Kshitij Kumar vs State & Ors.
2012 Latest Caselaw 3653 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL. M.C. No. 2041/2012

                                           Date of Decision: 31.05.2012

KSHITIJ KUMAR                                     ...... Petitioner
                          Through: Mr. Rohit Gandhi, Advocate.
                                Versus

STATE & ORS.                                        ...... Respondents

                          Through:     Mr. M.N. Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This is a petition under Article 227 of the Constitution of India r/w S. 482 Cr.P.C. for quashing of order dated 04.04.2012 passed by Learned ASJ whereby the appeal U/s 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act) against the order dated 29.11.2010 passed by Learned M.M, was dismissed.

2. In the complaint U/s 12 of the Protection of Women from Domestic Violence Act filed by Ms. Chanchal Tyagi, wife of petitioner, against him an application was filed by her U/s 23 of the Act seeking interim maintenance from him. The said application was disposed of by Learned M.M. vide her order dated 29.11.2010 granting her maintenance of Rs.10,000/- per month and Rs.20,000/- as monthly rent for alternate residential accommodation. The petitioner was directed to

pay the maintenance and also the monthly rental from the date of the filing of the complaint till the disposal of complaint on merits.

3. This order was carried in appeal which was dismissed by Learned ASJ vide impugned order dated 04.04.2012.

4. Having gone through the order of the Learned M.M. and that of the Learned ASJ as also the present petition and also on hearing counsel for the petitioner, it is seen that the present petition which has been filed U/s 482 Cr.P.C. and Article 227 of the Constitution of India is in fact against the order of Learned M.M. dated 29.11.2010. In any case, the main challenge is that the Learned M.M. as also Learned ASJ have erred in awarding maintenance to the respondent @ Rs.10,000/- per month and monthly rental @ 20,000/- per month. It is submitted that the respondent herself was a qualified physiotherapist and was capable of maintaining herself whereas the petitioner had no income since both his businesses have failed and he has suffered losses. Learned counsel referred to the documents filed by him showing the petitioner having suffered losses in his business. In this regard, it may be noted that the Learned M.M. had observed that all these documents which were filed by the petitioner pertain to the period 2009-2010 i.e. after the filing of the present complaint against the petitioner. The petitioner had not filed any document showing his financial status prior to the filing of the present complaint. In any case, it was observed by him as also by the Learned ASJ and rightly so, that the income tax return filed by his company M/s Chitra Consultancy Services wherein he had shown losses, were not reliable documents. It is a known fact that people do

commit malpractices in submitting income tax returns and do not show their accurate income and expenses. Having noted the income receipts of the year 2009-2010 as about 18 lakhs and the expenditure still more than that, one can make a prima facie view of some manipulations. Without commenting further on this, much reliance cannot be placed on these documents at this stage and that too of the year 2009-2010 which is of the period subsequent to the filing of the complaint. In such circumstances, some guess work is inevitable. At the stage of interim maintenance when the entire evidence is not available on record, the court has no option but to make some guess work when both the parties are unable to present true facts before it. With regard to the plea that respondent No.2 is a qualified physiotherapist, it is undisputed casethat she had been trying for a job for considerable time, but could not get any and was presently unemployed. Having regard to the income which the petitioner companies had even in the year 2009-2010, and taking the same to be prima facie correct, I do not find that the maintenance of Rs.10,000/- per month in these days of expensive life, is unjust. On the other hand, the same is found to be just and reasonable.

5. The petitioner has also disputed award of monthly rental of Rs.20,000/-. Undisputedly, the petitioner lives in a house measuring 350 sq. yards at S-43, Greater Kailash-II, N.D.-19 which is one of the posh colonies of Delhi. The plea that this house was not acquired by him, but was acquired by his parents and so the same could not be considered, is entirely untenable. Undisputedly, he has about 45% share in the said house and the respondent had been living there within him.

The father of the petitioner had been a retired IAS Officer and stated to be having his own hill house at Bhim Taal. The petitioner certainly seems to be enjoying good status in life blessed with all necessities including a good amount of share in the above house. There is no dispute that the wife of a person is also entitled to enjoy the same standard of life which she is used to enjoy with him after marriage. It is a known fact that the rents in Delhi have gone very high and even one bedroom accommodation in Greater Kailash Part-II may not be available for less than Rs.20,000/- per month. The respondent was entitled to 'shared household' in the aforesaid house and in case the petitioner was unable to make her live there or they were not able to live together, then in that case she was entitled to an alternative residential accommodation of similar standard or the rental. Therefore, in the given facts and circumstances, the Learned M.M. has passed interim order of grant of rent @ Rs.20,000/- per month. Interim order is subject to modification after the full-fledged trial when both the parties lead their evidence. At this stage, the prima facie view is to be made having regard to the pleadings and the material available on record. Making of interim order also does involve some guess work on the part of the judge which he does based on his prudence and wisdom. I do not see any illegality or infirmity in the impugned order of the Learned ASJ as also that of the Learned M.M. No case is made out warranting for exercise of extraordinary power U/s 482 Cr.P.C. The petition has no merit and is dismissed.

M.L. MEHTA, J.

MAY 31 , 2012/pkv