IN THE COURT OF Dr. VIJAY KUMAR DAHIYA
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the matter of :
CA No.286/17
Sh. Kuldeep Singh,
S/o Shri Harkesh,
R/o House No.140, Near Jato Ki Chaupal,
Village Pochanpur, Post Office Dhulsaras,
Dwarka Sector23,
New Delhi – 110 077. …………. Appellant/
Accused
Versus
Sharmila Devi
W/o Shri Kuldeep Singh,
D/o Shri Abhay Singh,
R/o House No.140, Near Jato Ki Chaupal,
Village Pochanpur, Post Office Dhulsaras,
Dwarka Sector23,
New Delhi – 110 077. ………… Respondent/
complainant
Date of Institution : 25.08.2017
Date of conclusion of arguments : 27.01.2018
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Date of Order : 27.01.2018
O R D E R
1. Vide this order I shall dispose of the present appeal
preferred against the impugned order dated 23.06.2017 passed by
Ld MM, Dwarka, New Delhi whereby the Ld. MM has allowed the
application of the complainant/appellant u/s 23 of the Protection
of Women from Domestic Violence Act, 2005 (hereinafter referred
to as the ‘Act’ ) for interim relief. For the sake of convenience
accused/appellant and respondent/complainant are hereby
referred to as appellant and complainant)
2. Brief facts relevant for disposal of the present appeal
are like this. The respondent was married with appellant on
26.06.2004. Out of this wedlock two children were born. The
respondent was subjected to domestic violence by the appellant.
The appellant used to taunt the respondent for bringing
insufficient dowry. The appellant was also admitted in de
addiction centres a number of times. On 13.09.2015 respondent
made a police complaint against the appellant. The respondent
was tortured and beaten up by the appellant time and again and
was also abused by the appellant physically as well as mentally.
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It is stated that the appellant is a man of means and has rental
income of Rs.1 lac to 1.5 lacs and other sources. The appellant
filed reply to the application denying all the allegations made in
the complaint. The shared household is the ancestral property of
the appellant, which has now come to the share of his sister and
rental income from that said property was the only source of
livelihood of appellant and now he is on the mercy of others for his
survival. The appellant is incapable of earning and is undergoing
mental treatment. The respondent deserted the appellant on her
own and did not return. Both the parties filed their detailed
affidavit of assets. After going through the record, ld. MM
through order dated 13.10.2016 allowed the application for
interim relief and awarded maintenance to the respondents and
her children @ Rs.15,000/ p.m.
3. Feeling aggrieved by the impugned order present
appeal has been filed.
4. It has been contended that ld. Trial court has passed
the order of maintenance against a person who is medically ill
and his treatment is going on for the long period. Ld. MM has
also hold that appellant is mentally ill and he is getting treatment
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for a long period at IHBAS at Dilshad Garden. ld. MM has passed
the impugned order without examination of the ownership of the
ancestral properties and income accrued therefrom. It is
contended that order of maintenance cannot be passed against a
person who is mentally disabled. The impugned order suffers from
the illegality which is writ large on the face of it in as much as the
ld. MM has wrongly allowed the application for interim
maintenance without expiscating the material on record.
5. Per contra ld. Counsel for the respondent has
contended that there is no substance in this appeal and the
impugned order has been passed by the trial court after
appreciating the settled principle of law by superior court with
regard to grant of interim maintenance. There is documentary
evidence on record. The appellant is owner of the properties
namely, House no.941, Flat No.201, Pocham Pur, Sector23,
Dwarka, New Delhi and Plot no.302, House No.926, Third Floor
(back side), Village Pochampur, Sector23, Dwarka, New Delhi
(hereinafter referred to as “the said properties”). The appellant
has rented out two places owned by him through rent agreements
and ld. trial court after appreciating oral as well as documentary
evidence on record has rightly assessed the amount of
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maintenance of the respondent as well as that of her two children
@ Rs.15,000/. The appeal being devoid of merits deserves to be
dismissed.
6. I have heard ld. Counsel for the parties and have
perused the material available on record.
7. Alongwith this appeal an application for condonation
of delay has also been filed by the appellant stating therein that
the appellant has filed the accompanying appeal and the grounds
stating therein be read as part and parcel of this application. The
appellant is mentally ill person undergoing treatment from
IBHAS and applicant has taken the legal aid for pursuing the
legal proceedings including appeal also. The appellant was
supplied copy of paper book on 18.07.2017 and thereafter the
appellant engaged the present counsel to file the present appeal,
therefore, the delay of 32 days has occurred in filing the present
appeal and the same be condoned.
8. No reply to this application has been filed by ld.
Counsel for the respondent, but it has been contended that the
appellant has failed to explain the sufficient cause in filing this
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appeal and in the absence of any such cause, this application as
well as this appeal deserves to be dismissed.
9. Law with regard to condonation of delay is well
settled that court is supposed to adopt a pragmatic view while
dealing with application for condonation of delay and not a
pedantic one. If the applicant is able to explain the delay in filing
the application and the said explanation is found to be plausible,
the delay can be condoned. The case of the applicant is
admittedly falling within the meaning of “sufficient cause” as
provided in section 5 of the Limitation Act in as much as the
appellant filed this appeal as soon as he received the paper book
and other documents. As such, ld. counsel is able to show
sufficient cause in filing this application. This application for
seeking condonation of delay deserves to be allowed and delay of
32 days in filing the appeal is hereby condoned. This application
is disposed of accordingly.
10. It may be noted that a perusal of Domestic Violence
Act shows that Domestic Violence Act does not create any
additional right in favour of wife regarding maintenance. It only
enables the Magistrate to pass a maintenance order as per the
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rights available under existing laws. While, the Act specifies the
duties and functions of protection officer, police officer, service
providers, magistrate, medical facility providers and duties of
Government, the Act is silent about the duties of husband or the
duties of wife. Thus, maintenance can be fixed by the Court
under Domestic Violence Act only as per prevalent law regarding
providing of maintenance by husband to the wife. Under
prevalent laws i.e. Hindu Adoption Maintenance Act, Hindu
Marriage Act, Section 125 Cr.P.C. a husband is supposed to
maintain his unearning spouse out of the income which he earns.
11. It may be noted that respondent has been awarded
maintenance @ Rs.15,000/ p.m. for herself as well as her two
children. It is also relevant to mention here that there are two
rent agreements placed on record entered between appellant and
the tenant inducted in the said properties owned by the appellant
and the amount of rent of both the said tenanted premises is
Rs.23,000/ p.m. Therefore, viewed from any angle the amount of
Rs.15,000/awarded to the respondent as well as her two children
cannot be stated to be higher, therefore, this appeal is devoid of
merits and deserves to be dismissed.
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12. From the above discussions, I find no ostensible
reason to disagree with the view already taken by the Trial Court
after appreciating the material on record. Therefore, I found no
substance in the present appeal, hence, the same is hereby
dismissed.
Needless to say that nothing stated herein shall
tantamount to any expression of my opinion on the merits of the
case.
Appeal petition file be consigned to Record Room. TCR
be sent back alongwith copy of this order.
Announced in the open court today,
On 27th Day of January, 2018.
(Dr. V.K. DAHIYA)
SPECIAL JUDGE : CBI (PC ACT)
DWARKA COURTS/27.01.2018
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