IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE 02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Appeal No.204486/16
S/o Shri J.P. Aggarwal
R/o C562, New Friends Colony,
New Delhi 110065 . . . . Appellant
Through : Ms. Malvika Rajkotia, Advocate
W/o Shri Sandeep Aggarwal
D/o Shri Jagmohan Jindal
R/o 8, Sunder Nagar,
New Delhi 110003
Presently at :
Noida201301 . . . . . Respondent
Through : Shri Ambar Qamaruddin, Advocate
Date of Institution : 13.08.2015
Date when arguments were heard : 15.12.2016
Date of Judgment : 28.01.2017
AND IN RE:
Criminal Appeal No.204399/16 ID No.DLSE010021782015
Viniti Aggarwal W/o Shri Sandeep Aggarwal
D/o Shri Jagmohan Jindal R/o 8, Sunder Nagar, New Delhi 110003
Presently at :A71, Sector56, Noida201301 . . . . . Appellant
Through : Shri Ambar Qamaruddin, Advocate
Sandeep Aggarwal S/o Shri J.P. Aggarwal
R/o C562, New Friends Colony, New Delhi 110065 . . . . Respondent
Through : Ms. Malvika Rajkotia, Advocate
Date of Institution : 22.09.2015
Date when arguments were heard : 15.12.2016
Date of Judgment : 28.01.2017
1. Challenge in the present cross appeals filed by both the parties is to the common order dated 18.06.2015 passed by learned Metropolitan Magistrate (in short “MM”), Mahila Court, SouthEast District, Saket Courts, New Delhi in CC No.456/3/12 titled as Viniti Aggarwal Vs. Sandeep Aggarwal. Both the parties are aggrieved by the order dated 18.06.2015 whereby appellant Sandeep Aggarwal was directed to pay interim maintenance of Rs.90,000/ per month to respondent Viniti Aggarwal. He was further directed to pay a sum of Rs.50,000/ per month towards the maintenance of her minor son which includes school expenses.
2. Respondent Viniti Aggarwal had filed an application under section 12 read with sections 18, 19, 20, 21 and 22 of The Protection of Women from Domestic Violence Act, 2005 (in short ‘The DV Act’) against appellant Sandeep Aggarwal and Others. Alongwith the application, she also filed an application under section 23 of The DV Act, wherein she prayed for grant of interim relief.
3. Appellant Sandeep Aggarwal, on receipt of notice of application, appeared before the court of learned MM and contested the application of respondent by way of filing written statement.
4. Vide order dated 18.06.15, learned MM was pleased to decide the application of respondent under section 23 of The DV Act.
5. Both the parties, feeling aggrieved and dissatisfied by the impugned order dated 18.06.2015 of learned MM have preferred the above mentioned appeals before this court.
6. Respondent Viniti Aggarwal filed a formal reply to the appeal of appellant Sandeep Aggarwal. However, Sandeep Aggarwal did not file any reply to the appeal of Viniti Aggarwal.
7. I have heard the submissions advanced by Ms. Malvika Rajkotia, learned counsel for appellant Sandeep Aggarwal and Shri Ambar Qamaruddin, learned counsel for respondent Viniti Aggarwal.
8. It was submitted by learned counsel for appellant that learned MM has not given any finding as to what is the income of appellant, while passing order on maintenance. She further argued that it is only after giving a finding on the income of the husband, the court can quantify the maintenance to be granted to wife and children. It was further submitted that learned MM ignored the judgment of Kusum Sharma passed on 14.01.15 which mandated the trial courts to call for financial affidavits as per the format laid down in the judgment. Learned counsel further argued that while granting maintenance, the present financial status of the parties is to be ascertained and not the past financial status. It was further submitted that respondent Viniti Aggarwal is employed and presently running her own play school at A7, Sector56, Noida which fact was disclosed in affidavit dated 30.05.16 but the same was ignored by learned MM. It was further submitted that the appellant was paying 4 minor son’s school fees to the tune of Rs.23,000/ per month without fail and presently, the minor son is in the care and custody of appellant, therefore, respondent Viniti Aggarwal is not eligible to maintenance qua the minor child. In support of her submissions, learned counsel relied upon judgment titled as Smt. Mamta Jaiswal Vs. Rajesh Jaiswal, 2000 (3) MPLJ 100 and Damanreet Kaur Vs. Indermeet Juneja & Another, Crl. Revision No.344/11 decided by Hon’ble High Court of Delhi on 14.05.12. Lastly, it was submitted that respondent Viniti Aggarwal is a well qualified and employed woman and given the present financial condition of the appellant, she is not entitled to maintenance.
