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Maintenance Reduced, Arrears Adjusted


CA No. 75/14

Sh. Prashant Ojha,
S/o Sh. Ramesh Ojha,
R/o H. No. 183/31, Near Pristine Mall,First Floor, Faridabad, Haryana …..Appellant


Ms. Shalu Ojha,
W/o Sh. Prashant Ojha
R/o 1927­A, Street No. 146,Tri Nagar, New Delhi. …..Respondent

Appeal presented on 06.08.2012 J U D G M E N T:­

1. This appeal under Section 29 of The Protection of Women from Domestic Violence Act, hereinafter called ‘the Act’, filed by the appellant/husband takes exception to the judgment dated 05.07.2012 passed by learned Metropolitan Magistrate, Mahila Court (North­West), Rohini, Delhi whereby the respondent/wife was awarded maintenance at the rate of Rs. 2,50,000/­ per month (including rental charges for alternate accommodation) from the date of filing of petition under Section 12 of the Act by her till the date she is legally entitled for the same. The appellant was directed to clear the arrears within a period of five CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 1 of 19 months and to continue to pay monthly maintenance by the 10th day of each English calendar month. He was further directed to pay a sum of Rs. 1,00,000/­ to the respondent by way of compensation for causing her mental and physical harm/injury.

2. The case as set out in appeal in brief, is that the parties had married to each other on 20.04.2007 in Delhi. They had stayed in hotel/Executive Farms for few days as the rental accommodation of appellant at E­419, Greater Kailash, Part­II, New Delhi was occupied by his outstation relatives. On return to the said home, apparently bickering had started very soon between the parties. While the respondent has leveled allegations of harassment, using abusing language, non­ cooperation, beatings and having extra marital affairs against the appellant in her petition leading to their separation within a period of four months, the appellant has alleged her to be misbehaved, erratic and wished to live lonely life besides exhibiting depressive nature. The respondent even did not allow the marriage to be consummated. A petition under Section 13 (1) of The Hindu Marriage Act being HMA No. 637/07 was therefore, filed by the appellant before the District Court, Tis Hazari, Delhi which was dismissed on 03.10.2008 being pre­mature. Another petition for dissolution of marriage was filed by the appellant in the District Courts, Patiala House and that is pending. The appellant claims that the petition under Section 12 of The Protection of Women from Domestic Violence Act was filed by the respondent by way of afterthought and as counter­blast to the divorce petition filed by him. Alleging that the petition suffered from evil intention and attitude of the respondent containing false unsubstantiated facts. The impugned order was passed by Trial Court without considering or recording any of the facts and submissions made by the appellant in his reply. The same is therefore CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 2 of 19 perverse, unreasoned and liable to be set­aside. The issuance of notice of the petition to the appellant without considering Domestic Incidence Report vitiated the entire proceedings and reflects non­application of mind by the court in deciding the case. Neither the factum of domestic violence by the appellant could be established or proved nor same has been recorded in the impugned order. No relief under Section 19, 20 or 22 of the Protection of Women from Domestic Violence Act, 2005 therefore could have been granted to the respondent. The observation of trial court that the appellant has tried to show his income on a very lower side and since the respondent has shown his income on very higher side, the court is left with no option but to indulge in guess work, is erroneous and beyond the four corners of law. Despite the availability of income tax returns of the appellant for the years 2007­10, reflecting his annual income to be in the range of Rs. 2,10,000­ Rs. 2,55,000/­, assumption of his income to be Rs. 7,50,000/­ per month had no basis and is hugely exorbitant. The direction to pay maintenance at the rate of Rs. 2,50,000/­ per month to the respondent thus is unsustainable as there is no scope for guess work in criminal proceedings. It is stated that the trial court has committed gross error in recording the fact without supporting evidence that the match of parties had been initiated through Sychorian Matrimonial Services Ltd. or that the profile of appellant was procured therefrom. There was further no evidence to hold that the appellant was never accommodating or had thrown respondent out of matrimonial home on 14.08.2007. In fact, due to regular disturbance, the appellant had shifted to his friend’s place on that day as he was facing tremendous mental trauma. The appellant never gave details for his profile to the matrimonial services. He is earning just to survive with his bare basis minimum need. His printing press has only three machines where 10 laborers are CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 3 of 19 employed. Its business started running in losses and therefore the printing press has become dysfunctional. Further there is no evidence to the effect that appellant had taken the parents of respondents to his printing press being run in a three storey building at Okhla or to the lounge/bar namely Urban Pind stated to be one of the fine multi­cuisine restaurants in the town. The allegation of appellant being fond of drinking or keeping his friend at home or of ill­temper have all been controverted. There is no evidence to the effect that the appellant was obsessed with his sister­in­law namely Ms. Tarang Ojha or having humiliated the respondent because her father did not sponsor their honeymoon trip to Europe. The Trial Court was under a duty to record only the proved facts and not the unsubstantiated version. She made no efforts to find out the truth before passing the impugned order.

