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HOW TO WRITE FIRST APPEAL UNDER RTI
One has to follow the following guidelines while filing 1st Appeal under Right to Information Act 2005.
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1. First appeal has to be filed within 30 days from date of receipt of decision of CPIO by the applicant with First Appellate Authority (FAA).
2. If no reply is received within 30 days (35 days if application is lodged with ACPIO) from the date of receipt by CPIO (ACPIO), then first appeal has to be filed within 30 days from the date when reply was due from CPIO.
3. Find out name, designation and address of first appellate authority from the decision letter of CPIO. If no reply is received, visit the web-site of the govt. dept/office/undertaking and refer RTI icon for these details.
4. Despite above efforts, if you are not in a position to locate details of FAA, address your first appeal as under: The First Appellate Authority under RTI Act 2005C/O. Head of _______________Dept/officeand mention address of CPIO’s dept/office
5. If you want to be present during the first appeal hearing, mention it at the end of your appeal.
6. No fee is prescribed for first appeal for Public Authorities under the Central Government.
7. Some States have a prescribed fee and a specified format for First Appeal. Please check RTI Rules of individual Sates regarding First Appeal fees (if any), mode of payment, format (if any) if your First Appeal is to a Public Authority falling under State Government.
8. All photocopies of enclosures mentioned in the appeal should be self-attested by the applicant under the word ‘Attested’ and full signature.
9. Retain one set of appeal and postal receipt and AD receipt.
10. You can deliver personally also, but mailing by registered ad/speed post is preferable. Couriers should be avoided.
11. FAA has to decide on the appeal within 30 days from the date of receipt of first appeal. He can take a further 15 days (total 45 days), provided he gives the reasons for the delay in writing.
12. The FAA can give either a "spoken" order or a written order.
13. Department of Personnel and Training (DoPT) has issued specific instructions to FAA's. These can be referred to here:
COMPLAINT UNDER RTI ACT 2005
COMPLAINT UNDER RTI ACT
Section 18 of the act empowers Central Information Commission [CIC] and also State Information Commissions [SICs] to enquire into complaints against Public Authority, Public Information Officer [PIO] and First Appellate Authority [FAA]. The section has provided for enquiring and taking corrective steps by the respective commissions in respect of majority of problems that the applicant/appellant may face in getting information to which he is entitled to under this act. Situations under which complaint can be lodged
1. No PIO or APIO or FAA is appointed by public authority.2. PIO/APIO/FAA has refused to receive application/appeal.3. No reply is received from PIO & FAA within time limit fixed by the act.4. Reply received from PIO is unsatisfactory, irrelevant, unreadable,
misleading, unclear, false, incomplete etc.5. Information has been wrongly and unjustifiably refused.
6. When applicant is required to pay fee/charges in excess of those prescribed in RTI rules applicable.
7. PIO/APIO is not accessible in person or by post and his whereabouts are not easily available/prominently exhibited.
8. Proactive disclosure under section 4 [1] has not been made or it is not made publicly available/accessible.
9. PIO/FAA has wrongly refused inspection of records of public authority or reasonable cooperation is not extended during inspection.
10. PIO, FAA or any other person directly/indirectly intimidates or ill-treats or pressurizes the applicant/appellant or restraints him from exercising his right under the act.
11. PIO/FAA disobeys orders of CIC/SIC.12. Any other situation where the citizen has been wrongly
restrained/refused access to information to which he is entitled under the act.
13. Any other violation of provisions of the act by public authority, PIO or FAA.
How to lodge complaint
1. Complaints relating to information of central government public authorities are to be lodged with Central Information Commission [CIC], August Kranti Bhavan, Bhikaji Kama Place,NEW DELHI 110066. [www.cic.gov.in]In case of information of public authorities of State Govts, complaints have to be lodged with respective State Information Commissions [SICs]. Details are available on official websites of State Govts. /State Information Commissions. Please visit http://www.rtiindia.org/guide/ OR www.rti.gov.in for statewise details.
2. CIC and some of SICs have prescribed minimum information or papers that must be submitted with the complaint. Some SICs have prescribed format for complaint. For CIC and those SICs, which have not prescribed format, complainants can use guidelines and format as available at http://www.rtiindia.org/guide/how-to...l-under-rti-3/with minor changes
3. CIC does not charge any fee for complaints. Some SICs charge fees for this purpose.
4. There is no time limit for lodging complaint, but it is advisable to lodge the same within reasonable time of happening of cause for complaint.
5. Send copy of complaint to PIO/FAA simultaneous with CIC/SIC. At times PIO/FAA solves your problem before hearing at CIC/SIC.
6. Ask for punishment to PIO/FAA under the act and also claim compensation for not getting the information in time.
7. Information Commissions are vested with powers of Civil Courts in respect of summoning, enforcing attendance, giving evidence on oath, producing records, etc.
8. Complaint is in addition to Second/final Appeal available to applicants.9. It is advisable to simultaneously approach head of the organization or
govt. dept at capital-level [secretary/chief secretary] for his intervention. This may help get information.
10. After lodging complaint, please check from concerned website if the same is registered and registration number and status.
11. In case of information pertaining to life and liberty, the complaint should be conspicuously branded as “Life & Liberty-Urgent” so that priority is accorded for its disposal before it is too late. Follow-up through email is recommended if available with SIC.
12. CIC/SICs are flooded with appeals/complaints and there is huge pendency. Thus it may take 12 to 36 months before complaint is heard.
13. It is advisable to take free help from experienced RTI activists/NGO if locally available so that matter can be effectively and properly represented through complaint.
WE GET GOVT WE DESERVE. WHAT ARE YOU DOING IN 2012?Time limits specified in the RTI Act
Notes:
3rd Party can be anyone other than the citizen applying for information
Please account for adequate time for postal delays
Various time limit has been prescribed under which the information can be obtained under Right to Information Act. These time limits are prescribed by the Act itself, and failing which an RTI Applicant can approach appropriate authorities for relief.
Following are the various time limits specified in the RTI Act 2005
For matters involving "Life and Liberty", the time limit for the PIO to provide information is 48 Hours.
For PIO to reply to application
30 days from date of receipt of application
For PIO to transfer to another PA under Sec 6(3)
5 days from date of receipt of application
For PIO to issue notice to 3rd Party
5 days from date of receipt of application
For 3rd Party to make a representation to PIO
10 days from receipt of notice from PIO
For PIO to reply to application if 3rdParty involved
40 days from date of receipt of application
For applicant to make First Appeal
30 days from date of receipt of PIO’s reply or from date when reply was to be received
For First Appellate Authority to pass an order
30 days from receipt of First Appeal ORMaximum 45 days, if reasons for delay are given in writing
For applicant to make Second Appeal before CIC/SIC
90 days from receipt of First Appeal orders or from the date when orders were to be received
For CIC/SIC to decide Second Appeal
No time limit specified
The detailed time schedule has been compiled by Raveena_a in the blog entry. The document has been copied here.Tags: time limit, first appeal, second appeal, application, 3rd party, third party
1. Second Schedule of the RTI Act 2005
The Second Schedule of the RTI Act exempts certain Public Authorities under the Central Government from disclosure of information under the RTI Act 2005.
However, these Public Authorities have to respond to RTI Applications which pertain to subjects of Human Rights and Corruption. As per Section 5(1) of the RTI Act and the instructions of DoPT, they are also supposed to have a PIO and a AA.(Please see: http://www.righttoinformation.gov.in...24_2007_IR.pdf)
As on 28th March 2008, the following is the list in the Second Schedule:
1. Intelligence Bureau.2. Research and Analysis Wing of the Cabinet Secretariat.3. Directorate of Revenue Intelligence.4. Central Economic Intelligence Bureau.5. Directorate of Enforcement.6. Narcotics Control Bureau.7. Aviation Research Centre.8. Special Frontier Force.9. Border Security Force.10. Central Reserve Police Force.11. Indo-Tibetan Border Police.12. Central Industrial Security Force.13. National Security Guards.14. Assam Rifles.15. Sashastra Seema Bal. 16. Directorate General of Income-tax (Investigation) .17. National Technical Research Organisation.18. Financial Intelligence Unit, India.19. Special Protection Group.20. Defence Research and Development Organisation.21. Border Road Development Board.22. National Security Council Secretariat
[SIZE=4][SIZE=2]Similarly, some States within the union has also exempted certain Public Authorities in the respective states, from the purview of the Act. Please check separately for each State.
To read the full act visit here: http://act.rtiindia.info
NOTE 1: Vide a gazette Notification dated 8th October 2008, one more organisation was added to the exempted list:
22. National Security Council Secretariat
NOTE 2: Vide gazette notification dated 09 June 2011, 3 more organisations were added to the exempted list:
23. Central Bureau of Investigation (CBI)24. National investigation Agency (NIA)25. National Intelligence Grid (NATGRID)Tags: second schedule, exemption
Divorce made easy –
LATEST JUDGEMENTS
In the previous edition, we have discussed about Adultery In this edition
let us know about cruelty.
Under clause (ia) of sub-section (1) of section 13 and under sub-section (1)
of section 10 of the Hindu Marriage Act, 1955 cruelty is a ground of divorce
as well as judicial separation respectively. Whether a particular act or
conduct complained of is covered under the ground of cruelty or not, will
always be decided on facts and circumstances in each case.
What is Cruelty?
Under the English Law, legal concept of cruelty is conduct of such a
character as to cause danger to life, limb or health (physical or mental) or
as to give rise to a reasonable apprehension of such danger. Before the
amendment of the Hindu Marriage Act, which was brought in the year 1976,
the rigid meaning and interpretation was given to the ground of cruelty. But
even before the amendment, the Supreme Court in Dastane Vs. Dastane,
AIR 1975 SC 1534, tried to give a literal meaning to the ground of cruelty
applicable in terms of divorce or judicial separation.
Though the concept of English Law and the Hindu Marriage Act in terms of
cruelty as a ground for divorce or judicial separation is more or less the
same, yet the learned Judges in India still hold that marriage is a sacrament
taking into consideration the social and cultural conditions of our country.
In Sukumar Vs Manohar Shivaram Jagesha, the Court observed:
The question whether a particular act or behaviour would amount to cruelty
or not depends upon the character, way of life of the parties, their social
and economic conditions, their status, customs and traditions. Each case is
to be decided on the facts of its own. The judges and the lawyers should not
import their own notions of life while dealing with matrimonial cases.
Classification of Cruelty:
Cruelty is classified into two heads.
