In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
IN THE COURT OF SH. KANWALJEET ARORA
ADDL.SESSIONS JUDGE – 03 : NORTH WEST
ROHINI COURTS : NEW DELHI
DEEN DAYAL VS. PREETI @ PINKI
Crl. Appeal No.: 28/2017
U/S 397 / 399 Cr.PC.
DEEN DAYAL
S/o.: Mahender Singh,
R/o.: F4/23, Sultan Puri,
Delhi110083.
[…… Appellant ]
v e r s u s
PREETI @ PINKI
W/o.: Deen Dayal,
D/o Ram Prasad,
R/o E723, Mangol Puri,
[…. Respondent]
Date of Institution of Appeal : 05.11.2016
Date of Allocation : 07.11.2016
Date of conclusion of arguments : 02.03.2017
Date of Order : 02.03.2017
[Particulars related to impugned order]
C.C. No. : 4265/2016
Under Section : 12 DV Act
Police Station : Mangol Puri
Date of Impugned Order : 22.09.2016
Name of Ld.Trial Court : Ms. Shefali Barnala Tandon,
Ld.MM (Mahila Court)
NorthWest District,
Rohini Courts, Delhi.
Memo of appearance:
Sh. Narender Kumar, Advocate, Ld.Counsel for revisionist.
Sh. Ajay Kumar Khowal, Advocate, Ld. Counsel for respondent.
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
O R D E R :
1. An application/ petition under section 12 of Protection of
Women from Domestic Violence Act 2005 was preferred by Smt. Preeti
@ Pinki against accused / respondent Deen Dayal, wherein interim
maintenance order was passed by Ld. Mahila Court on 22.09.2016.
Challenging the said order though respondent therein namely Deen
Dayal had filed the present revision petition. For challenging the said
order, an appeal should have been preferred. However, in order to
avoid withdrawal of the present petition and filing of fresh, request
made by Ld. Counsel for Deen Dayal is accepted and present petition is
treated as Criminal Appeal. The same is being considered and disposed
off accordingly.
2. Appellant has taken exception to the orders dated
22.09.2016 passed by Ms. Shefali Barnala Tandon, Ld.Metropolitan
Magistrate, Mahila Courts, Rohini Courts, New Delhi, whereby he has
been directed to pay interim maintenance @ of Rs.6000/ per month for
the year 2013, Rs. 6400/ per month for the year 2014 to 2016 and Rs.
6600/ per month from April 2016 onwards to the respondent herein
and three minor children who are in care and custody of respondent
Preeti @ Pinki.
3. Notice of the appeal was given to the respondent Preeti @
Pinki who is the complainant / applicant before Ld.Trial Court. Trial
Court Record was also summoned.
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
4. Pursuant to service of notice, Sh. Ajay Kumar Khowal,
Advocate, Ld. Counsel for respondent has tendered his appearance
alongwith respondent.
5. I have heard the arguments advanced by Sh. Narender
Kumar, Advocate, Ld.Counsel for the appellant. I have also heard
Sh.Ajay Kumar Khowal, Advocate, Ld.Counsel for the respondent
Preeti @ Pinki. I have gone through the appeal and the grounds on
which the same has been filed. I have also perused the complaint filed
by the respondent against the appellant before Ld.Trial Court. I have
also perused the impugned order dated 22.09.2016 the trial court
record.
6. Ms. Preeti @ Pinki had filed an application under section
12 of Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as PWDV Act) before Ld. Trial Court wherein
she had come up with following prayers :
(a) Pass orders under section 20 of the Act in favor of the
applicant /aggrieved person ie. Ms.Preeti @ Pinki,
directing respondent ie. Deen Dayal to pay a sum of (i) Rs.
25,000/ per month towards food, clothing, medication,
water bill, electricity bill other basic necessities. (ii)
She further claimed for return of jewellery ornaments and
other valuables worth Rs. 2,00,000/. (iii) She claimed a
lump sum relief towards mental injuries and litigation
expenses to the tune of Rs. 3,00,000/
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
(b) Pass orders under section 18 of the Act protecting the
applicant from the impending Domestic Violence.
(c) Pass orders under section 19 of the Act restraining
respondents from dispossessing her from the shared
household and from alienating the shared household
situated at House no. 963, Village Post Office Kuiya,
Tehsil Sefai, District Itawa, UP.
