IN THE SUPREME COURT OF INDIA
(2018) 8 SCC 452: (2018) 4 SCC (Civ) 74: 2018 SCC OnLine SC 725
Petitioner
Shalu Ojha
Respondent
Prashant Ojha
Date of Judgement
23 July, 2018
Bench
Hon’ble Justice Ashok Bhushan, J.; K. Sikri, J.
Background:
The dispute is related to the rate of maintenance that was ordered in favor of the petitioner. On the reduction of the same, the question of the possibility of an enhancement or correctness of the reduction was put before the Court. The Court refrained from making an assertion on the same however emphasized the perusal of evidence to ascertain the evidential value of the material facts.
Facts of the case:
The Supreme Court, on an earlier occasion, has passed an order disposing of the petition and directing the matter to be adjudicated by the High Court due to its pendency. Thereafter, the petitioner sought a review petition on the ground that the order direction of the matter being remitted the High Court was erroneous as there were no pending proceedings under the Domestic Violence (DV) Act. In pursuance of the same, the Supreme Court restored the SLP.
The petitioner is the respondent’s wife. For almost ten years, after their marriage in 2007, they have been living separately. In 2009, the petitioner claimed maintenance as per Section 12 of the DV Act. The learned Metropolitan Magistrate granted interim maintenance @ Rs. 2,50,000/- per month and compensation @ Rs.1,00,000/- effective from the date of filing the claim. An execution petition was filed forthwith due to the dishonor of the said order by the Respondent. Meanwhile, the respondent challenged the order of the Metropolitan Magistrate in Court of the Additional Session Judge, Delhi who directed the Respondent to deposit arrears of maintenance within 2 months. Failing to fulfill this order as well, the appeal of the respondent was dismissed. The respondent further pursued the appeal in the High Court and thereafter the Supreme Court, which was not entertained. The High Court directed the matter for Mediation which also failed, unfortunately. The High Court then passed an order directing the Respondent to pay Rs.5,00,000/- on or before September 30, 2013, and another sum of Rs.5,00,000/- on or before October 31, 2013. The petitioner sought modification of the order in light of the arrears of maintenance ordered by the Family Court. The petitioner also filed an SLP seeking vacation on the stay on execution proceedings. This was converted into an appeal on the grant of leave which was allowed and execution order granted.
The Respondent was sent to judicial custody till 22 December, 2014 for not clearing the entire arrears on maintenance. Thereafter, the maintenance amount was reduced to Rs. 50,000/- per month. This order was challenged by the petitioner. The Respondent also challenged the order for further reduction which was dismissed by the High Court. Finally, the amount came to be accepted by the Respondent.
Issues:
- Whether the petitioner is entitled to enhancement of the maintenance amount?
- Whether the amount was rightly reduced by the Additional Session Judge?
Arguments Advanced:
From petitioner:
The petitioner submitted that there were no valid reasons for the reduction of maintenance. Several documents were also produced by her to prove that the respondent was running several businesses and possesses various assets and is living affluently. It has also been mentioned that she is staying with her parents in their house.
In the income affidavit filed by the petitioner, it was mentioned that she is compelled to stay with her parents due to insufficient maintenance. The Court failed to understand how the expenditure of Rs. 1 lakh per month is made. Neither is it explained as to in what form and who is generating the income. It is contested by the petitioner that she has no other source of income except the amount of maintenance given to her by the respondent.
From Respondent:
The respondent has refuted the authenticity or the relevance of the documents submitted by the petitioner by contending that he does not hold such stakes in businesses. He claims to be going through financially hard times which was the reason for his non-payment of arrears which led him to go behind bars. It was also the contention of the Respondent that apart from the monthly maintenance amount given to the petitioner every month, she has some other source of income as well.
In the reply to the affidavit, the Respondent denied all the averments made by the petitioner and relied on the bank statements of the petitioner to contend that she has other sources of income
Judgment:
It was held that proceedings under Protection of Women from Domestic Violence Act, 2005 are summary in nature and hence after a stringent perusal of the documents placed on record by both parties, the Court opined that only after cross-examination can the evidential value of the material facts be adjudged.
The current petition stands disposed of by granting liberty to the petitioner to move the appropriate application for maintenance under the relevant provisions of the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 which shall be decided expeditiously.
No fixed amount of maintenance was ascertained but it was decided to not be less than Rs. 50,000/- per month as it has already attained finality against the respondent-husband. Meanwhile, the respondent was directed to continue to pay interim maintenance of Rs. 50,000/- per month to the petitioner.
Conclusion
The Court has rightly opined that there is the extreme value of the evidence of material facts and a proper conclusion can only be reached after cross-examination of both parties. Due to the nature of summary proceedings of the Domestic Violence petition before the Court, the matter could not be proceeded with and the petitioner ought to approach the court under an appropriate application for the claim of maintenance.
Edited by Parul Soni
Approved & Published – Sakshi Raje