1. Physical cruelty and
2. Mental cruelty
Physical Cruelty:
It is a settled law that physical violence is not necessary ingredient of
cruelty. Unending accusations and imputations can cause more pain and
misery than a physical beating. Therefore, it goes without saying that the
act of cruelty consists of mental torture or physical violence. If it is a
physical violence, there will be no problem for a court to arrive at a decision
while determining a case presented before it, but in case of mental torture
or harassment, the court finds comparatively more difficult to come to final
conclusion.
Firstly the court begins its enquiry as to the nature of cruel treatment as
well as the impact of that treatment in the mind of the spouse. Ultimately it
is a matter of inference to be drawn by taking into account of the nature of
the conduct and its effect on the complaining spouse.
Kaushalya Vs Wisakhi Ram:
The husband had been ill treating the wife and beating her. On one
occasion she had to go to the police station to lodge a complaint against
her husband. The Punjab and Haryana High Court observed that according
to the standards of all civilized world these acts would constitute cruelty,
even though injuries might not be serious as to require medical treatment.
Saptmi Vs Jagdish:
It was held that if a husband constantly abuses and insults the wife and
occasionally resorts to physical violence against her, it amounts to cruelty.
Conversation with Ambika Soni, Information Broadcasting MinisterBar & Bench News Network
Jun 16, 2010The Union Cabinet on June 10 approved the introduction of Marriage Laws (Amendment) Bill, 2010 to
further amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, to include ‘irretrievable
breakdown’ of marriage as another ground for obtaining divorce.
At present under the Hindu Marriage Act, 1955 a divorce can be claimed under Section 13 on grounds of
adultery, cruelty, desertion, conversion to another religion, unsound mind, virulent and incurable form of
leprosy, disease in communicable form, renouncement of the world and not being heard of alive for a
period of seven years or more. Under Section 13(b) divorce is granted by mutual consent.
Under the Special Marriage Act, 1954, divorce can be granted under Section 27 on grounds similar to
those of Section 13 (Hindu Marriage Act, 1955). Section 28 grants divorce on the grounds of living
separately for one year or more or they are not able to live together and mutually agree that marriage
should be dissolved.
The problem surfaces when couples apply for divorce through mutual consent. Either spouse may suffer
due to one of them abstaining himself or herself from court proceedings and thus keeping the trial
inconclusive.
The press release by the Law Ministry said that this amendment has been recommended by the Law
Commission of India in its 217 th Report on ‘irretrievable breakdown of marriage- another ground for
divorce’ and on observations made by the Hon’ble Supreme Court, in the case of Jorden Diengdeh vs.
S.S. Chopra and Naveen Kohli vs. Neelu Kohli.
Geeta Luthra, Senior Advocate says, “Irretrievable breakdown would be great for a small proportion of the
elite population. It’s definitely the way for the future but it gives a complete 360-degree to the concept of
marriage among Hindus being sacred. If it means consensual divorce without waiting for six months under
current law its very welcome. The one-year moratorium for filing for divorce should also be done away with.
Vast majority of Hindu women in India i.e. rural, semi-literate need to be protected in matrimony and they
could be affected by a unilateral irretrievable breakdown clause”.
Dr. Purnima Singh, Psychologist, IIT Delhi says, “As a psychologist and a social scientist I feel marriage as
an institution is one of the strengths of our society. It gives a kind of stability in personal relationships,
which in turn is the crucible for long-term happiness and well-being. I do understand that the present
amendment is to relax the conservative approach to matrimonial disputes; but I also feel that the youth
today are becoming unrestrained in their personal and social relationships especially in urban areas and
lack the patience that is needed in building relationships.”
She adds that there are chances of this being misused if it is made a law. “Too much of freedom is not
good. The value of stable relationships should be emphasized and community based efforts are needed to
make today's youth appreciate the benefit of stable relationships. Such a provision (the present
amendment) should be allowed under very special circumstances with both female and male being allowed
to go in for it especially when other efforts fail. This amendment does reflect the urban reality but while
making these amendments we forget that a large population in India is still in the villages where despite
governmental efforts large number of people are illiterate. Do we look at this reality when we go for these
amendments? What effect such amendments will bring on the society should be considered.”
When compared to the Western world, divorce rates in India is about 1 percent while 40 percent of all
marriages in the US end up in a divorce. This is also because the ease of availability of divorce, in many
states in the United States, is between 24 hours to 96 hours while in India the process of obtaining a
divorce by mutual consent takes years if not decades in some cases. With this change in legislation, the
Government has made it easy and less burdensome for the courts to clear divorce proceedings.
Bar and Bench in conversation with Ambika Soni, Information and Broadcasting Minister
Why did the Government propose an additional ground i.e. ‘irretrievable breakdown’ to the existing
law for obtaining a divorce?
Based on the recommendations of the Law Commission, the Supreme Court and inputs from different
quarters, this had been due for a long time. In cases where couples seeking a divorce by mutual consent,
approach the court and one of them wants it done quicker, this ground comes into play. Under this provision
the party seeking an expeditious divorce won’t feel harassed if the other fails to come to court or willfully
avoids and causes delay.
What are your thoughts on the system of obtaining a divorce in India?
Marriage according to me is sanctity. I still hold a lot of value in marriage and more when you have a family.
One should think very carefully before going in for a divorce.
As a Cabinet Minister, this change is yet another clause to make it faster in getting a divorce and it’s better
to facilitate this as the present system does not make people hallow in marriage specially in cases where
marriage does not seem to be working.
Isn’t our law being too liberal all of a sudden? Just recently the Supreme Court ruled in property
rights for children born out of live-in relationships. What are your views on this changing trend?
Change with progress, one should change with the times. Each generation looks and perceives ‘values’ in a
different manner. We have to make law more adaptable and not have it so antiquated and rigid.
PRESS STATEMENT by Pariwarik Suraksha
Delhi, dated 25 November 2006 GENERAL PRINCIPALS OF APPLICATION OF LAW AND STATUTES IN RESPECT OF MATRIMONIAL STATUTES TO PREVENT ABUSE FOR ULTERIOR MOTIVES BY WOMAN, HER PARENTS AND THEIR HIDDEN ACCOMPLICES, IF ANY.
JUDICIAL AND POLICE AUTHORITY UNDER ARTICLES 141 and 144 of the CONSTITUTION IS TO PROTECT CONSTITUTION PREAMBLE GIVEN BY PEOPLE OF INDIA TO THEMSELVES, FOR ORDERLY NATIONAL INTEGRITY, SECURITY, SECULARITY, DEMOCRACY AND REPUBLIC INDIA THROUGH ETHICAL PROCEDURES AS LAID IN STATUTES AS MANDATORY CONSTITUTIONAL OBLIGATIONS.
1. “Understating Wrong Implementation Of Crl. Act No. 46 of 1983 (worst than misuse)”: This is to help women also for filing of true complaint if any against husband and his relatives in proper manner i.e. by observing qualifying clause u/s. 6 of Crl. Act No. 46 of 1983 that she has to file her case to the magistrate after
taking an oath i.e. under affidavit making complaint to magistrate as a private complaint case. 498A IPC isolated from Crl. Act No. 46 of 1983 and moved additionally to the said new domestic violence law and blended to contaminate adulterate the Crl. Act No.46/1983’s section 2 creating section 498A IPC.
2. There are two sides of the coin of 498A IPC which is a part of the Crl. Act No.46/1983 i.e. dowry death within 7years of marriage cognizable offence, and the other side of the coin of 498A IPC being the living woman who has not died because of "willful" dowry torture, if any, it has to be by way of private complaint case to Judicial Magistrate First Class / Metropolitan Magistrate who will take cognizance of the complaint, if found to his judicial satisfaction, and issue summons to the other side directing them to bring with them their arrangement for taking bail. No arrest in latter part.
3. The wrong implementation victimizes husband and his relatives by way of complaint by “living” woman to police authority to erringly be understood as ‘cognizable’ to abuse the police power of arrest despite the Supreme Court of India has ruled that even in cognizable cases, it is not necessary to arrest in each case depending upon the circumstance. This is matrimonial case u/s. 498A IPC not dealing with general criminals.
4. When special law of 498A IPC is accompanied with Indian penal code's sections in addition to 498A IPC, it is a clear abuse of criminal process i.e. using other penal sections in additions to 498A IPC is sure indicator of abuse of criminal process to cause arrest for ulterior motives.
5. The abusers of criminal process and civil law abusers, in matrimonial matters and those who abet are equally to be punished as held in this court’s judgment of 19/7/2005 (Supra).
6. If there is no offence made out in special law like 498A IPC as 498A IPC is used as an excuse to arrest with police powers so that the husband and his side are blackmailed for sure extortion attempts for “snatching” riches by extortion under threat of a criminal case (u/s. Sec.389 IPC) for getting amongst others a forced mutual divorce which is also an open fact that 498A IPC abuse of criminal process leads to mutual divorce as a essential reward to which the judicial authority become party despite the cognizable side of 498A IPC is non-compoundable.
7. Using of additionally other sections of IPC at time of “using” section 498A IPC that also has ingredients of dowry demand and those similar to section 323, 504, 506, 511 of the IPC and section of the Dowry Prohibition Act 1961 is a repetition for ulterior motives by the person and/or authority using it for abusing of police powers to arrest abetting the woman and her side to have high authority in demanded extortion.
(i) Section 498A IPC vis-à-vis sections 2 to 7 of the Crl. Act No.46 of 1983 show the intention of the legislation: (ii) 498A IPC: Husband or relative of husband of a woman subjecting her to cruelty. Cruelty/Harassment explained as willful conduct for causing mental or physical injury in any manner or leading to dowry death: Imprisonment up to 3 years i.e. three years:
Two sides of the coin of section 498A IPC illustrated:A. Dowry death by suicide that will lead to F.I.R. to police officer in charge of a police station. Cognizable. (See qualifying Section 6). Cognizable. Non-Compoundable. (Non-Bailable)B. Cruelty/Harassment allegations to be made by living woman to the Judicial magistrate First Class as “private” complaint case and examined by the JMFC accordingly. (See qualifying Section 6). Thus Non-Cognizable and Compoundable. (Bailable) (iii) Kindly refer to Apex Court’s directives in its judgment on 19/7/2005 (Supra) that Dowry death and Cruelty cannot be considered same through a straitjacket formula. Despite this, both sides of the intra-vires law 498A IPC are being treated as cognizable offence i.e. death of living women and cruelty to living woman for sake of causing arrest without the woman giving her statement on oath before the magistrate.
(iv)The following sections’ alleged offences are incorporated into the said
498A IPC vis-à-vis section 2 to 7 of the Crl. Act no.46 of 1983 mentioned below for perusal and consideration:
(v). Section 323 of IPC: Punishment for causing voluntarily hurtis upto 1 year and or fine. Non-Cognizable. Bailable.(vi). Section 504 of IPC: Insult intended to provoke breach ofpeace. Upto 2 years and or fine. Non-Cognizable. Bailable.Section 506 of IPC – Criminal intimidation. Upto 2 years.Non-Cognizable. Bailable.(viii) Section 511 of IPC – According to offence is both Cognizableand Non-Cognizable. Accordingly Non-Bailable and Bailableas per attempts to commit offence.
