Criminal Appeal No.85/2018 IN THE COURT OF SH. PULASTYA PRAMACHALA SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT KARKARDOOMA COURTS, DELHI Criminal Appeal No. : 85/2018 Under Section : 29 Protection of Women from Domestic Violence Act, 2005 Case No. : 1393/2017 PS : Shakarpur CNR No. : DLET01-004893-2018 In the matter of :- SH. RAHUL SHARMA S/o. Sh. Mahesh Chand Sharma, R/o. Q.A/72, Ordinance Factory Estate, Muradnagar, District Ghaziabad, Uttar Pradesh. ............APPELLANT VERSUS MS. KANUPRIA SHARMA W/o. Sh. Rahul Sharma, D/o. Sh. Anil Kumar Sharma, R/o. H.No. J-3/50-C, J-Extension, Laxmi Nagar, Shakarpur, Delhi. ..........RESPONDENT Date of Institution : 25.07.2018 Date of reserving order : 21.08.2018 Date of pronouncement : 25.08.2018 Decision : Appeal is allowed. JUDGMENT
1. This is an appeal under Section 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) directed against the order dated 26.06.2018, passed by trial court, in a case titled as Kanupria Sharma v. Rahul Sharma & Ors., bearing case no.1393/17, under Section 12of the Act. Vide impugned order dated 26.06.2018, trial court directed respondent no.1/Sh. Rahul Page 1 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 Sharma (appellant herein) to pay interim maintenance of Rs.16,500/- per month to petitioner/Ms. Kanupria Sharma (respondent herein) from the date of filing of petition till the final disposal of the case. BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to appeal in hand are that respondent herein filed an application under Section 12 of the Act impleading her husband Sh. Rahul Sharma (appellant herein), father- in-law Sh. Mahesh Chand Kashyap, mother-in-law Smt. Rekha Kashyap and grand father-in-law Sh. Fakir Chand Kashyap. In her application, respondent made several allegations against the respondents regarding domestic violence. She sought several relief including relief of maintenance. She filed application under Section 23 of the Act.
3. Ld. MM passed impugned order and granted relief of interim maintenance of Rs.16,500/- per month to Smt. Kanupria Sharma. GROUNDS : –
4. Being aggrieved of impugned order dated 26.06.2018, appellant has preferred this appeal mainly on the following relevant grounds :- ● That trial court passed the impugned order in violation of ratio laid down in Adil v. State, 2010 (119) DRJ 297, wherein it has been held that resort to Domestic Violence Act can be done only where there is urgent requirement of wife to be maintained and provided residence when because of domestic violence, she had been rendered homeless and she had lost source of maintenance. In the present case neither respondent is without source of maintenance nor has she been rendered homeless. ● That trial court failed to appreciate ratio passed in Mangat Mal v. Punni Devi, 1995 (6) SCC 88, that right of maintenance also Page 2 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 includes the right to residence. If an aggrieved person is not entitled to claim maintenance for herself under DV Act, she is not entitled to claim separate right of residence or any payment in respect thereof.
● That trial court failed to appreciate that DV Act does not create any additional right to claim maintenance on part of the aggrieved person and it only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. (Ref. Smt. Rachna Kathuria v. Ramesh Kathuria, (2010) 173 DLT
● That trial court failed to appreciate that respondent had sufficient income of her own and she is well qualified. While considering grant of interim maintenance under Section 24 HMA in the case ofManokaran @ Ramamoorthy v. M. Devaki, AIR 2003 Mad 212, Madras High Court held that “The above provision would show that for grant of maintenance pendent lite, the party should not have sufficient independent income for her/his support. In other words, if it is found that the applicant has found sufficient income for his/her support, no amount can be allowed as maintenance pendent lite as per Section 24 of the Act.” That the right to claim any maintenance would thus arise only where the aggrieved person in this case the wife is not in a position to maintain herself, which is not the case herein. Rather, in the present case the petitioner/ aggrieved person is not only capable of maintaining herself, but in fact earning very well.
