IN THE COURT OF MS. SUNENA SHARMA, ADDL. SESSIONS JUDGE-03(SOUTH), SAKET COURTS, NEW DELHI CA No.195/18 Ravi Shankar Jangid S/o Sh. Kailash Chandra Jangid presently R/o Plot no.54, Behind Arora Namkin Near 12th Road Circle Jodhpur (Raj.)-342003 Also At: 82/5, Shyam Enclave Sirsi Panchyawala Jaipur, Rajasthan ..... Appellants Vs. Smt. Aanchal Sharma W/o Sh. Ravi Shankar Jangid D/o Sh. Vishnu Sharma R/o C-74/2, Sangam Vihar, Near Tinu Public School New Delhi-110080 ..... Respondent Date of institution of appeal : 17.05.2018 Arguments concluded on : 01.10.2018 Date of order : 03.10.2018 JUDGMENT
1. In this criminal appeal filed u/s 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “D.V. Act“), appellant has challenged the impugned order dated 17.04.2018 passed by the court of Ld. MM-02, Mahila Court, South in CC no.3283/17 whereby, Ld. Trial court directed the appellant to pay the interim maintenance to the tune of Rs.1500/- per month each to the aggrieved person i.e. respondent and her minor child. In addition to interim maintenance, appellant was further directed to pay Rs.1500/- per month towards rent to the respondent from the date of order till the disposal of said case.
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2. Though in the present appeal, the appellant has challenged the whole of interim order but during the course of arguments, the counsel for the respondent did not assail the quantum of maintenance granted for the child and challenged the impugned order only to the extent of grant of interim maintenance and rental at the tune of Rs.1500/- each.
3. Though the appeal mentions various grounds for challenging the impugned order but it emerged during the course of arguments that there is no dispute as to the existence of domestic relationship between the parties. The appellant has grievances against the assessment of his income by the trial court and the quantum of interim maintenance and awarding of rental by the trial court as the same is stated to be excessive, arbitrary and unjust on account of the fact that the trial court did not consider the liability of the appellant towards his old ailing mother as well as the fact that the appellant is earning meager income of Rs.7467/- per month and the certificate of income of appellant in this regard was duly placed before the trial court.
4. Counsel for appellant has vehemently argued that the repsondent is a graduate and having done fashion designing course and therefore, she is capable of earning and maintaining herself and hence, not entitled to claim any maintenance from respondent who is earning monthly salary of Rs.7467/- per month. In support of his arugments, he has relied upon the jdugment of Hon’ble Delhi High Court in Rupali Gupta vs. Rajat Gupta, MAT. APP (F.C.) No. 143 of 2014 decided on 05.09.2016. It is further argued that trial court CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.2/9 while granting maintenance and rental for the respondent has not taken into account the actual income of appellant which is very well evident from the salary certificate issued by the employer of appellant.
5. It is further argued that trial court has ignored appellant’s responsibility towards his old ailing mother. Counsel further aruged that the major portion of appellant’s income is spent by him in meeting the litigation expenses as well as travel expenses as the respondent has filed D.V. Act petition as well as FIR u/s 498A IPC and both the said litigations are pending in Delhi for which the appellant has to travel from his work place at Joadpur, where he is living in a rented accommodation. It is further argued that trial court was not justified in taking recourse of Minimum Wages Act especially when as per salary certificate placed on record by the appellant, his monthly income is much less than the income prescribed for a skilled labour in Mimimum Wages Act. It is further argued that even otherwise, the latest notification of Delhi Government fixing the minimum wages for skilled and unskilled labour has already been scraped by Hon’ble Delhi High Court.
6. It is further agued that the respondent is living with his parents but despite that, rental has been awarded in her favour by the trial court that too without there being any proof that she is living in a rented accommodation. The counsel has further challenged the impugned order on the gorund that trial court has not given any independent finding regarding its satisfaction that a prima facie case under D.V. Act is made out and hence, there is no strict compliance of Seciton 23 (4) of DV Act.
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7. Per contra, counsel for the respondent has argued that appellant has placed on record a forged salary certificate and he cannot be allowed to take benefit of said forged document for escaping his liablity to pay maintenance to his wife as per his actual income which is much more than the income disclosed in said salary certificate. It is further argued that D.V. Act specifically provides remedy to claim residence order u/s 19 D.V. Act, wherein the court can direct the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if circumstances so require and in view thereof, there is no illegality in the order of trial court granting rent @ Rs.1500/- per month in favour of respondent.
8. I have given my thoughtful consideration to the contentions raised by both the sides and have also carefully perused the entire trial court record.
9. At the outset, I may note that there are two pre requisite conditions for claiming any relief under DV Act. Firstly, that there existed a domestic relationship between the aggrieved person and the respondent at the time of filing of complaint and secondly, that the aggrieved person was subjected to acts of domestic violence by the respondent. As far as the second condition of cash of domestic violence is concerned, I have carefully gone through the contents of application filed u/s 12 of D.V. Act wherein, various allegations have been raised against the appellant for having subjected the respondent to physical as well as mental cruelty and raising of illegal demand for car and cash of Rs.5 lacs. It is also an admitted position on record, an CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.4/9 FIR u/s 498A/406 IPC on the respondent’s complaint has already been registered against the appellant. In view of said material on record, a prima facie case of domestic violence is clearly made out. The first pre-condition is not a matter of consideration before this court as the relationship of husband and wife between the parties has not been disputed and admittedly, the respondent had stayed in her matrimonial home after her marriage with the appellant till she was allegedly forced to leave the matrimonial house after the incident of 28.04.2015, when she was allegedly given beatings by the appellant and his family members with an intention to kill her.