Section 4 of the Dowry prohibition Act 1961 – Penalty fortaking demanding dowry. Punishment minimum 6 monthsto 2 years.(ix) Section 3 of DPA is for giving and taking dowry. Punishableto giver by 5 years and to taker by 5years. The Woman side claiming to give dowry in name of gifts (whether given or not) are liable to punishment upto 5years and fine as mentioned therein. The dowry
takers alleged to have taken do not know that they have taken dowry. The giver of dowry has to be punished and giver cannot be given blanket immunity u/s. 7(3) of the DPA especially when section 498A IPC and other matrimonial woman empowerment law is used by woman. Such blanket immunity in every case, encourages woman to make false allegations of giving dowry despite the so called takers do not take dowry.(x). Section 6 of the DPA permits so called dowry transactions and it is in opposition and in contradictory style to the other sections like Sec. 3 and 4 of the DPA, and it thus cannot be an offence. Even then this law of DPA is abused for harassment to husband and his relatives.
8. A criminal process started u/s 498A IPC’s umbrella as cognizable offence though cognizable side of the coin of 498A IPC is not applicable in case of complaint by living woman to police station, the husband is forced to give mutual divorce at instance of court case/police case for making the judicial authority to use the compoundable side of the coin of 498A IPC.
9. This is the part of legal terrorism by living woman enticed to make such false matrimonial criminal complaint cases.
10. 498A IPC used: “Under duress Divorce” by fraud, illegal means adopted by the woman for abusing criminal process in matrimonial laws like 498A IPC etc. : A. MUTUAL CONSENT DIVORCE: The District Court ignoring this fact is allowing mutual divorce illegally that mutual divorce under the Hindu Marriage Act, 1955's Section 13B subsection 1(bb) i.e. Sec. 13B(1)(bb) of HMA along with other section of the HMA is an clear illegal force, fraud and undue offence to allow .
11. In such cases mutual divorce application by both is obviously result of consent obtained from husband by force of police cases (criminal process) under umbrella of section 498A IPC, also a fraud an undue influence all rolled into one to which the district judicial authority also become a party if allows divorce.
12. Divorce in name of Cruelty by Living woman: When the Court of district Judge comes to know of the woman has filed a police case u/s. 498A IPC to abuse police powers for so called cruelty by husband and his relatives, the woman cannot file a divorce case as a punishment to the husband in various manner under the Hindu Marriage Act:
13. Because for same offence the husband cannot be intended to be punished two fold by the wife for the same offence irrespective of the result.
14. 160. Because Cruelty for the purpose of section 498A IPC and Section 13B of the Hindu Marriage Act cannot be on same layer of plane of judicial purview:
15. Because when cruelty is like that explained in 498A IPC read with Crl. Act No.46 of 1983, the woman opts for this section. A closer look shows that it is the police power to arrest attracts more and more increasing numbers of living women finding HAVEN in abusing criminal process for ulterior motives as they are not punished severely if their complaint is found intended for ulterior purposes.
16. The police officers who all are generally not reigned by lawful powers of judicial officer - judicial officers who do not stop wrong implementation by police officer (civil authority) , are equally responsible for not punishing woman abusing 498A IPC, and other women empowerment provisions for ulterior purposes and their such act is not in good faith that is by not punishing the woman found to abuse the criminal process for ulterior motives.
17. The Supreme Court of India’s judgment reported in 2005 (6) SCC 281, 2005 AIR has directed in its judgment delivered on 19/7/2005 that the persons who are found to abuse the criminal process are to be stringently punished under the existing provisions of penal law. This equally applies to abusing civil process in matrimonial matters by woman for ulterior motives.
18. Divorce Application by Woman on Basis of Cruelty underSection 13 of the HMA:. The same cruelty cannot be used also for cruelty u/s. 498A IPC or vice – versa as it is on a different layer and it is for women who want to remain in the house and so file 498A IPC. After being for being outside conjugal bed turning into mutual divorce application under illegal pressure of threats looming large over husband by way of 498A IPC or by any abuse of any women empowerment law.
19. Thus also whether the divorce application turns into mutual divorce
application or not, the living woman cannot be granted divorce under the HMA even.
20. Using same offence or allegations of cruelty for prosecution for two fold punishment i.e. u/s. 498A IPC implies that she wants to reside with husband if the alleged cruelty was not there otherwise if she does not intend to reside with husband then there is no cruelty at all, and u/s 13 or 13B of HMA cruelty cannot be used for being “prosecuted” (proceeded) for the same offence more than once i.e. cruelty, for divorce for the same cruelty between same persons being already used through 498A IPC.
21. Rather, It is the right of the husband to demand divorce from wife for her cruelty by making use of 498A IPC for ulterior motives amongst other reasons as may applicable in each circumstances. Kindly refer to Article 20(2) of the Constitution which reads as follows: “No person shall be prosecuted and punished for the same offence more than once.”
21. Empowerment of woman under Indian penal and criminal procedure codes :
The women are not being psychologically trained/prepared to how to truly use the empowerment in fair manner. First they cannot be given such powers that even Indian parliament, Government public servants do not enjoy as un-reigned powers.
22. When a woman is given such empowerment understandingthat they will use it when necessary and not for ulterior motives, then if woman is found to abuse such criminal laws for ulterior motives and purposes, such woman and also her abettors conspiracy are to be punished severely including for taking away Right to Liberty that is guaranteed..
23. The Right of Liberty of husband and his relatives is infringedby police without due process of law because of the wrong implementation of the Crl. Act no.46 of 1983 of which section 2 created 498A IPC. All its sections 2 to 7 cannot be read in isolation as the whole set of “sections” show the benign intention of this intra-vires law.
24. Sec. 498A IPC cannot be considered by itself by isolatingfrom other sections of Crl. Act No. 46 of 1983.25. THE PWDVA & RULES 2006: Unlike Cr. Act No.46 of 1983
which has two alternative criminal procedures in the same coin of 498A IPC, The Prevention of Domestic Violence Against Women Act & Rule 2006 (PAD Act & RULES 2006) said to be effective from 26/10/2006 have different stages of actions on the same side of the coin of PWDVA i.e. Civil , Criminal gradually as per stages in the law.
26. Complaint by woman etc. under the Act can be dismissedeven at any stage. But when this special law of The Prevention of Domestic Violence Against Women Act & Rule 2006 is also used in conjunction with other criminal acts, it will be hell again, and in that condition it will also prove that the perpetrators of the law harping women protection do not find any force in the complaint of woman against family members, and so to justify arrest jump rapidly or directly to arrest and punish the man for one year by adding additional penal laws and Crl. procedures
27. The Union Minister of Human Resources Developmentpresented PADUA as the Civil Law in the Parliament as Bill No. 116 of 2005. Kindly refer to Minister’s Statement of Objectives and Reasons ‘s para 2 and 3 mentioned in Schedule VI
28. PWDVA is a fraud upon the Parliament for obtaining itsapproval as civil law because it is in reality a Criminal law.
29. PWDVA has isolated section 498A IPC also from theCriminal Act No.46 of 1983 for ignoring the intentions of the legislation of 1983 to use the law for ulterior purposes. Other provisions also incorporated in it relating to section 125 Cr.P.c.
and Dowry Prohibition Act to change its application detrimental to the constitutional law already made.
30. Wrong Implementation by police officer and not stopped by magistrate, creates wrong implementation of section 498A IPC:31. When information is made by woman to the police station, the police officer has to register the first Information Report the contents are disclosing cognizable offence, and then set the law into motion for investigation. Registering of F.I.R. on basis of prior inquiry is not permissible. The F.I.R. has to be registered then inquired into it.32. The Bill No. XIVF of 1983 in parliament creating 498A IPC
mentions in its objects as follows in first sentence of the first paragraph: “The increasing number of dowry deaths is a matter of serious concern.” And “Cases of cruelty by the husband and relatives of the husband which culminate in suicide by, or murder of, the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty.”
33. For using the cognizable part of the first dowry death law enacted under Crl. Act No. 46 of 1983, the following offences are two categories of offences are covered under section498A IPC: 1. Dowry death/suicide by willful cruelty to living woman within7years. (KINDLY See Section 3 of Crl. Act No. 46/1983).
2. Second category of offence u/s 498A, being Living woman subjected to willful cruelty / harassment by husband or his relatives.
34. The police officer is competent civil authority to decide
the application of the special law i.e. 498A IPC to register F.I.R. for the first category of offence of dowry suicide, as cognizable offence like dowry death.
35. Under the special law i.e. 498A IPC, the second categorymentioned in para 160 sub-para B9 above i.e. for willful crueltyallegedly by husband or his relative, it is non-cognizable offence for which the living woman has to make a private complaint to the competent magistrate and the F.I.R. cannot be registered u/s. 154 of the Cr.P.C. .
36. Section 154 of the Code thus casts a statutory duty upon policeofficer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information.
37. The notification referred in Section 1(3) is the notification to be made after the Rules are agreed upon by the Parliament (both houses) under section 37(3) of the Act No.43/2005.
38. The impugned notification of is of 17/10/2006 i.e. G.S.R. No.644(E) dated 17/10/2006 does not specifically refer that these rules shall be effective only after being agreed upon by the Parliament under section 37 (3) of the Act and seemingly notifies simultaneously for being effective from 26/10/2006 seemingly without being agreed upon by the Parliament and the also without mentioning that the Rules are being made effective from such date after the Rules have been agreed upon by the Parliament i.e. by the both houses of Lok Sabha and Rajya Sabha. The Notification vide S.O. No. 1776(E) dated 17/10/2006 has some element of hidden ulterior motive(s) to rush through an unconstitutional act of making the rules effective without any compliance an reference of the mandatory Section 37(3) of the special law - Prevention of Domestic Violence Against Women Act 2005.
B. Unlike Act No. 46/1983 which has dual criminal procedure as a coin that has head and tail, the Act No.43 of 2005 and its Rules 2006 has multiple mix of civil and criminal procedures on the same side of the coin of Act No.43/2005 and its Rules 2006 for being used one after another theoretically effective from 26/10/2006.
