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Smt. Pallavi Singh vs Sh. Chandan Kumar on 14 October, 2019

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

Criminal Appeal
CNR No. DLSW01­002344­2018
Registration no. 38/2018

Smt. Pallavi Singh,
W/o Sh. Chandan Kumar,
D/o Sh. R P Sharma,
R/o Flat no. 431, Ganpati Apartments,
Plot no. 6, Sector 9, Dwarka,
New Delhi­110075
…..Appellant
Versus

Sh. Chandan Kumar
S/o Sh. Awadh Kishore Singh
R/o AE­134, Awantika,
Ghaziabad, Uttar Pradesh
……Respondent

Appeal against order dated 13.11.2017 passed by
Ld. Metropolitan Magistrate

Date of Institution : 27.01.2018
Arguments heard on : 12.09.2019
Date of Judgment : 14.10.2019

JUDGMENT

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

CNR No. DLSW01­002344­2018 Regd. no. 38/2018 Pallavi Singh Vs Chandan Kumar Page 1 of 9
Domestic Violence Act 2005 (in short DV Act) has been preferred by

appellant/wife against impugned order dated 13.11.2017 passed by Trial

Court of Ms. Neha, Ld. Metropolitan Magistrate, Mahila Courts­02,

Dwarka Courts, New Delhi, whereby the application of appellant/ wife

for grant of interim maintenance was disposed of.

2. I have heard the arguments of Sh. Avinash Upadhyay, Ld.

Counsel for appellant/wife and respondent husband through Sh. Girish

Yadav, Ld. Counsel and have gone through the records of this case as

well as requisitioned trial court record and have considered the rival

contentions put­forth.

3. The appellant/wife has assailed the impugned order on the

premise that the Ld. Trial Court has failed to understand the purpose of

act as it was drafted with the sole and pious intention of providing

solace to aggrieved. Also was argued that the Ld. Trial Court had taken

meticulous consideration regarding the qualification of the

appellant/wife while deciding the interim maintenance and overlooked

the fact that the appellant is not in job since July 2014. Also was argued

CNR No. DLSW01­002344­2018 Regd. no. 38/2018 Pallavi Singh Vs Chandan Kumar Page 2 of 9
that Ld. Trial Court has ignored the purpose of law of maintenance,

envisaged under the various acts including the present one, to prevent

the destitution of woman. Also was argued that the Ld. Trial court had

also overlooked the fact that the respondent/husband had admitted in his

para 31 of reply/written statement that he had taken the appellant wife to

the psychiatric and the appellant was diagnosed to be suffering from

depression and anorexia and appellant is completely dependent upon her

parents for her day to day expenses and needs. Also was argued that Ld.

Trial Court had admitted the averments of respondent husband that

respondent husband was paying school fees of the minor daughter,

paying premium of two insurance polices besides other expenses. Also

was argued that the order passed by the Ld. Trial Court is bad in the

eyes of law and committed grave error. It is prayed that order dated

13.11.2017 be set aside to extent of declining of interim maintenance.

4. As per reply filed by respondent/husband, there is no illegality

nor infirmity in the order passed by the Ld. Trial Court. Also was

argued that the Ld. Trial Court has passed order after going through the

entire material available on record. Also was argued that respondent

CNR No. DLSW01­002344­2018 Regd. no. 38/2018 Pallavi Singh Vs Chandan Kumar Page 3 of 9
husband is B. Pharma and the appellant/wife was doing service in a

NGO and getting salary of Rs.35,000/­ per month. Also was argued that

appeal of appellant wife is not maintainable as she has concealed

material facts, stated self contradictory statement in her appeal and

appellant is guilty of matrimonial wrongs as she and her family

members have inflicted all sorts of cruelties upon the

respondent/husband and prayed for dismissal of appeal.

5. Ld. Counsel for appellant/wife has relied upon (1) Manish

Jain Vs Akanksha Jain, 2017 STPL 4182 SC; (2) Annurita Vohra Vs

Sandeep Vohra, 2004 STPL 5217 Delhi and (3) 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. Ld. Counsel for respondent has relied upon Sanjay

Bhardwaj Ors Vs State Another, 171 (2010) Delhi Law Times

644.

6. Vide application under section 23 (2) of SectionD.V. Act dated

31.01.2015 the appellant had interalia prayed for direction to respondent

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to pay Rs.20,000/­ per month as maintenance to her.

7. Vide impugned order the Trial Court was of the view that the

appellant was not entitled to any interim maintenance from respondent

husband as she was professionally qualified, was duty bound to take a

job and even to at least pay for half of the expenses for child though had

not been asked to bear the expenses of the child.

8. Ld. Counsel for respondent husband had argued that there is

no infirmity or illegality in the impugned order and being professionally

qualified the appellant wife needed to work to earn to earn which was

not done by her.

9. In the case of Sanjay Bhardwaj (Supra) it had been held that

an unemployed husband holding M.B.A. degree cannot be treated

differently to be an unemployed wife also holding MBA degree and one

amongst them cannot be asked to maintain other unless one is employed

and other is not employed. It is not the case of respondent husband that

he is not working for gain or having no monthly income but in

CNR No. DLSW01­002344­2018 Regd. no. 38/2018 Pallavi Singh Vs Chandan Kumar Page 5 of 9
impugned order there is mention that the respondent in income affidavit

had stated that his monthly income was Rs.15,000/­.

10. In the case of Annurita Vohra (Supra), High Court of Delhi

held that 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.

11. In the case of Manish Jain (Supra) , 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

CNR No. DLSW01­002344­2018 Regd. no. 38/2018 Pallavi Singh Vs Chandan Kumar Page 6 of 9
upon factual situation; the court should therefore, mould the claim for

maintenance determining the quantum based on various factors brought

before the Court.

12. In the case of Binita Dass (Supra), 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. In the case of

Binita Dass (Supra), the impugned order was accordingly set aside

remitting the matter to the Trial Court to pass appropriate order

assessing interim maintenance after taking into account the income of

the respondent husband as well as his dependent family members.

13. It is not the case of appellant that she is working, though she is

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stated to be M.A. Political Science and has professional qualification of

Bachelor of Mass Communication. Relying upon law laid in the cases

of Manish Jain (Supra) and Binita Dass (Supra), the qualification of

the appellant wife and her capacity to earn cannot be a ground to deny

interim maintenance to her being wife who is dependent and does not

have any source of income. So the impugned order is partly set aside,

only with respect to the denial of grant of interim maintenance to

appellant wife from respondent husband and for the aspect of grant of

interim maintenance only the matter is remitted to the Trial Court with

direction to pass appropriate order assessing interim maintenance after

taking into account the income of the respondent as well as his

dependent family members at earliest in accordance with law.

14. Parties are directed to appear before the Ld. Trial Court on

24.10.2019.

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

Court with copy of this judgment.

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16. File of appeal be consigned to record room.

Digitally signed by
GURVINDER PAL
GURVINDER SINGH
PAL SINGH Date: 2019.10.14
16:57:46 +0530

Announced in the open court (GURVINDER PAL SINGH)
on date 14th October, 2019 ASJ­05/SW/DWARKA COURTS
NEW DELHI (pb)

CNR No. DLSW01­002344­2018 Regd. no. 38/2018 Pallavi Singh Vs Chandan Kumar Page 9 of 9

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