No maintenance to wife with income! pay only to kid! husband with own business & wife’s bank stmt escapes! Delhi Sessions court

No maintenance to wife with income!! However husband to pay Rs 7500 for kid! Story of How a husband with own business & wife’s bank statement escapes partly in a DV case where he (husband ) is NOT admitting violence….

A husband who runs his own business claims he earns just a few thousands per month when his wife screams at the top of her voice that he is making millions per annum ( she claims that husband earns 3 lakh per month!!). Additionally the husband gets hold of her bank statement to prove that she is receiving credits of handsome amounts into the account (thereby making the court conclude that she is employed).

Faced with these facts, Both the magistrate court and sessions court refuse maintenance to the wife ! Husband is ordered to pay Rs. 7500/- for his kid !!

However this husband tries to argue that there is NO domestic violence in his case… Unfortunately that argument is NOT accepted by the courts who refuse that plea saying “specific allegations” have been made by the wife !! This is a sad part of the “interim” , “ad-interim” and other temporary reliefs provided to appellants and children, where JUST when the marriage is proven, and the earnings of the husband are either proven or assessed / computed, the husband is forced to give money to the wife and / or children !! The husbands in all these cases argue vehemently stating that they are NOT at fault !! Still they are forced to pay interim… and whatever is paid during interim is lost for ever !!

As I have OFTEN stated, “interim” , “ad-interim” maintenance granted to wife or children EVEN when the husband has NOT erred is one of the worst attacks on honest law abiding married men !!


IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ­05 : WEST

DISTRICT, TIS HAZARI COURTS, DELHI

CA No.57/15

21.11.2015

IN THE MATTER OF:­

Smt.Nidhi Garg
W/o Sh.Ajay Garg,
R/o Flat no. 702, Tower no. BT­10,
Omex Heights, Sector­86,
Faridabad, Haryana.                                           …………… Petitioner

Versus
(1) Ajay Garg
S/o late Sh.Krishan Chand Garg,
R/o S­15, First Floor,
Shivaji Park, New Delhi.

(2)Smt.Kailash Garg,
W/o late Sh.Krishan Chand Garg,
R/o S­15, First Floor,
Shivaji Park, New Delhi.                                            ………… Respondents

Date of Institution                           :       22.11.2014
Date of reserving the order           :       19.11.2015
Date of decision                            :       21.11.2015

AND CA No.58/15

IN THE MATTER OF:­

Ajay Garg
S/o late Sh.Krishan Chand Garg,
R/o S­15, First Floor,
Shivaji Park, New Delhi.                                   ………… Petitioner

Versus
(1)Smt.Nidhi Garg
W/o Sh.Ajay Garg,
R/o Flat no. 702, Tower no. BT­10,
Omex Heights, Sector­86,
Faridabad, Haryana.

(2)Smt.Kailash Garg,
W/o late Sh.Krishan Chand Garg,
R/o S­15, First Floor,
Shivaji Park, New Delhi.                                            ………… Respondents

Date of Institution                           :       21.10.2014
Date of reserving the order           :       19.11.2015
Date of decision                            :       21.11.2015

JUDGMENT

 

