Tag Archives: Maintenance Denied

Educated #woman cannot be #Parasite !! #Famous #Delhi District court : Ms. Parveen Raza vs Syed Intekhab Ali

/////10. The appellant herself is a well educated lady having post graduation degree i.e. MA, B. Ed. and LL.B. and is reported to be more qualified than the respondent. She can earn herself on her own. She is not supposed to sit idle at home and be parasite on the earnings of respondent./////

Though this judgement is hailed in MANY quarters, please note that the husband has been asked to pay Rs 5000 p.m. with 10% enhancements in following years, so this is NOT a zero maintenance case

The key issues here are that (a) the wife sought Rs 25000 p.m. but failed and (b) the court dealt with the wife’s qualifications …so PLEASE USE THIS order with caution !!

 

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Delhi District Court

Ms. Parveen Raza vs Syed Intekhab Ali on 17 March, 2017

IN THE COURT OF SHRI RAJ KUMAR TRIPATHI

ADDL. SESSIONS JUDGE­02 : SOUTH EAST

SAKET COURT : NEW DELHI

IN RE: Criminal Appeal No.204410/16
ID No.DLSE01­004414­2016

Ms. Parveen Raza
W/o Syed Intekhab Ali
D/o Late Sh. M.Y. Salim Raza
R/o H.No.82, COT, GF,
Nizamuddin West,
New Delhi . . . . Appellant
Through : Shri Dalip Singh,
Advocate

versus

Syed Intekhab Ali
S/o Dr. Anwar Ali
R/o 915, Haveli Azam Khan,
Gali No. Mochiyan,
Delhi ­110006
. . . . . Respondent
Through : Shri A.H. Khan, Advocate


Date of Institution : 11.09.2015

Date when arguments were heard : 20.02.2017 & 14.03.2017

Date of Judgment : 17.03.2017

CA No.204410/16

 

JUDGMENT :

  1. 1. The present appeal filed by appellant under section 29 of The Protection of Women from Domestic Violence Act, 2005 (in short ‘The PWDV Act’) seeks to challenge order dated 27.03.2015 passed by learned Metropolitan Magistrate (in short MM), Mahila Court, South East District, Saket Courts, New Delhi in CC No.6/2/12 Police Station Hazrat Nizamuddin titled as “Parveen Raza Vs. Syed Intekhab Ali”.
  2. 2. Appellant had filed complaint under section 12, 18, 19 and 20 of The PWDV Act before the court of learned MM. Alongwith her complaint, she also filed an application for seeking interim relief for maintenance. The application of appellant was decided by learned MM vide order dated 10.06.08. Learned MM was pleased to direct the respondent to pay interim maintenance of Rs.5,000/­ per month of appellant from the date of filing of the petition. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  3. 3. Both the parties, feeling aggrieved by order of learned MM dated 10.06.08, challenged the same in appeal. The appeals preferred by both the parties was heard by learned Appellate Court and was disposed off vide common judgment dated 06.02.10. The appeal preferred by both the parties was dismissed being devoid of merit.
  4. 4. Thereafter, appellant filed an application before the court of learned MM for seeking enhancement / modification of order dated 10.06.08 in the maintenance amount. In her application, the appellant CA No.204410/16 Page 2 of 6 prayed to enhance the maintenance amount from Rs.5,000/­ to Rs.25,000/­. The application of appellant was decided by learned MM vide order dated 27.03.15. The amount of maintenance was enhanced by 10% every year pending from 2012 till the date of order.
  5. 5. Feeling aggrieved and dissatisfied by the impugned order dated 27.03.2015, the appellant has filed the present appeal.
  6. 6. On notice, respondent appeared through his counsel to contest the appeal. Respondent also filed detailed written reply to the appeal of appellant.
  7. 7. I have heard and considered the submissions advanced by Shri Dalip Singh, learned counsel for appellant and Shri A.H. Khan, learned counsel for respondent and carefully perused the material on record of the case.
  8. 8. Relevant portion of the impugned order is reproduced hereunder for ready reference and for better appreciation of the rival contentions of both the parties:­“Now the complainant has failed to file any document in support of this application to show an increase in the earning capacity of the respondent or an increase in her expenditure. Similarly, the respondent has also failed to place on record any document to show his present earnings. However, this court cannot be oblivious to the realities prevailing in the society and inflation is one such reality. Cost of living has indeed gone up since 2008 and the living standing which could be maintained with Rs.5,000/­ per month in 2008 cannot be maintained with the same amount four years later. Also it is to be kept in mind that unless any specific disability or peculiar circumstances exist, in the normal course of events, the earning capacity of an able bodied person would only increase with time (till of course he becomes physically weak or old). Therefore, an annual increase of 10% in the amount decided in 2008 is certainly warranted considering that the inflation rate varies between 6 to 11% in India as per government statics, which are anyways on the conservative side. Therefore, the application is allowed and the respondent is hereby directed to pay monthly maintenance to the complainant by enhancing it 10% for every year beginning from 2012 till today. It is clarified that only an increase of 10% is allowed per year. Say for instance in 2011 the JD paid Rs.5,000/­ so in 2012 he will pay Rs.5,000/­ + (10% of 5,000) = 5,500/­. Then in 2013 he will pay Rs.5,500/­ + (10% of 5,500) = 6,050/­ and then in 2014 he will pay Rs.6,655/­ and so forth.”
  9. 9. A bare reading of the above order shows that the appellant failed to file any document in the court of learned MM to show that there was an increase in the earning capacity of respondent or there was any increase in her expenditure. Learned MM took note of the practical realities prevailing in the society and taking note of the cost of living in the year 2008 and in the year 2012, was pleased to enhance the maintenance at reasonable rate payable to appellant. Learned MM has rightly observed in her order that inflation rate varies between 6 to 11% in India as per government statics. Therefore, the enhancement of maintenance @ 10% per year is fully justified. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  10. 10. The appellant herself is a well educated lady having post graduation degree i.e. MA, B. Ed. and LL.B. and is reported to be more qualified than the respondent. She can earn herself on her own. She is not supposed to sit idle at home and be parasite on the earnings of respondent.
  11. 11. For the reasons discussed above, I do not find any infirmity or patent illegality or perversity in the impugned order dated 27.03.15 passed by learned MM. The said order is based on sound reasoning. No ground for interference in the order of learned MM is made out. The appeal preferred by appellant lacks merit and same deserves to be dismissed. It is ordered accordingly.
  12. 12. A true copy of judgment along with TCR be sent back to learned trial court concerned. Appeal file be consigned to record room.

Announced in the open court today i.e 17.03.2017

(RAJ KUMAR TRIPATHI)

Addl. Sessions Judge­02
South­East, Saket Courts, New Delhi

source
https://indiankanoon.org/doc/97277940/


*****************************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
*******************************************************************************

 

When a PARAMOUR sought maintenance from his mistress & was denied by AP HC!

A paramour who lived-in with a woman when he was already legally married to another with three other children, tries to file a restitution (RCR – sec 9 HMA) on her !! She seems to have filed a 498a cocktail in response !!. The 498a is quashed because she is NOT the legally wedded wife of that guy. Then this Paramour goes on to file Sec 125 against that woman !!! (yes !) and the lower court seems to have admitted the case. So the wife goes for quashing the case

and the Hon AP HC appreciates the facts and orders “…….When the husband is not entitled to claim maintenance even from his legally wedded wife by pressing into service Section 125 Cr.P.C., the question of claiming maintenance by a paramour from a kept mistress or a husband from his second wife is unimaginable. Allowing a paramour to claim maintenance from his kept mistress or concubine under Section 125 Cr.PC., certainly would amount to making mockery of the provisions of Cr.P.C. If this type of petitions are allowed, the very purpose of Section 125 Cr.PC will be defeated or frustrated.