● That ld. Magistrate though take note of CD, being filed by appellant, to show that respondent has been currently working as an employee in the capacity of Customer Relationship Manager Page 3 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 (C.R.M.) with a company by name of Aastha InfraCity Limited, wrongly concludes that the question whether the petitioner was working with Indian Railways as alleged or with Aastha InfraCity, is a matter of adjudication after both parties have led evidence. Respondent in the CD admitted to a fact that she is working with Aastha InfraCity and on court query she further admitted that she has been going to the office of Aastha InfraCity, which was a company owned by her relative to learn the skills. Thus, it is manifestly clear that respondent has been working and earning nearly Rs.25,000/- per month with Aastha InfraCity and she has been gainfully employed. Thus, there was no occasion for ld. Magistrate to pass impugned order, which needs to be set aside. ● That ld. Magistrate failed to appreciate that the tape recorded conversation, is valid evidence and it can be used to contradict the evidence given before the court and to test the veracity of the witness. That the CD filed on record, clearly showed respondent’s presence in the office of Astha InfraCity, wherein she introduced herself as an employee of said company. Furthermore, respondent is working there in the name of Priya Sharma and not Kanupria Bhardwaj, which is also a malafide intention of the respondent not to disclose her identity and she had also given in her own handwriting her name as ‘Priya’ and mobile number on the back side of the visiting card of the Aastha InfraCity. Contents of CD clearly established that respondent was gainfully employed and she has falsely stated that she is unemployed and not drawing any salary. (Ref. N. Siri Rama Reddy v. V.V. Giri, 1971) ● That ld. Magistrate failed to appreciate that respondent has herself admitted in her petitioner in para no.23 that she shifted to Laxmi Page 4 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 Nagar, Delhi for preparation of Bank P.O. examination. Moreover, at the time of filing of petition by respondent, respondent applied for the medical leave from Railways Department w.e.f. 29.03.2017 to TDF (till date of fitness) and a medical certificate to this effect issued by Dr. B.B. Sharma, MBBS from 29.03.2017 to TDF was sent to Dy. CMM/CNC Railways, Allahabad. This makes amply clear that at the time of filing of the petition by the respondent, she was in employment of the Indian Railways. The respondent was getting salary of Rs.25,000/- pm (approximately) and not Rs.15,000/- as stated by ld. MM.
● That respondent in DV petition has asserted that she is not employed and needs maintenance from appellant for meeting her ends, said proof of burden was on respondent. However, she miserably failed to establish on record, that she was not gainfully employed. On contrary, appellant brought on record that respondent was gainfully employed and drawing handsome salary. Thus, grant of maintenance was not maintainable and the same is liable to be dismissed. (Ref. Narain Singh v. State, (1997) 2 Crimes 464 (Delhi) and Bhagirath v. State of Madhya Pradesh, AIR 1976 SC 975.) ● That respondent falsely misrepresented before ld. Magistrate that she has not been gainfully employed and she has not been earning any salary and ld. Magistrate passed the impugned order based upon the said false/ misrepresentation of respondent. That the impugned order is based upon the said false/ misrepresentation of respondent. The impugned order was passed on the basis of false/ misrepresentation made by respondent.
Page 5 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 ● That ld. Magistrate further failed to appreciate that respondent had no prima facie case in her favour and she was not entitled for grant of any interim maintenance, as respondent is well qualified having done B.Tech (Electronic and Communication). Respondent herself admitted in the replication filed by her that she was earlier employed as Teacher in Vidhan Public School, Duhai, Ghaziabad. Thereafter she was employed as Research Analyst in Value Prospect Consulting, Ghaziabad from 03.04.2014 till November 2014. It is also pertinent to note that from 29.12.2014 the respondent joined Indian Railways. Respondent also gave interview in Matrimony.com during November 2015 and selected. Even presuming not admitting that the respondent is currently unemployed, she by sitting idle for the sole intent of claiming maintenance, is not entitled for any relief. The law on said aspect is well settled, where courts have refused to grant interim maintenance/ maintenance, in cases, where wife is highly educated and for the purpose of seeking maintenance she is setting idle. (Ref. Smt. Mamta Jaiswal v. Rajesh Jaiswal, II (2000) DMC 170 and Damanjeet Kaur v. Indermeet Juneja, Cr. Revision No. 344/2011 decided by High Court of Delhi.) ● That the amount granted as interim maintenance is exorbitant and excessive. Ld. Magistrate has fixed the payment of interim amount in favour of respondent, without any basis. Ld. Magistrate wrongly presumed that appellant is earning averagely Rs.50,000/- per month. Ld. Magistrate failed to appreciate that the Net Monthly Salary of appellant was Rs.44,429/- and not Rs.50,000/- as assessed by court. The appellant specifies that those expenses on medical treatment and pathology tests etc. are reimbursable on Page 6 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 actual bills. The amount of reimbursement of medical expenses were credited in appellant account along with salary, is the medical reimbursement only.