  1. Vide this Judgment, I shall dispose of the appeal filed by Smt.Nidhi Garg against the respondent Ajay Garg against the order dt. 25.09.2014. Vide this order, the Ld.MM has declined to grant any maintenance to her. By way of the present Judgment, I am also deciding the appeal filed by Ajay Garg against the respondent Smt.Nidhi Garg against the order dt. 25.09.2014, vide which the appellant was directed to make the payment of Rs.7,500/­ per month for the maintenance of the child from the date of filing the application till the time he is legally entitled/further orders. The appellant is further directed to clear the arrears of maintenance within four months from the date of this order. It is also mentioned in the said order that the amount paid to the child either in this case or in any other proceedings shall be adjusted accordingly. As both the appeals arise against the common order dt. 25.09.2014, I am deciding both the appeal bearing nos. 57/15 titled as Nidhi Garg Vs. Ajay Garg & others and 58/15 titled as Ajay Garg Vs. Nidhi Garg & others, together.
  2. The essential facts of the case as per the petition filed by the petitioner Nidhi Garg are that the marriage between the parties was solemnized on 26.11.1995. The complainant immediately after the marriage, came in the matrimonial home. She was harassed and tortured by the respondents. It is mentioned that the complaint was ridiculed by the respondent no.3 about her appearance and height. Out of the said wed­lock, a male child was born on 30.10.1996. The complainant used to work in Damco Solutions. She used to financially help her husband i.e. respondent no.1 as and when it was solicited. It is also mentioned that the complainant was persuaded by respondent no.1 to provide him the capital to start his own business and believing him, she paid a sum of Rs.4 lacs to the respondent no.1. After taking money from her, he started his business under the name and style of “Futek Industry”. It was a partnership concern with Mr.Abrar Ali. It is mentioned that in the year 2010, she lost her job. In July, 2011, when she demanded money from her husband, he refused to give her money on the pretext that he was not earning well. He refused to give money to the complainant for household expenses or for the treatment of his minor child. Lateron, she came to know from the partner of respondent no.1 that respondent no.1 is having extremely flourishing business. She was threatened and intimidated by the respondent no.1 on phone. She got scared and left the house on the same night with her minor child and sister. She again joined the matrimonial house but on 06.11.2011, respondent no.1 permanently left the house. On 20.12.2012, complainant, her sister alongwith her minor child shifted to Faridabad. It is also mentioned by the complainant that the child namely Ketan is a special needed child and his chronological age is approx. 17 years but his social age is 9­10 years. He is studying in Open School and now she wants money to maintain herself and child. It is also mentioned that respondent no.1 is doing business of Engineering job work and earning Rs.3 lacs per month. There are several machines installed by the respondent no.1 at his factory. But despite that, respondent no.1 is not maintaining them. The complainant claimed an amount of Rs.1.25 lacs per month as maintenance for herself and her child.
  3. The respondent no.1 has also filed the reply and denied the averments mentioned in the application.
  4. Aggrieved by the said order, the complainant preferred the appeal on the grounds that the impugned order is bad and contrary to the facts of the case. The Ld.M.M. has declined to grant any maintenance to the complainant but grossly erred in awarding the interim maintenance to minor son @ Rs.7,500/­ per month. Respondent no.1 has conceded his income, assets and details of the companies from the Ld.trial court. The respondent no.1 has not filed an affidavit in accordance with the directions of the ld.trial court and Ld.trial court has erred in assessing the income of the respondent no.1 as Rs.20,000/­ to Rs.22,000/­ per month. Respondent no.1 has admitted in his reply and affidavit that his last drawn salary was Rs.12,200/­ per month in the year 2001 and has also filed a salary certificate dt. 05.04.2002. Respondent no.1 is B.Tech Engineer and who was drawing a salary of Rs.12,200/­ per month in the year 2001. Respondent no.1 has concealed his income. Respondent no.1 is doing business of Engineering Job work and has employed more than 20 people in his factory. There are several milling machines, 6 lathe bendsaw machines and cutting and grinding machines in the factory of the respondent no. 1. It is also mentioned that the child Ketan is a special needed child. He is suffering from various ailments and also suffers from absence attacks and epilepsy and on various occasions, child fainted. In absence of any adult member, the child can harm himself or can meet with an accident. Due to Epilepsy of the child, the appellant had to quit her job in 2010. The Ld.trial court has filed to observe these facts. It is prayed that order dt. 25.09.2014 be set aside.
