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
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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
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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
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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
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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
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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)
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