● That ld. Magistrate failed to consider statement of expenses as has been filed on record by appellant. As per statement of expenditure, appellant is monthly incurring an amount of Rs.45,659/- per month and thus, there was no occasion for passing the present order.
5. Ld. counsel for appellant Sh. Rahul Sharma relied upon certain judgments in support of his contentions, which are as follows :- ● Adil v. State, 2010 (119) DRJ 297.
● Mangat Mal (dead) v. Punni Devi (dead), 1995 (6) SCC 88. ● Smt. Rachna Kathuria v. Ramesh Kathuria, (2010) 173 DLT
289. ● Manokaran @ Ramamoorthy v. M. Devaki, AIR 2003 Mad 212. ● Sanjay Bhardwaj & Ors. v. State & Anr., 171 (2010) DLT 644. ● Narain Singh v. State, (1997) 2 Crimes 464 (Delhi) ● Bhagirath v. State of Madhya Pradesh, AIR 1976 SC 975. ● Satyender Singh v. Gulab Singh, 2012 (129) DRJ 128. ● Smt. Mamta Jaiswal v. Rajesh Jaiswal, II (2000) DMC 170. ● Damanjeet Kaur v. Indermeet Juneja, Cr. Revision No. 344/2011 decided by High Court of Delhi on 14.05.2012.
6. Ld. counsel for Ms. Kanupriya relied upon certain judgments before trial court, in support of his contentions, which are as follows :- ● Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy, AIR 2017 SC 2383.
● Nihal Singh v. Priyanka Singh Badalia & Ors. 244 (2017) DLT
● Lalit Bhola v. Nidhi Bhola & Anr. & Nidhi Bhola & Anr. v. Lalit Bhola, Crl. M.C. No.75/2012 & 2227/2012, decided by High Court of Delhi on 12.02.2013.
● Shailja & Ors. v. Khobbanna, MANU/SC/0537/2017.
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7. The case of Nihal Singh (supra) was referred to submit that statutory obligation is paramount to the wish of the father and he cannot be permitted to limit his claim of the child on flimsy and baseless grounds. In the said case, reliance was placed on the judgment of Punjab & Haryana High Court in the case of Dr. R.K. Sood v. Usha Rani Sood, MANU/PH/0330/1996: 1996 (3) 114 PLR 486, to submit that :-
“17. Under the Hindu Law father not only has a moral but even a statutory obligation to maintain his infant children. The scope of his duty is to be regulated directly in relation to the money, status, that the father enjoys. The right of maintenance of a child from his father cannot be restricted to two meals a day, but must be determined on the basis of the benefit, status and money that the child would have enjoyed as if he was living with the family, including his mother and father. Irrespective of the differences and grievances which each spouse may have against the other, the endeavour of the court has to be to provide the best to the child in the facts and circumstances of each case and more so keeping the welfare of the child in mind for all such determinations. Liability to maintain one’s children is clear from the text of this statute as well as the various decided cases in this regard. The statutory obligation is paramount to the wish of the father and he cannot be permitted to limit this claim of the child on flimsy and baseless grounds.”
8. The case of Lalit Bhola (supra) was referred to submit that “the amount required by the wife to live a similar life style as she enjoyed in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any residing with the wife.”
9.In the case of Damanpreet Kaur (supra) High Court of Delhi referred to a judgment in the case of State of Maharashtra v. Sujay Page 8 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 Mangesh Poyarekar, (2008) 9 SCC 475, wherein Supreme Court held that :-
“11. The learned ASJ in the impugned order has rightly observed that the question whether the petitioner-wife was forced to resign or had resigned herself is a question to be considered during trial and also the question whether the reasons given by her for resigning from her job were satisfactory or not.
12. It is worth mentioning here that the child for which maintenance of Rs.10,000/- per month from the date of filing of the petition has been ordered by learned Addl. Sessions Judge is just and fair and sufficient to meet the requirements of a child which is aged about 3 ½ years.
