CIVIL APPEAL 38 of 2021

*IN THE HIGH COURT OF DELHI AT NEW DELHI%Judgment reserved on:23[rd]November, 2023Judgment delivered on:19[th]January, 2024

+CRL.REV.P. 224/2021

CORAM:HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

1.The present revision petition has been filed by the petitioner (Wife)impugning the judgment dated 1[st]November, 2019, passed by the learnedAdditional Sessions Judge (Appellate Court), South-East District, SaketCourts, New Delhi whereby, the judgment dated 16[th]November, 2016,passed by the learned Metropolitan Magistrate (Trial Court), Mahila Court,South-East District, Saket Courts, New Delhi was set aside and the matterwas remanded back to the Trial Court.

2.Vide the judgment dated 16[th]November, 2016, the Trial Court hadallowed the application filed by the Wife under Section 12 of the Protection

of Women from Domestic Violence Act, 2005 (DV Act) and directed therespondent (Husband) to pay sum of Rs.1,00,000/- per month towardsmaintenance as well as compensation under Section 22 of the DV Act to theWife.

3.Assailing the impugned judgment passed by the Appellate Court, theWife filed the present petition along with an application for condonation ofdelay and an application for stay of the proceedings before the Trial Court.Vide detailed order dated 22[nd]July, 2022, the application for condonation ofdelay was allowed by the predecessor bench. Vide order dated 2[nd]September, 2022, the proceedings before the Trial Court pursuant to theremand judgment passed by the Appellate Court were stayed by thepredecessor bench.

4.The final arguments were heard in this petition on 1[st]August, 2023,20[th]September, 2023 and on 23[rd]November, 2023 when the judgment wasreserved and parties were given liberty to file brief note of arguments.Written notes of arguments have been field on behalf of the Husband as wellas the Wife.

5.Subsequently, an application was filed by the respondent to place onrecord copy of the judgment in MAT. APP. (F.C.) No.38/2021 dated 18[th]December, 2023, passed by Division Bench of this Court in the divorceproceedings between the parties hereto. The application was allowed videorder dated 12[th]January, 2024 and the said judgement was taken on record.Both sides have also filed written submissions qua the effect of the aforesaidjudgement on the present proceedings.

6.Briefly stated, the parties got married on 10[th]February, 1991 as per

Arya Samaj Rituals. One child was born out of the said wedlock on 28[th]December, 1991. As per the Wife, the Husband was an alcoholic and awomanizer and had several extra marital relationships. The Husband oftenused to beat up their child under the influence of alcohol, on account ofwhich the child suffered 80% loss of hearing in his left ear.

7.In these circumstances, the Wife filed complaint under Section 12 ofthe DV Act before the Trial Court on 16[th]December, 2009. Notice wasissued in the aforesaid complaint and the Husband filed the writtenstatements on 6[th]February, 2010. Subsequently, the Husband stoppedappearing before the Trial Court and was accordingly proceeded ex-partevide order dated 29[th]November, 2010.

8.The Husband filed an application for setting aside the aforesaid ex-parte order on 11[th]February, 2011, which was allowed subject to payment ofcosts of Rs.5,000/- vide order dated 15[th]July, 2011 and the matter was listedfor cross-examination of the Wife on the same date. In the said order, it hasalso been recorded that the Husband was ready and willing to bear all theeducational expenses of the son.

9.Subsequently, the parties were referred for mediation vide order dated22[nd]May, 2014. The parties arrived at settlement in the mediationproceedings on 25[th]September, 2014. However, it is the case of the Wifethat the Husband did not comply with the terms of the settlement.

10.Accordingly, the Trial Court proceeded with the trial. On 17[th]March,2015, the appearance of the Husband was recorded, though the PresidingOfficer was on leave. Thereafter, once again, the Husband stoppedappearing and the Trial Court proceeded ex-parte against the Husband.

