No interim maintenance, in DV case, 2 well qualified wife sitting idle. Was she forced 2 resign etc is for trial, NOT interim. Delhi HC

Delhi HC refuses to grant maintenance to well qualified wife sitting Idle at home and filing DV case. when the wife tries to claim that she was forced to resign, the court states such force etc is for inquiry and trial and NOT for interim !!

“…The grievance of the petitioner is that the learned ASJ committed an error in declining the relief to her on the ground that she was well qualified, capable to maintain herself and had the capacity to work and that she had also been actually earning in the past and was thus not entitled to get any maintenance from the respondent. ….”

“…. The learned ASJ in the impugned order has rightly observed that the question whether the petitioner-wife was forced to resign or had resigned herself is a question to be considered during trial and also the question whether the reasons given by her for resigning from her job were satisfactory or not……”

So HC concludes that wife gets NO maintenance and dismissed her petition “….6. The learned 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 the capacity to work and find a suitable job for herself.….”

and concludes “…There is no jurisdictional error or error in law in the impugned order. The petition being devoid of merit is hereby dismissed with no order as to costs…..”


IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 19.04.2012
PRONOUNCED ON: 14.05.2012

CRL.REV.P. 344/2011

DAMANREET KAUR ….. Petitioner
Through: Mr.Sugam Puri, Advocate
versus
INDERMEET JUNEJA & ANR ….. Respondents
Through: Mr.Shyam Moorjani with Mr.Taru Goomber, Mr.Pankaj Mendiratta and Mr. Gaurav Goswami, Advocates.

CORAM:

HON’BLE MS. JUSTICE PRATIBHA RANI %

 