7. As per the complaint, Preeti @ Pinky was married to
respondent Deen Dayal who is appellant herein on 18.07.2002. It is
stated that she was blessed with four children namely Tarun Kumar,
Satender Kumar, Teena and Nidhi. It is contended that one of the child
namely Nidhi unfortunately expired on 28.07.2013. It is alleged that
the other three children are with the complainant / respondent. It is
alleged by the complainant that from the day of marriage, she was
taunted, tortured and harassed by her husband and inlaws for
bringing insufficient dowry. It is alleged that respondent who is
appellant herein is in a habit of taking liquor and used to beat the
complainant. It is contended by the complainant in her petition that
respondent never used to pay any amount towards household expenses
and used to spent his income on his bad habits.
8. It is submitted that complainant and respondent
subsequently started residing at Mangol Puri, Delhi but respondent
leaving complainant and three children, ran away to his native place
avoiding his legal and moral obligations towards complainant and
children.
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
9. According to the stand taken by husband / respondent, who
is appellant herein, as is evident from the reply to the complaint that,
all the allegations levelled by the complainant against him and his
family members of alleged domestic violence are stated to be vague,
baseless and false. He contended that she herself was aggressive,
arrogant, uncooperative and temperamental and used to pick up
quarrel on petty trifling matters. He claimed that owing to behaviour
of complainant towards his family members, respondent / husband
agreed to live separately from his parents in a rented accommodation at
K979, Mangol Puri, Delhi and thereafter in Sultan Puri, Delhi. It is
contended that in April 2013, complainant who is respondent herein
alongwith the children herself had left the company of appellant
without any cause or reason. It is submitted that respondent/ husband
is working in a shop of making ladies bags and is earning only a salary
of Rs. 5000/ per month. It is contended that he has to pay expenses on
his treatment as he has a leg injury sustained by him in an accident in
the year 1995.
10. Respondent Deen Dayal who is appellant herein contended
that in view of his meager income and expenditure, he is not in a
position to pay the maintenance as has been directed by Ld. Trial court
vide impugned order dated 22.09.2016.
11. Perusal of trial court record reveals that pursuant to
orders of Ld.Trial Court, both the parties were directed to file affidavits,
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
stating their respective qualifications, assets, income, liabilities etc.,
with supporting documents.
12. Both the parties in compliance thereof, had filed their
respective affidavits.
13. Ld.Trial Court taking stock of all the facts and
circumstances before it, and the documents on record, had chosen to
place reliance on the “minimum wages” prevalent for the relevant years
and directed appellant to pay interim maintenance @ of Rs.6000/ per
month for the year 2013, Rs. 6400/ per month for the year 2014 to 2016
and Rs. 6600/ per month from April 2016 onwards to the respondent
herein and three minor children who are in care and custody of
respondent Preeti @ Pinki.
14. Grouse of the appellant brought to the fore by Sh.
Narender Kumar, Advocate, is that Ld.Trial Court has failed to take
into account that as per the affidavit filed by the appellant, he is
earning Rs. 5000/ per month only, despite which he was directed to pay
a total compensation of more than Rs. 6000/ per month to his wife and
three minor children. It is submitted by Ld. Counsel for appellant that
he is a poor handicapped person and does not earn that much to comply
with the directions given in the impugned order.
15. On the other hand, Ld.Counsel for respondent’s wife, had
justified the impugned order stating that the same has been passed by
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
Ld.Trial Court after appreciating the material on record including the
affidavits filed by the parties. It is submitted that Ld. Trial court has
passed the orders on the basis of minimum wages prevalent as on date
of passing of orders, which any person who is semi skilled, which the
appellant is, is expected to earn.
16. I have carefully gone through the trial court record, more
particularly the complaint, reply to it, affidavits of the parties and the
supporting documents. I have also considered the impugned order and
the grounds of appeal assailing the same, visavis rival contentions
raised by Ld.Counsels for both the parties.
17. In a perfect society, men and women complement each
other rather than compete with each other. They would rather derive
pleasure and happiness from honoring and not negating each other.