  1. From a perusal of the record, it is manifest that the first respondent instituted the proceedings against the petitioner with an ulterior motive to wreak vengeance against her. When the statute itself does not entitle a husband to claim maintenance, petition under Section 125 Cr.PC is not maintainable. ….”

Well.. court cases are stranger than fiction !!

================================================

Andhra High Court

Smt.Malleshwaramma, … vs G.S.Srinivasulu, … on 15 July, 2016

THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY

CRIMINAL PETITION No.6481 OF 2010

15-7-2016

Smt.Malleshwaramma, D/o.K.Venkataiah ..PETITIONER

G.S.Srinivasulu, S/o.Satyanarayana And another …RESPONDENTS

Counsel for Petitioner  :Sri C.M.R.Velu

Counsel for Respondent No.1:Ms.G.Sudha
Counsel for Respondent No.2:Public Prosecutor

HEAD NOTE:

? Cases referred
1.      AIR 1988 SC 644
2.      (2005) 3 SCC 636
3.      2006(2) ALD (Crl.) 493 (AP)
4.      (2014) 1 SCC 188
5.      Keynote address on Legal Education in Social Context delivered at National Law University, Jodhpur on October 12, 2005.
6.      III (2015) DMC 705 (MP)
7.      1982 CRI.L.J. 1022
8.      (2011) 12 SCC 189
9.      Mohabhai Ali Khan v Mohd. Ibrahim Khan, (1928-29) 56 IA 201: AIR 1929 PC 135
10.     (2002) 3 SCC 533
11.     1992 Supp (1) SCC 335
12.     (2009) 3 SCC 78
13.     (1976) 3 SCC 736
14.     (2007) 12 SCC 1

THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY

CRIMINAL PETITION No.6481 of 2010

ORDER:

  1. This petition is filed under Section 482 Cr.P.C., to quash the proceedings in M.C. No.7 of 2010 on the file of the Judicial Magistrate of First Class, Shadnagar.
  2. The facts leading to filing of the present criminal petition are as follows: The first respondent herein filed M.C. No.7 of 2010 claiming maintenance of Rs.8,000/- per month from the petitioner alleging that she is his legally wedded wife and the first respondent is unable to maintain himself due to ill health. It is the case of the first respondent that his marriage was solemnized with petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Immediately after the marriage, the petitioner joined with him to lead conjugal life and they were blessed with a daughter by name Srilatha. The petitioner left the matrimonial home of the first respondent along with her daughter at the instigation of her parents. Prior to the marriage, the first respondent helped the petitioner to prosecute her studies and get job in Health department. The first respondent filed O.P. No.72 of 2006 for restitution of conjugal rights on the file of the court of Senior Civil Judge, Mahabubnagar and the same was allowed on 14.11.2007. Basing on the complaint of the petitioner, the Station House Officer, Atchampet Police Station, Mahabubnagar District registered a case in Crime No.30 of 2007 for the offences under Section 498A, 506 and 509 IPC against the first respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  3. The contention of the learned counsel for the petitioner is three fold: (1) the petitioner is not the legally wedded wife of the first respondent; (2) a husband is not entitled to claim maintenance from his wife under Section 125 Cr.PC; and (3) the proceedings against the petitioner are nothing short of abuse of process of law; therefore it is a fit case to quash the proceedings by exercising inherent jurisdiction under Section 482 Cr.PC. Per contra, learned counsel for the first respondent submitted that under Section 125 Cr.P.C., first respondent is entitled to claim maintenance from the petitioner, who is his legally wedded wife. She further submitted that the order passed in O.P. No.72 of 2016 clinchingly establishes that the petitioner is legally wedded wife of the first respondent.