C. In both the plea taken is of miniscule number of offences. The(Civil) Act No. 43 of 2005 doped with criminal law, will surpass manifold the abuse of criminal process for ulterior motives by woman as being done by living woman by abusing the criminal process in violation of the spirit and intention of the Parliament in Crl. Act No. 46 of 1993. The Supreme Court has directed to punish the persons found to abuse criminal process in its judgment of 19/7/2005 reported in 2005 (5) SCC 281. Based upon this judgment, this is applicable in case of abuse of any law (civil or criminal) that the persons may include according to the circumstances in each case civil (includes police officer concerned) and judicial authority including for abetting u/s. 34 and 120 IPC, in such abuse of process of court for ulterior motives of the persons. The possible reasons being as follows as applicable in each circumstances:
(I) The civil authority putting a false case for ulterior motives and it attracts also section 389IPC against the person who makes false report to him and the police officer acts in manner as he should not have acted.
(II) The judicial Authority if not restraining the persons for filing false cases, and if not dismissing a complaint / civil case with ulterior motives in case of criminal case not honorably acquitting the accused person(s). Trial cannot be made for ulterior motives.
The Act No. 43 of 2005 ‘s statement reflects the intention of the
Minister as given to the Parliament for passing the Act and was to be effective only after the both Houses of Parliament agreed upon each part of the Rules: Ref. For Act No. 43/2005:
“ STATEMENT OF OBJECTS AND REASONS
Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its Genera! Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under section 498 A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety,
… ARJUN SINGH 12/8/2005
------------------------------- Unquote.
39. The law has ignored SC judges’ made law under the Constitution from time to time: SC realized the ulterior purposes in following judgments for abusing the civil and criminal process by woman:
Mohammad Shamim & Ors. Vs. Nahid Begum & Anr. SC judgment of 7/1/2005. 2004 AIR SCW 332: ulterior motive of woman.
Ruchi Agarwal Vs. Amit Kumar Agarwal & Ors. SC judgment on 5/11/2004 (Appeal (crl.) 1274 of 2004)
2005 AIR SCW5303
ASHOK BHAN AND ALTAMAS KABIR, JJ.
Civil Appeal No. 2501 of 2002 Date: 21/10/05
- Union of India and another v. Raja Mohammed Amir Mohammad Khan. The importance and Application of Article 141 and 144 of the Constitution in day to day functioning to reduce pressure upon the courts.
2005 AIR SCW 3569 ARIJIT PASAYAT AND H. K. SEMA, JJ.
Judgment Date Date: 19/07/05
2006 AIR SCW 858 ARIJIT PASAYAT AND S. H. KAPADIA, JJ.
Transfer Petn. (C) No. 291 of 2005 Date: 14/02/06
Smt. Seema v. Ashwani Kumar.
40. Crl. Act no. 46 of 1983 was legislated it contains Section 2 to 7 read with the Statement of Objects and Reasons of the related Bill No. XIV of 1983’s first sentence is “The increasing number of dowry deaths is matter of serious concern.” 3rd. sentence is “Cases of cruelty by the husband and relatives of the husband which culminate in suicide by, or murder of, the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty.”
41. 41. It be noted that this was the first dowry death law. Section 2 read with Sec. 3 of the above Act no.46/1983 creates section 498A IPC that gives references to dowry death in various forms. The concerned Police officer in case of information by living woman write F.I.R. as a cognizable offence, he is not working in accordance with the law as well as working in contravention of his obligation to work in aid of the Supreme Court of India. If the concerned magistrate does not stop such abuse of criminal or civil process, it does not give licence to police officer to vanish the intention of the Parliament. Such acts attract to challenge the wrongdoer and abettors like the police officer making the complaint of living woman.
42. 42. In order to protect herself the woman can file a complaint to the competent magistrate who depending upon the merits will issue summonses only after being satisfied of the genuineness of the sufferings. And section 498A IPC is bailable in hands of the magistrate in summons case and the home is protected.
43. 44. In case of woman making the state to pay the cost of the wrong implementation of the law, who are the beneficiaries in the Government and found out the mode of benefits they may or they can derive from “allowing” the police officer to create a state case.
44. 45. It is for the alertness of the husband, and his relatives that only can help and to protest and challenge the Police Officer of a Police Station when the police officer abuses his powers to register the crime alleged u/s. 498A IPC by ignoring the intention
of the Parliament in the related 498A IPC’s mother Crl. Act No. 46 of 1983. Then challenge similarly the act of the Judicial Magistrate First Class / Metropolitan Magistrate if he does not direct the police officer to restrain from such extra-constitutional acts of the police officer on information from living woman and creating a cognizable offence in the primary context of violating the section 3 of the Crl. Act no. 46/1983.
45.46. It is earnestly appealed to the Government and the leader of the opposition in Parliament to raise the concern and voice in all forums to protect woman who is being enticed with such unauthorized unseen licenses issued of which the presence is felt when the any statutes are implemented in a manner not consistent with the intention of the law. And in case of the Protection of Domestic Violence Against Women Act AND Rules 2006, it is totally in violation of the resolution of the United Nation’s CEDAW.Our homes need protection from wrongdoer to mankind includes the women.
46.CEDAW resolution speaks of preventing Domestic Violence – it speaks of including women and not speaks of excluding others from the Domestic Violence.
47.25/11/2006 Copyright, PARIWARIK SURAKSHA (regd)
To: The Officer Commanding98 Road Constr. Coy (GREF)Pin-930098,C/O-99 APO
Sir, Most respectfully, as per ordered by you, I have applied for EL-15
day’s wef 03 April 2012 and enclosed one blank signed leave application.
As per seeing my benefit and the rule of temporary duty, if I have availed EL-15 days wef date of departure, I am not getting benefit of return journey travel, So that I have applied for CL-15 days since same date as per above.
Now, in view of above, You are therefore requested kindly consider as per your end please
Thanking you Sir,
Yours faithfully
Dated: 02 April 2012 Gs.172424 F, JE (Civil)Hori Lal
C E R T I F I C A T E
It is to certify that Asha Devi D/o Shri: Vidhya Ram , Village- Udani, Post Office - Saramai, Tehsil- Firozabad, District-Firozabad (Uttar Pradesh) had permanent resided at following address since Dec 2007.
Asha Devi D/o Shri :Vidhya RamKh. No. 149/2 (2C), Frends Appartment,New Basti Road,Village-Devali,New Delhi-110062
After the permanent resided at above address, the name of Asha Devi had been deleted from voting list from Tehsil Firozabad reason.
Dated : Signature of Head of Village
Seal , Head of Village
GO/GS No.: 172424 Name: HORI LAL
Your monthly details of 02/2012 are as under:
Total Credits: 37106 Total Debits: 10059 Net Pay: 27047
Credits Cr Amount Debits Dr Amount
Basic Pay 14180 GPFsub/NPS 1139
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Cont.4500
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1 IN THE COURT OF MS. SUJATA KOHLI ADDITIONAL DISTRICT JUDGE(WEST) TIS HAZARI : DELHI HMA No.81/2010Sh. Amit Kumar S/o Sh. Rattan KumarR/o M-44, Gali No.4,New Mahavir Nagar,New Delhi. ....PetitionerVersusSmt. Priya Bharti SharmaW/o Sh. Amit KumarD/o Sh. Ramesh SharmaR/o 529, Behind New Market,Krishna Gali,Yamunanagar, Haryana....RespondentDate of Institution of petition : 06.03.2010Date of reserving the Judgment: 24.01.2012 Date of passing the Judgment : 28.01.2012JUDGMENT:Present petition has been filed by the petitioner/husband to seek restitutionof the conjugal rights under Section 9 of HMA stating therein that marriage wassolemnized between the parties on 15.03.2009, as per Hindu Rites and Ceremonies atArya Samaj Mandir, Najafgarh, New Delhi and the parties had entered into marriage outof their own choice and desire. 2. It is further stated that although the marriage was duly consummated butAmit Kumar Vs. Priya Bharti Sharma2there was no issue of the marriage. The parties continued to live together at Janakpuri,New Delhi up to 27.01.2010 and it is alleged that on the said date parents of therespondent/wife visited the matrimonial house of the parties and took the respondent
alongwith them to their house at Yamunanagar, Haryana and also taking away thevaluable articles etc. 3. Petitioner alleges that he lodged a complaint with PS Janakpuri in theinterest of the respondent/wife herself as respondent/wife had been taken away by herparents against her wish. Petitioner is also alleged to have made several efforts to bringback the respondent to the matrimonial home but that the respondent verbally refused tojoin the society of the petitioner/husband and also extended threats to him in case hepersisted with his efforts. 4. It is the case of petitioner that the family members and relatives of therespondent that all were extending threats to him and to his family members to implicatethem in a false criminal case relating to dowry demands etc. When all the efforts of thepetitioner and his family members failed to bring back the respondent, petitioner hascome up with the present petition to seek a decree of restitution of conjugal rights. 5. After service of the notice upon the respondent both parties were directed toappear in person but till date in spite of innumerable opportunities, both parties failed toappear even once. It also comes to notice that although the directions had been issuedfor personal appearance, somehow the fact that they had not appeared even once wentunnoticed. 6. It is further noted that matter was referred to Mediation but in the Mediationalso respondent has not appeared. What is more significant is that WS was filed onbehalf of respondent but respondent never appeared even once. It is also seen that afterfiling of the WS, no replication was filed and in fact none even appeared for thepetitioner. None appeared for the petitioner even at the evidence stage to lead theAmit Kumar Vs. Priya Bharti Sharma3evidence and this has remained the position till the last stage. Ultimately, opportunityfor leading evidence was closed. Since the petitioner has failed to prove the allegations leveled by him by nothaving stepped into the witness box in support of his own case, the case fails.Dismissed. Decree sheet be drawn. File be consigned to record room. Announced in the open court (SUJATA KOHLI)today i.e. on 28.01.2012 ADJ ( WEST)/DELHIAmit Kumar Vs. Priya Bharti Sharma
1HMA No. 08/201110.02.2012Present : None.Application for Interim Maintenance under Section 24HMA taken up for disposal. In this entire application comprising of asmany as 34 paragraphs, unfortunately it is only one paragraph i.e.para no. 33 in all, wherein averments have been made relating tomaintenance, rest of all are only allegations, relating to the mainpetition for divorce, which has been filed by the nonapplicant/husband. In this application, the applicant wife claims that nonapplicant/husband is a man of means and sources, having immovableproperties, experience in the field of Web designing, and animation asper his resume, he is alleged to be doing his own business as a free