9. Per contra, it was submitted by learned counsel for respondent Viniti Aggarwal that maintenance granted in the impugned order is not sufficient and requires enhancement. He submitted that the present case is a classic case of wealthy son of wealthy parents becoming extremely poor when he is to pay maintenance after a matrimonial dispute. He relied upon judgments titled as Puneet Kaur Vs. Inderjeet Singh Sawhney, (2012) ILR I Delhi 73, Vikas Ahluwalia Vs. Simran Ahluwalia, 206 (2014) DLT 709 and Ridhima Juneja Vs. Deven Juneja & Ors., 2013 (1) Crimes 263. He argued that the crucial part is the standard of living, the wife was given when together with husband and secondly, the status of 5 matrimonial home and husband’s family. He submitted that the documents referred by learned trial court in the impugned order would prima facie show that huge amounts were being spent by the wife and as she had no source of income, the presumption is supported that the same was being provided by the husband. He submitted that despite repeated directions passed by learned MM and opportunity given to appellant Sandeep Aggarwal, he did not furnish the complete information. It was further submitted that respondent Viniti Aggarwal had no income and whatever she earned was categorically stated in the statement dated 26.05.15. He submitted that learned MM misconstrued that running and current income of respondent was Rs.30,000/ per month.
10. I have considered the rival submissions of both the parties and carefully perused the entire material on record.
11. The DV Act is a beneficial legislation. Same was enacted to protect women against violence of any kind specially that occurring within the family. The expression “domestic violence” includes actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. The approach of the court should always be to uphold the legislative intention and give the Act a liberal interpretation than confining it which may defeat the object of law. The maintenance awarded under The DV Act has to be reasonable and fair. It is the social and legal obligation of the husband to make 6 arrangement for the maintenance of the wife and children, who are unable to maintain themselves with their own source of income. It is well settled that so much maintenance should be given to a lady that she can live in the manner more or less to which she was accustomed.
12. Maintenance varies according to the position and status of a person. Maintenance does not only mean food and clothing. The purpose of providing maintenance is to secure to a wife claiming maintenance, as far as possible, the status and facilities enjoyed by her prior to her separation from her husband when maintenance claim is determined. The determination of maintenance is not governed by any rigid or inflexible rule. It gives wide discretion to the court to do justice. Amount of maintenance fixed for the wife has to be such that she can live in reasonable comfort considering her status and mode of life, she was used to when she lived with her husband and also that she does not feel handicapped in prosecution of her case. In view of law laid down in the case titled as Smt. Jasbir Kaur Sehgal Vs. The District Judge, Dehradun and Other, AIR 1997 SC 3397, while assessing the income of husband, court can do some sort of guess work at the stage when parties have yet to lead evidence.
13. Admittedly, appellant Sandeep Aggarwal got married with respondent Viniti Aggarwal on 02.12.1999. Out of their wedlock, a male child was born on 09.06.2003. Factum of marriage between the parties and paternity of one school child is not disputed in the case. Respondent Viniti Aggarwal alleged that appellant Sandeep Aggarwal is a chronic alcoholic and he regularly showered verbal abuses to her and caused emotional violence upon her when he was in inebriated condition. Appellant is further alleged to have caused severe physical violence to respondent since the inception of their married life. The factum of causing domestic violence was denied by the appellant. Learned MM has rightly observed in her order that veracity of the allegations and counter allegations cannot be determined at the stage of awarding interim maintenance to wife. She has further observed that maintenance of wife and minor child cannot be postponed till evidence is led by the parties and all the allegations are proved. Prima facie, there is sufficient material on record to show that respondent Viniti Aggarwal was a victim of domestic violence at the hands of her husband and therefore, she is entitled for grant of interim relief under The DV Act.
14. As per appellant Sandeep Aggarwal, he was the Managing Director in M/s Reckon Pharmachem Pvt. Ltd. and was drawing a salary of Rs.80,000/ per month as is clear from income tax returns filed by him. It was submitted by learned counsel for appellant that the income of appellant, arrived upon by the learned trial court, is a result of mere guess work and without any substantiated proof. She 8 further argued that the qualifications of appellant and old photographs cannot be taken into consideration while judging his present day financial status which has deteriorated substantially in the past few years. She further submitted that appellant though came from a financially well off background but his present financial status is very different and therefore, his income tax returns and other papers filed by him should be taken as the basis for determining his income.
