Shivani Jain & Anr vs Vivek Bahadur Jain
2009 Latest Caselaw 3709 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             IA No.9341/2008 in CS(OS) 1552/2008

                                                                    Pronounced on : 11.09.2009

SHIVANI JAIN & ANR.                                                         ..... Plaintiff

                              Through Mr. Rajat Aneja, Advocate.

                                             versus


VIVEK BAHADUR JAIN                                                         ..... Defendant
                              Through Mr. K.Venkataraman, Advocate

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.     Whether the Reporters of local papers                 Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?                    Yes

3.     Whether the judgment should be                        Yes
       reported in the Digest?

HON'BLE MR. JUSITCE S.RAVINDRA BHAT (Open Court)

*

1. Heard counsel for the parties. The plaintiffs/applicants sue the defendants for a

maintenance decree in the sum of Rs.25,000/- per month for each of them; aggregating

Rs.50,000/-. By the application a similar relief, by way of an interim order is claimed.

2. The facts emerging from the pleadings are that the first plaintiff married the defendant

on 1.2.2005. A child i.e. the second plaintiff was born out of the wedlock on 17.3.2006. It is

alleged that the plaintiff No.1 (hereafter referred to as "Shivani") was forced to leave the

matrimonial home on 1.4.2006. It is contended that the parties had, in the meanwhile shifted to

a new accommodation in September, 2005 after its acquisition (i.e. hereafter referred to as

IA No.9341/2008 in CS (OS) No.1552/2008 Page 1 "Surya Nagar property" ).

3. Shivani contends having approached the police authorities claiming that the defendant

had treated her with cruelty and therefore had committed offences under Section 498A of the

Indian Penal Code (IPC). In the course of the criminal proceedings, during the hearing of the

bail application apparently, parties had agreed to resolve their differences; the court recorded this

in its order dated 25.5.2007. This, contend the plaintiffs, resulted in the wife returning to the

matrimonial home soon thereafter. It is alleged that after sometime, differences cropped up and

again the plaintiffs were forced to leave the matrimonial premises on 4.12.2007.

4. The plaintiffs have stated that parallel proceedings under Section 12 of the Domestic

Violence Act and Crime Against Women Cell had been initiated, in which the court declined to

grant any maintenance or compensation on the ground that Shivani was earning Rs.50,000/- per

month. However, the court proceeded to pass a prohibitory order, in terms of Section 19 of the

said Act. It is submitted by the applicants that interim maintenance orders are necessary because

the first plaintiff is earning Rs.50,000/- per month, out of which the sum of Rs.15,408/- is being

deducted from her salary towards the equated monthly instalments to be remitted by her, for the

loan towards the Surya Nagar property. In support of this contention the plaintiff produces a

copy of the agreement entered into with the ICICI Bank as well as a copy of the sale deed, which

states that the consideration of the said property was Rs.17,84,621/- It is further submitted that

apart from this deduction, the plaintiff has recently shifted to a rented premises in Mayur Vihar

in June, 2009 - this allegation has been made in a rejoinder filed to the defendant's counter

affidavit.

5. It is claimed that the defendant-husband is a man of means. According to the applicant

he is earning Rs.1,10,000/- per month as an employee of Leflex India Pvt. Ltd. Besides this the

IA No.9341/2008 in CS (OS) No.1552/2008 Page 2 defendant owns properties and has substantial movable properties in the form of shares. In these

circumstances, the plaintiffs claim interim maintenance at the same rate as is sought in the final

decree.

6. The defendant resists the application. At the outset, Mr. Venkataraman suggested that as

father, the defendant is duty bound and has volunteered to pay a sum of Rs.5,000/- for the second

plaintiff's maintenance. It is contended that since the Magistrate who considered the

proceedings under Section 12 of the Act refused to grant any maintenance the Court should not

exercise its discretion and render any contrary finding. Learned counsel for the defendant relied

upon portions of the Magistrate's order for this purpose.