lancer, as a designer and animator with reputed advertisementcompanies in India as well as abroad and having a rich experiencewith foreign companies. His immovable property is alleged to beworth about Rs. 1.2 crores. He is also alleged to be a owner of SantroCar as per the particulars given therein and maintaining expensivemobile set of Nokia in an expensive series. His earning is alleged tobe more than Rs. 2 lakhs per month and besides it is claimed that heis also earning about Rs. 50, 000/ each month from differentinvestments in shares, FDs, saving schemes of post offices etc. It isSandesh Singh VS. Ashima Singh2further the case of the applicant wife that the non applicant/husbandhas no other liabilities apart from the applicant no. 1 and the minorchild applicant no. 2, as stating the parents of the nonapplicanthusband and his brother are well established and earning handsomeamounts and going thereby, the applicant no. 1/wife has soughtmaintenance @ Rs. 80,000/ per month for both of the applicantstaken altogether besides the sum of Rs. 70, 000/ as litigationexpenses. Non applicant/husband in his reply has raised certainpreliminary objections to the very maintainability of the applicationstating therein that applicant no. 1/wife is an employed person andbesides well qualified having been a designer, who was earning Rs.10,000/ with over time allowance before leaving for UK in the year,2006 as she was employed as a Merchandiser in the export firm underthe name and style of M/s. Bright Mak Traders located at Rz. 106,Indra Park, East Uttam Nagar, New Delhi, whose proprietor is Sh.Davinder Singh. The nonapplicant/husband has also supported hisreply by copy of appointment letter and certificate of assurance of reemployment after the applicant no. 1 returns to India from UK.It is further the stand taken by the nonapplicant/husbandthat applicant no. 1/wife used to earn a handsome amount byproviding her fashion design sketches to the above said employer ona work to work basis apart from receiving a regular salary asSandesh Singh VS. Ashima Singh3merchandiser. As such according to the nonapplicant/husband, theapplicant no. 1 wife was able to earn Rs. 30,000/ per month as shecharges @ Rs. 3500/ per sheet of sketch design as she is an expert inmaking these sketches. It is further elaborated that the proprietor ofthe said firm is friend of the father of applicant no. 1 and being onfamily terms regularly visits their house as well and keeps presentingcostly gifts to both applicants to the extent of gifting gold items aswell i.e. gold earing etc. It is alleged that he has been always a part ofthe family in all the functions. The nonapplicant/husband also referred to certainconversation between the applicant no. 1 wife and said Mr. DavinderSingh, employer, while applicant no. 1 was in the UK and from somany conversations it reveals as if the said Mr. Davinder Singhconceded and proclaimed applicant no. 1 to be like his daughter.Applicant no. 1/wife, also sent number of sketches from UK to Mr.Davinder Singh at his email ID, which email ID is managed by son ofSh. Davinder Singh i.e. Mr. Nitin Chatwal. Reference has been made to one particular email vide
which the said Mr. Davinder Sharma told the applicant no. 1 thatexports were temporarily affected due to recession as in 2007 andthat he was not been able to hire any expert since applicant no. 1 hadleft in the year, 2006 and therefore, he required some fresh ideasfrom applicant no. 1 for the spring/summer fashion collection to beSandesh Singh VS. Ashima Singh4exported to Mexico and North America. Non applicant/husband hasalleged that applicant no. 1 then prepared the fashion sketches fromUK for Mr. Davinder Singh and emailed same to him on his aboveemail ID. Further alleged that said Mr. Davinder Singh exported hisfashion garments on the basis of the sketches at his brother's importfirm namely M/s. Priya ConceptoIndu at the Mexican address asstated therein. The said Mr. Davinder Singh is also alleged to haveexported the dresses to some other exporters in North as well asSouth America as well as in Europe and as such, applicant no. 1 isearning a minimum of Rs. 30,000/ per month, since 3rd January,2010 onwards. It has been further the case of the non applicant/husband,that applicant no. 1 was formerly residing in the house of her parentswhereas she herself has also been alloted a plot of land measuringabout 60 sqr. yds. in Rohini area of Delhi. It is also the case of the non applicant/husband that healways wished that both the applicants live with him in thematrimonial home but applicant no. 1 in connivance with her parentsand brother insisted upon living in a nuclear family and never residedin joint family of the non applicant/husband parents i.e. at theMatrimonial Home at Patparganj Society, Delhi. It is also his plea thatparents of applicant no. 1 are interested in earnings of applicant no.1, as such, they never wanted to loosen their grip on applicant no. 1Sandesh Singh VS. Ashima Singh5and her earnings. However, non applicant/husband also states that he isready to share with the applicant no. 1, the actual expenses ofapplicant no. 2 i.e. schooling fee subject to visiting rights to him andinteract with minor daughter. As regards the allegations of the applicant regardingincome of non applicant/husband, he has vehmently denied the same,also the non applicant/husband has denied being the owner of anyimmovable property worth Rs. 2 crores and even a Santro Car asalleged. He has denied business earnings being Rs. 2 lakhs per month.As regards the Nokia N series mobile set, non applicant/husband hassubmitted that it was provided free of cost by the Mobile serviceprovider company about more than 3 years ago as per their standardpractice to provide free of cost mobile handsets when a customersigns to the monthly prepaid talktime tariff scheme for the newtariffplan mobile services. In fact, the non applicant/husband hasalleged that even applicant no. 1 too was given the similar mobile inthe same category by the company under the said policy. As regards the alleged ownership of immovable properties,the non applicant/husband husband has further elaborated that he is
not the owner nor in possession of any immovable property. Non applicant/husband claims to be residing with hisparents ever since his arrival from UK, i.e. Flat No. 301, NavnitiSandesh Singh VS. Ashima Singh6Cooperative Society, Plot No. 51, I.P. Extension, Patparganj, NewDelhi and that the above said group housing flat was alloted to thefather of the non applicant/husband in 1995 i.e. after 16 years ofenrollment as a member in the said society and that the said flat isexclusively a self acquired property by his father who has worked veryhard as a practicing lawyer since, 1975 till date and all that he couldbuild for himself and his family was the above residence wherein nonapplicant/husband has no ownership right at all. However, thatthough non applicant/husband is free to use the said property but heis not entitled to claim any right whatsoever therein.Non applicant/husband has also added lengthyexplanations in his reply that he is not living any luxurious life as hasbeen alleged by applicant no. 1 and that he has not owned any car,however the non applicant/husband drives an old car modelpertaining to the year 2001, the particulars of which have also beenfurnished, as being a Hyundai Santro bearing no. DL 7 CA 9980,which also is owned by his father and had been purchased as a secondhand car from a used/second hand car market of East Delhi andwhose first owner also was a resident of I.P. Extension, Patparganjarea.Non applicant/husband has also raised the points thatapplicant no. 1 has not furnished any particulars of the companiesand the sources from where she alleges that he is earning Rs. 2 lakhsSandesh Singh VS. Ashima Singh7or more in India or abroad and according to the nonapplicant/husband she is not able to furnish any particulars sincethese are only false allegations.Non applicant/husband has further set out to explain andclarify that he has only a single source of income which too isvariable, temporary, short term and his monthly income dependsupon the number of days and the hours of lecture per visit as per thetime table furnished by the employer and that too is absolutelytemporary in nature and may be discontinued at any point of time asnon applicant/husband is a member of temporary visiting faculty staffof Global School of Animation and Gaming.Besides non applicant/husband has also come up with acase that he has several other legal binding liabilities towards SBI torepay his education loan by way of monthly installments and whichon account of escalation in the interest rates have gone up. Nonapplicant/husband has also furnished the particulars and details ofthe said loan in part 'G' of his reply.However, non applicant/husband also claims that he hasnever refused and neglected to maintain his wife and the minordaughter. In fact, the non applicant/husband has also referred to theearlier meetings between the parties and family members which hadalso resulted almost in reuniting the parties to continue with thematrimonial life and according to non applicant/husband it isSandesh Singh VS. Ashima Singh8
applicant no. 1 herself who has voluntarily chosen to live separatelyalongwith minor daughter at her parents house against the consentand wishes of the non applicant/husband. It is also his stand that applicant no. 1 has sufficientmeans to maintain herself on account of her special qualificationsreferred above. According to non applicant/husband, applicant no. 1should not take benefit of her own wrongs and causing great mentaland financial strain on the non applicant/husband. Nonapplicant/husband has further elaborated about his employments atdifferent periods of time, quite clearly in as much as he states thatafter finishing his study in July, 2007, had got a job as a lecturer inGames Development(0.5 parttime), which was a part time inBradford College in UK on 27.08.2007 and he used to transfer UKPounds into the Bank account of respondent applicant in India, whichaccount number has also been disclosed as being at ICICI Bank,Branch situated at BBlock, Janakpuri, New Delhi, where her fatherwho used to withdraw the amounts out of the said transferred moneyin Indian currency being the special attorney of applicant no. 1 andthe total amount of money was transferred through ICICINet Expressmode comes to be about £ 2200 sent by non applicant/husbandduring period from December, 2007 to June, 2009, which were beingsent for the schooling and other miscellaneous expenses of the minorSandesh Singh VS. Ashima Singh9daughter during her stay in house of the mother of the applicant no. 1i.e. at Ganesh Nagar, Near Tilak Nagar. Copies of the transfertransactions details are filed on record. Apart from the above stated amount of money sotransferred by the non applicant/husband into the account ofapplicant no. 1 in the ICICI Bank Ltd. (India) for the welfare andeducation of the minor daughter, the applicant no. 1 herself also sentabout £500.00 GBP to her father, while she was in UK. The bankstatements and the passbook of applicant's no. 1 of the ICICI BankLtd. (Janakpuri Branch, New Delhi, India) for the above said period isin the exclusive possession and custody of the applicant no. 1 and herparents. The said ICICI Bank account of the applicant no. 1 was gotopened at the introduction of aforesaid family friend and employer ofapplicant no. 1 Shri Davinder Singh in the year August, 2005 onwardsi.e. when the applicant no. 1 started working for the aforesaid exportfirm M/s. Bright Mak Traders and that hence from the above facts itis clearly evident that the non applicant/husband never neglected andrefused to maintain the applicants no. 1 and no. 2 as alleged by theapplicant no. 1 herein. The non applicant/husband further narrates that hefacilitated the applicant no. 1 on the first available opportunity to joinhim in the UK as explained in the last paragraph number 33 aboveSandesh Singh VS. Ashima Singh10and also while in the UK applicant no. 1 was given facilities andopportunities to make herself ready to be part of the U.K. communityliving and to include herself in the workforce of employment of theUK which task was difficult, as entering into UK job market without
