 / 16 Sunita Vs Gyan Chand Page 2 of 9
the impugned order.

5. I have heard the Ld. counsels for the parties and carefully
perused the entire record. I have given a thoughtful consideration
to the submissions.

6. First and foremost, the Protection of Woman from Domestic
Violence Act, 2005 ( in short D.V. Act) has been enacted by the
Parliament of India as a beneficial legislation, not only to provide
an effective mechanism for protection of rights of the woman
guaranteed under Constitution of India but also to avoid the
incidence of violence of any kind occurring within four walls of the
family. An aggrieved person under the Act, can approach the Ld.
MM by making an application u/s 12 of the Act for various relief .

7. Section 20 (1) Clause (d) provides powers to the Ld. MM
to grant a maintenance for aggrieved person as well as her
children, if any, in addition to the order of maintenance u/s 125 of
the Cr.P.C. or any other law enforced for the time being. The
section itself provides that the mandatory relief granted under this
section has to be adequate, fair, reasonable and considerable
according to the standard of living to which the aggrieved person
is accustomed.

8. Now question arises what should be the adequate
maintenance which has to be granted in favour of an aggrieved
person. The word “maintenance” has not been defined anywhere
and shall be used as pari materia in consonance with other acts
like The Hindu Adoption and Maintenance Act, Cr.P.C. and even
under the Hindu Marriage Act, 1955. The Hon’ble Superior Court
while dealing with the question of maintenance have reiterated

CA 54193 / 16 Sunita Vs Gyan Chand Page 3 of 9
that the right to maintenance is an incident of the status from an
estate of matrimony. Maintenance is held to have an element of
alimony which expression means the allowance due to wife from
husband on separation. The grant of maintenance is considered
to be an act to provide protection to a married woman which is
economically dependent and almost in a position of tutelage to
the husband and was intended to secure justice to her.

9. Our own Hon’ble High Court in Bharat Hegde Vs. Suraj
Hegde 140 (207) DLT 16 has held:-

“While considering a claim for maintenance,
the court has to keep in mind the status of
the parties, reasonable wants of the
applicant, the income and property of the
applicant. Conversely, requirements of the
non-applicant, the income and property of
the non-applicant and additionally the other
family members to be maintained by the
non-applicant have to be taken into all.
Whilst it is important to insure that the
maintenance awarded to the applicant is
sufficient to enable the applicant to live in
somewhat the same degree of comfort as in
the matrimonial home, but it should not be
so exorbitant that the non applicant is
unable to pay”.

10. The Hon’ble superior courts have also been conscious of
socio- economic fabric of the county where, after the separation
from matrimony, the party to the dispute do not truthful reveal
their income and more so, in case of employed persons or persons
employed in the unorganised sector, truthful incomes never
surface. The court has held that tax evasion in the country is a
norm and tax compliance is the exception in this country and

CA 54193 / 16 Sunita Vs Gyan Chand Page 4 of 9
therefore, determination of interim maintenance there cannot be
mathematical exactitude. Reliance placed on judgment titled as
Jasvir Kaur Sehgal Vs. District Judge, Dehradun Ors. (1998) SLT

551. The Apex Court has further recognised the fact that spouses
in the proceedings of maintenance do not truthfully furnish the
actual income and therefore some guess work on the part of the
Court is permissible.

11. The entire issue was examined by Hon’ble High Court in the
celebrated judgment of Puneet Kaur Vs. Inderjit Singh
Sawhney, CM (M) No. 79/2011 decided on 12.09.2011 wherein
the Hon’ble Justice J.R Midha of Hon’ble High Court of Delhi has
examined the entire gamut of judgment and has laid down that in
view of aforesaid prevailing situation parties should be called
upon to file an affidavit disclosing various factors including their
statement of bank accounts, assets and liabilities and income so
that an objective assessment can be made in respect of the claim
and counter claim of the parties regarding maintenance.

12. The appellant has challenged the impugned order /
judgment on the grounds that maintenance has not been awarded
properly by the Ld. Trial Court as salary of the respondent is about
Rs. 46,000/- per month and the respondent is not having any
other liability except to maintain the appellant. The Ld. Trial Court
has only awarded the maintenance of Rs. 11,500/-/ per month
from the date of order.

13. On the other hand, it is argued by the Ld. Counsel for
respondent that he is having responsibility of his mother also and
he has to spend the considerable amount on the maintenance of
his mother.