  4. To substantiate the argument, learned counsel for the petitioner has drawn my attention to the following decisions: (i) Smt.Yamunabai Anantrao Adhav v Anantral Shivaram Adhav , wherein the Honble Apex Court held as follows: 8. We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code. The appeal is accordingly dismissed. (ii) Savitaben Somabhai Bhatia v State of Gujarat , wherein the Honble Apex Court held as follows: 15. .. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the ‘Marriage Act’). : (iii) Buddepu Khogayya v Buddepu Kamalu , wherein this court held as follows: 7. Therefore, the averment itself clearly indicates that there is legally wedded wife to the first respondent by the date of marriage of the petitioner. Hence, she cannot be treated as wife as per the provisions of Section 125 Cr.PC and therefore, she is not entitled for any maintenance.

  5. The learned counsel for the first respondent, while submitting that strict proof of marital relationship is not necessary in proceedings under Section 125 Cr.P.C., relied upon the following decisions: (i) Badshah v Urmila Badshah Godse , wherein the Honble Apex Court held as follows: 13.3. While dealing with the application of a destitute wife or hapless children or parents under this provision (Section 125 Cr.PC), the Court is dealing with the marginalized sections of the society. The purpose is to achieve social justice which is the constitutional vision, enshrined in the Preamble of the Constitution of India.  4. Of late, in this very direction, it is emphasized that the courts have to adopt different approaches in social justice adjudication, which is also known as social context adjudication as mere adversarial approach may special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently: It is, therefore, respectfully submitted that social context judging is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication . (ii) Roshan Singh Nepali v Meena Nepali , wherein the Madhya Pradesh High Court observed as follows: 4. In a proceeding under Section 125 of the Code, the Court is expected to pass appropriate order after being prima facie satisfied about the relation status of the parties. (iii) Aijaz Ahmad Lalri v Smt.Shahjehan Begum , wherein Allahabad High Court held as follows: The proceedings under Section 125, Cr.PC may be akin to civil proceedings, but one important distinction between the two cannot be overlooked, namely, the object behind the enactment of maintenance provisions in the Cr.PC. The crux of the matter always is whether the party claiming maintenance has the means or not. The law of pleading in civil cases may be more strict, but it may not be so when the matter of public policy and its objective are involved. Apart from that, the powers under Section 482 Cr.PC are exercised to secure the ends of justice and to prevent abuse of the process of any law and when the clear finding of fact is that the opposite parties have no means to maintain themselves, the Court will not exercise any such inherent powers in favour of the applicant on account of any defect in pleadings. (iv) Pyla Mutyalamma v Pyla Suri Demudu , wherein the Honble Apex Court held at Para No.1 as follows: Under the law, a second wife whose marriage is void on account of survival of the previous marriage of her husband with a living wife is not a legally wedded wife and she is, therefore, not entitled to maintenance under Section 125 Cr.PC for the sole reason that law leans in favour of legitimacy and frowns upon bastardy . But, the law also presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long number of years and when the man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.

  6. From the above case law the following principles can be deduced. (1) If a man and woman lived together for such a long time as wife and husband, the wife is entitled to claim maintenance under Section 125 Cr.P.C., notwithstanding establishment of marriage as per the provisions of the Hindu Marriage Act; (2) A man who marries second time by concealing the subsistence of his valid marriage with another woman cannot escape from payment of maintenance to the second wife under Section 125 Cr.PC; 3) A woman who marries a man knowing fully well about subsistence of his valid marriage with another woman is not entitled to claim maintenance under Section 125 Cr.PC. (4) While dealing with the petitions filed under Section 125 Cr.PC prima facie proof of relationship is sufficient to award maintenance.

  7. Let me consider the facts of the case on hand in the light of the above legal principles. Establishment of prima facie relationship of wife and husband is sine qua non to file petition under Section 125 Cr.PC. If the parties to the proceedings under Section 125 Cr.P.C., are Hindus, the claimant has to establish that the marriage with the first respondent is legally valid and their marriage is not hit by Sub-section (1) of Section 5 of the Hindu Marriage Act.

