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Deepak Saini vs State (Govt Of Nct Of Delhi) on 25 October, 2019

IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE­05, SOUTH WEST DISTRICT
DWARKA COURTS, NEW DELHI

Criminal Appeal
CNR No. DLSW01­006606­2019
Registration no. 243/2019

Deepak Saini
S/o Sh. Omprakash Saini,
R/o H.No. 1164/18,
Saini Mohalla,
Hissar, Haryana

…..Appellant
Versus

1. State (Govt of NCT of Delhi)

2. Sonia,
W/o Deepak Saini,
D/o Sh. Om Prakash Saini,
R/o RZ­835B, Gali no. 18B,
Sadh Nagar, Palam Colony,
New Delhi­110045
……Respondents

Appeal against order dated 24.04.2019 passed by
Ld. Metropolitan Magistrate

Date of Institution : 22.05.2019
Arguments heard on : 25.09.2019
Date of Judgment : 25.10.2019

CNR No. DLSW01­006606­2019 Registration no. 243/2019 Deepak Saini Vs State Another Page 1 of 8
JUDGMENT

1. Appeal under Sectionsection 29 of The Protection of Women from

SectionDomestic Violence Act 2005 (in short SectionDV Act) has been preferred by

appellant/husband against impugned order dated 24.04.2019 passed by

Trial Court of Ms. Neha, Ld. Metropolitan Magistrate, Mahila Courts­

02, Dwarka Courts, New Delhi.

2. Vide impugned order Ld. Trial Court had directed

appellant/husband to pay a sum of Rs.15,000/­ towards maintenance of

the respondent/wife including rent, medical expenses, examination fees

etc from the date of filing of petition till further orders.

Appellant/husband was directed to clear the arrears of maintenance

within 6 months from the date of passing of order in equal installments

and thereafter to pay the monthly maintenance by way of money order

or by deposit in the bank account of the respondent/wife, by or before

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15th day of each English calender month.

3. I have heard the arguments of Sh. Ranjan Kumar, Ld. Counsel

for appellant/husband; respondent no.1 through Ld. Addl. P.P. for the

State; respondent no. 2 through Sh. M L Yadav, Ld. Counsel for

respondent no.2/wife and have gone through the records of this case as

well as requisitioned trial court record and have considered the rival

contentions put­forth.

4. The appellant/husband has assailed the impugned order on the

premise that the Ld. Trial Court has passed the order against law and

facts on record; respondent no.2/wife has not approached the court with

clean hands and suppressed the material facts from the Court and hence

not entitled for the relief granted. Also was argued that Ld. Trial Court

failed to appreciate the report of the Protection Officer which clearly

states that at the time of visit apart from few books and clothes and

mattress, there is nothing visible in the premises and for want of

conclusive proof of her residing there, Ld. Trial Court lacked

CNR No. DLSW01­006606­2019 Registration no. 243/2019 Deepak Saini Vs State Another Page 3 of 8
jurisdiction to try and entertain the complaint under SectionD.V. Act. Also was

argued that Ld. Trial Court failed to appreciate that the respondent/wife

is holding degree of M.A./B.Ed and can earn easily and respondent/wife

failed to substantiate her claim of expenses of Rs.24,000/­ per month as

the statement of account filed by the respondent/wife shows that there is

balance of more than Rs.2,20,000/­ since November­2016. Also was

argued that Ld. Trial Court has passed the order based on assumptions

and surmises. It is prayed that order dated 24.04.2019 be set aside.

5. Ld. Counsel for respondent no.1/ Ld. Addl. P.P. for the State

and respondent no.2/wife had argued that there is no infirmity nor

illegality in the impugned order and prayed that appeal be dismissed.