CA 54193 / 16 Sunita Vs Gyan Chand Page 5 of 9

14. Having given consideration to the submissions being made
by the Counsel for applicant / accused and Ld. Addl. PP for State.
A fact regarding the salary of respondent no. 1 is proved on record
to the effect that in the month of July, 2015 his salary was Rs.
46,604/- per month. Regarding the fact whether respondent is
maintaining his mother or not. Though the finding returned by the
Ld. Trial Court on the fact that mother of the respondent is not
dependent upon the respondent, has been challenged. And as per
settled principle of law it is not required by this court to disturb
that finding. But I am reconsidering the fact, whether the mother
of the respondent is dependent upon the respondent or not. Only
to arrive at a decision whether the Ld. Trial Court has awarded the
maintenance correctly or not.

15. The appellant herself has admitted in her cross
examination conducted on 09.01.2013, that mother of the
respondent was residing with the respondent. The respondent has
also deposed that he is residing at J-7, Palika Niwas, New Delhi I.e.
Government accommodation for the last one year. The statement
of the respondent was recorded on 19.01.2015. It means that the
respondent has shifted to J-7, Palika Niwas, New Delhi one year
prior to 19.01.2015 and before that he was residing with his
mother. A fact is proved on record that respondent used to go to
his mother’s house on every Saturday and Sunday. So, it has been
proved on record that till about mid January 2014, mother of the
respondent was residing with him and thereafter he also used to
go to meet her on every Saturday and Sunday.

16. Though a fact has also been brought on record that the
mother of the respondent is receiving pension from the Indian Air

CA 54193 / 16 Sunita Vs Gyan Chand Page 6 of 9
Force being given to the mother of the respondent as widow of
pensioner (i.e. her husband). It is not brought on record how much
pension is being drawn by the mother of the respondent and
mother-in-law of the appellant. The admitted fact is that mother of
the respondent is old aged lady and probability cannot be ruled
out that the respondent could not have incurred some expenses
for his mother.

17. So the observation recorded by me above regarding the
fact that respondent may have incurred some expenses for his
mother is only probable observation and I am not reverting the
finding being not challenged. The Ld. Trial Court has awarded the
maintenance of Rs. 11,500/- P.M. to the appellant which is just and
proper in the given facts and circumstances of the case. The
prayer of the appellant that maintenance of Rs. 25,000/- be
awarded in itself is not maintainable because in the affidavit filed
in evidence and in the petition itself the claim is only of Rs.
15,000/- P.M. So the prayer made in the appeal is not justifiable
and same is beyond the evidence on record. It cannot be
accepted.

18. So far as the plea of the appellant that the maintenance
has been awarded from the date of order is concerned. On perusal
it is admitted by the appellant herself that prior to date of order
she was receiving the maintenance of Rs. 8,000/- P.M. from
03.03.2009 and probably at the relevant period of time the salary
of the respondent may be on the lower side. So, The Ld. Trial Court
has rightly awarded the maintenance from the date of order.

19. There may be an argument that the salary of the
respondent may increase day by day. In this regard I am of the

CA 54193 / 16 Sunita Vs Gyan Chand Page 7 of 9
view that since the petition for enhancement of maintenance U/s
127 Cr.PC is still pending. Here, in the present case the
maintenance is justified in the given circumstances.

20. So far as the claim of compensation of Rs. 5 Lac is
concerned. The complainant has not deposed or whispered even a
single word in her examination in chief being filed through affidavit
as to what extent and in which manner she is entitled for that
amount.

21. It is also not there in the evidence of the complaint filed
through affidavit how she has quantified the claim of
compensation of Rs. 5 Lacs. So, Ld. Trial Court has correctly
observed that appellant is not entitled for any compensation
though reason may be different.

22. So far as the claim of the appellant for legal expenses is
concerned. It has been observed by the Trial Court and admitted
by the appellant that she has received the legal expenses in the
form of Rs. 27,000/- in the proceeding U.s 498A/406 IPC.

23. Even otherwise the Ld. Trial Court has rightly relied upon
the judgment of Hon’ble High Court of Gujarat in case titled as
Kalaben Balabhai Desai Vs. Allah Bhai Karmshibhai Desai in Civil
Revision appeal no. 1266/99. The appellant may approach to DLSA
if she is not having much means for legal expenses.

24. This being the factual position and in the light of discussion
above. This court finds no illegality, infirmity or lack of judicial
proprietary in the impugned order as passed by Ld. Trial Court .
The present appeal is without any merits and same is liable to be

CA 54193 / 16 Sunita Vs Gyan Chand Page 8 of 9
dismissed and is, accordingly dismissed.

25. TCR be sent back with copy of the order. Copy of this order
be also sent to concerned Protection Officer.

26. Appeal records be consigned to record room after due
completion.

ANNOUNCED IN THE OPEN
COURT ON THIS 13.07.2017
(JAGDISH KUMAR )
ADDL.SESSIONS JUDGE-02
(WEST):DELHI

CA 54193 / 16 Sunita Vs Gyan Chand Page 9 of 9

Leave a Comment

Your email address will not be published. Required fields are marked *