CA no.

15/22
Shri Sartaj Vs. Smt. Shaheen Jahan

IN THE COURT OF SHRI DEEPAK JAGOTRA,

PRINCIPAL DISTRICT & SESSIONS JUDGE, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CA no. 15/22

In the matter of;

Sh. Sartaj
S/o Shri Mukhtar Ahmad,
R/o 1212, Gali no. 39/4, Jafrabad,
Delhi-110053.
….. Appellant

Versus

Smt. Shaheen Jahan,

W/o Shri Sartaz,
D/o Shri Soukat Ali,
R/o House No. 12/2, West Laxmi Market,
Khureji Khas, Delhi-110051.
….. Respondent

Date of Institution : 01-02-2022

Reserved for order on : 17-08-2022
Order announced on : 19-09-2022

ORDER

1. This is an Appeal under Section 29 of the Protection of

Women from Domestic Violence Act, 2005 (hereinafter shall be referred as

“the Act”) for setting aside the impugned order dated 26.11.2021 passed by

the court of Ms. Shruti Chaudhary, learned MM, Mahila Court, East

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Shri Sartaj Vs. Smt. Shaheen Jahan

District, Karkardooma Courts, Delhi.

2. Heard learned counsel for the parties and meticulously perused

the record of the case.

3. Ld. Counsel for the appellant/husband submits that the Ld.

Trial Court had awarded an exorbitant amount in favour of the

respondent/wife. It is further prayed that the appeal may be allowed and

amount may be reduced. It is further prayed that ex-parte judgment may be

set aside.

4. On the other hand, Ld. Counsel for the non-applicant submits

that there is nothing in the appeal for the indulgence of this court and prays

for dismissal of the same.

5. The brief account of events relevant for the disposal of the

present appeal may now be indicated.

The appellant/husband herein had appeared in a complaint

filed under Section 12 of Domestic Violence Act. The appellant had also

filed written statement in the said matter along with his income affidavit.

Thereafter, he stopped appearing in the matter. The Ld. Trial court was

pleased to pass a detailed ex-parte judgment thereby granting maintenance

to the petitioner/wife. Apart from this, no other relief was granted in her

favour.

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6. At the outset it is pointed out that the reason assigned for not

appearing in the matter by the appellant herein on date fixed was that due

to certain communal riots in and around the area of Shahdara as also due to

the spread of Covid-19 pandemic. The appellant herein could not appear in

the matter before the Ld. Trial Court on the dates fixed. Moreover, the

appellant had contacted his Lawyer on phone who had informed him that

the Courts are not physically working and he is not required to appear

before the Court. He was given assurance by the Lawyer that he will attend

the Court on the date fixed and he need not appear. The respondent herein

has countered the arguments by saying that the respondent could have

appeared through video conferencing. She seriously challenges the reasons

given by the appellant herein.

7. There is no shadow of doubt that almost everything came to

stand till during the period of spread of Covid-19 pandemic. It appears that

due to said reason the appellant could not appear in the matter. As a matter

of fact in such a scenario it was incumbent on the part of the counsel who

shall have to take care of the cases. Moreover, the video conferencing

facility was not available across the board so that litigant himself could

have appeared. Due to lackadaisical approach of the counsel the party

should not be allowed to suffer. Despite assurance given by the counsel for

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Shri Sartaj Vs. Smt. Shaheen Jahan

appellant, he chose not to appear in the matter, shall not go against the

appellant. Therefore, non appearance of the appellant herein appears to be

neither intentional nor deliberate but due to the reason that he was

prevented by the spread of Covid-19 pandemic to appear before the Ld.

Trial Court. Having said that the inconvenience caused to the respondent

herein can be compensated in terms of money and by imposing cost on the

appellant.

8. In view of foregoing reason and discussions, the ex-parte

judgment passed by the Ld. Trial Court is hereby set aside subject to

cost of Rs. 10,000/- (Rupees Ten Thousand) to be paid to respondent

herein before the Ld. Trial Court.

9. Keeping in view that considerable time has elapsed, this court

shall decide the interim maintenance that is to be fixed in the matter.

10. Prima facie enough allegations have been made by the wife

which suggest that she was subjected to domestic violence at the hands of

appellant. There is no dispute as regards the relationship and that the

parties have a daughter to rear.

11. According to the respondent/wife, her husband is having three

manufacturing unit of readymade garments under the name and style of

“Maryam Fashion” at (1) 1212, Street no. 46, Jafrabad, Delhi-110053 (2)

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Shivpuri, Delhi (3) 12/12, Gali no. 39/4, Jafrabad, Delhi. She has further

stated that appellant is also having wholesale trading shop of Readymade

Garments at Shop No.6661, Prakash Guest House, Chhoti Janta Gali,

Gandhi Nagar, Delhi. Her husband also owns a five storyed building

measuring 100 Sq. Yds. At 12/12, Gali no. 39/4, Jafrabad, Delhi and its

first, second and fourth floor are let out, from where he is earning about Rs.

1,00,000/- (One Lac) per month. According to her, his total income is about

Rs. 5,00,000/- (Five Lacs) per month. Apart from this, he is having bank

deposits and also having other movable and immovable property.

12. In order to substantiate her claim she has placed on record the

visiting card of ‘Maryam Fashion’ showing address and telephone number

of Sartaj. She has also placed on record certain photographs showing the

presence of Sartaj at the shop. She has also placed on record one invoice in

the name of Maryam Fashion wherein sale of Rs. 7560/- (Seven Thousand

Five Hundred Sixty) is shown in the name of Shiv Singh.

