Delhi High Court
Binita Dass vs Uttam Kumar on 9 August, 2019
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09.08.2019
+ CRL.REV.P. 659/2017 & Crl. M.A. 14463/2017
BINITA DASS ..... Petitioner
versus
UTTAM KUMAR ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Arvind Kumar with Mr. Vaibhav Kumar,
Advocates.
For the Respondent : Ms. Sofia Bhambri, Advocate.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns judgment dated 19.05.2016 whereby the
appeal of the petitioner impugning order dated 04.08.2015, declining
the application of the petitioner for grant of interim maintenance, has
been dismissed.
2. Petitioner had filed an application under Protection of Women
from Domestic Violence Act, 2005 and along with the application had
filed an interim application under Section 23 seeking interim
maintenance. Said application has been rejected by the Trial Court by
order dated 04.08.2015 solely on the ground that the petitioner and
respondent are equally qualified and petitioner was previously
employed and has not disclosed any cogent explanation or disability
on her part so as to disable her to earn her living.
3. The Appellate Court by impugned judgment dated 19.05.2016
has also dismissed the appeal on the ground that the petitioner was
earlier working in a private company and has the capacity to work and
with earnest efforts she shall be able to search a suitable job for
herself.
4. Clearly both the Trial Court as well as the Appellate Court have
erred in not appreciating the judgments of this Court wherein it has
specifically been held that capacity to earn and actually earning are
two different things. Reference may be had to the decisions of this
court in Kanupriya Sharma vs. State & Anr, Crl.Rev.P.849/2018
decided on 31st May, 2019 and Babita Bisht vs. Dharmender Singh
Bisht, Crl.Rev.P.456/2015 decided on 29th May, 2019.
5. This court in Kanupriya Sharma (Supra) relied upon judgment
of the Supreme Court of India in Bhuwan Mohan Singh v. Meena,
(2015) 6 SCC 353 and held as under:
"22. The Supreme Court of India in Bhuwan Mohan
Singh v. Meena, (2015) 6 SCC 353 has held that Section
125 of the Code of Criminal Procedure was conceived to
ameliorate the agony, anguish, financial suffering of a
woman who left her matrimonial home for the reasons
provided in the provision so that some suitable
arrangements can be made by the court and she can
sustain herself and also her children if they are with her.
The concept of sustenance does not necessarily mean to
lead the life of an animal, feel like an unperson to be
thrown away from grace and roam for her basic
maintenance somewhere else. She is entitled in law to
lead a life in the similar manner as she would have lived
in the house of her husband. That is where the status and
strata come into play, and that is where the obligations of
the husband, in case of a wife, become a prominent one.
In a proceeding of this nature, the husband cannot take
subterfuges to deprive her of the benefit of living with
dignity. Regard being had to the solemn pledge at the
time of marriage and also in consonance with the
statutory law that governs the field, it is the obligation of
the husband to see that the wife does not become a
destitute, a beggar. A situation is not to be maladroitly
created where under she is compelled to resign to her
fate and think of life "dust unto dust". It is totally
impermissible. In fact, it is the sacrosanct duty to render
the financial support even if the husband is required to
earn money with physical labour, if he is able-bodied.
There is no escape route unless there is an order from the
court that the wife is not entitled to get maintenance from
the husband on any legally permissible grounds.
23. The rationale for grant of maintenance under section
125 Cr.P.C. as expounded by the Supreme Court in
Bhuwan Mohan Singh (supra) applies on all fours to the
grant of maintenance under the DV Act."
6. It is not the case of the respondent, that petitioner is actually
employed or earning. The only ground taken is that she is qualified
and capable of earning. The Supreme Court in Shailja & Anr. Vs.
Khobbanna (2018) 12 SCC 199 has held that whether the wife is
capable of earning or whether she is actually earning are two different
requirements.
7. Qualification of the wife and the capacity to earn cannot be a
ground to deny interim maintenance to a wife who is dependant and
does not have any source of income.
8. In view of the above, the impugned judgment dated 19.05.2016
and the impugned order dated 04.08.2015 cannot be sustained. The
same are accordingly set aside.
9. The petition is allowed. Matter is remitted to the Trial Court.
Parties shall appear before the Trial Court for directions on
28.08.2019.
10. Trial Court is directed to pass an appropriate order assessing
interim maintenance after taking into account the income of the
respondent as well as his dependant family members within three
months.
11. Order Dasti under signatures of the Court Master.
AUGUST 09, 2019 SANJEEV SACHDEVA, J
rk
