The sad bondage that Matrimony has become…
Husband goes to jail unable to pay 15,000 per month. Wife tries to increase that to 50,000 per month !! The order indicates that the husband just had 3000 or something in his whole bank account as balance
- wife files DV case and seeks interim maintenance
- from the records we see that wife is not been able to provide any proof of husband’s income
- still the trial court awards Rs. 15,000 per month as maintenance
- wife goes on appeal trying to increase it to 50,000 per month !!!
- She claims husband is earning 2 1/2 Lakhs per month !!
- The appellate court, during the course of arguments and judgement, appreciates that the husband is already incarcerated because he’s not able to pay EVEN 15,000 that is awarded…
- The appellate court seriously doubts there exaggerated claims of the wife that the husband is earning rs. 2 1/2 lakhs per month !! The court openly states that Humani 2 1/2 lakhs per month would sit in jail for NON payment of 15,000 per month !!
- still the “affirms the lower court judgement of 15,000 per month !!
- God knows what happens to such men 😦 😦
- are they destined to more jail?? Or do we have two pay money to lawyers after lawyers to keep appealing court after court
IN THE COURT OF SH. SANJEEV AGGARWAL
SPECIAL JUDGE: CBI03 (PC ACT): DELHI
P.S: Timar Pur
Smt.Naima Vs Sh.Imran & Ors.
D/o Sh.Abdul Aziz
R/o H.No.292, Gali no.9,
Jagatpuri, Delhi …… Appellant
- Sh.Imran, S/o Sh.Mushraf
- Smt.Shakila, W/o Sh.Mushraf
- Ms.Rani, D/o Sh.Mushraf
All Resident of:
Gali no.1, BlockC,
Chand Bagh, Bhajanpura
Delhi110053. …… Respondents
O R D E R:
- Vide this order, I shall dispose off the present criminal appeal filed by the appellant against the impugned order dated 17.04.15 passed in Criminal Complaint Case No.130/1/14 titled Smt. Naima Vs Sh.Imran & ors. (the parties hereinafter will be referred to by their respective status before the Ld.Trial Court).
- Brief facts are that the appellant, who was the complainant before the Ld.Trial Court, had filed an interim maintenance application u/S 20 r/w Sec.23 of Domestic Violence Act (hereinafter referred to as DV Act) before Ld.Trial Court. Vide detailed order dated 17.04.15 on the said application, the Ld.Trial Court directed the respondent no.1, who is the husband of the appellant/complainant to pay a composite sum of Rs.15,000/ per month as interim maintenance to the complainant and the child. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
- It is the said order the complainant has challenged by way of present criminal appeal on various grounds that the said order has been passed without proper appreciation of the material before Ld. Trial Court by ignoring the fact that respondent no.1 has a business of saree/clothes and is running his business from a shop in Nai Sarak, Delhi, wherefrom he is earning Rs.2 Lakhs per month. Respondent no.1 had also income from rent, FDRs and bank deposits and thus his earning was around Rs.2,50,000/ per month. Therefore, keeping in view the income of respondent no.1, Ld. Trial Court ought to have awarded a sum of Rs.50,000/ per month to the appellant and her minor son.
- It is also stated that sum of Rs.15,000/ per month awarded by the Ld.Trial Court is on the lower side, as the complainant has got a school going child and the said maintenance is highly insufficient. It is also stated that respondent no.1 has intentionally concealed his income as well as the factum of his business being run by him. Therefore, it is stated that the said amount of Rs.15,000/ per month is very meager and it has to be enhanced to Rs.50,000/ in the facts and circumstances of the present case, as otherwise the complainant will not be able to meet her own personal expenses as well as the expenses of her minor child, as she is a housewife and she has no other source(s) of income. Therefore, it is stated that the said order dated 17.04.2015 be varied / modified / set aside.
- I have heard Ld.counsel for the complainant/appellant Sh.S.Sachar and Ld.counsel for respondent no.1 Ms.Ranny and perused the record. Other respondents appear to be performa respondents in this case.
- Ld.MM vide detailed order dated 17.04.2015 observed in the operative Para 8, which is reproduced as under: ” 8. The respondent No.1 has not given any conclusive reply. All these facts clearly suggest that he is not truthful in disclosing his income. It further be observed that respondent No.1 is residing in one of the portions of the house owned by the family. He has not mentioned if he has any other liability except to maintain his wife and children. Though, he has made claims of paying educational and household expenses but he has not filed any proof to prove the same. He has also not filed his salary slip to show that he earns only Rs. 10,000/ per month. In the given facts and circumstances, the court is left with no other option but to draw an adverse inference against respondent No.1 and to assess his income as per declaration made in the income affidavit. It be also observed that the complainant has also not filed any document to prove that total monthly income of respondent is Rs.2,50,000/ from all sources. In the absence of any cogent evidence and on the basis of material placed on record, respondent no.1 is directed to pay a composite sum of Rs.15,000/ per month (Rupees Fifteen Thousand only) per month as interim maintenance to the complainant and child from the date of filing of the present petition till its disposal. Payment shall be made or be deposited in bank account of petitioner by 10th of every month. Maintenance awarded in any other proceedings shall be liable to adjustment.”
- As observed in above para by Ld.MM that respondent no. 1 has not given any conclusive reply and it was also observed that he was not truthfully disclosing his income and he was residing in one of the portion of the house owned by the family and he has no other liability except to maintain his wife and child. In the affidavit filed by respondent no.1 it was stated that he was working in the shop of his father and was earning Rs. 10,000/ per month, but no salary slip was filed by respondent no.1 in support of his contention. The list of other assets filed by respondent no.1 discloses that he was only having a savings bank account with SBI, Chandni Chowk, Delhi, wherein he was having only balance of Rs.3,025/ and he was having one mobile phone and was incurring Rs.300/ per month on said mobile phone and he was also not having any immovable property in his name and he was having basic furniture and fixtures and domestic appliances such as TV, fridge, AC, th Kitchen utensils etc. It was also stated that he was only 8 class pass without any professional qualification.
- Though, it has been observed by Ld.Trial Court that respondent no.1 had not truthfully revealed his income before the Court and he was concealing his income, but at the same time complainant has not filed any document on the record showing that respondent no.1 was earning Rs.2.5 Lakhs per month. Therefore, Ld.Trial Court had indulged into some sort of guess work to assess the income of respondent no.1 and had directed the interim maintenance of Rs.15,000/ per month to the complainant and her minor child. Though, the Trial Court has not given any indication or yardstick on what basis it has fixed the said maintenance at the rate of Rs.15,000/ per month, but at the same time, it has been held in the judgment Neelam Malhotra Vs Rajinder Malhotra AIR 1994 (Delhi) 234 as under: ” there can be no precise or settled formula to assess the quantum of interim maintenance. Each case depends upon its own facts. There is no doubt that where a person is self employed, he/she tends to disclose incorrect income in the income tax return filed by him/her. There is no mathematical formula to precisely calculate any accurate amount to be given during the pendency of the interim maintenance proceedings. While considering the question of grant of maintenance pendente lite, the legislature gives wide and flexible power to the Court to decide about the maintenance pendente lite considering the income and other factors like status of living and day to day expenses of the parties.”
- In view of the said judgment, it appears that Ld.Trial Court had granted interim maintenance of Rs.15,000/ per month to the complainant considering the status of the parties and day to day expenses of the complainant and her minor child. Since the complainant could not produce any document on the record to the contrary in support of her contention that the income of respondent no.1 from all sources was Rs.2.5 Lakhs per month. In any case, it is hard to imagine that in case respondent no.1 would have such a huge amount of income, as contended by the complainant, then it would be difficult to hide the same and the same would be visible in his life style.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
- During the hearing of present case, respondent no.1 was produced from judicial custody, as it was contended by the Ld.counsel for respondent no.1 that he had gone into judicial custody, as he was unable to pay the interim maintenance of Rs.15,000/ per month as ordered by the ld. Trial Court and in default of payment of interim maintenance to the complainant and her child, he had suffered incarceration. Even otherwise, it is hard to imagine that a person would go to jail for not giving interim maintenance, if he was having huge amount of Rs.2.5 Lakhs per month as income, as contended by Ld.counsel for the complainant. Though, no yardstick has been given by Ld. Trial Court in fixing the maintenance of Rs.15,000/ per month vide impugned order dated 17.04.15, but considering the status of the parties before this Court and overall facts and circumstances of the case, the said amount appears to be just and reasonable in the facts and circumstances of the present case. Therefore, no ground for interference is made out in the impugned order dated 17.04.15 passed by Ld.Trial Court, which has been rightly passed. Present criminal appeal has no merits, same stands dismissed.
TCR be sent back with a copy of this order. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 06.06.2016
CBI03 (PC Act)
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting