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Gaurav Sharma vs Sharmishtha Sharma on 22 February, 2020

IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE ­04
EAST: KARKARDOOMA COURTS: DELHI

Criminal Appeal No. 22/19

Gaurav Sharma,
S/o Virendra Kumar,
R/o 370­A Pocket­2, Phase­I,
Mayur Vihar, Delhi.

……. Appellant
Versus

Sharmishtha Sharma,
D/o Barin Ghosh,
R/o H.No. S­2, Plot No. 15,
Shalimar Garden Extn.­1,
Sahibabad, Ghaziabad, UP ­201005.
…..Respondent

Date of Institution : 04.02.2019
Date of reserving judgment : 14.01.2020
Date of pronouncement : 22.02.2020

Appearances

For the Appellant : Sh. S.P.Sahay and Sh. Anil Kumar
Verma, Advocates.
For Respondent : Sh. H.M.Mukharjee, Advocate.

JUDGMENT

CA No. 22/19 . Page 1/10
1) The present appeal under section 29 of Protection of Women

from Domestic Violence Act (hereinafter referred as “PWDV Act”)
has been preferred against the order dated 18.10.2018 (hereinafter
referred as ‘the impugned order’) passed by Ld. Metropolitan
Magistrate, (Mahila Court-02), East District, Karkardooma Courts,
Delhi, whereby interim maintenance of Rs. 70,000/­ was awarded to
the respondent and minor child in case bearing CC No. 47V/2017,
titled as “Sharmishtha Sharma v. Gaurav Sharma Another”.
Certified copy of the impugned order was filed by the Ld. Counsel for
the appellant.

2) Ld. counsel for the appellant has also filed an application u/s 5
of the Limitation Act, 1963 for condonation of delay in filing the
present revision petition.

3) Notice of the application u/s 5 of the Limitation Act and present
appeal was issued to the respondent and trial court record (TCR) was
summoned.

4) Ld. Counsel for the respondent appeared and filed separate
written replies to the appeal as well as application for condonation of
delay in filing the present appeal. He has prayed for dismissal of
present appeal stating that the impugned order is well reasoned order,

CA No. 22/19 . Page 2/10
passed by the Ld. Trial Court after fully appreciating the material
available on record.

5) Arguments were addressed on behalf of the appellant and
respondent for decision of the present appeal on merits.

6) By way of present appeal impugned order dated 18.10.2018
passed by the Ld. Trial Court has been challenged. The appellant has
also filed an application u/s 5 of Limitations Act seeking condonation
of delay of about 76 days in filing the present appeal on the grounds
that appellant is only bread earner of his family and there is no one
except the appellant to look after his aged parents, who are suffering
from old age ailments and due to professional as well as disturbed
family, he could not concentrate upon pursuing the present case.
Though, admittedly there is delay of about 76 days in filing the
present appeal and there is no sufficient explanation for not filing the
appeal within limitation period, in my considered opinion it will be
appropriate if the present appeal is decided on merits in respect of the
impugned order without going into much technicalities. Hence, I
deem it fit to condone the delay in filing the present appeal against the
impugned order dated 18.10.2018. The delay is hereby condoned.

7) Briefly stated, the facts necessary for the disposal of the present
appeal are that the respondent has filed a petition u/s 12 read with
CA No. 22/19 . Page 3/10
Sections 17, 19, 20, 21 22 of PWDV Act against the appellant and
his mother Smt. Suraksha Sharma stating, inter alia, that she got
married with the appellant on 22.11.2003 and from the said wedlock
one male child was born. Soon after the marriage, the mother of
appellant started misbehaving with the respondent/wife though
appellant supported her but in the year 2005 appellant started extra­
marital relationship with a girl and his mother supported him and
started taunting her more. Further, appellant also started mentally and
physically harassing her at the instance of his mother. Due to bad
behaviour of mother of appellant, respondent/wife and appellant lived
separately several times for certain period but again and again
appellant forced respondent/wife to live together with his parents and
whenever she started living together with her parents­in­law, the
appellant and his mother used to misbehave with her. On 26.06.2015
appellant had deserted respondent/wife and their son and since then
she alongwith her son is living at her parental home. She further
alleged that the appellant/husband is a man of means and is doing a
job as AGM and is getting salary of Rs. 2,50,000/­ per month. She
claimed maintenance in the sum of Rs. 70,000/­ per month from the
appellant/husband.

8) The appellant was summoned in the said case and he filed his
reply submitting therein that respondent/wife is highly educated,
capable and self dependent person. She has remained a working
CA No. 22/19 . Page 4/10
woman since her marriage with the appellant and her last drawn salary
was approximately Rs. 3 Lacs. Further, since the very beginning,
behaviour of the respondent/wife was very bad towards him and his
parents, however, to maintain peace and harmoney, he shifted several
times to rented accomodations, as per the wishes of his wife, since the
year 2006, by isolating his aged parents. Further, on 26.06.2015
parents of appellant visited their house at Gurgaon, but the
respondent/wife got furious and started shouting that his parents are so
unhealthy and full of diseases that their presence will make everyone
sick. Hence, on 27.06.2015 appellant took his parents to their house at
Mayur Vihar and on his return to Gurgaon house, he found that
respondent/wife had already left with the baby and all her belongings
including valuables and since than respondent/wife is willingly not
maintaining any domestic relationship with the appellant.

