IN THE COURT OF MS. HEMANI MALHOTRA/SPECIAL JUDGE
(PC ACT)(ACB)/CENTRAL05/TIS HAZARI COURTS/DELHI
Criminal Appeal No. 172/17
CC No. 518571/2016
S/o Sh. Harish Chander
R/o C12, 2nd Floor, DSQ
Motia Khan, Pahar Ganj;New Delhi110055. …….Appellant
Smt. Gurleen Kaur
D/o Shri Tejinder Singh
R/o 12, ARP Quarters ,
Motia Khan, Double Storey,Pahar Ganj,New Delhi 110055 ……Respondent
Date of Institution : 17.08.2017
Date of conclusion of argument : 10.10.2017
Date of pronouncement of Judgment : 24.10.2017
JUDGMENT ON APPEAL
Present criminal appeal has been filed by the husband/appellant against the impugned order dated 14.07.2017 passed by learned Mahila Court in complaint case No.518571/16 titled as Gurleen Kaur Vs. Manish filed under Section 12 of the Protection of Women from Domestic Violence Act (hereinafter referred as The Act) whereby the Learned Mahila Court partially allowed the application of respondent/wife moved U/s 23 of The Act and granted interim maintenance to the respondent/wife @ Rs.2,000/ per month from the date of filing of complaint till the final disposal of CC No.518571/2016 by assessing monthly income of appellant/husband @ Rs.18,690/ per month.
Brief facts necessary for the disposal of the present appeal are that respondent/wife filed an application U/s 23 of The Act seeking interim maintenance @ Rs. 15,000/ per month during the pendency of complaint case filed U/s 12 of The Act against appellant/husband. In the said application and the affidavit of income, assets and expenditure, she claimed that appellant/husband is a man of means and that he is employed with Sugal and Damini Pvt. Ltd, earningRs.30,000/ per month. She also claimed that like her husband, she was also a graduate and that she was working as an agent. She also claimed that for her day to day expenditure, she was completely dependent upon her parents.
In reply to the application, it was alleged by the appellant/husband that the complainant/wife was working as insurance agent with United India Insurance Co. She was also working as an agent in a finance company namely Malakar Fincorp. Pvt. Ltd., Jhandewalan, New Delhi from which she was earning a handsome income. In his affidavit of income, assets and expenditure, appellant/husband claimed that he was earning a net income of Rs.18,690/ per month and not Rs.30,000/ as alleged by the complainant/wife. He also claimed that he was living in a rented accommodation and paying a monthly rent of Rs.8,500/. Since, the complainant/wife was earning handsomely, she was not entitled to any maintenance as per the celebrated judgments of Hon’ble Supreme Court and Hon’ble High Court.
I have heard the arguments addressed by learned counsels for both the parties and have perused the trial court record along with documents with utmost care.
In the case in hand, neither factum of marriage nor the fact that the parties do not have any child born out of this wedlock, is denied. It is also not denied that the marriage between the parties was solemnised on 11.02.2015 and that the parties are living separately since 23.09.2017. The impugned order awarding interim maintenance @ Rs.2,000/ per month to the respondent/wife from the date of filing of complaint till the final disposal of CC No.518571/2016, has been challenged on the ground that Learned Trial Court did not consider income of respondent/wife despite the fact that she is working as insurance Agent and also doing private job in Malakar Fincorp Pvt. Ltd. Jhandewalan, Delhi having monthly income of Rs.25,000/ per month. It is very vehemently argued by learned counsel for appellant/husband that out of the monthly salary of Rs. Rs.18,690/, following amounts are deducted every month: SN Description of deduction/expenses Amount
Monthly Rent of property 8500/ per month
Household expenses 5800/ per month
Transport 1000/ per month Hence, after deduction, he is only left with net disposable income of Rs.3,390/ per month, out of which he has to bear requisite/misc. expenses incurred in day to day life.
Per contra, it is urged by learned Counsel for complainant/wife that during her stay with appellant/husband, the wife was not earning any income whatsoever. Even otherwise, the income she was earning was not regular, whereas the income of the husband/appellant was consistent and regular. It was also argued that the claim of the husband/appellant that he was staying at rented accommodation was false. Ever since they separated, the husband was residing at the matrimonial home with his parents.
During the course of arguments, it was very candidly admitted by the appellant/husband that he was no longer residing at rented accommodation and that he was residing with his parents at the matrimonial home. However, this Court cannot lose sight of the fact that the complainant/wife failed to bring on record any document to show that the appellant/husband was earning Rs.30,000/ per month. Rather, the husband/appellant placed on record his pay slip for the month of July 2016, wherein it is reflected that his net salary was Rs.18,690/ per month.
In ANNURITA VOHRA VS. SANDEEP VOHRA reported as 2004 (3) AD 252 which is also relied upon by the Learned Trial Court, it has been observed as follows: “A satisfactory approach would be to divide the Family Resource Cake in two portions to the Husband since he has to incur extra expenses in the course of making his earning, and one share each to other members.”
Admittedly, the appellant/husband has no dependents other than his estranged wife. Assuming the fact that complainant/wife is not earning and if the family income is Rs.18,700/, the same has to be divided in three portions of Rs.6,200/ each (approx.). Assigning two portions of the income to the husband/appellant, if the wife is not working, she would have been entitled to Rs.6,200/ per month. However, in the instant case, the perusal of the bank statements of the complainant/wife issued by State Bank of India, Paharganj Branch for the period from Nov. 2015 to March 2016 reveals that she on an average was earning almost Rs.20,000/ per month. The bank statement also reflects that for some reason, she stopped depositing any amount in the said bank account. The income earned by the complainant/wife during this period of Nov. 2015 to March 2016 thus, fortifies the fact that she is capable of earning at least Rs.20,000/ per month. In judgments titled as DAMANREET KAUR VS. INDERMEET JUNEJA & ANR. decided on 14.05.2012 in CRL.REV. NO.344/2011 by the Hon’ble High Court of Delhi (relied upon by appellant/husband), the Hon’ble High Court upheld the reasoning of the learned ASJ and observed that “Learned ASJ has rightly declined the interim monetary relief to the petitioner by holding that she was well educated lady, earning Rs.50,000/ p.m. and had chosen not to work of her own will though had capacity to work and find a suitable job for herself”. Similarly, in MAMTA JAISWAL VS. RAJESH JAISWAL reported in 2000(3) MPLJ 100, it was held that In fact well qualified spouses desirous of remaining idle, not making efforts for the purpose of livelihood, have to be discouraged, if the society wants progress. The spouses who are quarreling and coming to the courts in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible, and, therefore, grant of luxurious, excessive facility by way of pendente lite alimony and extra expenditure has to be discouraged.”
10.Admittedly, both the complainant and appellant are only graduates and complainant is now pursuing Masters. Therefore, taking into account the earning capacity of the complainant/wife which is at least Rs.1520,000/ per month, the impugned order dated 14.07.2017 is set aside. Appeal is accordingly allowed. TCR be sent back along with copy of this judgment.
Appeal file be consigned to Record Room.
Announced and signed in the open Court on 24.10.2017
Special Judge/PC Act/ACB,h
Tis Hazari Courts, Delhi