  8. The crucial question that falls for consideration is whether the first respondent is entitled to claim maintenance from the petitioner by filing petition under Section 125 Cr.P.C or not. As per the averments made in the petition (M.C.), the marriage of the first respondent was performed with the petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Basing on the petition averments, one can safely come to a conclusion that the petitioner is the only legally wedded wife of the first respondent. The first respondent filed O.P. No.72 of 2006 on the file of the court of Senior Civil Judge, Mahabubnagar against the petitioner under Section 9 of the Hindu Marriage Act for restitution of conjugal rites and the same was allowed on 14.11.2007. The first respondent is placing much reliance on the order in the O.P. to establish that the petitioner is his legally wedded wife. It is not in dispute that the petitioner did not contest the O.P.; therefore, the court passed the ex parte order. Basing on the complaint lodged by the petitioner, the Station House Officer, Atchampet Police Station registered a case in Crime No.30 of 2007 against the first respondent for the offences under Sections 498A, 506 and 509 IPC. The first respondent obtained anticipatory bail in Crl.P. No.6818 of 2007 on 18.11.2007. For better appreciation of the rival contentions, it is not out of place to extract paragraph No.2 of Crl.P.No.6818 of 2007. 2. As per the said report, the petitioner herein was married and was having three children. He developed contact with her in the year 1994 when she was working at Government Civil Hospital, Perur. They together lived for 10 years at Shadnagar, Mahaboobnagar District and they were blessed with a daughter aged 11 years. It is said that suspecting her character and making wild allegations, he used to abuse her and threaten her saying that he will kill her and her daughter. He also used to abuse on Telephone the staff working in the hospital.

  9. A reading of the above paragraph clearly shows that the first respondent has taken a specific stand that he developed intimacy with the petitioner in the year 1994. If the contents of this criminal petition are taken into consideration, the first respondent did not marry the petitioner. The first respondent also filed Crl.P.No.2745 of 2007 seeking to quash the criminal proceedings against him in Crime No.30 of 2007 on the file of the Station House Officer, Atchampet Police Station. This court, vide order dated 20.7.2007, allowed the criminal petition and quashed the criminal proceedings against the first respondent in Crime No.30 of 2007 for the offence under Section 498A IPC. The relevant observations in the order read as follows: Even if the entire allegations in the complaint are taken as true and correct, they do not go to show that the de facto complainant is the legally wedded wife of the petitioner. At best, it would go to show that the de facto complainant was kept mistress. It is also stated that the petitioner was having wife and three children. The petitioner was harassing her after making her as his second wife. He was suspecting the conduct of the de facto complainant and was abusing her in vulgar language and he also threatened to kill her and her child. Therefore, the allegations do not show prima facie case of the offences under Sections 506 and 509 IPC. Hence, question of quashing the proceedings does not arise. Prima facie Section 498A IPC has no application. Hence, the proceedings are liable to be quashed.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  10. This court made an observation that the petitioner is only kept mistress of the first respondent basing on the stand taken by the first respondent in Crl.P. No.2745 of 2007.

  11. Before filing M.C. No.7 of 2010, the first respondent has taken specific stand that he developed intimacy with petitioner in the year 1994 which resulted in the birth of Srilatha. The fact remains that the petitioner was having legally wedded wife before developing contacts with petitioner in 1994. Even as per the case of the first respondent, he was blessed with three children through his first wife. In order to constitute a valid marriage, neither of the partiesif they are Hindusshall have a spouse living at the time of marriage in view of Sub-section (1) of Section 5 of the Hindu Marriage Act.

  12. Having regard to the facts and circumstances of the case and also the principles enunciated in the decisions cited supra, I am unable to accede to the contention of the learned counsel for the first respondent that the petitioner is the legally wedded wife of the first respondent.