the formal UK education and also without the fluency in speaking andunderstanding of British English accent. It is further submitted that inorder to achieve the above goal, the non applicant/husband providedall his experience and guidance to the applicant no. 1 so that she mayget the reasonable opportunity to enter into the competitive U.K. jobmarket and also became part of the British society. The nonapplicant/husband in order to make available the above saidopportunity to the applicant no. 1, facilitated her to attend the QEDUK (Moto: Turning Challenges to Opportunities”) classes sponsoredjointly by the UK Government and the E.U. Commission at QuestHouse, 243 Manningham Lane, Bradford, West Yorkshire, BDB 7ER,UK. The said institution provided training to the applicant no. 1 fromFebruary 2007 to May 2007 in the fields of: a) British Englishbusiness conversation and English Knowledge of workplace, b)Employment Oriented Skills, C) Basic IT Skills, d) Awareness aboutthe rights of a women at workplace and in the society at large.Thereafter the non applicant/husband helped theapplicant no. 1 in getting her the National Insurance Number which iscompulsory to join any kind of job in the United Kingdom. And whenSandesh Singh VS. Ashima Singh11the applicant no. 1 got the National Insurance Number (SH 29 67 41B) which was alloted in month of April/May 2007 and thereafter onlythe applicant no. 1 was offered her first employment opportunity towork as a temporary worker/wage earner for about 10 to 12 hrs perweek on parttime basis at the rate of £5.95 GBP per hour for theduration of one month in June, 2007 at ASDAGeorge DepartmentalStore in Reading, Berkshire, U.K. Thereafter the applicant no. 1 gotother job opportunities intermittently as temporary worker employedon parttime bases in the following order shown below with details ofperiod of employment, monthly wages and net wages after deductionof mandatory taxes on wages including the National Insurance (NIdeductions). Details of applicant no. 1's total employments andincome during the applicant no. 1's stay in the U.K. (from 27th Oct.,2006 to 23rd Nov., 2009) in various retail departmentalstores/showrooms etc and also her expenditures are given as under inthe tabular form:Table of Total Earning through WagesS. NO. Name oftheEmployerType ofJobDuration ofthe JobMonthlyWagesTotal
WagesforperiodofEmploymentTaxDeducted onTotalWages& NIDeductNetAmountreceived.Sandesh Singh VS. Ashima Singh12Table of Total Earning through Wages1ASDGeorge,ReadingTemporary ParttimeworkerLessthanonemonth,June,07£312.00 £312.00£22.00NIDeduction=NIL£290.002BombayStores,BradfordTemporary ParttimeworkerLessthanonemonth
27thAugust,07 to16thSept.2007£682.13 £682.13£42.93NIDeduction=NIL£639.23T. J.Hughes,BradfordPermanent Parttimeworker. 8monthsSep 07toApril,2008£429.76 £3438.10£108.71NIDeduction=£31£3329.394MorrisonsBradfordPermanentFull timeworker10monthsOct. 09to July,10£723.80 £7238.37
£642.80NIdeduct=£151.00£6595.57Sandesh Singh VS. Ashima Singh13Table of Total Earning through WagesTotalEquationFouremployers during3 years ofstay inthe UKThreepart timejobs andonly onefull timejob10monthsof parttimejobsand 10monthsof fulltimejob outofthreeyearsof stayin theUK£10584.16 totalnetamountreceivedduringthreeyears ofstay inthe UKThe non applicant/husband completed Bsc.(HOns.) inAnimations and Special Effects in July 2007 from the University of
Bradford, UK and thereafter he was employed as parttime lecturer inBradford College on 0.5 grade and the non applicant/husband later inMay, 2008 also started teaching few extra hours as a temporaryvisiting lecturer in Shipley College, West Yorkshire, UK on 0.25 grade.Thereafter on the expiration of non applicant/husband's Tier 1 (PostStudy Worker Visa), the non applicant/husband alongwith applicantno. 1 came to Delhi on 24th November, 2009 and since then nonapplicant/husband has been trying to get a suitable job as per nonapplicant/husband's qualification and experience for which nonSandesh Singh VS. Ashima Singh14applicant/husband has applied online to many educationalinstitutions and animation firms at Delhi, NCR region but to nonapplicant/husband's hard luck the non applicant/husband could notget any job however after eight months of unemployment since thedate the non applicant/husband came back from UK, the nonapplicant/husband now got a temporary appointment on 6th August,2010 for a limited period of time on parttime basis as a VisitingFaculty for Gaming, taking 1 hour session per visit of lecturing forthree days in a week i.e. on Monday, Wednesday and Friday as perthe time table for limited period of months. The non applicant/husband claims to be under greatfinancial stress and liability at the moment because he is legallybound to repay his educational loan of Rs. 15 lacs advanced to him bythe State Bank of India, Daryaganj Branch, New Delhi110002 in theyear 2003 which accumulated to Rs. 22 lacs on account of theaddition of interest up to the year of successfully passing andattaining the honours degree of BSc. Animation and Special Effectsfrom the University of Bradford, UK and since then the nonapplicant/husband being legally bound to repay the aforesaid loanand in fact started repaying the same in regular installments at therate of about Rs. 30,000 per month and since then these monthlyinstallments at the rate of about Rs. 30,000/ are being repaid inregular instalments and sometimes in bulk as per the requirement ofSandesh Singh VS. Ashima Singh15the bank and as per the necessitating circumstances in order tostreamline the rate of floating interest of the said bank so that therepayment of the loan amount comes within the grip of the financesof the non applicant/husband. Ity is not out of context to mentionhere that in case even one monthly installment is not repaid and ifmissed as such then the rate of interest becomes compound andmonthly installment rate thus would be escalated. At present theamount of balance of the said educational loan is to the tune of Rs.6,15,893.77/ which liability is on the shoulders of the nonapplicant/husband. The petitioner husband/non applicant further pleads thatthe applicant no. 1 thus has sufficient independent source of incometo maintain herself and also the minor child and the applicant no. 1 isalso able to support the necessary expenses of the proceedings
pending before this Hon'ble Court. In fact the applicant no. 1 has beenmisusing the statutory provisions of Section 24 HMA which is notmeant for women having sufficient means and an independent sourceof income but the same has been enacted by parliament for reallyneedy and destitute spouses. It is submitted that the non applicant/husband has givendetails about his loss of job after expiration of visa, details of thestruggles of finding a job in India after coming from UK on 24thNovember, 2009 and also the pains and cruelty inflicted by theSandesh Singh VS. Ashima Singh16applicant no. 1 on the non applicant/husband after coming to Indiafrom UK, which caused disturbance and turbulence not only in thematrimonial life but also in normal day to day living of the nonapplicant/husband which has caused a great mental agony anddeprivation that took a toll on his health and his social andprofessional life and also has caused a great financial setback to thenon applicant/husband who has not been able to get any suitable job.The applicant no. 1 after coming to know the factum of filing of thepresent divorce petition, rushed to file a false and frivolouscomplaints against the non applicant/husband and his familymembers in connivance with her parents and relatives before theCrime Against Women CellNanakpura New Delhi on 16th June, 2010as a counterblast to the said divorce petition and thereby misusingthe provisions relating to dowry, harassments etc. The nonapplicant/husband and his parents have been put to great mentalagony due to the false lodging of above said complaint in the CAWCellNanakpura, and the non applicant/husband and his father areregularly attending the various dates of hearing in the said CAW Cellon the basis of false and concocted allegations levelled after a periodof about nine years of the marriage between the parties. Thus the non applicant/husband and his parents havebeen harassed and victimised by the applicant no. 1 in connivancewith her parents and brother on false accusations and therefore theSandesh Singh VS. Ashima Singh17day to day living of the non applicant/husband and his parents hasbeen adversely affected due to the above retaliatory acts andbehaviour of the applicant no. 1. Non applicant/husband has prayed for dismissal of theapplication with exemplary costs. In the Rejoinder filed by the applicant no. 1/wife, she hasdenied the allegations levelled by the non applicant/husband and hasreiterated her own version as correct. She has denied having everearn a handsome amount by providing fashion designing sketches toMr. Davinder Singh alleged employer on work to work basis and alsothat she was able to earn about Rs. 13000/ per month. Applicant no.1 wife admits that the proprietor of the said firm is a friend of herfather and in his own family terms, and also that he used to presentcostly gifts to applicants including gold items. However she hasstrongly denied that she was ever paid even a single penny for her
assistance given to Sh. Davinder Sharma neither any payment onwork to work basis nor any salary. Applicant wife has also deniedhaving been alloted a plot of land measuring 60 Sqr. Yrds. in Rohini.Argument Heard addressed at length spread over various datesas the matter has been hotly pursued/contested by both parties. Outof the document filed by non applicant/husband were few documentsrelating to the website of the company M/s. Bright Mak Export Pvt.Ltd., which are extract from its website and show the name of itsSandesh Singh VS. Ashima Singh18director as Mr. Davinder Singh however as the applicant no. 1 hadalready not disputed her having worked for the said Mr. DavinderSingh for his company and a fact which has already been not disputedneeds no further proof on that. Applicant no. 1 has taken the stand is that she was notbeing paid any remuneration or fee for her sketches either as salary oras work to work basis. In fact, as per the applicant no. 1 in herapplication for interim maintenance herself she has herself given thedetails of her qualifications and her having worked in the UK. Hercapability to earn well is made out from the contents of theapplication itself i.e. para 19 thereof wherein the applicant no. 1 hasstated that while in UK she has worked there for 3 years earned“thousands of pounds(UK)” and that although same were depositedinto the account of non applicant/husband, since whether they weredeposited in her own account or in the account of nonapplicant/husband, would be a matter of merits to be treated anddecided only by way of detailed evidence, the only thing that comesclear is that applicant no. 1 is more than self sufficient to earn a goodincome for herself and to maintain her standard of living.It is further stated in the said part that applicant no. 1 hasworked in various organization in UK and had earned “handsomesalary” which were taken by non applicant/husband and deposited inhis account. As already observed above, where the money wasSandesh Singh VS. Ashima Singh19deposited would only be a question of detailed evidence to be lead atthe appropriate stage and for the purpose of interim compensation,the capacity of spouse to earn a living is what is relevant and theapplicant no. 1 own stand that she earn a handsome salary, needs nofurther discussion on the point that applicant no. 1 is well capable ofearning for herself. As regards where the money earned by nonapplicant/husband or by applicant while in UK were deposited and bywhom they were withdrawn are absolutely not relevant to thequestion of interim maintenance whether the court is only concernedto find out about the capacity of spouse to earn for themselves and tomaintain themselves as per their standard of living which they havebeen used to, their other liabilities besides the spouse claimingmaintenance, if any, and not as to where the money that they earnedin the past were deposited.It is quite unfortunate that applicant no. 1 has burdenedthis court with extremely lengthy and voluminous application, most ofwhich is only repetition of the averments made in the WrittenStatement to the main petition for divorce and are matters only ofmerit to be prove by way of evidence at the appropriate stage.