13. On the other hand, the appellant has stated that he is working

as labour and earning about Rs. 7000/- to 8000/- per month and his

expenditure is to the tune of Rs. 7,000/-. Having said that in the income

affidavit he has stated that he is working as labour, however, he was

running a tenanted shop at Gandhi Nagar under the name and style of

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“Maryam Fashion” but the shop was not running well and he was not in a

position to pay the monthly rent of the said shop, he has closed the same

and started doing the work of labour.

14. Apparently it is difficult to stomach that a person who is

himself running a shop would become a labour and starts doing a menial

job. He has placed on record certain documents showing that he has

surrendered his GST number. Though he has applied for cancellation of

GST registration yet it is not believable that as on date he is only working

as labour and really abandoned his earlier business. He is certainly

indulging himself in suppressing and hiding the material facts before the

court in order to wriggle out of his primary responsibility to maintain his

wife and female child. At the same time it is not believable that the

appellant/husband is earning a huge amount of Rs. 5 lacs per month. More

so when respondent wife has neither corroborated nor substantiated the

factum of his huge earning. Taking a reasonable and balanced view in the

matter he may be earning an amount closure to Rs. 50,000/- (Fifty

Thousand) per month. The stand taken by the appellant that the wife is

earning Rs. 25,000/- (Twenty Five Thousand) by giving tuition to the

students is not at all believable as the same lacks further corroboration or

substantiating the same.

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15. Keeping in view the totality of the facts and circumstances of

the matter, the income of the husband is assessed as Rs. 50,000/- (Fifty

Thousand) per month.

16.   Having   said   that   it   is   the   responsibility   of   the   husband   to

maintain his wife and minor children.  It is a settled law that wife is entitled

to the same status and comfort in life as that of her husband.  She is entitled

to be maintained as per the status and stature of her husband.  At the same

time, it is the duty of the father to maintain his children as per his status and

stature as children also deserve to be nurtured in the best possible manner.

Children deserve good food, clothes, medical facilities and education to

rise in their life.

17. Coming on to the quantum of maintenance in Dr. Kulbhushan

Kumar Vs. Raj Kumari & Others reported in (1970) 3 SCC 129, the

Hon'ble Apex Court was pleased to observe that monthly maintenance of

25% of the husband's net income is reasonable. In Smt. Jasbir Kaur

Sehgal Vs. District Judge, Dehradun and others reported in AIR 1997

Supreme Court 3397, the Hon'ble Apex Court was pleased to observe as

under;

“No set formula can be laid for fixing

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the amount of maintenance. It has, in very

nature of things, to depend on the facts and

circumstances of each case. Some scope for

liverage can, however, be always there. Court

has to consider the status of the parties, their

respective needs, capacity of the husband to pay

having regard to his reasonable expenses for his

own maintenance and those he is obliged under

the law and statutory but involuntary payments

or deductions.”

18. Our own Hon'ble High Court in Bharat Hegde Vs. Saroj

Hegde has laid down 11 factors for assessing the quantum of maintenance

which are as follows;

(i) Status of the parties.

(ii) Reasonable wants of the claimant.

(iii) The independent income and property of the claimant.

(iv) The number of persons, the non applicant has to maintain.

(v) The amount should aid the applicant to live in a similar life style as

he / she enjoyed in the matrimonial home.

(vi) Non applicant's liabilities, if any.

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(vii) Provisions of food, clothing, shelter, education, medical attendance

and treatment etc. of the applicant.

(viii) Payment capacity of the non applicant.

(ix) Some guess work is not ruled out while estimating the income of the

non applicant when all the sources or correct sources are not

disclosed.

(x) The non applicant to defray the cost of litigation.

(xi) The amount awarded under Section 125 Cr.P.C. is adjustable against

the amount awarded under Section 24 of the Act.

19. As far as the quantum of maintenance is concerned, keeping in

view the assessed income of the husband, he is directed to pay an amount

of Rs.5,000/- (rupees five thousand) each to the respondent/wife and

female child. Therefore, total amount of Rs.10,000/- per month shall be

paid to the respondent towards interim maintenance from the date of filing

of the application.

20. Appellant is also directed to pay Rs. 10,000/- to the

respondent as cost in lieu of setting aside of ex-parte judgment as

mentioned above.

21. It is made clear that the Ld. Trial Court shall give clear

opportunity to the appellant herein to cross examine the witnesses and after

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evidence is lead by both the parties, shall pass the judgment on merits.

22. Learned Trial Court is directed to give reasonable time to the

appellant to clear the arrears towards interim maintenance preferably within

six months from the date of passing this order.

23. Husband/ appellant shall also pay to his wife/ respondent an

amount of Rs.11,000/- (Eleven Thousand) towards the legal expenses.

24. It is made clear that the amount awarded herein shall be

adjustable against the amount awarded in any other proceedings towards

maintenance.

25. It is made clear that monthly payment shall be made on or

before 10th day of each English calendar month or may be deposited

directly in the bank account of the appellant.

26. The appeal stands disposed of in above terms.

27. TCR be sent back alongwith copy of this order.

28. Appeal file be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT Digitally signed

by DEEPAK
DEEPAK JAGOTRA
ON 19th SEPTEMBER, 2022 JAGOTRA Date:
2022.09.19
03:30:44 +0530

(DEEPAK JAGOTRA)
PRINCIPAL DISTRICT & SESSIONS JUDGE
EAST DISTRICT
KARKARDOOMA COURTS, DELHI

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