Unlike S.125 CrPC, Maintenance Under Domestic Violence Act Not Connected With Wife's Inability To Maintain Herself: Delhi High Court

Dismissing a plea moved by a husband and his kin against an order directing him to pay maintenance to his wife under the Domestic Violence Act, the Delhi High Court agreed with the trial court's observation that unlike Section 125 CrPC, maintenance under the DV Act is not linked to the inability of the wife to maintain herself. The observation came in a plea moved by a man and his family against an order of the Additional Sessions Judge, Saket Courts which had dismissed their appeal under Section 29 of the Protection of Women from Domestic Violence (DV) Act against the trial court's order.The trial court in its order after considering the financial status of the parties, had directed the man to pay Rs.15,000 per month as interim maintenance to the respondent wife along with an additional amount of Rs. 10,000 per month as rent in lieu of alternative accommodation, from the date of filing of the case till its disposal.A single judge bench of Justice Amit Mahajan in its September 9 judgment said, "This Court is in agreement with the observation of the learned Trial Court that unlike Section 125 of the CrPC, maintenance under the DV Act is not tethered on the inability of the wife/ victim to maintain herself. Moreover, prima facie, in the absence of cogent proof of Respondent No.2 (wife) being gainfully employed or earning a sufficient income to maintain herself, the bald allegation that Respondent No.2 is earning through private tuitions, without any documentary proof, does not disentitle her from getting an award of interim maintenance". Justice Mahajan further observed that under Section 23 of the DV Act if the aggrieved woman can "prima facie" show that she has suffered domestic violence at the hands of her spouse, it would entitle her to interim relief. "It is relevant to note that Section 23 of the DV Act empowers the Magistrate to grant interim orders if the application prima facie discloses that the respondent is committing an act of domestic violence, has committed an act of domestic violence or may commit an act of domestic violence against the aggrieved person. Any woman who prima facie shows that she has suffered domestic violence at the hands of her spouse/ partner, is entitled for interim relief. Respondent No.2 (woman) herein had also prayed for relief towards rent," the high court said. The high court noted that the trial court as well as the appellate court had "explicitly recorded" that it "prima facie" appeared from the woman's complaint that she was subjected to domestic violence. The high court noted that the ASJ had also said that there were images on record that show "injury marks" on the woman's body."As rightly noted by the learned ASJ, the defences and allegations in this regard can only be conclusively determined after the parties have led their evidence," the court noted."Moreover, prima facie, in the absence of cogent proof of Respondent No.2 (woman) being gainfully employed or earning a sufficient income to maintain herself, the bald allegation that Respondent No.2 is earning through private tuitions, without any documentary proof, does not disentitle her from getting an award of interim maintenance," the court said. The high court noted that the trial court in its order had said that the parties who were admittedly spouses, shared a domestic household and had also noted that a "perusal of the complaint and the Domestic Incident Report prima facie shows that Respondent No.2 was a victim of domestic violence and entitled to monetary compensation under the DV Act". The husband had argued that his income has been erroneously assessed. It is his case that he is drawing a meagre salary of Rs. 15,000 per month and he is also responsible for maintaining his parents and children.To this the high court said, "It is peculiar that while Petitioner No.1 is arguing on one end that the partnership firm where he is working is owned by his father, he is also claiming that he has to take care of his parents". The husband had further argued that his ITR clearly reflects that he is earning nowhere near the assessed income. On this the high court said that it had been noted in several judgments that there is a tendency to "downplay the income" when a person is embroiled in a matrimonial dispute and that even income tax returns do not necessarily provide an accurate reflection of the actual income in such cases. The high court further observed that the Trial Court had also "explicitly noted" that from the material on record it was evident that husband was receiving profits from his father's partnership firm as well as the rent from one shop.The court thereafter said that the possibility of the petitioner husband undermining his income to avoid paying appropriate maintenance to the respondent wife "cannot be ruled out at this stage". "It is trite law that the Courts in such circumstances are permitted to make some guess work and arrive at a figure that a party may reasonably be earning. For the said ...

Unlike S.125 CrPC, Maintenance Under Domestic Violence Act Not Connected With Wife's Inability To Maintain Herself: Delhi High Court

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