6. In the impugned order there is mention interalia that in income

affidavit the appellant husband had stated of his monthly income to be

Rs.56,000/­ alleging his father, mother and nephew to be depending

upon him. Also was observed therein that in September­2018, the total

salary of appellant husband was Rs.98,000/­ approximately including

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LTA and after deduction of Rs.29,000/­ his net pay was Rs.70,000/­as

per records of employer company. Also there is mention that as per

statement of account of father of appellant husband, he was getting

pension approximately Rs.20,000/­ to Rs.22,000/­ and only

approximately Rs.10,000/­ were withdrawn from account which led to

the inference therein that father of appellant husband was not financially

dependent upon appellant respondent.

7. True that as per the verification visit of Protection Officer at

the claimed rental premises, within jurisdiction of the Trial Court, no

separate kitchen or crockery or gas stove of respondent wife was found

but the Protection Officer had found that the respondent wife was living

in one room therein having a single bed mattress, few books and few

clothes. Said home was stated to be belonging to the cousin brother of

respondent wife, who resided there with his wife. Despite doubting

payment of rent of Rs.8,000/­ per month for rental accommodation vide

impugned order the Trial Court awarded the interim monthly

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maintenance of Rs.15,000/­ to respondent wife towards rent, medical

expenses, examination fees etc. Since the fact of residing of respondent

wife in said premises stood verified, so at this stage of matter, it could

not be said that the Trial Court lacked jurisdiction in entertaining the

complaint of respondents wife under SectionD.V. Act.

8. In the case of Manish Jain Vs Akanksha Jain, 2017 STPL

4182 SC, the Supreme Court held that an order for maintenance

pendente lite is conditional on the circumstances that the wife who

makes a claim for the same has no independent income sufficient for her

to meet necessary expenses of the proceedings. It is no answer to claim

of maintenance that wife is educated and could support herself.

Likewise the financial position of the wife’s parents is also immaterial.

The court must take into consideration the status of the parties and the

capacity of the spouse to pay maintenance and whether the applicant

wife has any independent income sufficient for her support.

Maintenance is always dependent upon factual situation; the court

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should therefore, mould the claim for maintenance determining the

quantum based on various factors brought before the Court.

9. In the case of Binita Dass Vs Uttam Kumar, Crl. Rev. P.

659/2017 Crl. M. A. 14463/2017, dated 09.08.2019, passed by

Hon’ble Mr. Justice Sanjeev Sachdeva, of High Court of Delhi , also

the petitioner wife was not actually employed or earning but the only

ground taken by respondent husband was that she was qualified and

capable of earning. Relying upon the law laid in the case of Shailja

Another Vs Khobbanna (2018) 12 SCC 199, it was held that whether

wife is capable of earning or whether she is actually earning are two

different requirements. Also was held that qualification of the wife and

capacity to earn cannot be a ground to deny interim maintenance to a

wife who is dependent and does not have any source of income.

10. It was observed by the Trial Court that there was nothing on

record to show that respondent wife was presently working or having

any source of income. Accordingly, considering the elicited earnings of

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appellant husband, in the backdrop of the law laid in the cases Manish

Jain (Supra); Binita Dass (Supra) and Shailja Another (Supra), I

find no infirmity, nor illegality, nor impropriety in awarding of monthly

maintenance of Rs.15,000/­ to respondent wife by appellant husband by

the Trial Court towards maintenance of respondent wife for rent,

medical expenses, examination fees etc. Finding appeal devoid of

merits, it is dismissed.

11. Trial court record be sent back to concerned Magisterial Trial

Court with copy of this judgment along with demand draft deposited by

appellant respondent for getting it renewed and for doing needful for

getting the sum of maintenance paid to respondent wife accordingly.

12. File of appeal be consigned to record room.

Digitally signed
by GURVINDER
GURVINDER PAL SINGH
PAL SINGH Date: 2019.10.25
13:05:25 +0530

Announced in the open court (GURVINDER PAL SINGH)
on date 25th October, 2019 ASJ­05/SW/DWARKA COURTS
NEW DELHI (pb)

CNR No. DLSW01­006606­2019 Registration no. 243/2019 Deepak Saini Vs State Another Page 8 of 8

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