Sapna Paul v. Rohin Paul

13. The aforesaid judgment was challenged by the Husband by way of an appeal before the Sessions Court (Appellate Court).

14. The Appellate Court set aside the judgment passed by the Trial Court and remanded the matter to the Trial Court to re-try the case.

15. Assailing the impugned judgment passed by the Appellate Court, counsel for the Wife has made the following submissions before this Court:

(i) There was no occasion for the Appellate Court to remand the matter to the Trial Court for a de novo trial. Since all the relevant evidence was placed before the Appellate Court, the same could have been looked into by the Appellate Court itself.

(ii) While remanding the matter to the Trial Court, the Appellate Court did not fix any interim maintenance to be paid to the Wife by the Husband, causing her severe hardship.

(iii) Even though the judgment of the Appellate Court records the various contentions raised by the Wife, no findings have been returned on them.

(iv) Trial Court was mindful of the fact that the son of the parties had turned major, but was still studying and not working at the time of the passing of the judgment and therefore, did not grant any direct relief to him and granted a maintenance of Rs.1,00,000/- to the Wife.

(v) The Husband had only spent Rs.8,00,000/- on the maintenance of their son and not Rs.32,00,000/-, as claimed by him before the Appellate Court.

(vi) Since the Husband deliberately stopped appearing before the Trial

Court and also failed to comply with the mediation settlement between the parties, the Trial Court had rightly proceeded ex-parte against the Husband.

(vii) Additional evidence was produced by the Wife before the Trial

Court in terms of Section 311 of the Code of Criminal Procedure, 1973 (CrPC), to determine the real income of the Husband since he had stopped appearing before the Trial Court.

(viii) The additional documents were public documents such as annual returns of the company of which the Husband was a director.

(ix) In view of the above, the Trial Court correctly awarded the maintenance of Rs.1,00,000/- per month, taking into account the financial status of the parties.

16. Per contra, senior counsel for the Husband has made the following submissions:

(i) The present revision petition filed under Section 397 read with

(ii) Husband did not appear in the complaint case before the Trial

Court as the parties had settled their disputes in mediation vide settlement dated 25th September, 2014, in terms of which the Wife had agreed to withdraw her complaint.

(iii) The application filed on behalf of the Wife under Section 311 of the CrPC for additional documents was allowed by the Trial Court without issuing notice to the Husband.

(iv) Wife was throughout earning more than Rs.1,00,000/- per month and was living in her own inherited house in South Delhi but still claimed alternate accommodation.

(v) Husband was spending more than Rs.40,000/- for education of their son.

(vi) The Trial Court failed to take note of the income tax returns of the

Husband which were part of the Trial Court Record and erroneously relied upon the profits of the company to determine the maintenance amount.

(vii) The Husband was only a director in the said company with a 10% shareholding. Therefore, the profits of the company could not be taken into account for determining the income of the Husband and thereby fixing maintenance.

(viii) The Wife has made false statements with regard to the son of the parties suffering hearing difficulties on account of violence by the Husband.

(ix) The Husband currently is a 65 years old retired person suffering from heart ailments and is incapacitated to work actively and is living on his retirement benefits from the company.

(x) Reliance is placed by the Husband on the findings in the judgment of divorce granted by the Family Court in favour of the Husband on grounds of cruelty and desertion by the Wife and the judgment of this Court upholding the same (hereinafter conjointly referred as ‘HMA proceedings’).

17. The following submissions have been made on behalf of the Wife in rejoinder:

(i) As regards the maintainability of the present petition, the Husband himself had preferred a revision petition before this Court, being CRL.REV.P. No.22/2018 against the interim order passed by the Appellate Court directing him to deposit 50% of the maintenance granted by the Trial Court as a precondition to hearing the appeal. Therefore, he cannot contend now that the revision filed by the Wife is not maintainable. In any event, the present revision petition is maintainable under the provisions of the CrPC.

