Kapil Dev vs Mamta

Vivek Singh Thakur, J

Petitioner has approached this Court for setting aside the order dated 30.08.2019 passed by learned Additional Chief Judicial Magistrate, Court

No.1, Una in case Cr.MA No. 165/4 of 2019, titled Mamta vs. Kapil Dev filed under the provisions of Protection of Women from Domestic Violence

Act (in short ‘DV Act’) and judgment dated 9.1.2020 passed by learned Additional Sessions Judge - II, Una, in Cr. Appeal No. 65 of 2019 titled

as Kapil Dev vs. Mamta preferred under Section 29 of DV Act.

2 In alternative, prayer has been made that quantum of interim maintenance be re-fixed because interim maintenance awarded by the trial Court and

modified by first Appellate Court is excessive.

The trial Court had directed the petitioner/husband to pay a sum of Rs.10,000/- per month as interim maintenance to respondent/wife from the date

of filing of application till disposal of petition. The said order was assailed by petitioner by filing an appeal under Section 29 of DV Act. The appeal has

been partly allowed by Appellate Court by reducing the interim maintenance to Rs.9000/- per month from Rs.10,000/- per month.

4 Matrimonial relations between the parties are not in dispute. It is also an admitted fact that respondent is residing in her parents’ house and has

no source of earning and is dependent for her livelihood upon her parents, whereas, petitioner/husband is serving as Senior Maintenance Officer in

Marico Ltd. Company.

5 It is claimed by respondent/wife that petitioner/husband is earning Rs.50,000/- per month but it has been denied by petitioner with plea that his basic

salary is only Rs.26,000/- per month and he is posted as Production Officer in the Company and has to support his parents and one sister who is

pursuing her study in Hans Raj Mahila Mahavidyalay, Jalandhar in the course of M.Sc Botany and her expenses are about Rs.5000/- per month. It is

further stated that he is living at Paonta Sahib and paying an amount of Rs.8000/- per month as rent of room and Rs.800 to Rs.1000/-per month as

electricity and water charges. It is claimed that respondent/wife had left her house at her own without any reason and, therefore, she is not entitled for

any maintenance and in any case, if she is considered to be entitled for maintenance, then maintenance awarded by Courts below is highly excessive

as petitioner is not in a position to pay the same and maintenance has been awarded without taking into consideration actual source of income of

petitioner and ignoring his capacity to pay the maintenance amount.

6 It is submitted on behalf of respondent that father of petitioner is in employment and is maintaining him as well as his spouse and daughter from his

earnings and thus, parents and sister of the petitioner are not dependent upon the petitioner and respondent is not in a position to live in her matrimonial

home and as a matter of fact her father-in-law has filed a civil suit for restraining her from entering into their house (matrimonial house).

7 It is further submitted on behalf of respondent that after the award of interim maintenance by the trial Court, till date, petitioner has not paid any

amount to the respondent except Rs.5000/- despite the fact that she is legally wedded wife of petitioner and petitioner has not only legal but moral duty

also to maintain her.

8 Respondent has claimed that monthly income of petitioner is Rs.50,000/-. Petitioner has denied the same with averments that his basic salary is

Rs.26,000/- per month. Petitioner is the best person to place on record the documents including his account statement to prove salary received by him,

but, he has opted to withhold the documentary proof by avoiding to place it on record. Even if it is considered that he is receiving basic salary only

Rs.26,000/- per month, then also, in the given facts and circumstances of the case, I do not find that amount of interim maintenance re-determined by

learned Additional Sessions Judge is excessive. Moreover the maintenance awarded by Courts below is only interim maintenance which has to be paid

during the pendency of main proceedings and amount of maintenance is to be determined finally by trial Court after adjudication of main case pending

before it. Therefore, I do not find any reason to interfere in the quantum of maintenance awarded and re-determined by the Appellate Court.

In view of above discussion, present petition is dismissed. Interim stay stands vacated. Pending miscellaneous application(s) also stand disposed of.