Interim maintenance under the Domestic Violence Act requires assessment of the respondent's income and presumption of ability to earn by the husband; mere claims of financial inability must be substantiated.

Headnote:(A) Protection of Women from Domestic Violence Act, 2005 - Section 23 - Interim maintenance awarded - Petitioner challenges order fixing maintenance at Rs.25,000/- per month on grounds of unemployment and absence of evidence of income - Court affirms MM's decision based on income assessment and shared domestic relationship. (Paras 1, 2, 6, 9)

(B) Maintenance - The ability of an able-bodied husband to earn is presumed; mere claims of inability due to circumstances must be substantiated. (Para 6)

Facts of the case:
The marriage occurred on 05.03.2018. The parties have lived separately since December 2018. The respondent filed for maintenance and relief under Domestic Violence Act. Petitioner contested income evidence and claimed losses due to his past employment and ongoing cases against him. (Paras 2, 3, 4)

Findings of Court:
The court found the assessment of Rs.80,000/- income per month for the petitioner valid based on presented income tax returns, and validated the interim maintenance order. (Paras 6, 9)

Issues: Whether the learned MM correctly assessed income for determining maintenance and did the appellate court err in rejecting petitioner's application to expedite hearing? (Paras 3, 7)

Ratio Decidendi: The Court upheld the presumption that an able-bodied individual can earn sufficiently; the assertion of unemployment must be accompanied by credible evidence. The MM’s duties were appropriately fulfilled with relevant income documentation. (Paras 6, 9)

Result: Petition dismissed.

Table of Content
1. background of maintenance order and related litigation (Para 1 , 2)
2. arguments regarding the petitioner's income and employment status (Para 3 , 4 , 5)
3. court's reasoning on maintenance and appeal process (Para 6 , 7 , 8)
4. final decision to dismiss the petition (Para 9 , 10)

JUDGMENT

Subramonium Prasad, J. The petitioner seeks to challenge the order dated 01.02.2021 passed by the learned MM (Mahila Court-02), Patiala House Court, New Delhi fixing the interim maintenance in favour of the respondent herein under Section 23 of Protection of Women from Domestic Violence Act, 2005 for a sum of Rs.25,000/- per month which includes monthly expenditure, rent allowance, medical expenses, travel expenses etc. from the date of the complaint and the order dated 1.12.2021 passed by the learned ASJ-04, Patiala House Court rejecting an application for preponment of the appeal/stay of the order dated 01.02.2021 fixing the above mentioned maintenance.

2. The facts, in brief, leading to the filing of the instant petition are as under:

a) The marriage of the petitioner and the respondent was solemnized on 05.03.2018 at Jammu. The petitioner was working in Hyderabad and, thereafter, the parties were staying in Hyderabad. The material on record discloses that some differences arose between the parties. Thereafter, the petitioner and the respondent have been residing separately since December, 2018.

b) The respondent herein filed an application under Section 12 , 18 and 19 of the Protection of Women from Domestic Violence Act, 2005 praying for protection orders. In the said application, the respondent herein also prayed under Section 23 of the Protection of Women from Domestic Violence Act, 2005 for interim maintenance.

c) It is pertinent to mention here that the petitioner filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights in Jammu, and the respondent filed a complaint under Section 498/406/34 IPC at Delhi.

d) The learned MM while considering the application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 came to the conclusion that the respondent is staying in Delhi and, therefore, this Court has the jurisdiction to entertain the application. On the basis of material on record, the learned MM also held that there was sharing of domestic relationship in a shared household which would entitle the respondent herein for relief under the Protection of Women from Domestic Violence Act, 2005.

e) Income affidavits were filed by the parties. The learned MM, on the basis of income tax returns, found that the petitioner has earned approximately Rs.18 lacs in the year 2018-19, a sum of Rs. 12 lacs in the year 2019-20 and a sum of Rs. 21,000/- in the year of 2020-21. After considering the income tax returns and other documents, the income of the petitioner was assessed Rs.80,000/- per month. This was done after taking into consideration that the petitioner has earned only Rs.21,000/- in the year 2020-21. The learned MM held that no doubt that the petitioner must be facing certain financial crisis due to COVID-19 but the respondent must also be facing the same financial crisis. On the basis of the above discussion, the learned MM fixed the interim maintenance for a sum of Rs.25,000/- per month to the respondent herein vide order dated 01.02.2021.

f) The said order dated 01.02.2021 has been challenged in an appeal by the petitioner herein. The said appeal is under consideration. Material on record indicates that an execution petition was filed and notice has been issued in the said petition. The petitioner filed an application for stay of the order dated 01.02.2021 and 17.11.2021 passed by the learned MM-02, Patiala House Courts, New Delhi and for the preponement of hearing of appeal on the ground that the execution petition has been filed by the respondent/wife. The learned ASJ-04, Patiala House Court, New Delhi, was not inclined to grant stay of the orde

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