Entitlement to maintenance under the Domestic Violence Act is not contingent on property rental arrangements; such conditions violate the statutory framework.

JUDGMENT :

AMIT MAHAJAN, J.

1. The present petition is filed questioning the order dated 28.02.2019 (hereafter ‘impugned order’) passed by the learned Special Judge (PC Act), Saket Courts, New Delhi in CA No. 30/2019 titled Sanjay Walia vs. Smt. Neelam Walia .

2. By the impugned order, the learned Appellate Court, in the appeal filed by the respondent under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’) modified the order of the learned Metropolitan Magistrate (‘MM’) dated 18.12.2018. The learned MM, vide order dated 18.12.2018 assessed the monthly income of the respondent to be Rs.1,00,000/- per month, and directed the respondent to bear the college fees of the younger son, and pay a sum of Rs.25,000/- per month to the petitioner from the date of filing of the case till the disposal of the present case.

3. The learned Appellate Court, by the impugned order, directed the parties to negotiate an arrangement whereby the petitioner is to give the property in her possession on rent to the respondent. It was noted that the respondent who was paying rent of Rs.27,000/- per month to a third person for running his business from rented premises shall be able to save such amount, and pay Rs.25,000/- to the petitioner as maintenance as directed by the learned MM. It was further noted that the property of the petitioner would be taken care of in terms of occupancy and maintenance, and the petitioner instead of being dependent on the respondent for maintenance would become an independent person having her own independent source of income through rent. Aggrieved by the same, the petitioner has filed the present petition.

4. The learned counsel for the petitioner submitted that the learned Appellate Court erred in modifying the order passed by the learned MM. She submitted that the learned Appellate Court ought not to have directed the parties to enter into a contract in the nature of lessor and lessee thereby altering the domestic relationship of the parties for the purpose of maintenance.

5. She submitted that the learned Appellate Court, by the impugned order, has in a way created a pre-requisite for the purpose of petitioner’s entitlement to maintenance. She submitted that such pre- requisite for the purpose of entitlement to maintenance has no force in the eyes of law.

6. She submitted that the right of the petitioner to receive maintenance could not have been made conditional upon the execution of a rent agreement, a relationship that is prima facie contractual in nature. She submitted that even otherwise the property of the petitioner is a commercial property, and in ordinary market, is capable of being let out for more than just Rs.25,000/- per month. She submitted that but for the hindrances created by the respondent, the property is not being easily let out. She submitted that the petitioner has no independent source of income, and prayed that the respondent be directed to pay interim maintenance.

7. Per contra, the learned counsel for the respondent submitted that the present petition is not maintainable since the petitioner was directed to explore possible efforts to arrive at a settlement as directed by the learned Appellate Court. He submitted that the petitioner having failed to do so has not approached this Court with clean hands and the present petition accordingly be dismissed.

Analysis

8. Section 23 of the DV Act deals with the provision relating to the power of the Magistrate to grant interim maintenance. Further Section 29 of