Rajat Johar vs Divya Johar on 17 November, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 17th November, 2017

+ CRL.M.C. 1728/2015

RAJAT JOHAR ….. Petitioner

Through: Mr.Prashant Mendiratta, Advocate
with Mr.Harshvardhan Pandhey and
Ms.Malvika Choudhary, Advocates

versus

DIVYA JOHAR ….. Respondent

Through: Mr.Biji Rajesh and Ms.Shipra Garg,
Advocates

CORAM:
HON’BLE MR. JUSTICE I.S.MEHTA

JUDGMENT

I. S. MEHTA, J.

1. By way of the instant petition, the petitioner invoke the inherent
jurisdiction of this Court under Section 482 of the Code of Criminal
Procedure, 1973 for setting aside the impugned orders dated
17.03.2015 passed by the learned Additional Sessions Judge-03,
Patiala House Courts, New Delhi in Criminal Appeal No. 131/14.

2. The brief facts stated are that, a petition under Section 12 of the
Protection of Women From Domestic Violence Act, 2005 was filed

CRL.M.C. 1728/2015 Page 1 of 11
by the respondent-Divya Johar against the petitioner-Rajat Johar
before the Court of Chief Metropolitan Magistrate, Saket, Delhi.
Admittedly, the marriage between the parties was solemnized on
16.05.2009 in accordance with Hindu rites and rituals at Hotel
Lutyen’s, Mehrauli-Gurgaon Road, Delhi. The respondent before
marriage was working as a Manager, Quality Assurance in a reputed
MNC in Gurgaon and was earning a decent salary in the year 2008-
09, but she was forced to quit the same after marriage to join the
petitioner at Hyderabad in the month of May 2009. Thereafter, in
the month of August 2010, the respondent was short listed for final
interview for the post of full-time faculty (Asst. Professor) with
NIFT, Hyderabad but the petitioner was completely against of
taking up a full-time job by the respondent therefore, she did not
attend the final interview on the instances of her husband/petitioner.

3. Out of the said wedlock one baby boy (Master Avin Johar) was
born on 02.02.2011. He was born about nine weeks prematurely and
was diagnosed for blood pressure and kidney problem. As a result
of which the minor child is suffering from severe medical ailment
since his birth and requires constant medical treatment and
supervision. Thereafter, on 03.04.2012, the respondent along with
her minor child were thrown out of the matrimonial home and on
being harassed by the petitioner and her family members the
respondent filed a domestic violence case against the petitioner and
other family members. It has been alleged by the respondent that the
petitioner has neither taken her and her minor child back nor has
made any provision for their maintenance. It has been further

CRL.M.C. 1728/2015 Page 2 of 11
alleged that the petitioner has refused the respondent to stay in the
matrimonial home and have further refused to hand over the
Stridhan articles including jewellery to the respondent despite
repeated requests.

4. Subsequently, on 17.07.2012 the respondent filed a petition
under Section 12 read with Sections 18, 19, 20, 22 and 23 of the
Protection of Women from Domestic Violence Act, 2005 against
the petitioner, father-in-law and mother-in-law, along with an
application for interim maintenance under Section 23 of DV Act in
the Court of Chief Metropolitan Magistrate, Saket Courts, New
Delhi.

5. The learned Metropolitan Magistrate after hearing the
arguments of both the parties and after considering the complaint,
affidavit and other material on record, passed an order dated
12.11.2014 thereby directing the petitioner herein to pay an interim
maintenance of Rs. 2,00,000/- per month to the respondent and her
minor child which shall be payable from the date of filing of the
petition, i.e. 17.07.2012 till further directed the petitioner herein to
pay a sum of Rs. 55,000/- per month as rent in lieu of an alternate
accommodation to the respondent and her minor child.

6. Aggrieved by the aforesaid order dated 12.11.2014, the
petitioner herein preferred an appeal under Section 29 of the DV
Act being Criminal Appeal No. 131/14 before the Court of Sessions
Judge, District Courts, Saket, New Delhi on 11.12.2014.

7. Consequently, the learned Additional Sessions Judge-03, Patiala
House Courts, New Delhi vide impugned judgment dated

CRL.M.C. 1728/2015 Page 3 of 11
17.03.2015 disposed of the said appeal filed by the petitioner by
modifying the interim maintenance amount by reducing it to Rs.
1,80,000/- per month and further reduced the amount for alternate
accommodation to Rs. 45,000/- per month.

Hence, the present petition.