Unfortunately, that is not the society we have inherited. Domestic
violence is a pervasive problem in India that cuts across age,
education, social class and religion. It is not simply a legal problem
which can be eradicated by legal measures alone. It is very much a
social and psychological problem and can be tackled adequately by
bringing about fundamental changes in the social system and in the
attitudes of the people towards women and children.
18. However, here we are with the present proceedings in
hand, which are required to be dealtwith, according to the legal
measures as per enacted laws and its interpretation by the Superior
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
Courts given from time to time.
19. To seek maintenance is basic and indispensable right
of any hardup and broke wife. She can knock the doors of any court
be it civil court, criminal court or family court. Right to seek
maintenance is civil right falling under General Laws which has
additionally been reaffirmed under PWDV Act as well.
20. Maintenance can be sought by any wife, who is unable to
maintain herself, by invoking various following provisions, appearing in
different statutes:
(i) Maintenance under section 125 Criminal Procedure
Code, 1973. Earlier there was an upper cap of Rs.500 per
month which was eventually deleted with effect from
24.09.2001.
(ii) Monetary relief including maintenance under section
20 (1) (d) of PWDV Act. Such Act came into existence with
effect from 13.09.2005.
(iii)Maintenance u/s 25 of Hindu Marriage Act,1955.
(iv) Maintenance u/s 18 of Hindu Adoption and
Maintenance Act, 1956.
21. Order of maintenance under section 125 Cr.P.C is
somewhat limited and restricted whereas, scope of grant of
maintenance and financial relief under PWDV Act is definitely
larger.
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
22. Legislature in its wisdom and being aware of the fact that
the decision on contentious issues raised by the parties before Court, is
likely to take time, therefore it had incorporated the provisions for
grant of interim maintenance in the Statute. The Court is thus
empowered to use this provision to pass an order of interim
maintenance, which however is subject to the final adjudication of the
respective rights of the parties after trial.
23. Thus, the argument of Ld.Counsel for the appellant that
without having recorded the evidence regarding income of the
appellant, such orders cannot be passed, does not hold ground, as
Ld.Trial Court was very much empowered to pass the order for grant
of interim maintenance. It is however required to be seen as to whether
Ld.Trial Court while passing the impugned order, had dealt with the
respective cases of the parties brought on record by them through their
affidavits and the documentary evidence, which I shall advert to now.
24. Next limb of the contentions urged by Narender Kumar,
Advocate, Ld.Counsel for the appellant was that Ld.Trial Court had
failed to appreciate that net income of appellant is Rs.5,000/ per month
only, from which he has to incur expenses towards his own household,
thus he is not in a position to pay the maintenance to his wife who is
respondent in the present appeal. He contended that Ld. Trial court has
also failed to appreciate that respondent has to pay expenses towards
rent, electricity water charges besides other household expenses. He
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
further contended that Ld. Trial court has also failed to take into
account that he is incurring expenses towards his medical treatment
@ of Rs. 500/ per month.
25. I have considered these submissions made by Ld.Counsel
for the appellant in the light of the facts stated by him in reply to the
complaint before Ld.Trial Court as well as the affidavit filed declaring
his income, assets and liabilities including the monthly expenditure.
26. Definitely, means and capacity of husband is required to
be taken into consideration while determining the quantum of
maintenance. At the same time, as per PWDV Act, such monetary
relief should be adequate, fair and reasonable and consistent with the
standard of living to which the aggrieved person is accustomed.
Problem arises as there is widespread tendency to downplay or hide the
actual income by any such male partner. It is harsh reality that when
any ablebodied man wants to enter into any wedlock, he projects
himself as if he were a “Prince” but when it comes to making any
payment towards the maintenance, he projects himself nothing more
than a “Pauper”. Court has no magic wand and therefore, on some
occasions, potential earning capacity is to be inferred by the Court,
keeping in mind, the overall status and style of living of the parties.
Conduct of the parties is also one such consideration. A party who
dares to conceal vital facts, makes things difficult for itself.
27. Perusal of the affidavit filed along with the supporting
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
documents by the appellant, makes it apparent that the appellant has
tried to downplay and hide his actual earnings or receipts and
simultaneously tried to flatten his expenditures.