  5. On the other hand, ld. Counsel for respondent no.1 has assailed the order of ld.trial court on the ground that the ld.trial court has grossly erred his income. The income of the appellant is between Rs.5,000/­ and Rs.6,000/­ per month. The ld.trial court has failed to consider that he is not doing any business. Only two machines are installed at his work place and he is doing job work only. It is also mentioned that Ld.M.M. has wrongly assessed his income as Rs.20,000/­ to Rs.22,000/­ per month and wrongly directed him to pay Rs.7,500/­ per month to his child as maintenance.
  6. I have heard the arguments made by the both the ld.defence counsels for both the parties. I have also perused the trial court record carefully.
  7. It is admitted fact that the marriage between the parties was solemnized on 26.11.1995 and a male child namely Ketan was born on 30.10.1996. It is also admitted fact that the complainant alongwith her child left the matrimonial house in the year 2011 and she again joined the matrimonial house. It is also admitted fact that on 20.12.2012, she alongwith her minor child had shifted to Faridabad.
  8. Now the question arises whether the complainant is entitled to any maintenance from the respondent no.1. The complainant/appellant in her affidavit has admitted that she has purchased 3 BHK Flat alongwith her sister. It is also mentioned that she is paying an amount of Rs.11,000/­ per month as rent. She also stated that Rs. 50,000/­ per year is required for two trips. As per the affidavit, the complainant has done two years course from NIIT and AS/400 certification from IBM.
  9. The counsel for respondent no.1 has drawn my attention towards the bank statement of account no.65128070877 of the appellant of State Bank of Patiala. It is not denied that the appellant is not holding this account and as per this account, various transactions were made from 17.11.2011 till 31.01.2014.
  10. As per the averments of the complaint, the complainant had left the job and now she is not working. If the petitioner is not working, then from where the amount is being received in her account. This statement of account shows that Rs.80,050/­ was credited in her account on 17.11.2011. Rs.36,000/­ was credited in her account on 11.02.201 and Rs. 49,500/­ credited in her account through cheque on 11.052012 and Rs.1.35 lacs credited in her account on 11.07.2012 by cash. There are various other transactions and ld. Counsel for respondent no.1 has stated that total Rs. 12,44,000 has been deposited in the account of the complainant from period 17.11.2011 to 31.01.2014. Thus, the complainant is not able to satisfy this court as to from where this amount is being received by her.
  11. During arguments, it is contended by the ld. Counsel for the appellant that the appellant used to receive the said amount as interest from her earlier FDRs. I fail to appreciate this contention of the ld. Counsel for the appellant that hafty amount is being received by the appellant from the FDRs. Thus, it cannot be said that the appellant is not working at present. Thus, the ld.M.M.has rightly declined to grant any maintenance to the complainant.
  12. Now the question arises, whether the ld. M.M. has rightly assessed the income of respondent as Rs.20,000/­ to Rs.22,000/­ per month and rightly awarded the maintenance of Rs.7,500/­ per month to the child.
  13. The ld.M.M. has given detail findings of assessing the income of the respondent no.1 as Rs.20,000/­ to Rs.22,000/­ per month. The ld.trial court has held that when respondent was working in Faridabad, he used to earn Rs.12,200/­ per month. It is also admitted fact that respondent no.1 is working and two machines were installed by him in his factory. No document has been placed on record by the complainant to show the income of respondent no.1. During arguments, no document has been shown by the complainant that the respondent no.1 is earning more than Rs.1 lac.
  14. Ld.counsel for the respondent no.1 has placed reliance upon the Judgment titled as Amit Khanna & Anrs. Vs. Priyanka Khanna & Others 2010 (119) DRJ 182, wherein it is held that : “No concrete proof of high status and vast property of husband. Mere allegations made by the wife that husband was a man of status and had vast movable and immovable properties would not give jurisdiction to the court to pass an order of maintenance beyond the means of the husband. Properties in the name of in laws cannot be considered. Income of the husband was Rs.41,000/­ per month (without deducting tax),granting maintenance plus rent of Rs,45,000/­ per month, under no circumstance is justified. Maintenance of Rs.15,000/­ per month and rent of Rs.5,000/­ per month awarded”.