(ii) Reliance placed by the Husband on the judgment passed in the

HMA proceedings between the parties is misplaced since the said proceedings granting divorce would have no bearing on the proceedings under the DV Act, which is the subject matter of the present petition.

18. I have heard the counsels for the parties and perused the material on record. Whether the present revision petition is maintainable.

19. One of the objections taken on behalf of the Husband is that the present revision petition under Section 397 read with Section 401 of the CrPC is not maintainable. In this regard, reference may be made to Sections 28 and 29 of the DV Act which are set out below:

20. In terms of Section 28 of the DV Act proceedings under Sections 12 and 23 of the DV Act would be governed by provisions of the CrPC. Further, as per Section 29 of the DV Act, 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 Allahabad High Court in Dinesh Kumar Yadav v. State of U.P., 2016 SCC OnLine All 3848, has 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. Relevant observations of the said judgment are set out below:

21. I am in respectful agreement with the aforesaid view of the Allahabad High Court. As noted above, 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.

22. Counsel for the Husband has placed reliance on the judgment of the Madras High Court in Arul Daniel v. Suganya, 2022 SCC OnLine Mad 5435, to state that the present revision petition would not be maintainable. In Arul Daniel (supra), the Madras High Court had held that a petition under Section 482 of the CrPC challenging the proceeding under Section 12 of the DV Act is not maintainable and the correct remedy would be to file a petition under Article 227 of the Constitution of India. This judgment is not applicable in the present case as here the Wife has not challenged the order passed under Section 12 of the DV Act but has challenged the order passed by the Sessions Court under Section 29 of the DV Act whereby the appeal filed by the Husband was allowed.

23. In view of the above, I am of the view that the present revision petition filed by the Wife is maintainable. Whether the Judgment in Divorce Proceedings would have any bearing on the present proceedings.

24. The findings/observations qua cruelty passed by the Division Bench of this Court cannot be disputed. However, in this regard, counsel for the Wife has placed relied on the judgement of the Apex Court in Raj Talreja v. Kavita Talreja, (2017) 14 SCC 194, wherein it has been observed that even if there is a finding of cruelty against the wife, it cannot by itself be a ground for denying maintenance. A similar view has been taken by a Coordinate Bench of this Court in Pradeep Kumar Sharma v. Deepika Sharma, (2022) SCC OnLine Del 1035, wherein the Court held that there is no bar of cruelty in the right of the wife to claim maintenance. Further, the Supreme Court in Dr. Swapan Kumar Banerjee v. State of West Bengal, (2020) 19 SCC 342, has held that even if divorce has been granted on the grounds of desertion by the wife, this cannot be a ground to deny maintenance to the Wife.

25. 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. Judgment of remand passed by the Appellate Court.

26. The Appellate Court vide judgment dated 1st November, 2019 set aside the judgment of the Trial Court and remanded the matter to re-try the case.

27. The following submissions were made on behalf of the Husband before the Appellate Court:

(i) The complaint case filed by the Wife was time barred as the parties had been living separately for a long time before filing of the complaint.

(ii) The Trial Court passed the judgment only on the basis of the submissions of the Wife that she was subjected to domestic violence without any proof thereof.

(iii) The Husband stopped appearing before the Trial Court as he expected the Wife to withdraw her complaint in view of the settlement arrived at between the parties on 25th September, 2014.

(iv) Even though the Husband had not been proceeded against ex parte, the Trial Court allowed the application filed on behalf of the Wife for leading additional evidence vide order dated 29th March, 2016 without issuing notice to him.

(v) Wife had wrongly claimed Rs.1,05,000/- as maintenance from the

Husband, which included an amount of Rs.40,000/- for the upkeep of their son. It was the Husband who had been maintaining the son and had spent around Rs.32,00,000/- in this regard.

(vi) The Wife has failed to disclose that she was earning around

Rs.1,00,000/- per month at the time of filing of the complaint. The Trial Court did not ask the Wife to file her detailed income affidavit.

(vii) The Trial Court failed to consider that the Wife was living in her own house and therefore there was no requirement to make a provision for alternate accommodation in the maintenance amount.