13. There is no jurisdictional error or error in law in the impugned order. The petition being devoid of merit is hereby dismissed with no order as to costs.”
10.In the case of Sanjay Bhardwaj (supra) High Court of Delhi observed that :-
“4………….No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was B.Sc. and Masters in Marketing Management from Pondicherry University, the wife was MA Crl. M.C.No.491/2009 Sanjay Bhardwaj & Ors. v. State & Anr. ………….
5. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed.
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7. I therefore find that the order dated 16 th January, 2008 passed by ld. MM and order dated 29 th February, 2008 passed by the learned Additional Sessions Judge fixing maintenance without there being any prima facie proof of the husband being employed are not tenable under Domestic Violence Act. The petition is allowed. The orders passed by Metropolitan Magistrate and learned Additional Sessions Judge are hereby set aside.”
APPRECIATION OF ARGUMENTS AND FINDINGS AS WELL AS DECISION :-
11.Ld. counsel for appellant made submissions on the lines of grounds taken in the appeal. He further submitted that there is no pleading in the application of the complainant as to why she is unemployed despite being qualified educated person. Ld. counsel further submitted that maintenance cannot be claimed as a mark of punishment against the husband and complainant herein had suppressed the material fact regarding her employments. He further submitted that when complainant was confronted with recorded conversation, then before trial court she admitted that she had been working in Aastha InfraCity, though she falsely stated that she was not getting any salary.
12.Per contra, ld. counsel for respondent/complainant submitted that complainant is unemployed and therefore, she is entitled for maintenance. He further submitted that complainant had not been getting any salary from Aastha InfraCity and even otherwise such allegations of the appellant are subject matter of trial. At present, there is no material on the record to suggest that complainant had been earning.
13.In respect of quantum of maintenance, ld. counsel for appellant submitted that a wrong figure of Rs.50,000/- was assumed by trial Page 10 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 court, though apparently as per pay slip of the appellant, he had gross salary of Rs.46,000/- (approx) only. Any other amount received by complainant from his company on account of reimbursement could not be taken into consideration. On the other hand, ld. counsel for respondent submitted that any kind of income of the appellant has to be taken into account, while fixing the amount of maintenance.
14.I have gone through the trial court record carefully. The application under Section 12 of the Act was filed by complainant on 03.05.2017. In her application, complainant alleged that she left her matrimonial home on account of domestic violence, on 22.12.2016 and thereafter, she had been residing at her parental home. Complainant had filed copy of her bank account maintained with Axis Bank. She, though, alleged that uncle of the appellant had fraudulently managed a job for her with Indian Railways and the account in Axis Bank was attached with that job. Amounts from her this account were diverted on several occasions to the account of son of uncle and for the purpose of them in fraudulent manner. For such reasons, complainant had also written a letter to PMO thereby making allegations against uncle of the appellant. She in a way disowned this job in her name. However, she did not state anything about any other job, if under taken by her in the past. She also did not say anything in respect of her inability to get employment despite being a qualified educated person having degree of B.Tech.
15.Appellant herein in his reply to the application of the complainant referred to four employments of the complainant, which included her employment as a teacher, her employment as research analyst, her employment with Indian Railways and her selection in Matrimony.com during November 2015. In her replication, Page 11 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 complainant admitted her past employments as a teacher in Ghaziabad, as research analyst in Ghaziabad and her selection in Matrimony.com. She once again did not admit her employment with Indian Railway since 29.12.2014.
16.It is worth to mention here that along with his reply, appellant herein had also filed a number of documents and among those documents were some applications/letter, sent under her signature by complainant to authorities in Indian Railways, Allahabad dated 27.03.2017 and 29.03.2017. Therein, she had shown her inability to report for work on account of medical advise of bed rest as well as on account of some domestic problem. In the letter dated 29.03.2017 complainant had undertaken to report to her duties, whenever she was given fitness certificate by her doctor. Complainant keep mum in respect of these documents in her replication. On perusal of bank statement of Axis Bank, I find that there had been regular credit of salary in this account of complainant through NEFT from her employer (attributable to Indian Railways, Allahabad) up to 28.02.2017. Complainant highlighted some of the withdrawals only so as to allege that amounts were being diverted by uncle of the appellant (Sh. D.K. Singla). However, there are many other withdrawals on account of different purposes, which would at least show that complainant must would have been aware of regular credit of amount in this account by way of salary. Complainant has not stated anything about such withdrawals, which are not even allegedly imputed to Sh. D.K. Singla or his family. The dispute regarding the amounts being withdrawn by Mr. Singla from aforesaid account cannot be subject matter of this proceeding, but a prima facie view has to be formed by the court.