Accordingly, his right to cross-examine the Wife was closed vide orderdated 8[th]October, 2015 and the matter was listed for Husband’s evidence.The Husband did not lead any evidence and therefore, his right to leadevidence was closed vide order dated 21[st]December, 2015 and the matterwas listed for final arguments on 28[th]January, 2016. During the course ofthe final arguments, an application was filed on behalf of the Wife to leadadditional evidence which was allowed vide order dated 29[th]March, 2016.Pursuant to the said application being allowed, the additional documentssought to be placed on record were the official documents filed with theRegistrar of Companies (ROC) in respect of the company ‘Show TimeEvents (India) Private Limited’ of which the Husband was director. TheHusband did not appear for final arguments and the final arguments onbehalf of the Wife were heard by the Trial Court and ex-parte final judgmentwas passed on 16[th]November, 2016.

11.The Trial Court came to the conclusion that the Wife had suffered‘domestic violence’ at the instance of the Husband and therefore, fallswithin the definition of ‘aggrieved person’ under Section 2(a) of the DVAct.

12.In its final judgment, the Trial Court directed the Husband to pay amaintenanceofRs.1,00,000/-permonthtotheWifealongwithcompensation of Rs.5,00,000/- under Section 22 of the DV Act. Theoperative part of the judgment passed by the Trial Court is set out below:

“22. Keeping in view the entire facts and circumstances of the case,and part-time income of the complainant, the respondent isdirected to pay Rs.1,00,000/- (Rs. One Lakh only) per month

towards her maintenance. This amount includes the provision foralternate accommodation and any other ancillary expenses.

23. As son of the parties namely Sh Uday Paul had already attainedmajority, no direct relief can be granted to him in the present case.24. Protection Order u/s 18 of the Act: Applicant has beenadjudicated to be an Aggrieved person u/s 2(a) of the Act. However,the complainant is residing separately from the respondent. Theapprehension of commission of Domestic Violence by respondentshas ceased to exist. Accordingly, no order of Protection iswarranted in the given circumstances.

25. Compensation order u/s 22 of the Act: In addition to otherreliefs as may be granted under this act, the Magistrate may on anapplication being made by aggrieved person, pass an orderdirecting the respondent to pay compensation and damages for theinjuries, including mental torture and emotional distress caused bythe acts of domestic violence committed by that respondent. ACompensation of Rs.5,00,000/- (Rs. Five Lakhs only) is alsoawarded in favour of complainant for the mental and physicalinjuries suffered by her at the hands of the respondent. Thisamount also includes the litigation cost.

26. This amount shall be deposited by the respondent directly in thebank account of Applicant on or before the 10[th]day of each month.Particulars of her Bank account shall be provided by thecomplainant to the Protection Officer as well as respondent forcompliance. The payment of the amount against maintenance toapplicant has to be made since the date of filing of petition i.e,18.12.2009 till the complainant is legally entitled to receive thesame. The amount awarded shall suffer 10% commensurateincrease every 3[rd]year from the date of order. Any amount paidtowards maintenance of complainant in any other proceeding shallbe adjusted towards the decretal amount.

27. Arrears of maintenance since the date of filing of application tilldate of order be paid within six months of the date of this order.”

13.The aforesaid judgment was challenged by the Husband by way of anappeal before the Sessions Court (Appellate Court).

14.The Appellate Court set aside the judgment passed by the Trial Courtand remanded the matter to the Trial Court to re-try the case.

15.Assailing the impugned judgment passed by the Appellate Court,counsel for the Wife has made the following submissions before this Court:

(i)There was no occasion for the Appellate Court to remand thematter to the Trial Court for de novo trial. Since all the relevantevidence was placed before the Appellate Court, the same couldhave been looked into by the Appellate Court itself.matter to the Trial Court for de novo trial. Since all the relevantevidence was placed before the Appellate Court, the same couldhave been looked into by the Appellate Court itself.