3. In a detailed reply to the grounds of the appeal, the respondent has asserted the facts pleaded in her petition and controverted those of the appeal. The impugned order has been supported by stating that the same has been passed after appreciating the documents and evidence available on record. Although, the Domestic Incidence Report had been called by the Trial Court yet it is not a condition precedent for issuing notice to the opposite party. Analysis about the income of appellant from his various ventures has been inferred/deduced by the respondent. Since the appellant has purposely and with malafide intention withheld his financial health from the trial court despite availing several opportunities and the documents of his investment of crores of rupees in his companies was evident and he was enjoying luxuries of life, his claim of being a poorly salaried person is a white lie with specific aim to deny maintenance to the respondent. The printing press of appellant has modern and latest machinery and CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 4 of 19 opulence/grandeur of his restaurant is to be seen to be believed. The latter had become a chain of six restaurants/lounge/bar within a span of four years till April, 2011 and his both the businesses were flourishing.

4. Since the admitted facts are not required to be proved, the entry in the statement of Vijaya Bank, Defence Colony, New Delhi pertaining to the appellant would reflect that he had taken the membership of Sychorian Matrimonial Bureau. Despite the bureau publishing his matrimonial advertisements and his profile without his consent, the appellant did not take any action against them. It is alleged that the income tax returns filed by the appellant are bogus, absurd and an eye­wash. He has made investments worth crores in his companies about which the said returns are silent. His chain of restaurants have gained such a popularity and patronage that they are featured almost daily on Page 3 of English dailies vis. Times of India and Hindustan Times. It has been denied that the Trial court has committed any error in passing the impugned order or that sufficient material was not available before it to pass the impugned order. On these averments dismissal of appeal has been urged with exemplary costs with added claim to enhance the amount of maintenance to Rs. 3,00,000/­ per month and compensation to Rs. 10,00,000/­ taking into account status, stature and standing of the appellant in the society.

5. It is necessary to narrate the sequence of proceedings in the Trial Court. On completion of pleadings, parties were asked to file their affidavits in evidence. On the same being filed by both sides on 07.06.2010, the appellant/husband was asked to file an affidavit disclosing his education, CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 5 of 19 employment, movable and immovable assets, details of bank accounts and Income Tax Returns for last three financial years and the matter was posted for final arguments. The respondent/petitioner/wife thereafter had formally tendered her affidavit on 18.04.2011. The appellant/husband had sought to cross­examine her on 05.07.2011. An application in this behalf was filed by him on 12.08.2011 which was allowed on 24.10.2011. When however, the appellant did not avail three opportunities to cross­examine the respondent, his right was closed on 22.02.2012. The respondent had declined to cross­examine the present appellant on 27.03.2012 which was reiterated on 19.04.2012 and evidence was closed by her. Appellant had also closed his evidence by making statement through his counsel on 19.04.2012 itself.