15. Per contra, it was submitted by learned counsel for respondent that appellant did not disclose the correct financial condition of the companies run by him in order to suppress the cash flow. He further submitted that the appellant made material concealments while declaring his financial status and represented himself as a poor person of a rich business family. He further argued that appellant used to spend lavishly and while the respondent was living in her matrimonial home, they visited many foreign countries and mostly stayed at luxurious high end hotels.
16. I have considered the rival submissions of both the parties and perused the material on record.
17. Learned MM in para no. 18 of the order has correctly observed that “It is now settled law that in determining the actual earnings of the parties, the court can do a reasonable guess work after considering the entire material on record. At times, for self employed 9 persons truthful income has to be dug out from the material on record. Therefore, this court will not confine itself only to the ITR filed by the parties and a general view considering the entire factual matrix will have to be taken.”
18. Pursuant to the directions passed by learned MM, the parties filed documents regarding their income and liabilities in the court. The respondent Viniti Aggarwal at the time of filing of the application was reportedly working as a teacher in a private school drawing a salary of Rs.27,000/. On the other hand, appellant admitted that he was only paid a salary of Rs.80,000/ per month being Director in Reckon Pharmachem Pvt. Ltd.
19. Appellant / husband Sandeeep Aggarwal is admittedly holding a B. Tech degree. He has also pursued an advance course in business management from Philadelphia, U.S.A. As per his own admission, he has visited around thirteen countries of the world and holds an international driving licence. He has further admitted that monthly fee of his son, who studies in class IIIrd, is around Rs.15,000/ per month. He further admitted in his affidavit dated 27.02.2013 that he stood as a personal guarantor for loans of a company to the tune of Rs.6.5 Crores. He is further reported to have held the shareholdings in six companies as mentioned at page 9 of the impugned order. Statement of appellant was recorded before the court of learned MM on 26.05.2015 in which he admitted that valuable cars like Audi A6, 10 BMW and Ford Fiesta were purchased in the name of the company of which he and his immediate family members were directors.
20. Bank account statements of appellant reveal that there are huge deposits and withdrawals in his personal account routinely since last at least three years. The credit card statements of appellant Sandeep Aggarwal further reveal that he used to make huge amount of expenditure every month from his credit card. He is reported to have spent the money on expensive shopping, dining out and recreational activities.
21. The aforesaid documents and material suggest that appellant Sandeep Aggarwal is a man of means. His actual income is more than Rs.80,000/ as claimed by him. In the given facts and circumstances of the case, learned MM has rightly observed that court cannot be oblivious to the reality that in business families, an attempt is usually made to hide the real income by the husband, once the relationship between husband and wife turn sore. The appellant has admittedly been director in at least eight different Pvt. Ltd. Companies and the other directors were his immediate family members thus, no fault can be found in the observation of learned MM that the version of appellant does not inspire confidence that he has no earnings except Rs.80,000/, which he was getting as a paid director.
22. Regarding the loss suffered by companies in which the appellant was a director, learned MM in para no. 22 and 23 has observed as under : “22. In fact through out the stage of interim arguments, the stand taken by the husband was that while earlier his business ventures were doing quite well, however, lately he has suffered huge losses. The coincidence in the timings of the alleged losses suffered and the complainant being forced to leave the matrimonial house is striking. Financial ups and downs in business is a routine matter for which every businessman is always expected to be prepared. While one may cut down on certain exorbitant expenditure when the business is not doing very well, usually the family continues to maintain the same living standards. At this stage, it is not believable that suddenly the husband has been reduced to a man with such a limited income as compared to his earlier earnings and expenditures.
23. In fact the bank account statements of the complainant have also been perused carefully. Even the same reveals that huge amount of money running into crores is deposited in her account in a routine manner and then soon it is transferred to the account of yet another company in which the husband has a stake. Why this huge money was put in the account of the wife and then soon transferred to another company has not been satisfactorily explained. The complainant did not possess any professional qualifications to be appointed as a 12 Director in a business venture and it is clear that she was made so only by virtue of her relations with her husband. The respondent has nowhere argued that his wife used to participate in the day to day business activities of the different ventures.”