  13. Even assuming, but not admitting, that the first respondent is husband of the petitioner, the point to be determined in this case is, whether a husband is entitled to claim maintenance from wife by filing petition under Section 125 Cr.PC. It is not out of place to extract hereunder the relevant portion of Section 125 Cr.PC.

  14. Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

  15. The object of Section 125 Cr.PC is to wipe off the tears of destitute wife, hapless legitimate or illegitimate children and parents. The Parliament in its wisdom incorporated Section 125 Cr.PC to achieve the above social object. There is a social and legal obligation on the part of a man to look after the welfare of his wife, legitimate and illegitimate minor children and parents. There is no ambiguity in the language employed in Section 125 Cr.PC.

  16. It is a cardinal principle of interpretation of statutes that the court shall not substitute or omit any of the words used in the statute unless there is ambiguity in it. The court has to interpret the words used in a statute in the context and the purpose for which it is used. In interpreting a statutory provision, the first and foremost rule of interpretation is the literal construction. All that the Court has to see, at the very outset, is what the provision says. If the provision is unambiguous and if, from the provision, the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intent is not clear.

  17. In Padma Sundara Rao v State of T.N. , the Honble Apex Court in paragraph No.12 (relevant portion) observed as follows: It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.

  18. It appears, the Parliament, in its wisdom, intentionally not included the words husband or spouse after the words his wife and preceding the words unable to maintain in clause (a) of Sub- section (1) of Section 125 Cr.PC; therefore, a husband is not entitled to file application under Section 125 Cr.PC claiming maintenance from the wife. My view is supported by Section 24 of HM Act, which reads as follows: 24 Maintenance pendente lite and expenses of proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the first respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the first respondent, it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

  19. A perusal of Section 24 of H.M. Act makes it clear that not only the wife but also the husband is entitled to claim maintenance on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood.

  20. After reading Section 24 of H.M. Act and Section 125 Cr.P.C., the court can safely arrive at a conclusion that under Section 125 Cr.P.C., husband is not entitled to claim maintenance from his wife. When the husband is not entitled to claim maintenance even from his legally wedded wife by pressing into service Section 125 Cr.P.C., the question of claiming maintenance by a paramour from a kept mistress or a husband from his second wife is unimaginable. Allowing a paramour to claim maintenance from his kept mistress or concubine under Section 125 Cr.PC., certainly would amount to making mockery of the provisions of Cr.P.C. If this type of petitions are allowed, the very purpose of Section 125 Cr.PC will be defeated or frustrated.

  21. From a perusal of the record, it is manifest that the first respondent instituted the proceedings against the petitioner with an ulterior motive to wreak vengeance against her. When the statute itself does not entitle a husband to claim maintenance, petition under Section 125 Cr.PC is not maintainable. (i) In State of Haryana v. Bhajan Lal , the Honble Supreme Court held at clause (7) of paragraph No.102 as follows: (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (ii) In V.Y. Jose v. State of Gujarat , the Honble Supreme Court held at paragraph No.23 as follows: 23. Section 482 of the Code of Criminal Procedure saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him. (iii) In State of Karnataka v L.Muniswamy , the Supreme Court observed that the wholesome power under Section 482 Cr.P.C., entitles the High Court to quash proceedings when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. (iv) A three-Judge Bench of the Supreme Court in Inder Mohan Goswami v State of Uttaranchal , after examining the scope and ambit of Section 482 of the Criminal Procedure Code, observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be fully justified in preventing injustice by invoking the inherent powers of the Court.

  22. Having regard to the facts and circumstances of the case and also the principles enunciated in the cases cited supra, I am of the considered view that continuation of the proceedings against the petitioner would certainly amount to abuse of process of law. Therefore, it is a fit case to quash the proceedings against the petitioner in order to secure ends of justice. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  23. In the result, the criminal petition is allowed, quashing the proceedings in M.C.No.7 of 2010 on the file of the Judicial Magistrate of First Class, Shadnagar. Miscellaneous petitions, if any pending in this criminal petition, shall stand closed.