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6. In appeal, the matter was referred for mediation for 06.10.2012 but the parties could not settled their case. An application was filed by the respondent for directing appellant to pay arrears to pay maintenance etc. on 23.11.2012. The matter was listed for arguments on application as well as on appeal. It was challenged by the respondent by filing Crl. M.C. No. 4136/2012 in the Hon’ble High Court which was disposed off on 07.12.2012 by observing that the Sessions Court would notice that the respondent has not been paid maintenance since her separation i.e. 14.08.2007. The application of respondent was allowed on 10.01.2013 directing the appellant to deposit entire arrears within two months in the shape of two FDRs and the appeal would be heard thereafter. It was challenged by the appellant by filing Crl. M.C. No. 1026/2013 in the Hon’ble High Court of Delhi. Since the appeal itself was dismissed on 07.05.2013, for non­payment/compliance of order dated 10.01.2013, the challenge to latter order CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 6 of 19 was held infructuous by Hon’ble High Court on 21.08.2013.

7. The appellant filed Crl. M.C. No. 1975/2013 in the Hon’ble High Court against the order dated 07.05.2013 of dismissal of the appeal. SLP (Crl.) No. 6509­6510/2013 was filed out of the proceedings of Hon’ble High Court but it was dismissed­in­limine on 13.08.2013 and the parties were directed to opt for mediation. The case was referred to High Court Mediation & Conciliation Centre during pendency of said case but the parties could not settle their dispute.

8. SLP (Crl.) No. 2210/2014 was filed by the respondent in Hon’ble the Supreme Court of India against non­passing of payment orders by the High Court. It was disposed off on 31.03.2014 and interim stay granted by Hon’ble High Court against execution of maintenance order was set­aside.

9. CM No. 18869/13 of the respondent for payment of current maintenance was dismissed by the Hon’ble High Court as ‘not pressed’ on 27.05.2010. The respondent preferred CA No. 2070/2014 arising out of SLP (Crl.) No. 6220/2014 aggrieved by the said order. The order dated 27.05.2010 was set­aside and appeal before the Sessions Court was restored vide judgment dated 18.09.2014 rendering the Crl. M.C. No. 1975/2013 infructuous. The appellant therefore withdrew the same from Hon’ble High Court on 31.10.2014. The executing court was directed to complete the process of execution within eight weeks and report compliance to the High Court. The Sessions Court was directed to commence hearing on appeal on its restoration only after the execution of order of maintenance is passed by the Magistrate. Vide Crl. M.P. No. 25026/2014, the CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 7 of 19 respondent sought some clarification as the appellant had been detained in civil prison by the executing court for non­compliance of order of maintenance. Vide order dated 18.12.2014, this court was directed to hear the appeal on merits and pass appropriate orders.

10. Vide further order dated 12.01.2015, Hon’ble the Apex Court permitted the respondent to place on record additional documents within one week which she filed on 19.01.2015. Vide Crl.M.P. No. 1577/2015, the appellant had sought transfer of the case to the place where learned predecessor of this court, who had substantially heard the parties on appeal, has been transferred. It was however dismissed.

11. I have heard Sh. Prashant Mendiratta and Sh. Udit Mehra, Advocates, Ld. Counsels for the appellant, Sh. Maninderjeet Singh, Advocate, Ld. Counsel for the respondent and carefully perused the material records. It has been contended on behalf of the appellant by relying upon Bhupender Singh Mehra Vs. State of NCT of Delhi, 2011 (1) Crimes 520 that sending notice of application under Section 12 of the Act by the Trial court to the appellant before obtaining and considering the domestic incidence report from the protection officer was premature and therefore all further proceedings conducted in the matter are rendered inconsequential. Record reveals that the Trial court had called for the report of Protection Officer simultaneously with issue of notice of petition to the appellant. The Protection Officer had filed the report simultaneously with the appearance of the respondent on 01.08.2009. It has been held in ‘Shambhu Prasad Singh Vs. Manjari, Crl. M.C. 3083/2011, decided by Hon’ble High Court CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 8 of 19 of Delhi on 17.05.2012, that it was not obligatory for the Magistrate either to call for a report from a Protection Officer or a service provider at the stage of taking cognizance of the complaint. The contention on behalf of the appellant therefore is found to have no steam and is therefore repelled. Even otherwise the plea had not been taken at the first available instance. It was argued only when the trial court had set the application under Section 12 of the Act for final disposal.