  1. The petitioner has preferred this revision petition impugning the order dated 01.06.2011 passed by the learned Addl. Sessions Judge, Delhi. The petitioner is wife of respondent Indermeet Juneja. She filed a complaint case bearing No.352/3 under Section 12 of Protection of Women from Domestic Violence Act, 2005 alongwith an application for monetary relief under Section 23 of the Act. Her prayer for interim monetary relief was declined vide order dated 18.11.2010 by the learned M.M.
  2. Feeling aggrieved, she preferred an appeal against the said order passed by the learned M.M. declining monetary relief to her. In appeal, the learned ASJ vide the impugned order dated 01.06.2011 though declined the prayer of interim monetary relief to the petitioner, partly allowed the appeal and directed the respondent to pay a sum of Rs.10,000/- per month from the date of filing of the petition towards contribution of the respondent to maintain the child born out of the wedlock of the parties.
  3. The grievance of the petitioner is that the learned ASJ committed an error in declining the relief to her on the ground that she was well qualified, capable to maintain herself and had the capacity to work and that she had also been actually earning in the past and was thus not entitled to get any maintenance from the respondent. The petitioner has submitted that earlier she was working with Met Life Insurance Company since the birth of her child. The company due to its relocation process had asked the petitioner to shift to Bangalore. She could not accept this offer as it would not be appropriate for the child to be uprooted from the place where she has been residing and due to the fact that there were visitation orders passed by the learned Sessions Court and had the petitioner along with the child shifted to Bangalore, the said orders could not have been complied with. As such the petitioner turned down the offer of the company. The company refused to change its policy and the petitioner was forced to resign from her job.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
  4. The relieving letter placed on record by the petitioner is dated 17.08.2010. As per this relieving letter the date of joining of the petitioner with Met Life was 07.01.2008 and her designation at the time of leaving the company was Assistant Manager (Service Delivery). She has been relieved pursuant to her resignation letter dated 17.06.2010. This letter is not accompanied by the resignation letter of the petitioner giving the reasons for her resignation or the policy of the company to shift her to Bangalore. It is relevant to mention here that while the date of joining of petitioner with Met Life Insurance is 07.01.2008, the petitioner has given birth to a female child on 18.09.2008 i.e. in the same year and despite having infant child to take care, she has served the company till she was relieved on 17.08.2010.
  5. The contention of petitioner is that in order to comply with the order of the Court to allow the respondent to have visitation right she could not shift to Bangalore. There is nothing on record to indicate that at any point of time despite continuous litigation going on between the parties she had approached the Court for modification of the order regarding visitation right. If the petitioner of her own prefers to resign, she cannot take shelter under the Court order regarding visitation right. With the passage of time the child has grown up and is of school going age. Thus, it is more convenient for a working mother to be in the job then to sit at home.
  6. The learned 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 the capacity to work and find a suitable job for herself.
  7. The learned ASJ in the impugned order has also corrected the error appearing in the order of learned M.M declining the monetary relief to the child for the reason that she was not the petitioner before the Court. In para-10 of the impugned order, the learned ASJ, after considering the facts and relevant case law has concluded as under:-
    • “10. On perusal of record and after hearing the submissions made
      at bar, I do not find any infirmity in the impugned order as regards
      maintenance to the appellant/wife is concerned. The question, whether
      appellant/wife was forced to resign or she had resigned herself is a
      question to be considered by the court during trial and also the
      question whether the reasons given by her for resigning were
      satisfactory or not. These are the question to be gone into during
      evidence by the Learned Trial Court. But, the observation of the
      Learned Trial Court in para-10 i.e. “As far as the maintenance of the
      child is concerned, since she is not the petitioner in the present
      complaint, I would not be able to pass any orders as regards the
      maintenance for the daughter of the parties”, is erroneous and cannot
      be sustained. Admittedly on the date, when application u/s. 12 of the
      „act? was filed by the appellant/wife, child was in the custody of
      the husband. Secondly, if the scheme of the act is seen as a whole,
      it is obvious that it is not necessary that the child should be
      impleaded as a party. Relief can be granted to the child or for the
      benefit of the child without child being impleaded as a party. The
      relief can be granted not only to the aggrieved person, but also to
      the „child?. On reading of Section 20 and 21 of the „Act? it is clear
      that not only aggrieved person, but any child or children may be
      granted relief. The court has to keep in mind the interest and the
      welfare of the child, even if child is not a party. Therefore, orders
      as regard custody or the maintenance or the welfare of the „children?
      can be passed even if child is not a party in the application filed
      under the „Act? before Learned Metropolitan Magistrate. There is
      manifest error in the impugned order as regards the observations in
      para-10 of the impugned order, which is set aside. In view of this,
      it is directed that Learned Trial Court shall decide the quantum of
      maintenance for the minor daughter of the parties after making a
      realistic assessment of the needs of child, keeping in view the
      status of parties, on the basis of material placed on record by the
      parties. Respondent/husband submitted that he was ready and willing
      to bear 50% of expenditure of the child. He can show his bonafide by
      providing some assistance to the child so that the child is brought
      up in an appropriate atmosphere and so that she is provided with
      minimum comfort, which the child requires.
    • 11. In the circumstances, till further orders are passed by the
      Learned Trial Court, I deem it expedient in the interest of justice
      to direct the respondent/husband to pay sum of Rs.10,000/- per month