9) Aggrieved by the impugned order, appellant preferred the
present appeal on the following grounds :

i) That the Ld. Trial Court has passed the impugned order
against the facts and law and material on record.

ii) That the Ld. Trial Court while passing the impugned
order has not appreciated the arguments and law cited by the
appellant.

iii) That the Ld. Trial Court has failed to consider the fact
that the respondent/wife has exaggerated her expenses in her
CA No. 22/19 . Page 5/10
affidavits with the sole intention to extort money from the
appellant and she has not filed any document to show the
expenditure details.

iv) That the Ld. Trial Court did not consider the fact that
appellant is suffering from various diseases including
Polycythemia (not curable) and Type 2 Diabetes due to which
he spent more than Rs. 5 Lacs in the year 2017 and 2018 itself
and he requires regular treatment and therapy. Further, he has
liability of his mother as well as father, who is suffering from
cancer.

v) That the Ld. Trial Court did not consider the fact that
respondent/wife is well educated, who was previously employed
and even now she can earn handsome salary but she has chosen
not to work.

In the end, a prayer was made for setting aside the impugned
order.

10) In support of his submissions, ld. Counsel for the petitioner also
relied upon certain judgments i.e. (1) S.J.S. Business Enterprises (P)
Ltd. v. Sate of Bihar Ors., AIR 2004 SC 2421, (2) Oswal Fats And
Oils Limited v. Additional Commissioner (Administration), Bareilly
Division, Bareilly Ors., (2010) 4 SCC 728, (3) S.P.Chengalvaraya
Naidu (Dead) by L.RS. v. Jagannath (Dead) by L.RS. Ors., AIR

CA No. 22/19 . Page 6/10
1994 SC 853 and (4) Sanjana Viz v. Sanjay Vij, MAT APP. 35/2010,
passed by the Hon’ble High Court of Delhi.

11) Vide impugned order Ld. Trial Court considered the admitted
net income of the appellant as Rs. 2,10,000/­ per month and
accordingly the Ld. Trial Court directed the appellant to pay
Rs.70,000/­ per month to the respondent (inclusive of interim
maintenance @ Rs. 35,000/­ pm for minor child).

12) Ld. Trial Court while relying upon the principles laid down in
Annurita Vohra v. Sandeep Vohra, 2004(3) AD 252, awarded interim
maintenance of Rs. 70,000/­ per month to the respondent (inclusive of
interim maintenance @ Rs. 35,000/­ pm for minor child). From
perusal of the appeal it is apparent that there is no grievance regarding
interim maintenance awarded to the minor child i.e. Rs.35,000/­ pm
and the only grievance is that the respondent/wife is well educated and
she is capable of earning handsome salary. Hence, the grievance of the
appellant is directed mainly towards interim maintenance of
Rs.35,000/­ awarded to the respondent/wife.

13) In Manish Jain v. Akanksha Jain, (2017) 15 Supreme Court
Cases 801, it was laid down that the Court exercises a wide descretion
in the matter of granting alimony pendente lite but the discretion is
judicial and neither arbitrary nor capricious. It is to be guided on
CA No. 22/19 . Page 7/10
sound principles of matrimonial law and to be exercised within the
ambit of the provisions of the Act and having regard to the object of
the Act. The Court would not be in a position to judge the merits of
the rival contentions of the parties when deciding an application for
interim alimony and would not allow its discretion to be fettered by
the nature of the allegations made by them and would not examine the
merits of the case. It was further held that an order for maintenance
pendente lite is conditional on the circumstance that the wife or
husband who makes a claim for the same has no independent income
sufficient for her or his support or to meet the necessary expenses of
the proceedings. It is no answer to a claim of maintenance that the
wife is educated and could support herself. Further, the Court must
take into consideration the status of the parties and the capacity of the
spouse to pay maintenance and whether the applicant has any
independent income sufficient for her or his support.

14) In Sunita Kachwaha v. Anil Kachwaha, AIR 2015 SC 554, it
was held that merely because the wife is a qualified post graduate, it
would not be sufficient to hold that she is in a position to maintain
herself. In any event, merely because the wife was earning something,
it would not be a ground to reject her claim for maintenance.

15) Furthermore, in Minakshi Gaur v. Chiranjan Gaur, AIR 2009
SC 1377, the Apex Court held to the extent that even if the wife is
CA No. 22/19 . Page 8/10
earning but her earning is insufficient and the husband has substantial
salary, he is liable to pay maintenance to his wife.

16) In the instant case, admittedly the respondent/wife is well
qualified and she was employed till birth of her child. But as per
respondent/wife, she is unemployed since the birth of her child and
presently she is residing with her parents at her parental home. She
claimed that her child is about 2­3 years old and she need time to
lookafter her minor child.

17) In view of above discussed judgments, even if the
respondent/wife is well educated and capable to earn but she is sitting
idle, the husband can not deny his liability to pay maintenance to her.
Therefore, considering the entire circumstances in my considered
opinion, the ld. Trial court rightly granted her interim maintenance of
Rs. 35,000/­ per month considering the admitted disposable income of
Rs. 2,10,000/­ per month of the appellant.

18) All other pleas taken by the appellant in the present appeal
including suppression of material facts, are matter of trial and same
cannot be decided at the time of appeal. The judgments relied upon by
ld. Counsel for the appellant are not of any help to the appellant in
view of aforementioned pronouncements by the Apex Court.

CA No. 22/19 . Page 9/10
19) In the afore­discussed facts and circumstances, I am of the

considered opinion that the present appeal is devoid of merits and
there is no ground to interfere with the impugned order passed by the
Ld. Trial Court. Hence, the appeal filed by the appellant stands
dismissed.

20) Copy of judgment be sent to the Ld. Trial Court with TCR.

21) File be consigned to the Record Room.
order

KULDEEP Digitally signed by KULDEEP
NARAYAN
Location: East District
NARAYAN Karkardooma Courts, Delhi
Date: 2020.02.22 15:37:32
+0530

(Pronounced in the open Court (Kuldeep Narayan)
on 22.02.2020) Additional Sessions Judge­04
East District, Court No. 10,
Karkardooma Courts, Delhi.

CA No. 22/19 . Page 10/10

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