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No Maintenance, Residence; Equally earning wife


Criminal Appeal no. 06/15

UID No. 02406R0101692015

Mrs. Ruchi Ahuja
D/o Sh. D.K. Ahuja
R/o M­66B, Malviya Nagar,New Delhi 110 017 ……….Appellant


1. Sh. Dinesh Kumar
S/o Sh. Prem Prakash

2. Sh. Prem Prakash
S/o late Sh. Jaswant Rai

3. Smt. Kaushalya Devi
W/o Sh. Prem Prakash

All R/o 86­D, Pocket 4, Mayur Vihar,Phase­I, New Delhi. ….. Respondents

Date of filing of appeal : 26.03.2015
Date of allocation : 27.03.2015
Date of arguments : 11.09.2015
Date of order : 26.09.2015

Appeal U/S 29 of The Protection of Women From Domestic Violence Act, 2005 (in short “DV Act”) against the impugned order dated 31.01.2015 passed by the Court of Ms. Niti Phutela, Ld. Metropolitan Magistrate­02 (in short “MM”), Mahila Court, South, Saket Courts, New Delhi.

Appearance: Appellant in person.
Sh. Girish Kohli, advocate for appellant.
Sh. Anand Maheshwari, advocate for all the respondents.
R­1 and R­2 in person.

Cases referred by ld. counsel for appellant:

1. Vimalben Ajitbhai Patel vs. Vatslabeen Ashokbhai Patel and Ors decided by Hon’ble Supreme Court of India on 14.03.2008 in Appeal (Civil) No. 2003 of 2008.

Cases referred by ld. counsel for respondents:

1. Smt. Ranjna Gupta vs. Rajnesh Gupta & Ors decided by Hon’ble High Court on 11.02.2014 in Crl.Revp 637/2013;
2. Smt. Rachna Kathuria vs. Ramesh Kathuria decided by Hon’ble High Court on 30.08.2010 in Crl. M.C. No. 130/2010 & Crl. M.A no. 504/2010;
3. Adil & Ors vs. State & Anr decided by Hon’ble High Court of Delhi on 20.09.2010 in Crl.M.C 4159/2009, Crl.M.A No. 14141/2009.
4. Vijay Verma vs. State NCT of Delhi & Anr decided by Hon’ble High Court of Delhi on 13.08.2010 in Cr.L.M.C No. 3878/2009.
5. Sejal Dharmesh Ved vs. State of Maharashtra & Anr decided by Hon’ble High Court of Judicature at Bombay in Criminal application no. 160/2011.


Brief Facts:

1. Mrs. Ruchi Ahuja (hereinafter at some places referred as “aggrieved”) was married to Sh. Dinesh Kumar, respondent no. 1 (hereinafter referred as “R­1”) on 14.10.2007 at New Delhi. Respondent no. 2 Prem Parkash and respondent no. 3 Smt. Kaushalya Devi are father in law and mother in law of the aggrieved (hereinafter at some places referred as “R­2 and R­3” respectively). As per the case of aggrieved, the respondents harassed her for dowry demands like demand of Honda City Car etc. On 15.09.2008 aggrieved and R­1 were blessed with a daughter. After the birth of daughter, aggrieved was not taken back to her matrimonial home from hospital and forced to live with her parents. The aggrieved lodged a complaint with CAW Cell, Nanakpura, Delhi, which resulted in registration of FIR No. 40/2010 dated 23.03.2010.

Aggrieved filed an application U/S 12 and 13 of DV Act for seeking interim relief of Residence Order and did not press for any other relief under the said Act for herself. Vide order dated 05.04.2014, ld. trial Court dismissed the application of aggrieved U/S 23 of DV Act for the interim relief of the Residence Order on the short ground that aggrieved was earning sufficiently and therefore she can arrange an alternative accommodation for herself. Order dated 05.04.2014 was challenged in appeal before the Court of ld. District & Sessions Judge, South. Ld. District & Sessions Judge, South remanded the matter to ld. trial Court for fresh consideration and adjudication on the question of right of residence. Ld. trial Court accordingly heard the matter and by impugned order dated 31.01.2015 dismissed the application of the aggrieved for interim relief of Residence Order on the ground of sufficient earnings of aggrieved.