8. The learned counsel for the petitioner has submitted that the
petitioner is ready to pay any amount if factually requires but the
respondent is in the habit of falsely putting allegations against the
petitioner. It is further submitted that the impugned order is bad in
law and liable to be set aside on the following grounds:-
i. The calculation is against the income of the petitioner.
ii. The respondent and her mother is joint owner of a
commercial property and she for herself and her minor
daughter could contribute from the rent which is coming from
the aforesaid property. The document indicating 20% of the
rental is of the respondent 80% of her mother.

iii. As per the record the mother of the respondent and the
respondent share 50% but as per the rent deed 20% is shown
in favour of the respondent and 80% is in favour of her
mother which is not tenable in law as she is concealing her
income.

9. The learned counsel for the petitioner has submitted that the
interim order is totally illegal and is against the settled principal of
law as it shows no consideration to the documents filed by the
petitioner and further submitted that the petitioner as got no
monthly income therefore, the impugned order be set aside.

CRL.M.C. 1728/2015 Page 4 of 11

10. The learned counsel for the petitioner has submitted that the
appellate Court’s order is patently illegal therefore, the present
matter be remanded back to the appellate Court to decide the appeal
of the petitioner afresh and give reasons of coming to the conclusion
of reduction and upholding the findings of the Trial Court. He
further submits that till then let maintenance be not awarded and
relied upon the following judgments:-

1) Akanksha Jain vs. Manish Jain; CM(M) No. 910/2010
decided on 21.02.2014.

2) R.K. Sharma vs. NDMC; (2006) 1 567.

11. On the contrary the learned counsel for the respondent has
submitted that the impugned order passed by the Sessions Court
does not require any interference by this Court as the petitioner has
not complied with the orders passed by the Trial Court as well as
the Sessions Court therefore, the petitioner be directed to comply
with the orders and submits that the present petition be rejected for
want of merit.

12. The learned counsel for the respondent in support of its
contentions has relied upon the following judgments:-

1) Nayanika Thakur Mehta vs. Mohit Mehta;
MANU/DE/0841/2017.

2) Shalu Ojha vs. Prashant Ojha; (2012) 2 SCC 99.

3) Rajeev Preenja vs. Sarika Ors; 2009 (V)AD (DELHI)
497.

4) Durga Prasad Ray vs. Meenu; 191 (2012) DLT 275.

CRL.M.C. 1728/2015 Page 5 of 11

13. In rebuttal the learned counsel on behalf of the petitioner has
submitted that the learned Additional Sessions Judge though
reduced the maintenance amount, without going into the reasons
came up with the imaginary figure, this determination of the interim
maintenance has to be based on certain documents to reach to the
conclusion as per the new affidavit in compliance to the judgment
of this Court in Kusum Sharma vs. Mahinder Kumar Sharma;
FAO-369/1996 decided on 29.05.2017.

14. The object of The Protection Of Women From Domestic
Violence Act, 2005 is to provide for more effective protection of the
rights of women guaranteed under the Constitution who are victims
of violence of any kind occurring within the family and for matters
connected therewith or incidental thereto.

15. The object of awarding maintenance/interim maintenance qua
the aggrieved person is to provide speedy remedy to the aggrieved
person(s) who are unable to support themselves and are in distress.
It is intended to achieve a social purpose, and maintenance cannot
be denied to the children on the premise that their mother is
employed or has enough means to maintain them or that they are in
the custody of their mother.

16. It is a settled principle of law that both the parents have a legal,
moral and social duty to provide to their child the best education
and standard of living within their means. The mere fact that the
spouse with whom the child is living is having a source of income,
even if sufficient, would in no way absolve the other spouse of his

CRL.M.C. 1728/2015 Page 6 of 11
obligation to make his contribution towards the maintenance and
welfare of the child, even if, the means/income/salary of that spouse
may be less than the means/income/salary of the other spouse.

17. The Apex Court in Noor Khatoon vs. Mohd. Quasim; 1997
Crl. L.J. 3972 has made the observation that a father having
sufficient means has the obligation to maintain his minor children
who are unable to maintain themselves till they attain majority and
in case of females till they get married.

18. It is an admitted fact coming on record that the main
maintenance petition under Section 12 of DV, Act is pending before
the Trial Court. The determination of the maintenance amount will
be done by the Trial Court after leading of evidence by the
respective parties and on the basis of material documents and
income affidavits of the parties.

