Final Order 8

Order Details: COPY OF ORDER
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IN THE COURT OF SH. JITENDRA SINGH :
ADDITIONAL SESSIONS JUDGE (ELECTRICITY),
NORTH WEST : ROHINI COURTS, DELHI
CA No. 1/2024
ISHANT DUA.
Vs.
NIDHI SHARMA
05.09.2024
ORDER
1. The present appeal u/s. 29 of The Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as 'PWDV Act
2005') is against an order dated 08.12.2023 (hereinafter referred to as
'impugned order') passed by Ld. MM (Mahila Court), North-West
District, Rohini Courts, Delhi in case bearing CC No.8441/2022,
titled as Nidhi Sharma Vs. Ishant Dua, wherein interim maintenance
of Rs.15,000/- per month ( i.e. Rs.5,000/- p.m. to the complainant
from the date of filing of the application and Rs.5,000/- each towards
educational expenses of the minor children from the date of
impugned order till the disposal the case) has been granted against
the appellant/husband (hereinafter referred to as ‘respondent’) and in
favour of the respondent/wife (hereinafter referred to as
‘complainant’) and the minor children.
2. The respondent/husband is aggrieved by the quantum of interim
maintenance. The respondent is seeking setting aside of the
impugned order as he is finding the quantum to be exorbitant.
Allegations :
3. It is alleged by the complainant that she got married with the
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respondent on 29.11.2012 and two children namely Riyansh Dua
aged about 8 years and Amayra Dua aged about 6 years were born
out of the said wedlock who are in care and custody of the
complainant at present. The complainant was subjected to domestic
violence. She was forced to leave the matrimonial home and
therefore, she was constrained to file the complaint/petition under
Section 12 of PWDV Act, 2005.
Submissions by Ld. Counsel for Respondent/ Husband:-
4. It is submitted by the Ld. Counsel that the impugned order is
arbitrary, against the secured prepositions of law and the same has
been passed without appreciating the affidavit of the respondent. It is
further submitted that the income of the respondent which has been
assessed to be Rs.35,00/- p.m. is on the very higher side. Respondent
is not capable to pay Rs.5,000/- per month to the complainant.
Respondent is having the liability towards his old aged parent
suffering from old aged ailments and he incurs the expenses to the
tune of Rs.10,000/- p.m. on them. However, he is ready to pay a sum
of Rs.10,000/- (i.e. Rs.5,000/- each) to the complainant towards
educational expenses of both the minor children. The complainant is
a working lady and she is earning handsome amount whereas, the
respondent is only 8th pass, working on a grocery shop and earning
very less amount and therefore, complainant is not entitled to any
maintenance. Therefore the interim maintenance amount which has
been fixed by Ld. Trial Court is to be reduced.
It is further prayed that the present appeal should be
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allowed and the impugned order is may be set aside.
Submissions by Ld. Counsel for Complainant /Wife :-
5. Per Contra, Ld. Counsel for complainant has refuted all the
allegations raised on behalf of respondent and submitted that
impugned order passed by the Ld. Trial Court is correct in the eyes of
law and has been passed after considering the income affidavit filed
by the parties. It is further submitted that respondent /husband has
concealed his income and has no liability except his wife i.e. the
complainant and the minor children.
Ld. Counsel for the complainant has relied upon the following
judgments : -
i) AbhijitBhikasethAuti v. State of Maharashtra, AIR 2009 (NOC)
808 (BOM.)
ii) Annurita Vohra vs. Sandeep Vohra, 2004 (3) AD 252
iii) ShamimaFarooqui v. Shahid Khan, (2015) 5 SCC 705
iv) SunitaKachwaha v. Anil Kachwaha, (2014) 16 SCC 715
v) Shailja v. Khobbanna [Shailja v. Khobbana, (2018) 12 SCC 199:
(2018) 5 SCC (Civ.) 308
It is submitted that the present appeal should be dismissed.
The Position in law :-
6. The Hon'ble Supreme Court in case titled as Rajnesh Vs. Neha &
Anr. In Criminal Appeal NO. 730 OF 2020 (Arising out of SLP (Crl.)
No. 9503 of 2018) has laid down that the test for determination of
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maintenance in matrimonial disputes depends on the financial status
of the respondent, and the standard of living that the applicant was
accustomed to in her matrimonial home. The other factors which are
required to be kept in mind while deciding the interim maintenance
has been mentioned in the said judgment. The relevant extract is
reproduced below for ready reference:-
“LAW ON THE POINT OF MAINTENANCE
III Criteria for determining quantum of maintenance
(I) The objective of granting interim / permanent alimony is to ensure that
the dependant spouse is not reduced to destitution or vagrancy on account
of the failure of the marriage, and not as a punishment to the other spouse.
There is no straitjacket formula for fixing the quantum of maintenance to be
awarded.
The factors which would weigh with the Court inter alia are the status of the
parties; reasonable needs of the wife and dependent children; whether the
applicant is educated and professionally qualified; whether the applicant has
any independent source of income; whether the income is sufficient to
enable her to maintain the same standard of living as she was accustomed to
in her matrimonial home; whether the applicant was employed prior to her
marriage; whether she was working during the subsistence of the marriage;
whether the wife was required to sacrifice her employment opportunities for
nurturing the family, child rearing, and looking after adult members of the
family; reasonable costs of litigation for a non-working wife.
In Manish Jain v Akanksha Jain this Court held that the
financial position of the parents of the applicant-wife, would not be material
while determining the quantum of maintenance. An order of interim
maintenance is conditional on the circumstance that the wife or husband
who makes a claim has no independent income, sufficient for her or his
support. It is no answer to a claim of maintenance that the wife is educated
and could support herself. The court must take into consideration the status
of the parties and the capacity of the spouse to pay for her or his support.
Maintenance is dependent upon factual situations; the Court should mould
the claim for maintenance based on various factors brought before it.
On the other hand, the financial capacity of the husband, his actual
income, reasonable expenses for his own maintenance, and dependant
family members whom he is obliged to maintain under the law, liabilities if
any, would be required to be taken into consideration, to arrive at the
appropriate quantum of maintenance to be paid. The Court must have due
regard to the standard of living of the husband, as well as the spiralling
inflation rates and high costs of living. The plea of the husband that he does
not possess any source of income ipso facto does not absolve him of his
moral duty to maintain his wife if he is able bodied and has educational
qualifications.
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(ii) A careful and just balance must be drawn between all relevant
factors. The test for determination of maintenance in matrimonial disputes
depends on the financial status of the respondent, and the standard of living
that the applicant was accustomed to in her matrimonial home. The
maintenance amount awarded must be reasonable and realistic, and avoid
either of the two extremes i.e. maintenance awarded to the wife should
neither be so extravagant which becomes oppressive and unbearable for the
respondent, nor should it be so meagre that it drives the wife to penury. The
sufficiency of the quantum has to be adjudged so that the wife is able to
maintain herself with reasonable comfort.
(iii) Section 23 of HAMA provides statutory guidance with respect to
the criteria for determining the quantum of maintenance. Sub-section (2) of
Section 23 of HAMA provides the following factors which may be taken
into consideration : (i) position and status of the parties, (ii) reasonable
wants of the claimant, (iii) if the petitioner/claimant is living separately, the
justification for the same, (iv) value of the claimant’s property and any
income derived from such property, (v) income from claimant’s own
earning or from any other source.
(iv) Section 20(2) of the D.V. Act provides that the monetary relief
granted to the aggrieved woman and / or the children must be adequate, fair,
reasonable, and consistent with the standard of living to which the
aggrieved woman was accustomed to in her matrimonial home.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde laid
down the following factors to be considered for determining maintenance :
“1. Status of the parties.
2. Reasonable wants of the claimant.
3.The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she
enjoyed in the matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and
treatment etc. of the applicant.
\8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the non-
applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the amount
awarded u/ 24 of the Act. 17.”
(v) Apart from the aforesaid factors enumerated hereinabove, certain
additional factors would also be relevant for determining the quantum of
maintenance payable.
(a) Age and employment of parties
In a marriage of long duration, where parties have endured the
relationship for several years, it would be a relevant factor to be taken into
consideration. On termination of the relationship, if the wife is educated and
professionally qualified, but had to give up her employment opportunities to
look after the needs of the family being the primary caregiver to the minor
children, and the elder members of the family, this factor would be required
to be given due importance. This is of particular relevance in contemporary
society, given the highly competitive industry standards, the separated wife
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would be required to undergo fresh training to acquire marketable skills and
re-train herself to secure a job in the paid workforce to rehabilitate herself.
With advancement of age, it would be difficult for a dependent wife to get
an easy entry into the work-force after a break of several years.
(b) Right to residence
Section 17 of the D.V. Act grants an aggrieved woman the right to
live in the “shared household”. Section 2(s) defines “shared household” to
include the household where the aggrieved woman lived at any stage of the
domestic relationship; or the household owned and rented jointly or singly
by both, or singly by either of the spouses; or a joint family house, of which
the respondent is a member.
The right of a woman to reside in a “shared household” defined
under Section 2(s) entitles the aggrieved woman for right of residence in the
shared household, irrespective of her having any legal interest in the same.
This Court in Satish Chander Ahuja v Sneha Ahuja (supra) held that “shared
household” referred to in Section 2(s) is the shared household of the
aggrieved person where she was living at the time when the application was
filed, or at any stage lived in a domestic relationship. The living of the
aggrieved woman in the shared household must have a degree of
permanence. A mere fleeting or casual living at different places would not
constitute a“shared household”. It is important to consider the intention of
the parties, nature of living, and nature of the household, to determine
whether the premises is a “shared household”. Section 2(s) read with
Sections 17 and 19 of the D.V. Act entitles a woman to the right of
residence in a shared household, irrespective of her having any legal interest
in the same. There is no requirement of law that the husband should be a
member of the joint family, or that the household must belong to the joint
family, in which he or the aggrieved woman has any right, title or interest.
The shared household may not necessarily be owned or tenanted by the
husband singly or jointly.
Section 19 (1)(f) of the D.V. Act provides that the Magistrate may
pass a residence order inter alia directing the respondent to secure the same
level of alternate accommodation for the aggrieved woman as enjoyed by
her in the shared household. While passing such an order, the Magistrate
may direct the respondent to pay the rent and other payments, having regard
to the financial needs and resources of the parties.
(c) Where wife is earning some income
The Courts have held that if the wife is earning, it cannot operate as
a bar from being awarded maintenance by the husband. The Courts have
provided guidance on this issue in the following judgments.
In Shailja & Anr. v Khobbanna, this Court held that merely because
the wife is capable of earning, it would not be a sufficient ground to reduce
the maintenance awarded by the Family Court. The Court has to determine
whether the income of the wife is sufficient to enable her to maintain
herself, in accordance with the lifestyle of her husband in the matrimonial
home. Sustenance does not mean, and cannot be allowed to mean mere
survival.
In Sunita Kachwaha & Ors. v Anil Kachwaha the wife had a
postgraduate degree, and was employed as a teacher in Jabalpur. The
husband raised a contention that since the wife had sufficient income, she
would not require financial assistance from the husband. The Supreme
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Court repelled this contention, and held that merely because the wife was
earning some income, it could not be a ground to reject her claim for
maintenance. The Bombay High Court in Sanjay Damodar Kale v Kalyani
Sanjay Kale while relying upon the judgment in Sunita Kachwaha (supra),
held that neither the mere potential to earn, nor the actual earning of the
wife, howsoever meagre, is sufficient to deny the claim of maintenance.
An able-bodied husband must be presumed to be capable of earning
sufficient money to maintain his wife and children, and cannot contend that
he is not in a position to earn sufficiently to maintain his family, as held by
the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander
Prakash. The onus is on the husband to establish with necessary material
that there are sufficient grounds to show that he is unable to maintain the
family, and discharge his legal obligations for reasons beyond his control. If
the husband does not disclose the exact amount of his income, an adverse
inference may be drawn by the Court.
This Court in Shamima Farooqui v Shahid Khan cited the judgment
in Chander Prakash (supra) with approval, and held that the obligation of
the husband to provide maintenance stands on a higher pedestal than the
wife.
(d) Maintenance of minor children
The living expenses of the child would include expenses for food,
clothing, residence, medical expenses, education of children. Extra
coaching classes or any other vocational training courses to complement the
basic education must be factored in, while awarding child support. Albeit, it
should be a reasonable amount to be awarded for extra-curricular / coaching
classes, and not an overly extravagant amount which may be claimed.
Education expenses of the children must be normally borne by the father. If
the wife is working and earning sufficiently, the expenses may be shared
proportionately between the parties.
(e) Serious disability or ill health
Serious disability or ill health of a spouse, child / children from the
marriage / defendant relative who require constant care and recurrent
expenditure, would also be a relevant consideration while quantifying
maintenance…”
Findings:-
7. It is well settled that there exist no straitjacket formula for
fixing the quantum of maintenance to be awarded. The financial
capacity of the husband, his actual income, reasonable expenses for
his own maintenance, and dependent family members whom he is
obliged to maintain under the law, liabilities if any, would be required
to be taken into consideration, to arrive at the appropriate quantum of
maintenance to be paid. The maintenance amount awarded is
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required to be reasonable and realistic. For the purpose of assessing
the interim maintenance the Ld. Trial Court has to only form a
prima
facie opinion from the material available on the record. The purpose
of granting the interim maintenance is to ensure that the petitioner
and the minor children do not suffer during the trial of the matter.
8. Admittedly, the respondent and the complainant are husband
and wife, who are living separately and the appellant being husband
is legally bound to maintain the complainant/wife and children. The
living expenses of the child includes the expenses for food, clothing,
residence, medical expenses, education of children. Admittedly, the
complainant is residing separately along with two minor children.
The respondent has failed to file any document i.e. salary slip on
record to suggest that the complainant is working or that she is
having any other source of income. It is well settled that the court has
to determine whether the income of the wife is sufficient to enable
her to maintain herself as per the status of her husband in the
matrimonial home. The Ld. Trial Court has duly considered the
income affidavit(s) filed by the contesting parties and thereafter has
assessed the monthly income of the respondent as Rs.35,000/-. The
Hon’ble Supreme Court in case titled
Rajnesh Vs. Neha & Anr.
(Supra) has categorically held that the plea of the husband that he
does not possess any source of income
ipso facto does not absolve
him of his moral duty to maintain his wife & children if he is able
bodied and has educational qualifications.
9. Applying the formula laid down in the judgment of Annurita Vohra
versus Sandeep Vohra 110(2004) 546 the Family Resource Cake
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should be divided in five pieces out of which two pieces is required
to be kept with the husband. The Ld. Trial Court has granted a total
sum of Rs.15,000/- for the maintenance of the wife and her two
minor children. It is apparent that the quantum of maintenance has
been awarded on the lower side as the complainant is earning Rs.
7,000/- per month. The relevant extract of the impugned order is
reproduced below for ready reference :-
“ …In view of the principle laid down and in light of the facts and
circumstances of the present case, the respondent no.1 is directed to pay
Rs. 5,000/- per month to the complainant from the date of filing of
application seeking interim maintenance till disposal of this case,
towards foods, clothing, medical and other necessary expenses of the
complainant and the minor children. Respondent no. 1 is further directed
to pay Rs. 5,000/- each to the complainant towards educational expenses
of the minor children from the date of this order until the disposal of the
case. Payment towards maintenance received by the complainant in this
case or in any other case shall stand adjusted. Let the monthly
maintenance be paid on or before 10th of each month from the date of
filing of the application. Arrears of maintenance be cleared within six
months from today.
The observation made in the order shall not tantamount to any
findings on the merits of this case. Accordingly, the application stands
disposed off.…. ” .
10. There are two children born out of the wedlock between the
complainant and the respondent. The son is 9 years old and daughter
is 7 years. Apparently the children are school going that is the reason
the Ld. Trial Court awarded Rs. 5,000/- per month each for the
maintenance. The complainant is earning meager amount of Rs.
7,000/- per month that is the reason the Ld. Trial Court also awarded
Rs. 5,000/- per month to the complainant towards foods, clothing,
medical and other necessary expenses of the complainant and the
minor children. In view of the discussion made herein above, I do not
find any merit in the present appeal. The interim maintenance
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awarded is reasonable and realistic. The appeal is accordingly
dismissed. Nothing stated herein above shall tantamount to
expression of opinion on the merits of the case.
11. TCR alongwith the copy of this order be sent to the Court concerned.
The appeal file be consigned to record room after due compliance.
Announced in the open court (JITENDRA SINGH)
today i.e. on 05.09 2024 ASJ(Electricity)/Distt. North-West
Rohini Courts, Delhi, 05.09.2024
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