7. The defendant did not deny being employed in Leflex India Pvt. Ltd., there was no denial

about the appointment letter, placed on the record which states that he was appointed by that

company and the terms of such employment. It is however contended that the defendant left

services of that concern in November, 2008 since he was asked to serve in Morrocco; it is stated

that the defendant could not agree to do so on account of multifarious litigation pending in the

courts. It is submitted that the defendant does not own the properties alleged in the suit.

However, it is stated that the property listed in para 17C, i.e. 865, Jwala Nagar was sold in May,

2008 for Rs.13 lakhs. Learned counsel also stated that even though the first plaintiff is paying

the EMI of Rs.15,000/- per month, the contention that she applied and was sanctioned the loan

by the bank was not accurate since the defendant's mother had advanced over Rs.4 lakhs for

buying the Surya Nagar Property.

8. The court has carefully considered the rival considerations. Undoubtedly the quantum of

maintenance claimed by the applicants is identical to what is sought finally in the suit and by

way of a decree. The question is whether they have been able to establish the entitlement to that

IA No.9341/2008 in CS (OS) No.1552/2008 Page 3 or any other amount?

9. The court will first examine whether the defendant's contention that the Magistrate's

orders, denying similar relief, should deter this court from exercising its jurisdiction. There

cannot be any quarrel with the argument that the Magistrate made the order in lawful exercise of

his jurisdiction. In that sense the Criminal Court had exercised a co-ordinate jurisdiction. This

court however is of the opinion that cannot fetter its freedom from considering the merits of the

plaintiff's claim. The order of the Magistrate, even though not challenged in appeal, discloses

that the Court was persuaded to deny the compensation or any part of it on the ground that

Shivani was earning Rs.50,000/-. In the previous part of the order a letter was discussed, she

was burdened by paying Rs.15,408/- towards the monthly equated instalments, for acquiring the

Surya Nagar Property. The defendant concededly earned Rs.1 lakh. It was also contended that

the second plaintiff was in the custody of Shivani. In these circumstances, the Magistrate, with

due respect, appears to have overlooked the financial burden on the first plaintiff.

10. The written statement does not deny specifically that the defendant owns 4 properties.

Likewise, there is no specific denial with regard to the plaintiff's allegation that he owns stocks

and shares of a financial value. What indeed is stated that the defendant has left the employment

with Leflex India Pvt. Ltd. Whether such is the case or not, is to be tested with trial. No attempt

to substantiate the allegation with copy of resignation letter or what impelled the defendant to

take the step was made. Furthermore, in such proceedings the defendant, in the opinion of the

court, would be under a duty to prima facie disclose that he is not possessed of any means.

There is no copy of the income tax returns filed by the defendant for the year ending 31.3.2009

nor copies of any assets or liabilities, submitted to the authorities in this regard, brought on the

file. In these circumstances, the assertion by the defendant that he is not possessed of any

IA No.9341/2008 in CS (OS) No.1552/2008 Page 4 substantial means cannot be taken on its face value.

11. Having regard to the totality of the circumstances, this court is of the opinion that the

defendant should pay interim maintenance to the plaintiffs at a consolidated sum of Rs.20,000/-

per month with effect from 1.10.2008. The arrears of such maintenance shall be paid to the

plaintiff No.1 by a bank draft within six weeks from today. The defendant shall ensure that the

said interim maintenance is paid to the plaintiff No.1 on or before 7th of each calendar month by

way of a bank draft. I.A. No.9341/2008 is allowed in these terms.

CS (OS) No.1552/2008

List before the Joint Registrar for scrutiny on 16.11. 2009. In the meanwhile, the parties

shall file their documents within four weeks. They shall proceed to exchange affidavits of

admission/denial within two weeks thereafter.

List before Court for framing issues on 15.01.2010.

                                                                    S. RAVINDRA BHAT,J

SEPTEMBER 11, 2009
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IA No.9341/2008 in CS (OS) No.1552/2008                                                      Page 5