(viii) At the time of passing of the judgment of the Trial Court, the son of the parties had turned major and was earning and therefore, the Trial Court wrongly awarded a sum of Rs.1,00,000/- as maintenance taking into account that Rs.40,000/- was for upkeep of the son.

(ix) The Trial Court has made a completely wrong assumption that the

(x) The Trial Court erred in taking into account the earnings of the company of which the Husband was a director to determine the earnings of the Husband.

28. On behalf of the Wife, the following submissions were made before the Appellate Court which are duly noted in the impugned judgment as under:

(i) The Husband failed to comply with the terms of the settlement as recorded in the Settlement Agreement arrived at between the parties in the mediation proceedings and failed to transfer the share in the family house in the name of his son.

(ii) Additionally, the Husband stopped appearing before the Trial

(iii) As per the additional documents placed on record by the Wife before the Trial Court, the Husband was a director in two event management companies, both of whom had their registered address to be the residential house of the Husband.

(iv) The Husband did not file his income affidavit along with his written statement filed on 6th February, 2010.

(v) The Wife had only been working till December 2009, and thereafter, left her job and was looking after her house and their son single-handedly.

(vi) The Husband was not bearing any expenses towards the upbringing of the child even though he had agreed to contribute towards the upbringing of the child as noted in the order dated 27th May, 2011, passed by the Trial Court.

(vii) The income tax returns filed by the Husband before the Appellate

Court shows that there was a progressive increase in his gross total income and is deliberately not paying maintenance to the Wife.

29. Based on the aforesaid submissions, the Appellate Court reached the following conclusions:

30. A perusal of the aforesaid extracts from the impugned judgment of the Appellate Court would show that the Appellate Court noted various errors in the judgment of the Trial Court. For instance, the Trial Court ignored that the sum of Rs.1,05,000/- per month claimed by the Wife included a sum of Rs.40,000/- per month towards expenses of the son of the parties and at the time the judgment was delivered by the Trial Court, the son had already attained the age of majority and thus, no relief could be granted to him. However, 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 is still pursuing his studies. In this regard, reference may be made to the judgment of the Coordinate Bench of this Court in Urvashi Aggarwal v. Inderpaul Aggarwal, (2021) SCC OnLine Del 4641. Relevant observations of the said judgment are set out below:

31. 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.

32. Despite noting the aforesaid errors in the judgment of the Trial Court, the Appellate Court failed to return any findings on the following issues, which were raised before the Appellate Court:

(i) Whether the Trial Court was correct in proceeding with the matter even though the Husband was not appearing before the Trial Court;

(ii) Whether the finding of the Trial Court that the Wife was an ‘aggrieved person’ as per section 2(a) of the DV Act, was correct or not;

(iii) Whether the Husband was justified in not filing his income affidavit before the Trial Court;

(iv) Whether the Wife continued to work and earn after filing of the present complaint;

(v) Whether the Wife was entitled to receive any maintenance towards alternate accommodation;

(vi) Whether the Husband was bearing any expenses towards the upbringing of the son of the parties;

(vii) Till what period was the son of the parties entitled to maintenance.

33. The Appellate Court, instead of adjudicating and returning a finding on the aforesaid issues, simply remanded the matter back to the Trial Court without giving any reasons or justification for the same. The relevant extracts from the Appellate Court order are set out below:

34. In Manik Kutum v. Julie Kutum, 2020 (14) SCC 469, the Supreme Court has observed that the matter should be remanded back by a superior court to a trial court only when some factual inquiry is required to be held which cannot be undertaken at the appellate stage. The relevant observations in Manik Kutum (supra) are set out below:

35. In the present case, the entire record of the Trial Court was summoned by the Appellate Court vide order dated 8th February, 2017. Further, the Husband filed an application for additional evidence before the Appellate Court which was duly allowed vide order dated 15th April, 2019 and the documents filed by the Husband were taken on record. Therefore, the entire record was there before the Appellate Court for it to decide the appeal on merits. There was no justification at all to remand the case back to the Trial Court. The order of remand is completely cryptic and without giving any reasons justifying the remand.