      towards his contribution from the date of filing of the petition to
      maintain the child. The amount ordered to be paid by
      respondent/husband shall not tantamount to be an expression on merits
      of the case. Appeal stands disposed of accordingly. TCR be sent back
      alongwith copy of this order. File be consigned to Record Room.”
  8. In Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3) MPLJ 100, the High Court of Madhya Pradesh while dealing with identical situation observed that 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. For better appreciation, relevant paragraphs of the said decision are reproduced hereunder:-
    • “In view of this, the question arises, as to in what way Section
      24 of the Act has to be interpreted. Whether a spouse who has
      capacity of earning but chooses to remain idle, should be permitted
      to saddle other spouse with his or her expenditure? Whether such
      spouse should be permitted to get pendent lite alimony at higher rate
      from other spouse in such condition? According to me, Section 24 has
      been enacted for the purpose of providing a monetary assistance to
      such spouse who is incapable of supporting himself or herself inspite
      of sincere efforts made by him or herself. A spouse who is well
      qualified to get the service immediately with less efforts is not
      expected to remain idle to squeeze out, to milk out the other spouse
      by relieving him of his or her own purse by a cut in the nature of
      pendent lite alimony. The law does not expect the increasing number
      of such idle persons who by remaining in the arena of legal battles,
      try to squeeze out the adversary by implementing the provisions of
      law suitable to their purpose. In the present case Mamta Jaiswal is a
      well qualified woman possessing qualification like M.Sc. M.C M.Ed.
      Till 1994 she was serving in Gulamnabi Azad Education College. It
      impliedly means that she was possessing sufficient experience. How
      such a lady can remain without service? It really put a big question
      which is to be answered by Mamta Jaiswal with sufficient cogent and
      believable evidence by proving that in spite of sufficient efforts
      made by her, she was not able to get service and, therefore, she is
      unable to support herself. 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 pendente lite alimony
      from him during pendency of such matrimonial petition. Section 24 is
      not meant for creating an army of such idle persons who would be
      sitting idle waiting for a „dole? to be awarded by her husband who
      has got a grievance against her and who has gone to the Court for
      seeking a relief against her. The case may be vice versa also. If a
      husband well qualified, sufficient enough to earn, sit idle and puts
      his burden on the wife and waits for a ?dole? to be awarded by
      remaining entangled in litigation. That is also not permissible. The
      law does not help indolents as well idles so also does not want an
      army of self made lazy idles. Everyone has to earn for the purpose of
      maintenance of himself or herself, at least, has to make sincere
      efforts in that direction. If this criteria is not applied, if this
      attitude is not adopted, there would be a tendency growing amongst
      such litigants to prolong such litigation and to milk out the
      adversary who happens to be a spouse, once dear but far away after an
      emerging of litigation. If such army is permitted to remain in
      existence, there would be no sincere efforts of amicable settlements
      because the lazy spouse would be very happy to fight and frustrate
      the efforts of amicable settlement because he would be reaping the
      money in the nature of pendent lite alimony, and would prefer to be
      happy in remaining idle and not bothering himself or herself for any
      activity to support and maintain himself or herself. That cannot be
      treated to be aim, goal of Section 24. It is indirectly against
      healthiness of the society. It has enacted for needy persons who in
      spite of sincere efforts and sufficient effort are unable to support
      and maintain themselves and are required to fight out the litigation
      jeopardizing their hard earned income by toiling working hours.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
    • In the present case, wife Mamta Jaiswal, has been awarded
      Rs.800/- per month as pendent lite alimony and has been awarded the
      relief of being reimbursed from husband whenever she makes up a trip
      to Indore from Pusad, Distt. Yeotmal for attending Matrimonial Court
      for date of hearing. She is well qualified woman once upon time
      obviously serving as lecturer in Education College. How she can be
      equated with a gullible woman of village? Needless to point out that
      a woman who is educated herself with Master?s degree in Science,
      Masters Degree in Education, would not feel herself alone in
      travelling from Pusad to Indore, when at least a bus service is
      available as mode of transport. The submission made on behalf of
      Mamta, the wife, is not palatable and digestible. This smells of
      oblique intention of putting extra financial burden on the husband.
      Such attempts are to be discouraged.”
  9. Section 20 (1) (d) of PWDV Act, 2005 specifies that upon appropriate proof, the court may order the respondent to pay maintenance to the aggrieved person and to her children and further permits the Court to pass an order of maintenance under the PWDVA in addition to maintenance already granted under section 125 Cr.P.C.
  10. In State of Maharashtra vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475 it was held that powers of the revisional courts are very limited and the revisional court should not interfere unless there is a jurisdictional error or an error of law is noticed.
  11. The learned ASJ in the impugned order has rightly observed that the question whether the petitioner-wife was forced to resign or had resigned herself is a question to be considered during trial and also the question whether the reasons given by her for resigning from her job were satisfactory or not.
  12. It is worth mentioning here that the child for which maintenance of Rs.10,000/- per month from the date of filing of the petition has been ordered by Learned Addl. Sessions Judge is just and fair and sufficient to meet the requirements of a child which is aged about 3 ½ years.
  13. There is no jurisdictional error or error in law in the impugned order. The petition being devoid of merit is hereby dismissed with no order as to costs.

 

(PRATIBHA RANI) JUDGE

MAY 14, 2012/„dc?

*****************************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.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

 

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