(ii)While remanding the matter to the Trial Court, the Appellate Courtdid not fix any interim maintenance to be paid to the Wife by theHusband, causing her severe hardship.did not fix any interim maintenance to be paid to the Wife by theHusband, causing her severe hardship.

(iii)Even though the judgment of the Appellate Court records thevarious contentions raised by the Wife, no findings have beenreturned on them.various contentions raised by the Wife, no findings have beenreturned on them.

(iv)Trial Court was mindful of the fact that the son of the parties hadturned major, but was still studying and not working at the time ofthe passing of the judgment and therefore, did not grant any directrelief to him and granted maintenance of Rs.1,00,000/- to theWife.

The Husband had only spent Rs.8,00,000/- on the maintenance oftheir son and not Rs.32,00,000/-, as claimed by him before theAppellate Court.

Since the Husband deliberately stopped appearing before the TrialCourt and also failed to comply with the mediation settlement

between the parties, the Trial Court had rightly proceeded ex-parteagainst the Husband.against the Husband.

(vii)Additional evidence was produced by the Wife before the TrialCourt in terms of Section 311 of the Code of Criminal Procedure,1973 (CrPC), to determine the real income of the Husband since hehad stopped appearing before the Trial Court.Court in terms of Section 311 of the Code of Criminal Procedure,1973 (CrPC), to determine the real income of the Husband since hehad stopped appearing before the Trial Court.

(viii) The additional documents were public documents such as annualreturns of the company of which the Husband was director.returns of the company of which the Husband was director.

(ix)In view of the above, the Trial Court correctly awarded themaintenance of Rs.1,00,000/- per month, taking into account thefinancial status of the parties.maintenance of Rs.1,00,000/- per month, taking into account thefinancial status of the parties.

16.Per contra, senior counsel for the Husband has made the followingsubmissions:submissions:

(i)The present revision petition filed under Section 397 read withSection 401 of the CrPC is not maintainable.Section 401 of the CrPC is not maintainable.

(ii)Husband did not appear in the complaint case before the TrialCourt as the parties had settled their disputes in mediation videsettlement dated 25[th]September, 2014, in terms of which the Wifehad agreed to withdraw her complaint.Court as the parties had settled their disputes in mediation videsettlement dated 25[th]September, 2014, in terms of which the Wifehad agreed to withdraw her complaint.

(iii)The application filed on behalf of the Wife under Section 311 ofthe CrPC for additional documents was allowed by the Trial Courtwithout issuing notice to the Husband.the CrPC for additional documents was allowed by the Trial Courtwithout issuing notice to the Husband.

(iv)Wife was throughout earning more than Rs.1,00,000/- per monthand was living in her own inherited house in South Delhi but stillclaimed alternate accommodation.and was living in her own inherited house in South Delhi but stillclaimed alternate accommodation.

(v)Husband was spending more than Rs.40,000/- for education oftheir son.their son.

(vi)The Trial Court failed to take note of the income tax returns of theHusband which were part of the Trial Court Record anderroneously relied upon the profits of the company to determinethe maintenance amount.Husband which were part of the Trial Court Record anderroneously relied upon the profits of the company to determinethe maintenance amount.

(vii)The Husband was only director in the said company with 10%shareholding. Therefore, the profits of the company could not betaken into account for determining the income of the Husband andthereby fixing maintenance.shareholding. Therefore, the profits of the company could not betaken into account for determining the income of the Husband andthereby fixing maintenance.

(viii) The Wife has made false statements with regard to the son of theparties suffering hearing difficulties on account of violence by theHusband.parties suffering hearing difficulties on account of violence by theHusband.

(ix)The Husband currently is 65 years old retired person sufferingfrom heart ailments and is incapacitated to work actively and isliving on his retirement benefits from the company.from heart ailments and is incapacitated to work actively and isliving on his retirement benefits from the company.