T.SUNIL CHOWDARY, J

July 15, 2016.


*****************************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
*******************************************************************************

 

NO interim maintenance 2 qualified (doctor &498a) wife even IF husband can’t prove her earnings! P&H HC

Punjab and Haryana HC denies Interim maintenance to a well qualified doctor wife who files 498a and CrPC 125 cocktail !! Court categorically asserts that “…Everyone has to earn for himself or herself or at least make an effort and would not sit idle…..”

A classic case where a doctor wife is first refused maintenance by the Magistrate court, then on revision before the sessions court she is granted Rs 10000 p.m. and the P & H HC rightfully orders that she IS NOT ELIGIBLE for maintenance as she is a well qualified Physiotherapist doctor !!

The Hon HC orders and we quote “….The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside……”

======================================

In the High Court of Punjab and Haryana at Chandigarh

Criminal Revision No. 2625 of 2014 (O&M)

Date of Decision: 29.09.2016

Monu Songra ….Petitioner

Versus

Pinki ….Respondent

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. Ashish Gupta, Advocate for the petitioner.

Mr. P.K.Ganga, Advocate for the respondent.


ANITA CHAUDHRY, J (ORAL)

The petitioner has assailed the order dated 13.6.2014 passed by the Additional Sessions Judge, Sirsa who allowed interim maintenance of Rs. 10,000/- per month to the wife reversing the order of the Magistrate who had dismissed the application filed under Section 125 Cr.P.C.

The parties were married on 27.11.2010. The husband is a Constable in Rajasthan. There is no child from this marriage. The wife had claimed that she had conceived but it resulted in miscarriage on 1.3.2011. Allegations were made that there were demands of dowry and she was not treated well. She claimed that she was thrown out of the matrimonial home. The petition under Section 125 Cr.P.C. was filed in February 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The Chief Judicial Magistrate vide its order dated 3.10.2013 dismissed the application and the reasons are disclosed in para 8 of the order which reads as under:- “After hearing ld. Counsel for the parties and having gone through record carefully I am of the considered opinion that the application is liable to be dismissed. It is admitted case of the parties that they married to each other. It is also admitted case of the parties that they got strained relations between them. It is also admitted fact that no child was born out this wedlock. It is also admitted fact that criminal case u/s 498-A IPC has been registered against the respondent at the instance of the complainant. It is also admitted case that the petitioner filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 which was dismissed as withdrawn. No doubt there are counter allegations against each other and both the parties are trying to make the other party responsible for disturbing the matrimonial life. But in this application, only one this is to be examined as to whether the petitioner is unable to maintain herself or whether he or she is having any sufficient means of income. The copy of FIR mentioned above clearly shows that the petitioner has categorically stated therein that she is physiotherapist doctor meaning thereby that she is well educated and respondent has categorically stated that she is earning 25,000/- per month. Even this amount may be exaggerated however it can be easily inferred that she might have been earning sufficient income maintain herself.”

Aggrieved by the judgment, a revision was preferred by the wife. The Additional Sessions Judge, Sirsa vide its order dated 13.6.2014 was of the view that even if the wife had a professional degree it would not matter and she would have to gain sufficient experience to earn and there was no allegation that she was working as a doctor in an institute or had opened her own clinic. It allowed the revision and awarded Rs. 10,000/- per month as maintenance.

The petitioner claims that the wife did not want to live with him and she had filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights but later the petition was withdrawn as he had appeared and made a statement that he was willing to keep her at his place of posting but the wife refused to accompany him. It was pleaded that the wife had got an FIR registered against him. It was also pleaded that the petitioner had concealed that she was a Physiotherapist before her marriage and was working and she did not mention this fact in her petition and it was a case of concealment. It was pleaded that his basic salary was Rs. 8550/- per month and after deduction, the carry home salary was 15065/- and the Court below had allowed Rs. 10,000/- taking the major portion of his salary, when he had his old parents to look after.