12. The immediate next contention on behalf of the appellant is that even on the basis of ratio in ‘Shambhu Prasad Singh case’, the report of Protection Officer should have been considered by the Trial court at the time of disposal of application of the respondent but it was not taken into account while passing the impugned order. I have gone through the order dated 05.07.2012. The assertion on behalf of the appellant is manifestly not borne out of it. The Trial court has categorically noted in brief that the Protection Officer in her report has verified the specific allegations of ‘domestic violence’ against the appellant. It cannot then be said that the order in question was passed by the trial court oblivious of said report.

13. Although, Sh. Mendiratta, Advocate did not make much bone of the case involving ‘domestic violence’ during oral presentation yet there is reference in the written notes of arguments filed after conclusion of the hearing of appeal on behalf of the appellant, about the question of respondent being ‘an aggrieved person’ or the victim of ‘domestic violence’ having not been examined in the impugned order. It has already been observed that the trial court had delved into the report of Protection Officer to cull the acts of domestic violence. Further it was CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 9 of 19 noted that the appellant has filed petition for dissolution of marriage against the respondent. In addition to the rival allegations in the pleadings, filing of divorce petition/s by the appellant, domestic incidence report and failure of at least two specific attempts of the courts to make sincere efforts of settlement of the matrimonial disputes are, in the estimation of this court, are more than sufficient to answer the projection of appellant in negative.

14. Referring to the judgment in ‘Puneet Kaur Vs. Inderjeet Singh Sawhney, 183(2011) DLT 403, it is argued that the Trial court did not ask for respective affidavits of the parties disclosing their assets, income and expenditure as per the variables specified in the precedent and thereby failed to have the best evidence and stand of the parties. Had that been done, the actual dispute about the income of appellant would have fallen within a narrow compass which would have enabled the Trial court to render a just and meaningful order. The reference to the judgment appears to be misplaced for two reasons. Firstly, the affidavit in evidence of parties had been called and the matter had been posted for arguments by the time the referred judgment came into being. Secondly, the appellant had filed a cryptic affidavit dated 07.08.2010 in even in response to the Trial court order dated 07.06.2010 and withheld the unambiguous disclosure of his monthly/annual income by holding the position of Director of M/s Utkarsh Art Press Pvt. Ltd. and M/s Sun F & B Hospitality Pvt. Ltd. Even after becoming aware of the cited judgment, the appellant did not take initiative to comply with its terms or of its latest disposition in Kusum Sharma Vs. Mahinder Kumar Sharma, 214(2014) DLT 493, wherein it was directed that the procedure shall be followed in all cases relating to maintenance under Hindu Marriage Act, Protection of CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 10 of 19 Women from Domestic Violence Act, Hindu Adoption & Maintenance Act besides Section 125 Cr.P.C. He, in the above circumstances, is precluded from shifting the onus of filing the detailed affidavit, in order to draw fleeting benefit in this case.

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15. It has vehemently been contended by Sh. Mendiratta that principles of natural justice have not been followed in passing the impugned order. No opportunity was given to the appellant to rebut/explain the documents filed by the respondent. The grant of opportunity to cross­examine the respondent was just an eye­wash. It is therefore, a case of no evidence as the opportunity to test the veracity of the version of parties enumerated in their affidavits was not granted to the other side. Reference to the judgment in ‘Krishnamurthy Nookula Vs. Y. Savitha, Crl. Rev. Petition No. 815/2009, decided by Hon’ble the Karnataka High Court on 09.12.2009’, is made in this behalf where it was held that for grant of an ex­parte order, the Magistrate need not necessarily apply provisions of Code of Criminal Procedure and can pass such orders on the basis of material in the form of affidavit in such form as may be prescribed or following the procedure it has prescribed, if any. But when the Magistrate declines to grant ex­parte relief and notifies the respondent, he has to be heard and in such cases, Section 28 (1) of the Act applies and the procedure prescribed by the Code of Criminal Procedure becomes applicable. Reference to the judgment in ‘Surender Rode Vs. Madan Mohan Rode, 207 (2014) DLT 208, laying that on the case not put to the witness of opposite party in cross­examination, the inference in law from non­cross­ examination of a witness on a particular aspect of his deposition is that his statement is deemed to have been accepted to that extent has also been made.

CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 11 of 19

16. The fixation of matter by the Trial court straightaway for final arguments as soon as the parties had filed their affidavits was in violation of the laid down procedure. It is however strange that for the next several dates, the folly was not pointed out to the court even by the parties. The opportunity to cross­ examine the respondent/wife was sought for the first time on 05.07.2011 which was allowed on 24.10.2011. The appellant however did not exercise the secured right on 13.12.2011 and 22.02.2012 resulting in its closure of opportunity by the Trial court. Significantly, both the parties had closed their evidence on 19.04.2012 conscious of the fact that they had not cross­examined each other. The argument that the impugned order has been passed by violating the principles of natural justice or that the appellant had not been afforded a chance to rebut the facts and documents tendered by the respondent, is not available to him in above peculiar facts. Non exercise of right by an interested person cannot be equated with non grant of such right. The rival testimonies of the parties will have to be harmonized and assessed in the light of admitted/unrebutted documents.

17. While Sh. Singh, Advocate for the respondent has relied upon the judgment dated 18.09.2014 passed in this very case by Hon’ble the Apex Court in Crl. Appeal No. 2070/2014 to contend that extensive reference has been made to newspaper reports and business magazine to assess the financial capability of appellant, Sh. Menhdiratta, Advocate, on the other hand has vehemently opposed that presumption about genuineness to such reports can be attached by a court. He has referred to ‘Manohar Lal Sharma, Advocate Vs. Central Bureau of Investigation, Crl. W.P. No. 807/2014 decided by Hon’ble High Court of Delhi on 16.09.2014, on the subject holding that judicial notice of facts stated in a news CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 12 of 19 item cannot be taken because it is in the nature of hearsay evidence unless proved by evidence aliunde. There presumption of genuineness under Section 81 of The Evidence Act cannot be attached to a newspaper report as proof of facts reported therein. Reliance upon the ratio in ‘Laxmi Raj Shetty Vs. State of Tamilnadu, (1988) 3 SCC 319 has been placed therein.

Similar was held in R. P. Luthra Vs. Central Bureau of Investigation, 2014 (4) JCC 2888, that the statements in a blog are personal opinion of the user and cannot take place of evidence. ‘Blog’ is nothing but a personal website that allows the users to reflect, share opinions and discuss various topics in the form of an online journal and sometime letting the readers comment on their posts. Blogs are typically updated daily using software that allows people with little or no technical background to update and maintain the blog. Posting on a blog are almost always arranged in a chronological order. Reliance for the same effect has also been placed upon ‘Bharat Sanchar Nigam Ltd. Vs. BPL Mobile Cellular Ltd., MANU/SC/7177/2008’.

18. It has therefore, been stated by Sh. Menhdiratta, Advocate that since this appeal was restored vide the referred order dated 18.09.2014 of Hon’ble the Apex Court, reference to an article in business magazines therein cannot be termed to be final pronouncement of the court but just a prelude to get the appeal decided on its merits by the competent court. Sh. Singh although resisted by saying that acclaimed business magazines publish articles akin to those relied upon by him after thorough research and verification of facts from concerned stake holders and as such are close to truth yet did not contradict the legal proposition. The extensive reference to the newspapers/business articles, hard copies of information available CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 13 of 19 on the internet therefore is not being taken cognizance of by this court.

19. Turning to the crucial issue of financial status of the appellant based on Sychorian factor, it has vehemently been contended on behalf of the respondent that the profile containing the monthly/annual income of the appellant was provided by Sychorian Matrimonial Services to her. The said service provider could not have prepared it on its own and rather the same must have been vetted by the appellant. The non­initiation of any proceedings against the Service Provider also indicates that the plea of appellant of his profile containing facts which he had not disclosed to them, holds no water. Learned Counsel for the appellant on the other hand claimed that his so called profile has been manipulated by the respondent otherwise she would have examined a witness from the matrimonial services for proving it as per law. It is contended that the multiple litigations on many fronts initiated by the respondent left no scope and resources with the appellant to open up legal action against Sychorian.

20. The profile of the appellant purportedly collected from the Sychorian, forming the backbone of impugned order, by the respondent is neither authenticated nor signed on behalf of the service provider. The information contained therein cannot be ex­facie read against the appellant without substantiation as the respondent herself does not claim to be privy thereto. Non­ initiation of any action against Sychorian by the appellant would not automatically tantamount to acceptance of the contents of profile in the background of his incessant denial thereof since beginning.

21. Ld. Counsel for the appellant has resented that the Trial court CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 14 of 19 resorted to guess­work despite the availability of documents which the appellant had filed with his affidavit pursuant to order dated 07.06.2010. Sh. Singh, Advocate on the other hand contended that the appellant did not clear his heart by disclosing his actual and true income to the trial court and that compelled it to dispose off the application of respondent by applying guesswork. It is also asserted that estimation of income of the husband in such facts is not unknown to the law pertaining to grant of maintenance. Since appellant himself was found wanting in sharing crucial details out of his personal knowledge and custody, the impugned order cannot be blamed.

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22. I would observe that the parties had propelled the trial court to resort the guesswork by their lackadaisical attitude towards the trial of their rival pleadings. It is another matter that such guesswork by the court seems to have gone haywire. True that the trial court had initially proceeded tangentially in adopting the procedure yet on correcting its path, the parties chose not to adduce specific evidence to enable it to justly assess the earning of appellant. The appellant on his part has shirked from disclosing his true income/earning from various sources from threshold. His reply/affidavit reflects as if he were under a sort of cross­examination. It manifestly lead respondent to frantically gather whatever documents she could lay her hands on pertaining to the appellant and the companies/firm with which he was associated, to cull out his income. During the course of arguments, the intended information had to be dug out of plethora of documents. In the melee, the distinction between financial health of a juristic person and/or a partnership firm and that of an individual, the appellant in this case, who is one of its operators has been marred. It has to be appreciated that the CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 15 of 19 financial well being of a juristic or fictitious person cannot be an appropriate parameter to correspond it to the individuals operating it. There is no material to construe the paid up capital of the appellant in the various concerns and the share of profits disbursed to him over the years.

23. The Income Tax returns heavily relied upon by the appellant to contend that in the presence of documentary evidence, the trial court should not have turned to guessing his monthly incomes, suffer from lacuna firstly because they are unilateral documents which are not shown to have been verified by the concerned Government department and secondly it is not expected that an individual paying monthly rent of Rs. 23,000/­ is earning a measly sum in the range of Rs. 20,000/­ per month.

25. Besides paying aforesaid rental, the appellant had been paying monthly installments of Rs.23,609/­, Rs.22,837/­ and Rs.8,359/­ which are categorically reflected in his account maintained with Vijaya Bank, Defence Colony, New Delhi. The appellant has utterly failed to explain as to how he had been managing all these regular expenses out of the income disclosed to the Income Tax department. The amounts credited in his one of these bank accounts from 2008 onwards has not been satisfactorily explained by the appellant. Besides managing all these recurring expenditures, the appellant had been maintaining servants at home, car with driver and liberal household expenditure. Although, the appellant claims to have left the partnership of restaurant Urban Pint yet the intellectual property rights case filed by M/s. Sun F & B Hospitality against 21 st Hospitality Pvt. Ltd. has his affidavit of 2013 wherein he has proclaimed to be its partner.

CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 16 of 19 Anyone having a regular source of income of less than Rs.1,40,000/­ ­ 1,50,000/­ per month will not be able to manage all these expenditures leaving aside the expenditures on parties, hotels, liquor etc. Due to the handicap of the appellant having hesitantly produced paltry documents of his income / earning, this court again will take recourse to the exercise of estimation albeit close to admitted /acceptable documents, to the above extent. On conservative note therefore I would deem his monthly income to be not lesser than Rs. 1,40,000/­ to Rs. 1,50,000/­ p.m.

26. It has lastly been contended that by Shri Mehndiratta that respondent is an able bodied and educated young lady capable of earning. She has not disclosed the efforts made for securing employment. Her earning potential however, cannot be diminished. She may not need any maintenance from the appellant if these factors are taken into consideration. Reliance in this behalf has been placed upon Sanjay Bhardwaj V. State, 2010(118) DRJ 358 where it was held that Section 20 of the Act only enables the Magistrate to pass the order as per the rights available under the existing law and does not create any additional right in favour of the wife. A husband cannot be set to beg, borrow or steal for paying maintenance to the wife. Further, in Bhushan Kumar Meen V. Mansi Meen, (2010)15 SCC 372, it was observed that having regard to the qualifications of wife, there is no reason as to why she ought not to be in a position to maintain herself. The amount of interim maintenance granted by the Trial Court was reduced therefore. Shri Singh, countered the submissions by stating that such averment is missing from the pleadings and that the appellant very well knows it a matter of fact that respondent has not been earning. He cannot shirk from his liability on flimsy ground.

CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 17 of 19

27. There is no document to discern the educational / professional qualifications of the respondent to estimate her earning potential. Since it had not been made one of the grounds to reduce / deny the maintenance to the respondent/wife so steadfastly before Ld. Trial Court, the maintenance cannot be declined to her as she had no opportunity to lead whatever evidence on the point.

28. The appellant has claimed responsibility of his parents to reduce the maintenance going to be awarded to the respondent but he has not filed any medical documents of his mother or having ever shared his finances with them at any earlier point of time. If his claim of providing for parents is accepted, it must be from income generated besides the afore estimated monthly earning.

29. So far as the claim of respondent for enhancement of maintenance/compensation is concerned, no justification therefor is available in the absence of cross­appeal against the impugned order besides of course worthwhile evidence in support thereof.

30. In view of the above reasons, the impugned order of maintenance passed by Ld. Trial Court is found to be exorbitant in the available facts and material produced on record and needs to be modified. Keeping in view all the relevant factors including the amount claimed by the respondent in her application u/s.24 of Hindu Marriage Act in the divorce proceedings as also precedent in Annurita Vohra V. Sandeep Vohra, 2004 (3) AD 253 that one extra share / portion of the total earning of the family is to be allotted to the earning spouse for the expenses, CA No. 75/14 Prashant Ojha Vs. Shalu Ojha Page No. 18 of 19 he / she would necessarily incur, it is deemed just, reasonable and adequate to grant maintenance @ Rs.50,000/­ per month to the respondent from the appellant from the date of filing of petition u/s. 12 of the Act. The amount of compensation granted by Ld. Trial Court is found to be sufficient and appropriate and is therefore maintained.

31. In compliance of the directions in the last para of order dated 18.09.2014 of Hon’ble the Apex Court, the appellant is hereby directed that in discharge of the arrears of maintenance hereby granted, after adjusting the sum of Rs.10 lacs already paid to the respondent, to pay a sum of Rs.4 lacs to respondent in execution proceedings coming up on 24.02.2015 before Ld. Trial Court. He shall further pay a sum of Rs. 8 lacs to her on 24.03.2015 and equivalent sum on 24.04.2015 and clear the arrears by making balance payment on 24.05.2015.

32. The appeal is partly accepted in above terms. Parties are left to bear their respective costs. Trial Court record is released with an attested copy of this order. An attested copy of this order be provided to both the sides.

Appeal file be consigned to Record Room.

Announced in Open Court (Sunil K. Aggarwal)
on 13th February, 2015. Additional Sessions Judge­04
North­West, Rohini, Delhi

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