(x)Reliance is placed by the Husband on the findings in the judgmentof divorce granted by the Family Court in favour of the Husbandon grounds of cruelty and desertion by the Wife and the judgmentof this Court upholding the same (hereinafter conjointly referred as‘HMA proceedings’).of divorce granted by the Family Court in favour of the Husbandon grounds of cruelty and desertion by the Wife and the judgmentof this Court upholding the same (hereinafter conjointly referred as‘HMA proceedings’).

17.The following submissions have been made on behalf of the Wife inrejoinder:rejoinder:

(i)As regards the maintainability of the present petition, the Husbandhimself had preferred revision petition before this Court, beinghimself had preferred revision petition before this Court, being

Digitally Signed By:DINESHKUMARSigning Date:19.01.202415:37:37

CRL.REV.P. No.22/2018 against the interim order passed by theAppellate Court directing him to deposit 50% of the maintenancegranted by the Trial Court as precondition to hearing the appeal.Therefore, he cannot contend now that the revision filed by theWife is not maintainable. In any event, the present revision petitionis maintainable under the provisions of the CrPC.

(ii)Reliance placed by the Husband on the judgment passed in theHMA proceedings between the parties is misplaced since the saidproceedings granting divorce would have no bearing on theproceedings under the DV Act, which is the subject matter of thepresent petition.

18.I have heard the counsels for the parties and perused the material onrecord.

Whether the present revision petition is maintainable.

19.One of the objections taken on behalf of the Husband is that thepresent revision petition under Section 397 read with Section 401 of theCrPC is not maintainable. In this regard, reference may be made to Sections28 and 29 of the DV Act which are set out below:

“28. Procedure.—(1) Save as otherwise provided in this Act, allproceedings under sections 12, 18, 19, 20, 21, 22 and 23 andoffences under section 31 shall be governed by the provisions ofthe Code of Criminal Procedure, 1973 (2 of 1974).

29. Appeal.—There shall lie an appeal to the Court of Sessionwithin thirty days from the date on which the order made by theMagistrate is served on the aggrieved person or the respondent,as the case may be, whichever is later.”

20.In terms of Section 28 of the DV Act proceedings under Sections 12and 23 of the DV Act would be governed by provisions of the CrPC.Further, as per Section 29 of the DV Act, an appeal against the order of theMagistrate shall lie to the Sessions Court. The DV Act does not provide forany further appeal against the order passed by the Sessions Court. TheAllahabad High Court in Dinesh Kumar Yadav v. State of U.P., 2016 SCCOnLine All 3848, has held that revision to the High Court is maintainableagainst an order passed by the Sessions Court under Section 29 of the DVAct. Relevant observations of the said judgment are set out below:

“35. Under section 397 of Cr. P.C. “the High Court or anySessions Judge may call for and examine the record of anyproceeding before any inferior Criminal Court…”. That theCourt of Sessions is as an inferior Court to the High Court,cannot be disputed. Thus, the Court of Sessions before whichan appeal has been prescribed under section 29 of the Act, 2005is Criminal Court inferior to the High Court and, therefore, arevision against its order passed under section 29 will lie to theHigh Court under section 397 Cr P C. section 401, Cr. P.C. issupplementary to section 397 Cr.P.C.

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37. In view of the above, as the remedy of an appeal had beenprovided under section 29 of the Act, 2005 before Court ofSessions, which means Court of Sessions referred under section6 read with sections 7 and 9 of the Cr. P.C., without sayinganything more as regards the procedure to be followed in suchappeal, and there being nothing to the contrary in the Act of2005 which may be indicative of exclusion of the application ofthe provisions of Cr. P.C. to such an appeal, the normalremedies available against judgment and order passed by aCourt of Sessions by way of appeals and revisions prescribedunder the Cr. P.C. before the High Court, are available against”an order passed in appeal under section 29 of the Act, 2005.