23. The parties belong to a well off family. They have concealed their actual income. Therefore, the income of appellant/husband is to be assessed considering all the facts and circumstances of the case. Considering the standard of living of the parties, their lifestyle in the society, the vehicles used by them for their transport and the money spent by them on their day to day expenditure and totality of the facts and circumstances of the case, the income of appellant / husband Sandeep Aggarwal is assessed to be at least Rs.2,00,000/ per month. This assessment has been done only on the basis of presumption and guess work as the parties have not disclosed their true and actual income before the court. The parties have yet to lead evidence in the case. At this stage, only prima facie opinion is to be formed on the basis of material available on record.
24. As per admission of respondent Viniti Aggarwal herself, she was earning Rs.27,000/ per month by working as a private school teacher. In the course of arguments, counsel for respondent submitted that she worked during the period from July, 2013 to March, 2015. Thereafter, she has not been working. Admittedly, the respondent was working as a private school teacher. She is qualified to be a 13 teacher. She is not supposed to remain idle and make efforts for the purpose of finding out a source of livelihood. In the case of Smt. Mamta Jaiswal’s case (supra), it was held 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 society wants to progress”. It is matter of common knowledge that salaries of teachers are increased periodically. Had respondent been working, she would have been earning more than what she was earning between 2013 to 2015.
25. The minor child, who was in custody of respondent, was going to school and his school fees is reported to be Rs.15,000/ per month. Besides the school fees, if Rs.15,000/ per month more is paid, then it will suffice for well being of the minor child.
26. Out of total assessed income of appellant Sandeep Aggarwal, he is entitled to retain two portions of it. The balance is to be paid towards maintenance of respondent Viniti Aggarwal and her minor son. As already observed in para No.25 of the judgment, in my view, interest of justice shall be met, if the minor son is paid maintenance Rs.30,000/ per month. The balance of Rs.70,000/ be paid to respondent Viniti Aggarwal towards her maintenance besides her own earnings of Rs.27,000/ per month. The respondent has admittedly not claimed right of residence. She was reportedly residing at a house in Sunder Nagar, New Delhi and presently 14 residing in Noida, U.P. In my opinion, the aforesaid amount is sufficient to lead a descent life in the society.
27. For the foregoing reasons, the impugned order of learned MM dated 18.06.15 is directed to be modified. Appellant Sandeep Aggarwal is directed to pay an interim maintenance of Rs.70,000/ per month to respondent Viniti Aggarwal. He is further directed to pay Rs.30,000/ per month for maintenance of the minor child. The order of the court shall be effective from the date of filing of the petition. The interim maintenance is to be paid to respondent by 7 th of every month in her bank account. The arrears of maintenance be cleared by appellant Sandeep Aggarwal within six months from the date of the order.
28. In the course of arguments, it was submitted by learned counsel for appellant that minor son’s school fees was paid by appellant or his father without fail since separation. The aforesaid amount, if paid by appellant, shall be adjusted in the amount awarded towards maintenance of the minor son subject to proof.
29. It was further argued that presently, the minor son is in the care and custody of appellant, therefore, respondent is not eligible to get maintenance qua the minor child. It was further submitted that respondent / wife is presently employed and running her own school at A7, Sector56, Noida, U.P. This appeal has been decided only on the basis of material available on record. The subsequent change in 15 circumstances regarding the status of parties and their financial status, if any may be brought to the notice of the learned trial court. Both the parties are at liberty to move suitable application before the court of learned MM for seeking modification of the order, in case there is any change in the circumstances regarding the financial status of the parties.
30. For the reasons discussed above, the cross appeals filed by both the parties against impugned order dated 18.06.15 passed by learned MM are disposed off. The impugned order of learned MM is modified to the extent as mentioned in para No.27 of the judgment.
31. Reader of the court is directed to place attested copy of order passed in file of CR No.204486/16 titled as Sandeep Aggarwal Vs. Viniti Aggarwal in file of CR No.204399/16 titled as Viniti Aggarwal Vs. Viniti Aggarwal.
32. A true copy of common judgment along with TCR be sent back to learned trial court concerned. Appeal files be consigned to record room.
Announced in the open court today i.e 28.01.2017
(RAJ KUMAR TRIPATHI)
Addl. Sessions Judge 02
SouthEast, Saket Courts, New Delhi