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DELHI HIGH COURT
Sanjeev Sachdeva, J.
Kanupriya Sharma —Petitioner
versus
State and Anr. —Respondents
Crl.Rev.Pet.849 of 2018 and
Crl.M.A.33234 of 2018
Decided on 31.5.2019
Held: The dispute as to whether Petitioner was employed in Railways or that it was a fraudulent employment secured by the uncle of Respondent no. 2 and She had even made a complaint to the PMO and further that uncle of Respondent no. 2 is already facing an inquiry and that the money deposited in the account opened in her name in Axis Bank was being withdrawn by the uncle and then being deposited in the account of his own son are all disputed questions of fact requiring trial. Further dispute as to whether Petitioner was employed with Aastha Infracity Ltd. or that she had never received any salary from Aastha Infracity Ltd. but had gone there to gain experience are all disputed facts requiring trial.
There is no material produced by Respondent no. 2 either before the Trial Court, Appellate Court or before this court to show that the Petitioner, in fact, had secured any employment or was receiving any salary or income.
An application under Section 23(1) of the D.V. Act is an application for fixing interim maintenance. Interim maintenance is fixed on taking a prima facie view of the matter. Serious disputed questions of facts raised at that stage, requiring evidence cannot be gone into. Unless undisputed evidence is produced by the husband clearly establishing that the wife is gainfully employed, relief of interim maintenance cannot be declined.
In case there is a dispute as to whether the wife is gainfully employed or not, court cannot assume, as has been done in this case by the Appellate Court, that because she is educated or was employed prior to her marriage, she would be gainfully employed.
The grant of maintenance under the DV Act has not been made dependent upon the expression “unable to maintain herself”. Further, the expression “unable to maintain herself” does not mean capable of earning.
In the present case, whether Petitioner is actually earning or qualified and capable of earning are again two different things. As noticed above, no material has been produced by Respondent no. 2 to show that the Petitioner is gainfully employed or receiving any salary and actually earning. The pleas raised by the Respondent no. 2 would be required to be established at trial. Till Respondent no. 2 establishes by leading cogent evidence that Petitioner is gainfully employed and receiving salary, there is no justification to deny maintenance to the Petitioner-wife.
In view of the above, clearly the impugned order dated 25.08.2018 passed by the Appellate Court reversing the award of maintenance by the Trial Court in favour of the Petitioner is not sustainable. (Paras 19 to 21, 24 and 30 to 32)
Revision allowed.
Sanjeev Sachdeva, J.—Petitioner impugns judgment dated 25.08.2018 whereby the Appellate Court allowed the appeal filed by Respondent no. 2/husband, impugning order dated 26.06.2018 of the Trial Court and set aside the same. The Trial Court has awarded interim maintenance to the Petitioner/wife of Rs. 16,500/- per month from the date of filing of the petition under Section 23(1) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the DV Act).
2. Petitioner and Respondent no. 2 married on 14.02.2015. As per the Petitioner, her parents had spent lavishly on her marriage and fulfilled all demands of Respondent no. 2 and his family. After the marriage, Petitioner started residing with Respondent no. 2 at her matrimonial home in Muradnagar, Ghaziabad (U.P.) along with him and his family. It is alleged that thereafter Petitioner was subjected to cruelty by her in-laws who were dissatisfied with the dowry articles. Further, it is alleged that all her jewellery articles and Istridhan were taken by her in laws on the pretext of keeping them safe in a bank locker.
3. It is further alleged that she was consistently harassed by her husband and her in-laws. It is alleged that without informing the Petitioner, Respondent no. 2 left the matrimonial house at Muradnagar, Ghaziabad and started living at Pune (Maharashtra) and refused to return to the matrimonial home.
4. Subsequently, when Petitioner went to live with her husband at Pune, she came to know that he was living in a flat which was in a dilapidated condition and did not even have separate toilet facilities; however, she was still forced to live with her husband there. It is alleged that she was also neglected because of which she became unwell and was forced to leave her matrimonial home and live with her parents at Muradnagar. Thereafter she shifted to Laxmi Nagar, Delhi as she was preparing for bank examination.
5. Petitioner filed subject petition under Section 12 of the D.V. Act. On the interim application under Section 23(1) of the D.V. Act, the Trial Court by its order dated 26.06.2018, held the income of Respondent no.2/husband to be Rs. 50,000/- and apportioned the same into three parts and awarded Rs. 16,500/- to the Petitioner per month as maintenance.
6. Aggrieved by the order passed by the Trial Court, Respondent no. 2 filed an appeal which has been allowed by the impugned judgment dated 25.08.2018.
7. The Appellate Court has reversed the maintenance awarded by the Trial Court primarily on the ground that Petitioner was duly qualified and educated person and there was no reason mentioned as to why she was unemployed. Further, the Appellate Court was of the view that Respondent no. 2 had produced material to show that Petitioner was gainfully employed and had been working in Aastha Infracity Ltd. Further the Appellate Court held that uncle of Respondent no. 2 had managed to get her a job in Indian Railways and she was receiving salary therefrom.
8. Further, the Appellate Court held that Petitioner had failed to disclose her employment and had not approached the court with clean hands. The Appellate Court held that as Petitioner was in a position to work and earn her livelihood, she could not be said to be a victim of vagrancy and being a self-created situation, she was disentitled to maintenance.
9. Learned counsel for the Petitioner submits that Petitioner was not gainfully employed. It is submitted that Petitioner had made several attempts to secure an employment but was unable to do so. Learned counsel submits that Petitioner has never worked with the Indian Railways. Uncle of the Respondent no. 2 had fraudulently secured an employment in her name in Indian Railways from which salary was being credited to an account opened in her name and the money deposited in the said account was being debited by the uncle and credited to his son’s account.
10. It is contended that Petitioner has never worked at the said job and has even ma
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