21.I am in respectful agreement with the aforesaid view of the AllahabadHigh Court. As noted above, in terms of Section 397 of the CrPC, provisionsof the CrPC are applicable to proceedings under the DV Act. Therefore, inmy considered view, in view of the fact that the Sessions Court is Courtinferior to the High Court, revision petition would lie under Section 397CrPC to the High Court against the order passed by the Sessions Court inappeal under Section 29 of the DV Act.

22.Counsel for the Husband has placed reliance on the judgment of theMadras High Court in Arul Daniel v. Suganya, 2022 SCC OnLine Mad5435, to state that the present revision petition would not be maintainable. InArul Daniel (supra), the Madras High Court had held that petition underSection 482 of the CrPC challenging the proceeding under Section 12 of theDV Act is not maintainable and the correct remedy would be to file apetition under Article 227 of the Constitution of India. This judgment is notapplicable in the present case as here the Wife has not challenged the orderpassed under Section 12 of the DV Act but has challenged the order passedby the Sessions Court under Section 29 of the DV Act whereby the appealfiled by the Husband was allowed.

23.In view of the above, I am of the view that the present revisionpetition filed by the Wife is maintainable.

Whether the Judgment in Divorce Proceedings would have any bearingon the present proceedings.

24.The findings/observations qua cruelty passed by the Division Benchof this Court cannot be disputed. However, in this regard, counsel for theWife has placed relied on the judgement of the Apex Court in Raj Talreja v.

Kavita Talreja, (2017) 14 SCC 194, wherein it has been observed that evenif there is finding of cruelty against the wife, it cannot by itself be groundfor denying maintenance. similar view has been taken by CoordinateBench of this Court in Pradeep Kumar Sharma v. Deepika Sharma, (2022)SCC OnLine Del 1035, wherein the Court held that there is no bar of crueltyin the right of the wife to claim maintenance. Further, the Supreme Court inDr. Swapan Kumar Banerjee v. State of West Bengal, (2020) 19 SCC 342,has held that even if divorce has been granted on the grounds of desertion bythe wife, this cannot be ground to deny maintenance to the Wife.

25.In light of the aforesaid legal position, in my considered view, thefindings of cruelty against the Wife in the divorce proceedings, by itselfcannot be the basis to deny maintenance to the Wife under the provisions ofthe DV Act.

Judgment of remand passed by the Appellate Court.

26.The Appellate Court vide judgment dated 1[st]November, 2019 setaside the judgment of the Trial Court and remanded the matter to re-try thecase.

27.The following submissions were made on behalf of the Husbandbefore the Appellate Court:

(i)The complaint case filed by the Wife was time barred as the partieshad been living separately for long time before filing of thecomplaint.had been living separately for long time before filing of thecomplaint.

(ii)The Trial Court passed the judgment only on the basis of thesubmissions of the Wife that she was subjected to domesticviolence without any proof thereof.submissions of the Wife that she was subjected to domesticviolence without any proof thereof.

(iii)The Husband stopped appearing before the Trial Court as heexpected the Wife to withdraw her complaint in view of thesettlement arrived at between the parties on 25th September, 2014.expected the Wife to withdraw her complaint in view of thesettlement arrived at between the parties on 25th September, 2014.(iv)Even though the Husband had not been proceeded against ex parte,the Trial Court allowed the application filed on behalf of the Wifefor leading additional evidence vide order dated 29th March, 2016without issuing notice to him.the Trial Court allowed the application filed on behalf of the Wifefor leading additional evidence vide order dated 29th March, 2016without issuing notice to him.

(v)Wife had wrongly claimed Rs.1,05,000/- as maintenance from theHusband, which included an amount of Rs.40,000/- for the upkeepof their son. It was the Husband who had been maintaining the sonand had spent around Rs.32,00,000/- in this regard.Husband, which included an amount of Rs.40,000/- for the upkeepof their son. It was the Husband who had been maintaining the sonand had spent around Rs.32,00,000/- in this regard.