Grounds/arguments of aggrieved:

2. Ld. counsel for appellant/aggrieved challenged the impugned order dated 31.01.2015 on the basis of following grounds/arguments:

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(a) That in the case of Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel and Ors dated 14.03.2008, the Hon’ble Apex Court ruled in para no. 27 that “The Domestic Violence Act provides for a higher right in favour of wife. She not only acquires right to be maintained but also there under acquires a right of residence. The right of residence is a higher right.” Therefore, ld. M.M committed an error in holding that right to maintenance is inclusive of right of residence;

(b) That ld. trial Court has virtually made the petition of the aggrieved as infructous. The impugned order has virtually excluded all working women from the beneficial ambit of the DV Act without considering that the aggrieved and R­1 have to share all the financial burdens of the marriage and parenthood equally;

(c) That ld. trial Court was not correct in relying upon the law laid down by Hon’ble Apex Court in the case of Mangat Mal (Dead) vs. Punni Devi (Dead) & ors 1995(6) SCC 88. Ld. trial Court failed to distinguish the right of maintenance and residence order provided under the DV Act.

(d) That ld. Trial Court did not consider that in respect of flat situated in Ghaziabad, UP, as per admitted case, R­1 has also paid the installments and there was no document on record to show that R­2 was the exclusive original allottee of flat bearing no. 905, Tower II, Mahagun Mosaic of Dabur Chowk, Vaishali, Ghaziabad;

(e) That ld. trial Court failed to appreciate that R­1 was the initial allottee of the said flat and it was transferred to R­2 to deprive the appellant from her right of residence;

(f) That ld. trial Court failed to consider the huge difference in the House Rent Allowance (HRA) being received by the aggrieved and R­1 and brushed aside the contention of aggrieved without any reason;

(g) That ld. M.M failed to consider that aggrieved is residing with her parents with her minor daughter and bearing all expenditure and by implication, impugned order, put a disproportionate burden on the aggrieved to maintain her daughter and herself;

(h) That as per the law laid down in the case Neeta Rakesh Jain vs. Rakesh Jeetmal Jain (2010) 12 SCC 242, at the time of maintenance though the court is not expected to go into the detailed and elaborate exercise, but at the same time, Court has to take all relevant factors into account like social status, background of the parties, economic dependence of the aggrieved and assets and liabilities of the parties to arrive at a proper amount of maintenance;

(i) That ld. trial Court failed to appreciate that none other than the aggrieved person and her daughter are dependent on R­1, being his wife and only child. Under settled principles of law, Hindu male is under moral and legal obligation to provide maintenance for his children and wife. Ld. trial Court put a disproportionate burden upon aggrieved person to bear all expenses of education, health, transportation and maintenance of the daughter, without considering the relevant facts.

3. Grounds/arguments of the respondents:

i. As per admitted position, R­1 and aggrieved person are gainfully employed and are drawing almost similar amount of gross salary which is more than Rs. 1 lac each. Because the aggrieved person has sufficient source of income, therefore, she cannot claim either the maintenance or the provision/rent for residential accommodation from R­1;

ii. That flat in question at Ghaziabad is not in the name of husband i.e R­1 but it is in the name of father in law i.e. R­2 and therefore, appellant/aggrieved person cannot claim any right to residence in the said flat under the provisions of DV Act;

iii. That vide order dated 17.11.2014, the Hon’ble High Court has already passed an order for a sum of Rs. 10,000/­ PM towards maintenance of minor daughter, which is being paid by respondent no. 1. Therefore, the aggrieved person cannot alleged any disproportionate financial burden upon her;

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iv. That in case of Smt. Ranjana Gupta’s case (supra), it was held by the Hon’ble High Court that “Respondent is residing in the house of his parents and has no separate accommodation. Similarly the complainant is residing with her parents and is financially independent. Admittedly salary of complainant is approximately Rs. 40,000/­ PM. Similarly respondent is earning a salary of approximately Rs. 39­40 thousands per month. I feel that financially both the parties are equally placed therefore, I am not inclined to pass any maintenance order. Residence order is also declined for the reason that complainant being a government servant is also entitled to HRA which shall be equal to HRA earned by the respondent therefore the said relief is also declined”;

v. That in case of Smt. Rachna Kathuria’s case (supra), it was held by Hon’ble High Court that “It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent Court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C, she does not have a right to claim additional maintenance under the Act. The Court of M.M under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. She does not have a right to claim additional maintenance under the Act“.