10. Before considering respective contentions of parties, I may mention here that while fixing an interim maintenance court has to take a prima facie view of the matter and need not to critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same the evidence would be required. But, at the same time, an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial. It is also pertinent to note here that as per the dictionary meaning of the word ‘maintenance’, it includes all such means of living as would enable one to live in the degree of comfort, suitable and becoming to his situation of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expenses or other proper cognate purposes.
11. Perusal of impugned order shows that Ld. Trial court has fixed the interim maintenance and rental for the aggrieved person/respondent herein while keeping into account the minimum wages prescribed by the Government of NCT CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.5/9 F.Addl.LC/Lab/MW/2016/466 dated 31.05.2017 wherein the minimum wages for the unskilled, semi skilled and skilled labour is prescribed as 13,584/-, 14,958/- and 16,468/- respectively. However, in this regard, I am of the view that recourse to Minimum Wages Act for ascertaining the income of a person for purposes of awarding interim maintenance for his dependents can be taken only when such person does not place on record any documentary proof of his income. Whereas, in the instant case, the respondent has claimed himself to be working with URSS Tech Services Pvt. Ltd. at their Joadpur Branch and he has claimed his monthly salary of Rs.7467/-.
12. Appellant had also placed on trial court record his appointment letter dated 02.03.2017 issued by URSS Tech Service Pvt. Ltd., wherein his consolidated salary during the probation period of two years is shown to be Rs.8000/- per month. Though the genuinity of said document is yet to be tested but, for ascertaining the quantum of maintenance for the dependents, I am of the view that the trial court was bound to take into consideration said document placed by the appellant for claiming his income to be not more than Rs.8000/- especially when the respondent failed to place any document to the contrary in support of her claim of higher income of the appellant. Courts are not oblivious of the fact that though minimum wages for skilled and unskilled labour have been fixed by State Governments but, those guidelines and provisions are not strictly adhered by the employers. And in the prevailing scenario of mass unemployment, many people have to pick up the jobs at much lower scale of salary. In the instant case, the trial court has relied upon the minimum wages prescribed by the Delhi Government but, completely ignored the fact that the appellant is not the resident CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.6/9 of Delhi as he lives and works in Rajasthan. Even otherwise, the latest notification of Delhi Government fixing the minimum wages for labours at the rates mentioned in the impugned order stands already quashed by the Hon’ble Delhi High Court in W.P. (C) 8125/2016 & CM No.3362/2016 titled as Federation of Okhla Industrial Association (Regd.) vs. LT Governor of Delhi & Anr., decided on 04.08.2018.
13. One more contention has been raised by the counsel for the appellant that the aggrieved person i.e. respondent is a qualified lady as she is a graduate and has also done a course of fashion designing. On the other hand, the said contention has been rebutted by the counsel for the respondent by submitting that respondent is a graduate and though, she had joined the fashion designing course but, she could not complete the same. He further contended that even at the time of her marriage or during the stay in her matrimonial home, the respondent was never employed and even at present, she is unemployed and is totally dependent on her parents.
14. I have gone through the judgment relied upon by the counsel for appellant in Rupali Gupta (supra) but, the same is distinguishable on facts in as much as in said case, both the spouses were highly qualified professionals. Whereas, in the instant case, aggrieved person is a simple graduate. Employment prospects of a B.Tech cannot be compared with a person who is just a graduate. Because of enormous gender disparity prevailing in our society, under representation of women in work force is still a hard reality. Considering said social scenario, it is harder for a woman to secure a job with a decent work environment compatible to her biological CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.7/9 needs.
15. In said circumstances, mere fact that the aggrieved person is a graduate would not dis-entitle her to claim maintenance from her husband who is employed and earning income. In this regard, I further draw support from the judgment of Hon’ble Supreme Court in Shailja & Ors. vs. Khobbanna, AIR 2017 SC 1174; wherein it was held by that “whether the appellant no.1 is capable of earning or whether she is actually earning are two different requirement. Merely because, the appellant no.1 is capable of earning, is not, in over opinion, sufficient reason to reduce the maintenance awarded by the Family Court.” While giving above findings, Hon’ble Apex Court set aside the order of Hon’ble High Court reducing the maintenance and restored the order passed by the Family Court. In view of said position of law and the facts and circumstances of the case, I do not find any merits in said contention raised by the counsel for the appellant.
16. In view of aforementioned circumstances, at this stage, this court assesses the income of the appellant to be Rs.8000/- per month. It is trite law that the family cake of income has to be equally divided according to the number of dependents and the earning member is entitled to two parts of said cake while the other parts have to be distributed one each amongst the other dependent members. Reliance placed on the judgment of Hon’ble Delhi High Court in Annurita Vohra vs. Sandeep Vohra , 110, (2004) DLT
546. It is also an admitted position on record that the father of the appellant is no more and now the appellant is also having the responsibility to maintain his old mother.
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17. Applying the aforementioned formula of apportionment of income, the interest of justice would be best served, if the respondent is granted interim maintenance to the tune of Rs.1000/- per month and Rs.600/- towards rental for an alternative accommodation from the date of filing of petition. While the minor child of respondent shall get the maintenance at the same rate as awarded by the trial court from the date of impugned order. Accordingly, the impugned order stands modified in above terms. The appeal stands partly allowed.
18. TCR be sent back to the trial court alongwith copy of this judgment.
19. Appeals files are consigned to record room.
Announced in open Court on 03.10.2018 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi John Digitally signed by John Doe Date: 2018.10.04 Doe 14:34:01 +0530 CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.9/9