I have heard submissions of both the sides.

Counsel for the petitioner has placed on record a copy of the judgment dated 30.4.2016 to show that the trial had ended in acquittal. He has placed on record a copy of the FIR where the wife had described herself as a physiotherapist (doctor).

The submission on behalf of the petitioner was that the wife had deserted the husband and she did not want to go and live in Rajasthan and she herself withdrew the petition and it was a case of concealment of fact. It was urged that the wife had done her diploma in Physiotherapy after her 12th class and thereafter had completed her Graduation sometime in 3 of 5 2007 and the marriage took place in 2010 and the wife was working even before marriage and the Revisional Court assumed that it would take a number of years for her to settle in her profession. It was urged that the Court did not consider the fact that there was an admission that she was a Physiotherapist and this information was given by her at the time of lodging of the FIR in September 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The submission, on the other hand, was that the respondent was not earning and the husband is under a duty to provide for the wife.

The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside.

Before parting with the order, it is necessary to mention that the petition filed in 2013 has still not been decided. The litigation can really corrode human relationship and it is the duty of the Court to curtail it. There is no need to hurry but procrastination should not be manifest. The Courts should be in complete control over the proceedings and should not permit the lis to be prolonged and if either party is delaying the proceedings, necessary steps should be taken.

The petition is allowed. Order dated 13.6.2014 passed by the Additional Sessions Judge, is set aside.

Nothing contained in this order shall be taken as an opinion on merits. The trial Court would independently decide the case on the basis of the evidence that shall be adduced by the parties.

(ANITA CHAUDHRY)
JUDGE

September 29, 2016

Gurpreet


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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


Get a job, don’t rely on ex-husband: Court to woman seeking alimony

Hindustan Times, New Delhi

Updated: Mar 23, 2016 09:18 IST

The court asked the woman seeking maintenance after her divorce to start sincere efforts to look for a job, instead of relying on the alimony. (File photo)

A city court asked a woman to look for a job, saying she was qualified and capable and should not put financial burden on her estranged husband, a decision that could spur a debate on India’s alimony system. The man agreed to help her find employment and pay maintenance for a year.

 

The court’s observation came on an appeal filed by the man against paying Rs 12,000 a month to support his wife.

“The respondent (woman) admitted being more qualified than the appellant (man). She admitted to being able-bodied and having capacity to earn. As such, she cannot be allowed to sit idle at home to put financial burden on the appellant,” said district judge Rekha Rani. “Let her make sincere endeavour to find work.”

Under the Indian legal system, a separation or divorce entitles a woman to maintenance from her spouse, in the form of financial support.

“If the woman needs assistance of the appellant in finding a job, she may communicate with him (the estranged husband) by sending SMS on mobile/email,” the court said.

The woman had argued that, though she was better qualified, she married young and never held a job or even travelled alone.

However, the man said his estranged wife was not entitled to monetary relief as she was more qualified than him. His appeal pointed out that she was an MSc gold medallist. He alleged she had not applied for a job anywhere and wanted to sit idle and remain a financial burden on him.

On the woman’s submission that she had never travelled alone and wanted the man to go with her on job searches, the court said “the submission is neither palatable nor digestible”.

“Both are coming to the court separately. If she can come to the court to fight litigation alone, she can go alone to search for a job as well,” the judge observed.

The man told the court he was willing to accompany her and assist her in whatever way she needed to find work.

“The man has agreed to pay her maintenance of Rs 12,000 per month for one year and during this period, she should make sincere efforts and start working,” the judge said

 

source :

http://www.hindustantimes.com/india/get-a-job-don-t-rely-on-maintenance-court-tells-woman-seeking-alimony/story-IiQmAwxSEDuxPp6wvPr5lK.html?utm_source=facebook&utm_medium=fbpost&utm_campaign=legal

 

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