36. Even while remanding the matter back to the Trial Court, the Appellate Court did not deem it appropriate to fix an amount towards interim maintenance. The intention of the DV Act is to provide immediate succour to the aggrieved wife, especially when civil remedies towards maintenance are drastically delayed. The Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 334, has observed that if the maintenance is not made in a timely manner, it defeats the object of social welfare legislation.

37. 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 Rs.10,00,000/- that was paid by the Husband in terms of the order dated 18th July, 2018, passed by this Court in CRL.REV.P. No.22/2018 filed by the Husband. Therefore, even if the Appellate Court remanding the matter to the Trial Court, it should have fixed an interim amount to be paid by the Husband to the Wife.

38. In view of the discussion above, the impugned judgment of the Appellate Court remanding the matter to the Trial Court is set aside and the matter is remanded back to the Appellate Court for adjudication of the appeal filed by the Husband on merits and more particularly, the issues flagged in paragraph 32 of this judgement.

39. 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. Accordingly, even though I am remanding the matter to the Appellate Court to decide the appeal on merits, it is deemed appropriate that an amount of interim maintenance is fixed by this Court pending the adjudication of the appeal on merits.

40. On the basis of the income tax returns of the Husband on record from the financial year 2009-10 to financial year 2019-20, the income of the Husband can be summarised below: Assessment Year Financial Year Gross Total Income/Year Net Total Income/Year 2010-2011 2009-2010 20,24,477 15,69,715 2011-2012 2010-2011 29,84,847 22,32,323 2012-2013 2011-2012 46,22,830 33,65,441 2013-2014 2012-2013 47,96,823 35,16,503 2014-2015 2013-2014 46,76,527 34,08,123 2015-2016 2014-2015 48,45,021 35,80,586 2016-2017 2015-2016 42,71,315 31,73,612 2017-2018 2016-2017 25,02,030 19,54,206 2018-2019 2017-2018 15,14,385 12,52,800 2019-2020 2018-2019 15,14,873 12,65,168 2020-2021 2019-2020 14,57,086 12,26,338 Financial Year 2009-2020 Gross Average Net Average Rs. 32,00,929 per year Rs. 24,13,200 per Income per month Gross Average Net Average Rs. 2,66,744 Rs. 2,01,100

41. As per the table above, taking into account the net total income of the Husband from the financial year 2009-10 to 2019-20, on an average, the Husband would have earned approximately a sum of Rs.2,00,000/- per month. As per the income tax returns of the Wife on record, her earnings after the financial year of 2009-2010 seem to be significantly lower than that of the husband.

42. Keeping in view the income of the parties and the judgment of the Supreme Court in Kulbhushan Kumar v. Raj Kumar, (1970) 3 SCC 129, which was reaffirmed in the judgment of the Supreme Court in Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy, (2017) 14 SCC 200, I am of the view that it would be just and proper that twenty-five percent of the net income of the Husband be granted to the Wife as interim maintenance. 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.

43. While disposing of the present revision petition, the following directions are passed:

(i) The arrears of interim maintenance calculated on the basis above will be paid to the Wife by the Husband over a period of six months in six equal monthly instalments, beginning from 1st March, 2024.

(ii) Any payment made to the Wife in terms of the above shall be subject to the final judgment that may be passed by the Appellate Court fixing the final maintenance.

(iii) The Appellate Court shall decide the quantum of maintenance in accordance with the guidelines laid down by the Supreme Court in Rajnesh v. Neha (supra).

(iv) Taking into account the long period that has elapsed since filing of the complaint, the Appellate Court shall decide the present appeal within a period of one year from today.

(v) The Appellate Court shall decide the appeal on the basis of the material before it. However, the parties shall be at the liberty to lead additional evidence before the Appellate Court in view of any change in circumstances after the financial year 2019-2020.

44. The petition along with pending applications stands disposed of. AMIT BANSAL, J. JANUARY 19, 2024