  15. Ld. counsel for the respondent no.1 has also placed reliance upon the Judgment AIR 2007 Delhi 89 titled as Vijay Malti Vs. Rajiv Vig,wherein it is held that : “As far as the education of the respondent’s son is concerned. It was submitted that in our society, even if the parent or the father is financially weak, the grand parents would support such needs; the son was therefore, helped in educating the child born out of the second marriage by the father, who was the employer, and no exception could be taken in this arrangement”.  I have perused this judgment with utmost regard. This judgment is against the order passed by the Ld. ADJ U/s 24 of the Hindu Marriage Act. The present petition is U/s 12 of the D.V.Act.
  16. Ld.counsel for the respondent no.1 has also place reliance upon the Judgment titled as Damanreet Kaur Vs. Indermeet Juneja & Anrs. 2012 (5) LRC 279 (Del), wherein it is held that “Ld.ASJ has rightly declined the interim monetary relief to the petitioner by holding that she was well educated lady earning Rs.50,000/­ per month and had chosen not to work of her own will though had to capacity to work and find a suitable job for herself. Well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding money from him during pendency of such matrimonial petition. Child for which maintenance of Rs.10,000/­ per month from the date of filing of the petition has been ordered by Addl.Sessions Judge is just and fair and sufficient to meet the requirements of a child which is aged about 3 ½ years. No interference. Petition dismissed”. Ld. counsel for the petitioner has also placed reliance upon the Judgment titled as Chander Prakash Bodh Raj Vs. Shila Rani Chander Prakash., in Crl.Revision no. 381 of 1967 wherein it is held that : “It was for the able­bodied person to show to the Court cogent grounds for holding that he was unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child – when the husband does not disclose to the Court, the exact amount of his income, the presumption against him would be easily permissible”.
  17. Ld. counsel for the petitioner has also placed reliance upon the Judgment titled as Kusum Sharma Vs. Mahinder Kumar Sharma. I have perused these Judgments with utmost regard. The same are not helpful to the appellant. In view of abovesaid discussion and judgements, I am of the view that the ld. M.M. has rightly assessed the income of respondent no.1 as Rs.20,000/­ to Rs.22,000/­ per month. I am also of the view that the Ld.M.M. has taken into consideration all the aspect while granting the maintenance of Rs.7,500/­ per month to the child.
  18. It is vehemently contended by ld. Counsel for respondent no.1 that there was no domestic Violence and in absence of domestic violence, complaint U/s 12 of the Domestic Violence Act cannot be filed. I fail to appreciate this contention of the ld. Counsel for respondent no.1. The appellant has levelled specific allegations against the respondents regarding the acts of D.V. against her. Thus, it cannot be said that the provisions of D.V.Act are not applicable in the present case.
  19. Ld. counsel for the respondent no.1 has placed reliance upon the Judgment 2010 (118) DRJ 520 titled as Vijay Verma Vs. State NCT of Delhi & Anrs., wherein it is held that : “Wife making application not ‘living together’ in the house immediately before filing of application rather settled in USA after leaving her parents here – only the violence committed in a shared household covered by the provisions of the Act. Application held to be not maintainable”. I have perused this Judgment. As the petitioner has levelled specific allegations of domestic violence against the respondents, this Judgment is not helpful. 18. Ld. Counsel for the respondent no.1 has also placed reliance upon the Judgment titled as Harbans Lal Malik & others Vs. Payal Malik 171 (2010) Delhi Law Times 67, wherein it is held that : “Section 2(f) “Domestic Relationship”–Arises between two persons, who have lived together in a shared household and when they are related by consanguinity, marriage or through relationship in nature of marriage, adoption or family members living together as joint family. Definition speaks of living together at any point of time however, it does not speak of having relation at any point of time“.  I have perused this Judgment with utmost regard. The same is not helpful to the respondent no.1.
  20. In view of above discussion, I am of the considered view that as the child is a special needed child and expenses are being incurred on his treatment. It is the duty of the petitioner and respondent no.1 to maintain the specially needed child. I am of the view that there is no illegality or infirmity in the order dt. 25.09.2014 passed by the Ld.MM. Accordingly, both the appeal bearing nos. 57/15 and 58/15 stand dismissed. Trial court record be sent back alongwith copy of this Judgment. Revision file be consigned to Record Room.

 

Announced in the Open Court on 21.11.2015

(Naresh Kumar Malhotra)

Additional Sessions Judge­05

West/THC/Delhi

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s