Hardly, one para is related to the point of maintenance and even thenon applicant/husband has drifted away from the main aspect andgone into the question of where the saving were deposited earlier inthe past and by whom they were withdrawn. Sandesh Singh VS. Ashima Singh20It is observed that this like pleadings cause much delay indisposal of the present application, wherein, the court has literally todig up the averments on the point of maintenance and could find afew only in one or two paras while rest of the entire application hasbeen devoted to level allegations against the non applicant/husbandon merits, which has already been stated earlier in Written Statementand were not at all required and have resulted in causing unnecessarydelay to the application itself.Respondent/applicant has relied on extract from websiteto show the details of the properties owned by Petitioner. While firstdocument relates to the property of Patparganj which the petitionerhimself has not denied too, which according to him is owned by hisfather and not by him. However, the second page of the extract fromwebsite shows the name of Petitioner non applicant as being thedirect owner. However the document shown to be extract fromWikimapia search shows that the petitioner non applicant also owns aluxury apartment in the Housing complex located in the outskirts ofDelhi at Asola Extension, New Delhi. However the document of list ofowners and the particulars of the apartment shows the father of thepetitioner non applicant i.e. Sh. S. P. Singh to be the owner/allotee ofHouse no. 34, in the said housing complex. Besides the respondenthas also given the particulars of various bank accounts of thepetitioner, besides furnishing the details of the various jobs held bySandesh Singh VS. Ashima Singh21petitioner alongwith duration, salary and the total salary paid. Thepetitioner non applicant has shown to have earned about 27,600 UKPounds, which would converted to Rupees comes to Rs. 23,46,000/.Besides, the various resumes of the petitioner alleged tohave been submitted by him to the different companies are shown tobe describing the petitioner as a self employed professional/contractorand with an hourly rate of 12 UK Pounds. From various other documents and record it transpiresthat petitioner non applicant is involved into several engagements likework as a visiting lecturer in various colleges, animation schoolscharging fees for lectures per hour, he is into developing and hostingwebsites for various brands and companies. Petitioner non applicantalso shown to involve in making of cinematic movies and gamesdevelopment, running his own animation channel on Youtube having824 subscribers till date and also giving advertisement on variouswebsites with his work details. The detailed resumes of the petitioner non applicant nodoubt render him a highly qualified & specialized professional intothe field of animation with knowledge of his cinematic camera works.He is a graduate in Science and also specialized in ComputerAnimation and Special Effects from University of Bradford, UK. Thevoluminous extract from the website brought on record, prima facie,established the petitioner to be quite capable of earning handsome
Sandesh Singh VS. Ashima Singh22income for himself from business of making animation films, andfrom all the above mentioned fields. At the same time the various documents filed by thepetitioner non applicant also highlight that respondent wife/applicantis also equally if not more qualified than the petitioner non applicant.She is a qualified fashion designer cum merchandiser. She isevidently capable of having sufficient income for her support and alsolitigation expenses. The experience certificate and appointment letterof respondent applicant shows her income to have been Rs. 10,000/per month i.e. way back in the year 2005. It is also important thatfrom the emails extracts placed on record, it is prima facie made outthat her then employer Mr. Davinder Singh, the family friend had alsoassured the applicant/respondentwife to put her back on the job aftershe returns from UK. The voluminous document filed on behalf ofpetitioner non applicant also do show clearly that applicant wife isalso highly qualified and specialized in the field of Fashion Designing.The petitioner non applicant has relied upon various fashiondesigning sketches and also the certificate issued by her thenemployer Mr. Davinder Singh, the family friend and who is proprietorof M/s. Bright Mak Traders. Moreover, the fact of respondent application having beenwell placed and having earned a good income of her own while in UKhas not even been disputed and on the contrary it is she herself whoSandesh Singh VS. Ashima Singh23has claimed that she had earned substantial amount of moneyalthough the same was deposited in the account of the petitioner nonapplicant. While deciding the application for interim maintenance, itis not relevant as to where the previous income of therespondent/applicant was deposited as that would only be matter ofevidence. The court is only concerned with the present sources ofincome of the parties, their liabilities apart from the spouse claimingmaintenance in the present case, it is crystal clear that both partiesare from very well settled families, highly well placed, belonging tothe higher status of society, with the respondent applicant being wellcapable not only to maintain herself but to enjoy a luxurious life style.Ld. counsel for petitioner relied upon the judgment of ourown Hon'ble High Court in Sanjay Bhardwaj Vs. State cited as2010(5)CRJ 446(DEL). Although the petition filed was against theorder passed under the provision of Protection of Women fromDomestic Violation Act, 2005, it was held by his Lordship that the Actdoes not create any additional right in favour of Wife regardingmaintenance and that it only enable the Magistrate to pass themaintenance order as per the rights available under existing laws. Itwas then held that no law provides that a husband has to maintain hiswife living separately from him, in spite of the fact whether he earnsor not, court cannot tell the husband he should beg, borrow or steal,Sandesh Singh VS. Ashima Singh24but give maintenance to the wife. More so when the husband andwife are almost equally qualified and almost equally capable ofearning and both of them claim to have been gainfully employed
before marriage. It was further held that an unemployed husbandwho is holding an MBA degree cannot be treated differently to anunemployed wife who is also holding an MBA degree. Since, both areon equal footing, one cannot be asked to maintain the other, unlessone is employed and other is not. Order of maintenance in thatparticular case was as such set aside by the Hon'ble High Court.In the present case, the email containing attachment ofprofessional fashion sketches created by respondent applicant wifeemailed from U.K. to M/s. Bright Mak Traders on page 39 andFashion design sketches created by respondentwife/applicant dulysigned by her from page 40 onwards to 50, altogether point outtowards the capability of the respondent applicant to earn a goodincome for herself to maintain the good standard in life and in factthe entire contents of the detailed affidavit filed by the respondentwife/applicant in terms of order of Hon'ble High Court passed inPuneet Kaur Vs. Inderjeet Sing Sawhney in CM NO. 79/2011 showthat the respondent applicant is rather from a better placed familythan that of the petitioner and in fact belongs to the class i.e. called'elite'. On the other hand the petitioner, non applicant has placedSandesh Singh VS. Ashima Singh25on record a car receipt for purchase of a used 9 year old Santro Car inthe name of his father and also the documents showing thatpetitioner/non applicant had obtained education loan from SBI for hishigher studies in UK and he is legally bound to repay the said loan,putting the petitioner in a weaker situation than the respondent in thepresent case. It was the contention of Ld. counsel for petitioner nonapplicant during arguments that if the respondent applicant chosenot to work inspite of the qualifications degrees and particularsavailable at her, she cannot become a burden on the husband whohimself is looking for different assignments all the time. Besidespresently the husband is not able to look for jobs/assignmentsproperly and even in case he lands up with some assignments, he isnot able to attend the same properly because of as many as 6 criminalcases already having being filed against him by the respondentapplicant. Besides it was also pointed out that respondent applicanthas not come to court with clean hands as she has tried to conceal hersources of income and in fact when she was directed to file relevantpages of pass book she avoided the same and instead filed only onepage i.e. page no. 4. On the other hand, the contentions of Ld. counsel forrespondent applicant was only that all in the family of petitioner nonapplicant are lawyers and secondly in general husbands do not shareSandesh Singh VS. Ashima Singh26whole information with their wives in India and thirdly that petitionernon applicant wants to enter into a second marriage. The third contention is relating to the merits of the caseand is not relating to the question of maintenance. In so far as thefirst contention that all in the family of petitioner are lawyers,Petitioner has not concealed that his father is a lawyer but that cannotbecome a disqualification for the petitioner in so far as the question of
interim maintenance is concerned. As regards the second contentionthat husbands do not share whole information with their wives inIndia, this does not seem to be the case in the present case where therespondent applicant and the petitioner non applicant are from veryenlightened families, well aware of their rights and petitioner nonapplicant has come out quite honestly about his sources of incomeand has shared them with the respondent applicant. In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16,this court laid down the following principles for fixing themaintenance under Section 24 of the Hindu marriage Act: 4.Right to maintenance is an incident ofthe status from estate of matrimony.Interim maintenance has an elementof alimony, which expression, in itsstrict sense means allowance due towife from husband on separation. Ithas its basis in social conditions inUnited Kingdoms under which amarried woman was economicallySandesh Singh VS. Ashima Singh27dependent and almost in a position oftutelage to the husband and wasintended to secure justice to her.5. Section 24 of Hindu Marriage Act goesa step further in as much as it permitsmaintenance to be claimed by thehusband even against the wife.6.While considering a claim for interimmaintenance, the court has to keep inmind the status of the parties,reasonable wants of the applicant, theincome and property the theapplicant. Conversely, requirements ofthe non applicant, the income andproperty of the non applicant andadditionally the other family membersto be maintained by the non applicanthave to be taken into all. Whilst it isimportant to ensure that themaintenance awarded to the applicantis sufficient to enable the applicant tolive in somewhat the same degree ofcomfort as in the matrimonial home,but it should not be so exorbitant thatthe non applicant is unable to pay.7.Maintenance awarded cannot bepunitive. It should aid the applicantto live in a similar life style not exposethe non applicant to unjust contemptor other coercive proceedings. On theother hand, maintenance should notbe so low so as to make the order
meaningless. 8. Unfortunately, in India, parties do notSandesh Singh VS. Ashima Singh28truthfully reveal their income. For selfemployed person or persons employedin the unorganized sector, truthfulincome never surfaces. Tax avoidanceis the norm. Tax compliance is theexception in this country. Therefore,in determining interim maintenance,there cannot be mathematicalexactitude. The court has to take ageneral view. From the variousjudicial precedents, the under noted11 factors can be culled out, which areto be taken into consideration whiledeciding an applicant under Section24 of Hindu Marriage Act. The sameare: 1. Status of the parties.2.Reasonable wants of the claimant. 3.The independent income andproperty of the claimant. 4.The number of persons, the nonapplicant has to maintain. 5.The amount should aid theapplicant to live in a similar lifestyle as he/she enjoyed in thematrimonial home. 6. Nonapplicant's liabilities, if any. 7.Provisions for food, clothing,shelther, education, medicalattendance and treatment etc. of theapplicant. 8.Payment capacity of the nonapplicant. 9. Some guess work is not ruled outSandesh Singh VS. Ashima Singh29while estimating the income of thenon applicant when all the sourcesor correct are not disclosed. 10.The non applicant to defray thecost of litigation. 11.The amount awarded underSection 125 Cr.PC is adjustableagainst the amount awarded underSection 24 of Act. In Jayant Bhargava V. Priya Bhargava,181 (2011) DLT 602, this court laid down thefactors to be taken into consideration forascertaining the income of the spouse. The relevantportion of judgment is reproduced hereunder:
“12. It is settled position of law thata wife is entitled to live in a similarstatus as was enjoyed by her in hermatrimonial home. It is the duty ofthe courts to ensure that it shouldnot be a case that one spouse livesin a life of comfort and luxury whilethe other spouse lives a life ofdeprivation, poverty. During thependency of divorce proceedingsthe parties should be able tomaintain themselves and should besufficiently entitled to therepresented in judicial proceedings.It in case the party is unable to doso on account of insufficientSandesh Singh VS. Ashima Singh30income, the other spouse shall beliable to pay the same. (See JasbirKaur Sehgal (Smt.) v. District Judge,Dehradun and Ors., reported at V(1998) SLT 551, III (1997) CLT 398(SC), II (1997) DMC 338 (SC) and(1997) 7 SCC 7). 13. A Single judge of this Court inthe case of Bharat Hegde v. SarojHedge, reported at 140 (2007) DLT16 has culled out 11 factors, whichcan be taken into consideration fordeciding the application underSection 24 of Hindu Marriage Act. 14. Further it has been noticed bythe Courts that the tendency of thespouses in proceedings formaintenance is to not truthfullydisclose their true income.However, in such cases some guesswork on the part of Court ispermissible. 15. The Supreme Court of India inthe case of Jasbir Kaur (Smt)(supra), has also recognized the factthat spouses n the proceedings formaintenance do not truthfullydisclose their true income andtherefor some guess work on thepart of the Court is permissible.Further the Supreme Court has alsoobserved that “considering thediverse claim made by the partiesone inflating the income and theSandesh Singh VS. Ashima Singh31
other suppressing an element ofconjecture and guess work doesenter for arriving at the income ofthe husband. It cannot be done byany mathematical precision”. 16. Although there cannot be anexhaustive list of factors, which areto be considered in guessing theincome of the spouses, but the orderbased on guess work cannot bearbitrary, whimsical or fanciful.While guessing the income areeither not disclosed or not correctlydisclosed, the Court can take intoconsideration amongst others thefollowing factors: (i) Life style of the spouse; (ii) The amount spent at the time ofmarriage and the manner in whichmarriage was performed; (iii) Destination of honeymoon; (iv) Ownership of motor vehicles; (v) Household facilities; (vi) Facility of driver, cook andother help; (vii) Credit Cards; (viii) Bank Account details; (ix) Club membership; (x) Amount of Insurance Premiumpaid;(xi) Property or propertiespurchased; (xii) Rental income; (xiii) Amount of rent paid; Sandesh Singh VS. Ashima Singh32(xiv) Amount spent on travel /holiday; (xv) Locality of residence; (xvi) Number of mobile phones; (xvii) Qualification of spouse; (xviii) School(s) where the child orchildren are studying when partieswere residing together; (xix) Amount spent on fees andother expenses incurred; (xx) Amount spent on extracurricular activities of childrenwhen parties were residingtogether; (xxi) Capacity to repay loan. Case law considering the legal position w.r.t. theprinciples and guidelines laid down in the various above referred
decisions by our own Hon'ble High Court and also of the Hon'bleSupreme Court, keeping in view of the entire facts and circumstancesas brought out, taking the prima facie view, the respondent applicanthas not made out any case for her entitlement to interim maintenancefrom the petitioner non applicant. As regards minor child, theburden, must be shared equally between both the parents i.e. partiesto the petition. Going by the standard of the parties, their familiesand their status in the society, taking into the view of the surroundingfactors, the sum of Rs. 20,000/ per month would be sufficient for thewelfare of the child including education, the said amount of Rs.20,000/ per month would equally be shared by both parties to theSandesh Singh VS. Ashima Singh33extent of 50%. As such non applicant petitioner is directed to payinterim maintenance to the minor daughter i.e. Sanaya @ Rs.10,000/ per month with the remaining Rs. 10,000/ to be borne bythe respondent applicant herself w.e.f. date of filing of the applicationi.e. 09.08.2010. The application is disposed off accordingly. To come up for payment of arrears to applicant no. 2through her guardian applicant no. 1 and also foradmission/denial of documents, if any, and issues on 25.04.2012. (Sujata Kohli) ADJ (West)/Delhi/10.02.12p.Sandesh Singh VS. Ashima Singh34Sandesh Singh VS. Ashima Singh
1 IN THE COURT OF MS. SUJATA KOHLI ADDITIONAL DISTRICT JUDGE(WEST) TIS HAZARI : DELHI HMA No.509/2011Sh. Harvinder SinghS/o Sh. Ujagar SinghR/o I-21, Street No.35,Mahendra Park, Azadpur,Delhi. ....PetitionerVersusSmt. Harjeet KaurW/o Sh. Harvinder SinghD/o Sh. Sahib Nagpal,Presently residing at:WZ-519, Street No.27,Shiv Nagar, New Delhi....RespondentDate of Institution of petition : 13.09.2011Date of reserving the Judgment: 02.02.2012 Date of passing the Judgment : 03.02.2012JUDGMENT ON COMPROMISE:1. Petitioner Sh. Harvinder Singh sought restitution of conjugal rights from
Smt. Harjeet Kaur alleging therein that the parties were married according to Sikh/HinduRites and Ceremonies at Delhi on 06.03.2005 and that they lived together as husbandand wife at Delhi. There is no child from the wedlock.2. It is further alleged that prior to this marriage petitioner had already beenmarried ones and two children from the first marriage namely Isheeta Kaur aged aboutHarvinder Singh Vs. Harjeet Kaur217 years (daughter) and Ramneek Singh (son) were born out. Similarly, the respondentwas also already married ones and was having a daughter from her first marriage agedabout 14 years namely Smriti @ Riti. The marriage between the parties was simple andboth the parties live together with the three children peacefully and happily. However,after sometime of the marriage, differences developed on various grounds as alleged andultimately led to the parting of the ways by the respondent from the petitioner, whichcompelled the petitioner to fled the present petition.3. Written statement was filed by the respondent denying all the allegations.At that stage matter was also adjourned to explore the possibility of reconciliationbetween the parties. 4. The matter was amicably settled between the parties as per the statementsalso recorded separately. The parties entered into a Memorandum of Settlementcontaining the detailed terms and conditions as under:-a. It has been mutually agreed between the parties, that the first partyshall pay a total sum of Rs.10,00,000/- (Rupees Ten Lacs only) to thesecond party as financial security which includes FDR of Rs.50,000/-bearing No.31141242031 and FDR no.31141235806 of Rs.50,000/- whichwere made on 21.04.2010 in the joint name of the parties for a period offive years. These FDRs were made out of the money which was received bythe second party in the name of her daughter Smriti @ Riti at the time ofdivorce from her previous husband. The said two FDRs of Rs.50,000/-each shall be encashed immediately after the signing of this agreement andthe entire amount alongwith the interest shall be re-invested in the shape ofthe FDR in the name of the minor daughter Smriti@Riti under theguardianship of the second party till she attain the age of majority. b. It has also been agreed between the parties that out of the remainingamount of Rs.9,00,000/- (Rupees Nine Lacs only), the first party shall giveRs.3,00,000/- through cheque bearing No.78596 dated 04.01.2012 drownon State Bank of India Majilis Park, Delhi-110033, to the second party inher name at the time of signing of this agreement. The first party shall payRs.3,00,000/- through cheque to the second party after 3 months from thedate of signing of this agreement and the remaining Rs.3,00,000/- shall beHarvinder Singh Vs. Harjeet Kaur3paid by the first party to the second party in her name on or before30.09.2012.c. Both the parties to this agreement have agreed to live together ashusband and wife alongwith their children at I-21, Street No.35, 1st Floor,Mahendra Park, Azadpur, Delhi-110033 from the date of signing of thisAgreement/MOU. The second party shall withdraw her complaint from theoffice of the Crime Against Women Cell, Kirti Nagar, New Delhi on thedate of signing of this agreement. Both the parties will take care of eachother and all the three children and give all love, affection and comforts tothem.
d. That the second party has no grievances against the family membersof the first party. She has no claim regarding istridhan, cash, gifts, etc.against the first party and his family members. On 2nd January, 2012, thesecond party has taken a separate locker in her name bearing No.9 withSyndicate Bank, Rajan Babu Road, Adarsh Nagar, Delhi-33 for keeping herjewelry, documents etc. The first party undertakes to return whateverjewelry of the second party is left with the first party against receipt. Inany case the second party shall not give any of her jewelry etc. to the firstparty in future. e. That in case the second party again leave company of the first partythen the second party and her daughter Smriti @ Riti shall not be entitledfor any maintenance from the first party and his family members before theCrime Against Women Cell or under Section 12 of the DV Act as well as forgrant of maintenance for herself and the minor daughter.f. That the parties will jointly move application under order 23 Rule 3read with Section 151 CPC alongwith the copy of this agreement in theproceedings under Section 9 of the Hindu Marriage Act, 1955 and the sameshall be withdrawn by the first party. The second party shall alsowithdraw her complaint under Section 12 of Protection of Women fromDomestic Violence Act, after encashment of the aforesaid cheque bearingNo.782596 dated 04.01.2012 drawn on State Bank of India Majlis Park,Delhi-110033. The second party will not press her application underSection 24 & 26 of the Hindu Marriage Act, 1955.g. It has also been agreed between the parties that the second partyshall pay Rs.15,000/- per month to the first party out of her salary towardsthe contribution of the household expenses. The parties shall bear all theeducational and marriage expenses of all the three children. h. The parties shall make the best of their efforts to live in peace andHarvinder Singh Vs. Harjeet Kaur4adjust with each other and also maintain cordial relation. The parties shallnot make issues out of trivial matters. The parties shall respect, love andtrust with each other and would hold the said trust dearest to them. i. The parties shall value each other's opinion the most and will not beinfluenced or prejudiced by any third party opinion. j. The parties shall make the best of their efforts to live happily witheach other alongwith their children as responsible parents. The partiesundertake not to make any issue/fuss/furore over trivial domestic matters,and would resolve them peacefully.k. The parties undertake to discharge their matrimonial obligations in anormal, balanced, healthy and constructive manner. l. Any other litigation, complaint or case etc. filed against each otherby either of the parties before the court of law, authority etc. and notspecified hereinabove shall also be deemed and treated as withdrawn andnull and void. m. Both the parties undertakes that they shall have no grievances orclaim of any nature whatsoever against each other and shall live peacefullyalongwith their children for rest of their life.n. The parties further agree that they will be transparent in theirconduct and day to day activities. They undertake not to be influenced bythe opinion of any other person and will not unnecessarily doubt the
integrity, honesty, of the other party .Accordingly, the petition is decreed in terms of the compromise.Decree sheet be drawn.File be consigned to record room.Announced in open courttoday i.e. 03.02.2012 (SUJATA KOHLI)ADJ/WEST/DELHIHarvinder Singh Vs. Harjeet Kaur