‘It is unfortunate that almost 14 years have elapsed &wife has not been granted any interim maintenance’: Delhi HC asks husband to pay Rs 50k per month to wife as interim maintenance from the time when complaint under DV Act was filed in 2009
Justice Amit Bansal [19-01-2024]

Read Order: SAPNA PAUL v. ROHIN PAUL

Tulip Kanth

New Delhi, January 23, 2024: While clarifying that a revision petition would lie under Section 397 CrPC to the High Court against the order passed by the Sessions Court in appeal under Section 29 of the Protection of Women from Domestic Violence Act, the Delhi High Court has ordered the husband to pay Rs 50,000 to the wife as monthly maintenance. The Court took note of the fact that almost 14 years had elapsed and the wife had not been granted any interim maintenance other than the sum of Rs 10 lakh paid by the husband pursuant to an earlier order.

Briefly stated, the parties got married in 1991 as per Arya Samaj Rituals. One child was born out of the said wedlock. As per the Wife, the Husband was an alcoholic and a womanizer and had several extra marital relationships. The Husband often used to beat up their child under the influence of alcohol, on account of which the child suffered 80% loss of hearing in his left ear.

In these circumstances, the Wife filed a complaint under Section 12 of the DV Act before the Trial Court. Subsequently, the parties were referred for mediation, however, it was the case of the Wife that the Husband did not comply with the terms of the settlement.The Trial Court came to the conclusion that the Wife had suffered ‘domestic violence’ at the instance of the Husband and therefore, fell within the definition of ‘aggrieved person’ under Section 2(a) of the DV Act.

The revision petition had been filed by the petitioner (Wife) before the High Court impugning the judgment of the Additional Sessions Judge (Appellate Court), South-East District, Saket Courts, New Delhi whereby, matter was remanded back to the Trial Court.The Trial Court had allowed the application filed by the Wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) and directed the respondent (Husband) to pay a sum of Rs1,00,000 per month towards maintenance as well as compensation under Section 22 of the DV Act to the Wife.

Assailing the impugned judgment passed by the Appellate Court, the Wife filed the petition before the High Court along with an application for condonation of delay and an application for stay of the proceedings before the Trial Court.

One of the objections taken on behalf of the Husband was that the present revision petition under Section 397 read with Section 401 of the CrPC is not maintainable. The Bench opined that in terms of Section 28 of the DV Act proceedings under Sections 12 and 23 would be governed by provisions of the CrPC. Further, as per Section 29, an appeal against the order of the Magistrate shall lie to the Sessions Court. The DV Act does not provide for any further appeal against the order passed by the Sessions Court.

The Single-Judge Bench of Justice Amit Bansal referred to the judgment of the Allahabad High Court in Dinesh Kumar Yadav v. State of U.P., whereby it was held that a revision to the High Court is maintainable against an order passed by the Sessions Court under Section 29 of the DV Act, the Bench said, “In terms of Section 397 of the CrPC, provisions of the CrPC are applicable to proceedings under the DV Act. Therefore, in my considered view, in view of the fact that the Sessions Court is a Court inferior to the High Court, a revision petition would lie under Section 397 CrPC to the High Court against the order passed by the Sessions Court in appeal under Section 29 of the DV Act.”Thus, it held that the present revision petition filed by the Wife was maintainable.

The next issue was whether the Judgment in Divorce Proceedings would have any bearing on the present proceedings. Noting that the findings/observations qua cruelty passed by the Division Bench of this Court couldn’t be disputed, the Bench referred to Dr.Swapan Kumar Banerjee v. State of West Bengal [LQ/SC/2019/1463]wherein it was held that even if divorce has been granted on the grounds of desertion by the wife, that cannot be a ground to deny maintenance to the Wife.“In light of the aforesaid legal position, in my considered view, the findings of cruelty against the Wife in the divorce proceedings, by itself cannot be the basis to deny maintenance to the Wife under the provisions of the DV Act”, the Bench opined.

The Appellate Court had noted various errors in the judgment of the Trial Court. The Appellate Court failed to take into account that the Trial Court had granted maintenance from 2009 to 2016 and for a large part of this period, the son of the parties, even though he had attained the age of majority, was still pursuing his studies. The obligation of a father towards his child does not end when the child attains majority even though he was still pursuing his studies.

The Appellate Court noted that the approach of the Trial Court of determining the income of the Husband on the basis of profit and loss statement of the company while ignoring the income tax returns of the Husband was misplaced. It was further noted that the documents on the basis of which the maintenance was fixed by the Trial Court was brought on record by the Wife by way of an application for additional evidence which was allowed by the Trial Court without giving notice to the Husband, even though the Husband had not been proceeded ex-parte at that stage.

As per the Bench, there was no justification at all to remand the case back to the Trial Court. The order of remand was completely cryptic and without giving any reasons justifying the remand. The High Court was of the view that the Appellate Court should have been conscious of the fact that in the present case, the complaint under the DV Act, was filed by the Wife as far back in 2009 and by the time the impugned judgment of remand was passed by the Appellate Court, it was already 2019. For a period of ten years, the Wife did not get any maintenance other than the sum of Rs10,00,000 that was paid by the Husband in terms of the order of 2018.

Therefore, the Bench was of the opinion that even if the Appellate Court remanded the matter to the Trial Court, it should have fixed an interim amount to be paid by the Husband to the Wife.

“It is unfortunate that in the present case, the complaint was filed in the year 2009 and almost 14 years have elapsed and the Wife has not been granted any interim maintenance other than the sum of Rs.10,00,000/- paid by the Husband pursuant to the aforesaid order passed by this Court”, the Bench said while remanding the matter to the Appellate Court.

The Bench concluded the matter by further ordering, “Accordingly, it is directed that the Husband shall pay a sum of Rs.50,000/- per month to the Wife as interim maintenance from 16th December, 2009, when the complaint under the DV Act was filed till 1st November, 2019, when the impugned judgment was passed by the Appellate Court. The sum of Rs.10,00,000/- already paid by the Husband to the Wife pursuant to the orders of this Court shall be deducted from the aforesaid amount.”