28. It is apparent on perusal of trial court record that in his
affidavit filed by appellant Deen Dayal on the trial court record which
bears the date of its execution and attestation as 01.09.2016, appellant
had claimed himself to be 8th class pass and working as tailor with
someone making ladies bag at Sultan Puri, Delhi. Appellant had
mentioned his monthly income as Rs. 5000/ per month as salary.
Further he has mentioned his expenditure as Rs. 5300/ per month
towards rent, groceries, electricity, gas, transport and medication.
29. Perusal of the affidavit so filed by the appellant, taking
into account the monthly expenses which respondent /appellant is
incurring as stated in the affidavit, which are more than his stated
income, makes it apparent that his monthly income has been
wrongly stated by him to be Rs. 5000/. It is further apparent from the
said affidavit so filed by the appellant that he has deliberately failed to
mention any mobile phone number of his and the expenses which he is
incurring on his mobile phone, whereas the appeal so preferred by the
appellant reveals that he in the memo of parties, has mentioned his
mobile phone number as 9250777138. This makes it apparent that
appellant did have a mobile phone and is regularly using the same on
which also, he must be incurring some running cost on monthly basis.
Thus, the appellant has tried to conceal a vital information in his
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
affidavit filed by him before Ld. Trial court.
30. This approach of the appellant is against the “Principles of
Equity and Fair Justice”. It rather seems to be very conscious,
calculated and deliberate omissions.
31. If the facts stated by the appellant in his reply to the
complaint and the affidavit filed by him regarding his liabilities and
expenditure is considered as such, then it reveals that he is spending
more than his earnings. Which cannot be the case.
32. Further, at the stage of fixing interim maintenance,
Ld.Trial Court had to do little guesswork on the basis of material
before it, in the form of affidavits of the parties, supporting documents
and the photographs of their goods times to ascertain the type of
lifestyle they were accustomedto, at the time of parting their ways.
33. In the present case, it is clearly mentioned by Ld. Trial
court in the impugned orders dated 22.09.2016, that the interim
maintenance in favour of the respondent herein for herself and her
minor children, is being passed taking into account the minimum
wages prevailing at the relevant time. It is further apparent on perusal
of impugned order that Ld. Trial court had also taken into account that
appellant being the earning member is entitled to one extra portion /
share from the total income, which was taken on minimum wages basis.
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
It is only after granting that extra portion to the appellant, that the
order granting interim maintenance to respondent herein was passed
vide orders dated 22.09.2016.
34. In my considered opinion and on the basis of material
before Ld.Trial Court, it had rightly and properly fixed the interim
maintenance @ of Rs.6000/ per month for the year 2013, Rs. 6400/ per
month for the year 2014 to 2016 and Rs. 6600/ per month from April
2016 onwards to the respondent herein and three minor children who
are in care and custody of respondent Preeti @ Pinki. The same by no
stretch of imagination can be termed as exorbitant or excessive, in view
of the position of the parties to the petition.
35. In a case titled “Manmohan Kohli vs. Natasha Kohli”
bearing C.M.(M) No.1019/2010 ; decided on 06.02.2013 by Hon’ble
High Court while laying down list of some of the factors which are
required to be considered, it has been held that at this stage, court has
to guess the income of the spouses, to arrive at a figure for grant of
interim maintenance.
36. In the present case, on the basis of material on record, I do
not see that the guess work of Ld. Trial Court, was in anyway
arbitrary, fanciful or whimsical. Consequently, I do not find any merits
in this appeal calling for any interference in the impugned order dated
22.09.2016, passed by Ld.Trial Court.
Crl.Appeal No.: 28/2017
In the matter of :-
Crl. Appeal No. : 28/2017
[Deen Dayal vs. Preeti @ Pinki]
Dated : 02.03.2017
37. Appeal is accordingly dismissed.
38. Before parting with this order, I wish to add that nothing
mentioned hereinabove, shall tantamount to any expression on merits
of the case, as the same have been observed only for disposal of the
present appeal.
39. The Trial Court record along with copy of this order be
sent to the concerned Court.
40. The appeal file be consigned to Record Room.
Announced in open court of
2nd day of March, 2017.
(KANWAL JEET ARORA)
ADDL.SESSIONS JUDGE03,
NORTH WEST, ROHINI COURTS,
NEW DELHI.
Crl.Appeal No.: 28/2017