4. I have heard ld. counsels for the parties, carefully gone through the trial Court record and considered the written submissions filed by the parties as well as the arguments advanced at Bar.

5. The only material question for determination in this appeal is, whether appellant/aggrieved person is entitled to claim right to residence or alternative residential accommodation or rent in lieu of the residence from respondent?

6. Perusal of impugned order dated 31.01.2015 passed by ld. trial Court reflect that in detailed order, ld. trial Court has considered all the necessary facts, contentions and the cases referred by the parties. In the opinion of ld. trial Court, without going into the alleged difference in house rent allowance drawn by aggrieved person and R­1, both the parties are drawing almost equal salary, which is more than Rs. 1 lac and therefore both the parties are in a position to maintain themselves independently. Ld. trial Court has also observed that in view of case titled as Mangat Mal (dead) vs. Punni Devi (dead) & Ors 1995 (6) SCC 88, right of maintenance also includes the right to residence. If aggrieved person is not entitled to claim maintenance for herself, she is not entitled to claim separate right of residence. It is observed by ld. trial Court that the Hon’ble High Court has already fixed the maintenance of Rs. 10,000/­ for the minor daughter, which is being paid by R­1. In view of case titled as Adil & Ors vs. State (supra) decided by Hon’ble High Court, ld. M.M observed that there is no urgency that the aggrieved is not been able to maintain herself or is without any roof and the provision of PWDV Act can be used only for the urgent requirement of the wife to be maintained and to provide residence. In the opinion of ld. trial Court, aggrieved person is maintaining a decent life style and is earning equal to her husband i.e. R­1, therefore, no ground is made out to provide any residence maintenance to the aggrieved.

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7. The provision of Domestic Violence Act are in addition to the other remedies available to a wife or children. The object and reason of Domestic Violence Act is to provide a fast track remedy to the women, victim of domestic violence in urgent situation. The reliefs under Domestic Violence Act are not in addition to other similar reliefs available to the parties like U/S 125 Cr.P.C or other provisions of maintenance. At the stage of interim maintenance, Court is required to consider the relevant factors like background of parties, their life style, their earnings, their assets and liabilities etc. The assessment of interim maintenance is based on a prima facie view of the respective contentions of the parties and material on record.

8. There is no dispute that aggrieved person and her husband­ R1 are decently employed and getting the salary of more than Rs. 1 lac each, which is almost equal to each other. There is no dispute that aggrieved person did not claim any maintenance for herself and Hon’ble High Court has already granted maintenance of Rs. 10,000/­ PM for the minor daughter, which is liable to be paid by R­1. In this factual position, in my opinion,. ld. trial Court has reasonably exercised its power under the provisions of DV Act to hold that aggrieved person is not entitled to claim separate right for residence. In my opinion, there is no reasonable ground to interfere in the findings of ld. trial Court. It is also admitted position that flat in Vaishali is not in the name of R­1 but it is in the name of father in law. Merely because R­1 has paid some installments of flat, it cannot be said that he has acquired the ownership rights of the flat at Ghaziabad. As per settled law, aggrieved person cannot claim right to residence in the property exclusively owned by her father in law, in which her husband has no share. Therefore, I do not find any ground to interfere in the findings of ld. trial Court in this regard. As far as the case law cited by the parties is concerned, each case has been decided in particular facts and circumstances. Even in the case of Vimalben Ajitbhai Patel’s case (supra), it is not held that the aggrieved person can claim a separate right of residence or “maintenance for residence” in addition to maintenance granted by the Court. In my view, the observations of Hon’ble Supreme Court in para no. 27 of the said judgment cannot be interpreted to give a meaning that aggrieved person is entitled for additional maintenance of residential accommodation under the provisions of DV Act, despite the fact that she has almost equal earning of her husband.

9. In view of above observations, in my opinion, there is no infirmity or illegality in the findings of ld. trial Court in the impugned order dated 31.01.2015. Therefore, there is no ground for interference by this Court. In my view, appeal is devoid of any merits. Therefore, the appeal is dismissed.

10. Copy of order be sent to the Court of ld. Trial Court alongwith trial Court record for information and record.

11. Parties/Ld. Counsels for parties to appear before ld. Trial Court on the date already fixed by ld. trial Court.

12. File be consigned to record room after due compliance.

Announced in the open court on 26.09.2015
(Sanjeev Jain) ASJ/Special Judge (PC Act)
(CBI­3), South, Saket Court New Delhi

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