(vi)The Wife has failed to disclose that she was earning aroundRs.1,00,000/- per month at the time of filing of the complaint. TheTrial Court did not ask the Wife to file her detailed incomeaffidavit.Rs.1,00,000/- per month at the time of filing of the complaint. TheTrial Court did not ask the Wife to file her detailed incomeaffidavit.

(vii)The Trial Court failed to consider that the Wife was living in herown house and therefore there was no requirement to make aprovision for alternate accommodation in the maintenance amount.own house and therefore there was no requirement to make aprovision for alternate accommodation in the maintenance amount.

(viii) At the time of passing of the judgment of the Trial Court, the sonof the parties had turned major and was earning and therefore, theTrialCourtwronglyawardedasumofRs.1,00,000/-asmaintenance taking into account that Rs.40,000/- was for upkeepof the son.of the parties had turned major and was earning and therefore, theTrialCourtwronglyawardedasumofRs.1,00,000/-asmaintenance taking into account that Rs.40,000/- was for upkeepof the son.

(ix)The Trial Court has made completely wrong assumption that theHusband was earning salary of Rs.50,00,000-60,00,000/- perannum.Husband was earning salary of Rs.50,00,000-60,00,000/- perannum.

(x)The Trial Court erred in taking into account the earnings of thecompany of which the Husband was director to determine theearnings of the Husband.company of which the Husband was director to determine theearnings of the Husband.

28.On behalf of the Wife, the following submissions were made beforethe Appellate Court which are duly noted in the impugned judgment asunder:the Appellate Court which are duly noted in the impugned judgment asunder:

(i)The Husband failed to comply with the terms of the settlement asrecorded in the Settlement Agreement arrived at between theparties in the mediation proceedings and failed to transfer the sharein the family house in the name of his son.recorded in the Settlement Agreement arrived at between theparties in the mediation proceedings and failed to transfer the sharein the family house in the name of his son.

(ii)Additionally, the Husband stopped appearing before the TrialCourt without any justification after settlement between theparties.Court without any justification after settlement between theparties.

(iii)As per the additional documents placed on record by the Wifebefore the Trial Court, the Husband was director in two eventmanagement companies, both of whom had their registeredaddress to be the residential house of the Husband.before the Trial Court, the Husband was director in two eventmanagement companies, both of whom had their registeredaddress to be the residential house of the Husband.

(iv)The Husband did not file his income affidavit along with hiswritten statement filed on 6[th]February, 2010.written statement filed on 6[th]February, 2010.

(v)The Wife had only been working till December 2009, andthereafter, left her job and was looking after her house and theirson single-handedly.thereafter, left her job and was looking after her house and theirson single-handedly.

(vi)TheHusbandwasnotbearinganyexpensestowardstheupbringing of the child even though he had agreed to contributetowards the upbringing of the child as noted in the order dated 27[th]May, 2011, passed by the Trial Court.upbringing of the child even though he had agreed to contributetowards the upbringing of the child as noted in the order dated 27[th]May, 2011, passed by the Trial Court.

(vii)The income tax returns filed by the Husband before the AppellateCourt shows that there was progressive increase in his gross totalincome and is deliberately not paying maintenance to the Wife.Court shows that there was progressive increase in his gross totalincome and is deliberately not paying maintenance to the Wife.

