A poor guy working at Sulabh Souchalaya and also suffering kidney disease , whose health is going down day by day, is burdened with a huge maintenance by learned MM when his wife files DV. Delhi sessions court appreciates the facts and saves him !!
The husband has honestly submitted his salary passbook etc !!
This case exemplifies onerous maintenance orders and how men are literally bankrupted by marriage feud
Delhi District Court
Yogesh Singh vs Pinki on 17 December, 2015
Author: Ms.Hemani Malhotra
IN THE COURT OF MS. HEMANI MALHOTRA, ASJ-05 (CENTRAL),
TIS HAZARI, DELHI
CA No. 25/15
CC no. 92/6/15
PS IP Estate
U/s 23 of DV Act
Yogesh Singh S/o Sh. Inder Singh
R/o 8-C, Pocket-R, Dilshad Garden,
New Delhi-95 ……….Appellant
Pinki W/o Sh. Yogesh Singh
D/o Sh. Kavi Raj
R/o 69/100, Harijan Basti
T-Huts, Kotla Firoz Shah,
New Delhi. ………..Respondent
Date of institution 02.12.2015
Date of conclusion of final arguments /
reservation of Judgment 08.12.2015
Date of pronouncement of Judgment 17.12.2015
1. Present appeal has been preferred by Yogesh Singh, husband of the complainant Pinki against the impugned order dated 06.11.2015 passed by Learned MM (Mahila Court-I) in complaint case no.92/6/15 filed under Section 12 of Protection of Women from Domestic Violence Act (hereinafter referred to as the Act) whereby the complainant and the minor child of the parties have been granted interim maintenance @ Rs.5,000/- towards her maintenance, maintenance of child and towards alternate accommodation from the date of filing of petition i.e. 19.6.2015.
2. I have heard the learned counsels for the parties and have perused the trial court record with utmost care.
3. As the factum of marriage between the parties and the paternity of the minor child is undisputed, there is no doubt that it is the husband who has to provide maintenance for both the wife and the child especially when the wife is unemployed. Without embarking on the reasons for the separation of the appellant and the complainant, the fact is that the wife is living separately from the appellant/husband and the burden of looking after the minor child is solely hers.
4. In cases of matrimonial disputes, it has been generally observed that the husband does not truthfully reveal his income as his sole aim is to defeat the claim of the applicant/wife. But, such cases have to be differentiated from the cases where the husband is earning a fixed salary which is evident from the bank passbook and there are no hidden incomes accruing to him.
5. The impugned order has been passed by the learned MM (Mahila Court) on the basis of the monthly income / salary admitted by the appellant / husband as it is the case of the appellant/husband that he is working at Sulabh Shauchalya and earning a meager salary of Rs.9000/- per month. Appellant/husband has also filed copy of his bank passbook in support of his claim. Appellant has also placed on record rent agreement dated 13.6.2014, as per which he is residing in a tenanted premises i.e. property bearing no.8C, Pocket R , Dilshad Garden, Delhi-95 at a monthly rent of Rs. 2600/-.
6. It is very vehemently argued by learned counsel for appellant/husband that the appellant/husband is suffering from an ailment of kidney for which he has already undergone surgery and one surgery is again scheduled for mid December. It is further contended that appellant/husband has to bear his own medical expenses which are exorbitant and beyond his capacity, in such circumstances, the maintenance awarded by the Learned Trial Court is excessive and harsh on the appellant. To support his arguments, learned counsel for the appellant has also filed photocopy of medical documents (OS&R) of the appellant/husband as per which the appellant is to undergo another surgery in mid December.
7. Per contra , it is not disputed by the respondent/wife that appellant is suffering from an ailment of kidney. Rather, the complainant in para 8 and 9 of her complaint has admitted that appellant is suffering from a kidney ailment and that his health is deteriorating day by day. She has also admitted that the appellant has already undergone one kidney surgery in Dr. Ram Manohar Lohia Hospital. However, it is argued on her behalf that she does not have any independent source of income and that she is unable to maintain herself and her minor child.
8. Perusal of photocopy of pass book of the bank account of the appellant/husband reveals that he is drawing a salary of only about Rs. 8,500/ to Rs.9,000/- per month. The passbook also reflects that the appellant/husband is residing at property bearing No. 8C, Pocket-I, Dilshad Garden which is a rented accommodation, taken on rent by the appellant/husband vide rent agreement dated 13.6.2014 at a monthly rent of Rs.2,600/-. It is also evident from the documents placed on record and from the admission of the complainant/wife in her complaint that time and again, the appellant has to shell out substantive amount as medical expenses.
9. Simple mathematics would show that if the appellant/husband has to shell out Rs.5,000/- pm to his wife and the minor child out of monthly income of Rs.9,000/-, he is only left with an amount of Rs.4000/- from which he has to pay the monthly rent of Rs.2,600/- and also bear expenses for his medical treatment including day to day expenses. The learned MM completely lost sight of the fact that the appellant /husband is not expected to beg, borrow or steal to comply with the directions of the Court and to arrange for finances which are beyond his capacity. Learned MM, strangely also ignored the admissions of the complainant/wife made by her in her complaint U/s 12 of the Act.
10. While awarding maintenance, the Court has to keep in mind not only the living expenses of the wife and child but also the living expenses, capacity and day to day needs of the husband. The husband is not expected to spend nothing on himself and survive with no income at all.
11. Taking note of the monthly salary of the appellant/husband and in the peculiar facts and circumstances of the case, I am of the opinion that interest of justice will be met if the complainant/wife and the minor child is granted monthly interim maintenance @ Rs.2000/- pm from the date of filing of petition i.e. 19.6.2015.
12. Resultantly, appeal is partly allowed. Appellant is directed to pay the arrears in two equal installments. Needless to say , any amount which has already been paid by the appellant/husband towards the maintenance to his wife and minor child shall be adjusted.
Order signed and pronounced in the open court on this 17th day of December’ 2015