19. Furthermore, in the instant petition it is an admitted case on
record that the minor child is staying with the mother/respondent
who needs medical attention/care on regular basis and even the
paternity is not disputed. The statutory obligation is paramount to
the wish of the father and he cannot be permitted to limit this claim
of the child on flimsy and baseless grounds. Reliance is placed on
the judgment of the Hon’ble Punjab and Haryana High Court in the
case Dr. R.K. Sood vs. Usha Rani Sood; 1996 (3) 114 PLR 486 and
the relevant paragraph is reproduced as under:-

“17. Under the Hindu Law father not only
has a moral but even a statutory obligation
to maintain his infant children. The scope of
his duty is to be regulated directly in

CRL.M.C. 1728/2015 Page 7 of 11
relation to the money, status, that the father
enjoys. The right of maintenance of a child
from his father cannot be restricted to two
meals a day but must be determined on the
basis of the benefit, status and money that
the child would have enjoyed as if he was
living with the family, including his mother
and father. Irrespective of the differences
and grievances which each spouse may have
against the other, the endeavour of the
Court has to be to provide the best to the
child in the facts and circumstances of each
case and more so keeping the welfare of the
child in mind for all such determinations.
Liability to maintain one’s children is clear
from the text of this statute as well as the
various decided cases in this regard. The
statutory obligation is paramount to the
wish of the father and he cannot be
permitted to limit this claim of the child on
flimsy and baseless grounds.”

20. Since the respondent and her minor son are to be maintained by
the petitioner, in the absence of denial of existence of the marriage
and denial of paternity of the minor son, who is stated to be requires
constant medical treatment and supervision, the petitioner cannot
shy away from his statutory obligation of maintaining his legally
wedded wife and his minor son.

21. The monetary relief as provided under the Protection of Women
from Domestic Violence Act, 2005 is different from maintenance,
which can be in addition to an order of maintenance under Section
125 Cr.P.C. or any other law, and can be granted to meet the
expenses incurred and losses suffered by the aggrieved person and

CRL.M.C. 1728/2015 Page 8 of 11
child of the aggrieved person as a result of the domestic violence,
and the question whether the aggrieved person, on the date of filing
of the application under Section 12 of DV Act was in a domestic
relationship with the respondent is irrelevant.

22. Sub-clause 2 of Section 23 of DV Act empowers the Magistrate
to pass such interim order as he deems just and proper therefore, it
is well within the jurisdiction of the Magistrate to grant the interim
ex parte relief, if the Magistrate is satisfied that the application
prima facie discloses that the respondent is committing, or has
committed an act of domestic violence or that there is a likelihood
that the respondent may commit an act of domestic violence.

23. Furthermore, an act of domestic violence once committed,
subsequent decree of divorce will not absolve the liability of the
respondent from the offence committed or to deny the benefit to
which the aggrieved person is entitled under the Domestic Violence
Act, 2005 including monetary relief under Section 20, Child
Custody under Section 21, Compensation under Section 22 and
interim or ex parte order under Section 23 of the Domestic Violence
Act, 2005.

24. The Apex Court in V.D. Bhanot v. Savita Bhanot; (2012) 3
SCC 183, has observed that the conduct of the parties even prior to
the coming into force of the Protection of Women from Domestic
Violence Act, 2005 could be taken into consideration while passing
an order under Sections 18, 19 and 20 of DV Act thereof. The
relevant paragraph is reproduced as under:

CRL.M.C. 1728/2015 Page 9 of 11

“12. We agree with the view expressed by
the High Court that in looking into a
complaint Under Section 12 of the PWD Act,
2005, the conduct of the parties even prior
to the coming into force of the PWD Act,
could be taken into consideration while
passing an order Under Sections 18, 19 and
20 thereof. In our view, the Delhi High
Court has also rightly held that even if a
wife, who had shared a household in the
past, but was no longer doing so when the
Act came into force, would still be entitled to
the protection of the PWD Act, 2005.”

25. Therefore, in view of the submissions made by the learned
counsel for the petitioner and reliance placed by him on the
judgment of this Court in Kusum Sharma vs. Mahinder Kumar
Sharma; FAO-369/1996 decided on 29.05.2017, the parties are
directed to file a fresh income affidavit in view of the said judgment
before the Trial Court on or before 15.12.2017 and the Trial Court
shall pass a fresh order within a month thereof.

26. In the meanwhile the petitioner is directed to keep on making
the payment in favour of the respondent as well as her minor child
as per the order dated 17.03.2015, without prejudice to the rights
and contentions of the parties till a fresh order of maintenance is
passed by the Trial Court and any amount if paid in excess the same
shall be adjusted in future.

27. Consequently, the impugned order dated 17.03.2015 passed by
the learned Additional Sessions Judge-03, Patiala House Courts,

CRL.M.C. 1728/2015 Page 10 of 11
New Delhi in Criminal Appeal No. 131/14 is modified to this extent
only.

28. The present petition is disposed of in the above terms. The
parties are directed to appear before the Trial Court on or before
15.12.2017.

29. Let LCR be sent back forthwith along with a copy of this
judgment.

30. All the pending applications (if any) are also disposed of.

31. No order as to costs.

I.S.MEHTA, J.

NOVEMBER 17, 2017

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