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17.In the most favourable consideration for the complainant thereby assuming that the amounts from this account were being withdrawn by Mr. Singla, the question arises that if complainant had an option to join this service in order to have an employment, then why could not she avail this option? Similarly, complainant though suppressed the fact that she had been working with Aastha InfraCity, this admitted fact would at least show that she was in a position to work and earn her livelihood. This situation is important to note because complainant did not explain at all in her application that what attempt was made by her to earn livelihood for herself and why she was not able to earn her livelihood. One cannot be oblivious of the observations made by courts in the case of Smt. Mamta Jaiswal (supra), Damanjeet Kaur (supra) and Sanjay Bhardwaj (supra). The simple parameter has to be that despite being able to earn, if a person does not wish to earn his/her livelihood at all, then it cannot be said that such person is a victim of vagrancy. This is a self created situation by that person. The maintenance is meant to take care of vagrancy where the other person is not able to maintain herself or himself for reasons beyond control. However, if it is found that the person is either earning sufficiently to maintain herself or is deliberately not working so as to maintain herself, then order of maintenance cannot be passed as a mark of punishment against the other spouse.
18.In the present case, it is well apparent that complainant had been working prior to her marriage as well as after her marriage. She had the occasion to work in the Indian Railways, but she did not report for the work. Statement of her passbook would show that salary, in her account being maintained with Axis Bank, was received at least up to Page 13 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.85/2018 28.02.2017. She had an option to work there in order to earn her livelihood, had there been such willingness, especially when she had left her matrimonial home out of a dispute since 22.12.2016. The suppression of work with Aastha InfraCity assumes importance as it shows that complainant did not come before the court with clean hand so as to furnish all relevant informations. Even if it is assumed that she had not been getting salary from this company, still it could be inferred that subject to her willingness, she could get an employment with salary. Since complainant herself has not come up with all relevant facts related to the circumstances leading to alleged vagrancy, the court should not make any presumption in her favour. Therefore, I do not find force in the argument that it would be matter of trial to establish earning of the complainant. Complainant should not forget that the first onus is upon her to come clean before the court with all relevant facts and to establish that the state of her vagrancy is because of reasons beyond her control. The observations of Supreme Court in the case of Shailja & Ors. v. Khobbanna, MANU/SC/0537/2017, cannot be applicable here because not much elaborative observations made therein and it is not clear if the concerned lady was not able to earn at all, despite being capable of earning. Similarly, the observations made by Supreme Court in the case of Sunita Kachwaha (supra) would not be applicable because in that case as per observations of the court nothing was placed on the record to prove employment of the lady. However, the facts are different in this case, wherein appellant has successfully pointed out that complainant had been in employment, but suspiciously complainant suppressed such facts before the court.
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19.The question of applying principles of equi status could have arisen only when the court would have been informed about actual earnings of the complainant. Thereafter, the court could have made analysis of total income out of a family cake, in order to appreciate if the complainant was able to have same standard of life as being led by the appellant. Complainant cannot be given any benefit of her own suppression of facts and therefore, such principle cannot be invoked in her favour only on the basis of some presumptions.
20.In these circumstances, I do find that impugned order dated 26.06.2018 suffers from infirmity and hence, same is set aside and appeal is allowed. Trial court shall conduct further proceedings and trial and on the basis of facts established on the record, final order may be passed accordingly.
21.Parties shall appear before trial court on date already fixed by the trial court.
22.TCR be sent back along with copy of judgment. File be consigned to record room, as per rules. Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court PRAMACHALA No.3, Karkardooma Courts, Delhi Date: 2018.08.25 17:05:50 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 25.08.2018 Special Judge (PC Act) CBI, East (This order contains 15 pages) Karkardooma Courts, Delhi Page 15 of 15 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi