Child’s maintenance under DV to be equally borne by husband & wife !! Delhi sessions court

* wife has filed DV case on hubby
* Kid’s needs assessed at Rs 16000 per month based on the status of parties
* husband and wife to pay the maintenance in equal amounts
* however wife manages other restraint orders on husband’s property. She somehow proves her contribution to the apartments in question. In spite of restraint the court permits renting of properties

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IN THE COURT OF ADDITIONAL SESSIONS JUDGE CUM SPECIAL JUDGE­03, (PC ACT) (CBI)
PATIALA HOUSE COURTS, NEW DELHI

ID No. 02403R0074822015
Criminal Appeal No. 16/2015

Ajit Pal Singh
S/o Sh. Narender Singh
A­2479, Ground Floor,
Netaji Nagar, Opposite Palikia Bhawan,
New Delhi – 110023.  …..Appellant

Versus

Cherry Singh
W/o Sh. Ajit Pal Singh
D/o Col. Manmohan Singh Jassal,
R/o 4173, Second Floor, D­4, Vasant Kunj,
New Delhi – 110070.  …..Respondent

Date of institution     : 28.04.2015
Date of arguments     : 04.12.2015
Date of order         : 08.12.2015

JUDGEMENT

1. This criminal appeal has been filed under Section 29 of the Protection of Women from Domestic Violence Act 2005 and is directed against the impugned order dated 30.3.2015 passed by Ms Snigdha Sarvaria, Ld. Metropolitan Magistrate, New Delhi in CC No. 44/4/2014 vide which Ld. Metropolitan Magistrate was pleased to award maintenance in the sum of Rs.15,000/­ per month till pendency of the complaint to the minor son of the parties payable by appellant, who is the husband of respondent. Apart from it, the trial court also restrained the appellant from alienating or disposing of or parting with the possession or creating any encumbrance on two properties.

2. Respondent is the wife of the appellant. She had filed a complaint CC No.44/4/2014 against her husband i.e. the appellant under Section 12 of this Act. Along with this complaint she also moved an application under Section 23 of the Act praying for interim maintenance to the minor son of the parties till pendency of the complaint.

3. In this complaint, the complainant/respondent had also made a prayer that appellant may be restrained from alienating four properties.

4. After hearing the parties, Ld. Metropolitan Magistrate awarded an interim maintenance in the sum of Rs.15,000/­ per month for the minor son of the parties till pendency of the proceedings. In respect of the four properties, Ld. Metropolitan Magistrate carefully considered all facts and circumstances and passed a restraint order in respect of following properties :

A. Flat No. 106, Tower A, Springdales, Zirakpur, near Chandigarh.
B. Flat No. D­504, Estella, Sector­102, Gurgaon.

5. Aggrieved by this order, the appellant has filed this appeal.

6. First I take up the issue of the restraint order. Ld. Metropolitan Magistrate has carefully gone through the records of the properties furnished by the parties and I agree that the contribution of both the parties in the aforesaid properties is quite evident from the material produced before the trial court. Hence, I find no infirmity in the restraint order. The grievance of appellant is that by this restraint order, he cannot even let out the properties. It is submitted that if he is allowed to rent out the properties, he will be in a better position to pay the maintenance. Moreover, if left vacant, the properties will deteriorate. I agree with his submission to this extent. But the question will arise as to which of the parties will have the right to rent out the properties. The appropriate course would be that both the parties should agree to rent out the said properties through a common property dealer and the rent should be deposited in a joint bank account of the parties with a rider that such rent would be distributed equally between husband and wife. There may be many other proposals to make these properties profitable to all concerned. However, this job cannot be done at appellate stage. Of course, the parties are free to resolve this issue by taking recourse to mediation or through guidance of their lawyers or by taking appropriate order of the trial court. However, question of renting out the properties cannot be considered at the appellate stage. At the same time, I have already stated that I do not find any infirmity in the restraint order, which is not of a final nature and the trial court is fully empowered to vacate it or to modify at the stage of final disposal or earlier if it so desires.

7. Now I take up the question of grant of maintenance to the son of the parties. It is an admitted fact that both the parties are gainfully employed and are earning respectable salaries. Therefore, I agree with the opinion of the trial court that both the parties should proportionately share expenses of maintenance incurred on the minor child. Ld. Counsel for appellant has prayed for setting aside the maintenance order and in alternative reducing the same. I have already stated that when both husband and wife are earning, both of them are required to shoulder the expenses on their child. Therefore, setting aside the maintenance order is out of question.

8. The next question is as to whether the interim maintenance should be reduced.

9. Since the court have to pass the interim maintenance order at a very initial stage, the courts have to form an opinion on the basis of the material and affidavit filed by the parties. The correctness of such material and affidavits has to be dealt with at final stage. The respondent herein had filed an affidavit dated 17.10.2014 in respect of her details, assets and expenditure. Under the head of expenditure in column (V), she has mentioned the education tuition expenses of her child as under :

(v) Education of child

1. School Fees (Quarterly) ­ including tuition fee. Rs.10,500/­ on an average

2. Tutor Fees – Rs.3000/­ pm.

3. School Van Fees for afternoon – Rs.2000/­ pm.

4. Dance Class Van – Rs.500/­ pm

5. Dance Classes – Rs. 12,000/­ pa.

10. The aforesaid affidavit of respondent shows that respondent is spending around Rs.8000/­ per month only on education and education related activities upon her child. In view of the status of the parties, this much of expenditure is normal these days. It was argued by Ld. Counsel for appellant that appellant gets reimbursement of the school fee from her employer, however, no evidence could be shown of such reimbursement except school certificate, which shows that same was issued for the purpose of reimbursement of the fee. This school certificate is not enough to form a primafacie view unless actual document of reimbursement of school fee by her employer is produced by the appellant. Hence, it cannot be said at this stage that appellant is getting reimbursement of the school fee of her child.

11. Considering the primafacie expenditure on education of the child and status of parties, it is reasonable to accept that an approximate sum of Rs.8000/­ per month must have been spent by the respondent on food and clothing etc. for the child. Hence, the total expenditure upon the child appears to be Rs.16,000/­ per month, which should be shared equally by the parties.

12. The impugned order would show that no reason has been given as to how the monthly expenditure of the minor son has been calculated by the trial court. In the preceding paragraph, I have calculated the monthly expenditure on the child at Rs. 16,000/­ per month, which should be shared equally by father as well as mother. Thus, the appellant being the father of minor child is directed to pay a maintenance in the sum of Rs.8000/­ per month to respondent (who is the wife of appellant and mother of the minor son Master Angad) from the date of filing of the complaint till final disposal. In case, respondent is getting maintenance for her child from any other court, the same would be adjusted by the trial court in the present maintenance. The impugned order is modified to the extent as above only in respect of the maintenance. Accordingly, the appeal is partly allowed.

13. Parties/their counsels are directed to appear before the trial court on 19.12.2015.

14. Copy of judgement along with trial court record be returned to the trial court. Appeal file be consigned to record room.

Announced in the open court on 8.12.2015.

(Vinod Kumar)
Additional Sessions Judge cum Special Judge­03,
(PC Act) (CBI), Patiala House Courts New Delhi

 

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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One thought on “Child’s maintenance under DV to be equally borne by husband & wife !! Delhi sessions court

  1. Pingback: Child maint ( under DV ) to be borne equally by spouses !! Wife can’t make all moolah !! Delhi sessions court order | layman and law

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