29.Based on the aforesaid submissions, the Appellate Court reached thefollowing conclusions:following conclusions:

“41. However it is noticed that in her application filed by therespondent in the section 12 of DV Act, she had prayed for totalsum of Rs.1,05,000/- per month as monetary relief which includedthe expenses of school fees and other related expenses ofaggrieved to the extent of Rs.40,000/- per month as he is studyingin hostel. However on the date of passing of the impugnedjudgment, learned trial court has itself observed that the son of theparties had achieved majority and no direct relief can be grantedto him. However at the time of passing of the impugnedjudgment,learnedtrialcourtignoredthatamountofRs.1,05,000/- lakh per month as claimed by the respondentincluded sum of Rs.40,000/- per month towards the expenses forthe son of the parties. Similarly, although learned trial courtobserved that respondent is herself earning an amount of Rs.40to 50,000 per month, it appears to have not taken the same intoconsideration while fixing amount of maintenance for her.42. It is further noticed that the respondent had claimedcompensation and damages under section 22 of DV Act for theinjuries including mental torture and emotional distress caused bythe act of domestic violence committed by the respondent.However, when the appellant filed the additional documents onrecord which included the medical expenses and medical record ofthe son of the parties, the respondent had admitted to thecorrectness of those documents which raises doubt upon the

averment of the respondent or her son being subjected to domesticviolence in the manner explained by her in her complaint casefiled before learned trial court.

43. I find force in the submissions of learned counsel for appellantthat the impugned order has been passed by taking all thedepositions made by the respondent before learned trial court inher affidavit of evidence to be correct and proved in absence of therespondentleadinganyevidence,moresoinrespectofobservation of learned trial court that the appellant herein was analcoholic and womaniser and had extramarital relationship withseveral other women without the respondent leading any evidencein support of the same.

44. Further when the additional documents filed by the appellantwere taken on record by the detailed order of this court dated15.04.2019, learned counsel for respondent had submitted that hedid not wish to cross examine the appellant in respect of thosedocuments and the same could be taken into consideration whiledeciding the present appeal. Those documents included thedocuments of expenses incurred by the appellant towards theupbringing of the son of the parties as well as in respect of hismedical treatment. But still respondent has claimed that it wasthe respondent alone was bearing the expenses of bringing up ofthe son of the parties.

45. It is noticed that in the impugned order, learned trial courtassessed the income of the appellant on the basis of the profit ofthe company having doubled over the years ignoring the ITR ofthe appellant which were already on record. Learned trial courthas observed that the profit and loss statement of the company forthe year ending 31.03.2015 shows profit of more than Rs.50lakhs and since the profit of the company had doubled over theyears, as necessary consequence the remuneration of theDirectors would also have increased and thus it can be presumedthat respondent(appellant herein) must be getting salary of atleast Rs.50 to Rs.60 lakhs per annum if not more. Learned trialcourt further observed that apart from this, he must also be gettinghis share in the profits/dividends of the above-mentioned companyin his capacity as Director. I concur with submission of learned

counsel for appellant that taking into account the profit and lossstatement of the company in which the appellant herein wasDirector for fixing the amount of maintenance for respondent ismisplaced and that too when the ITRs of the appellant werealready on record and learned trial court ignored to take thesame into consideration.

46. Further what cannot be lost sight of is the fact that thedocuments on which the learned trial court has relied heavily forfixing the quantum of maintenance in favour of the respondentwere brought on record when the respondent had filed anapplication for leading additional evidence which was allowedwithout giving notice of the same to the appellant herein was noteven proceeded ex-parte at that stage. The reliance of learnedcounsel for the respondent on section 311 Cr.P.C. for allowingapplication of the respondent for leading additional evidencewithout giving notice of the same to the appellant herein isunfounded.”

30.A perusal of the aforesaid extracts from the impugned judgment ofthe Appellate Court would show that the Appellate Court noted variouserrors in the judgment of the Trial Court. For instance, the Trial Courtignored that the sum of Rs.1,05,000/- per month claimed by the Wifeincluded sum of Rs.40,000/- per month towards expenses of the son of theparties and at the time the judgment was delivered by the Trial Court, theson had already attained the age of majority and thus, no relief could begranted to him. However, the Appellate Court failed to take into account thatthe Trial Court had granted maintenance from 2009 to 2016 and for largepart of this period, the son of the parties, even though he had attained the ageof majority, was still pursuing his studies. The obligation of father towardshis child does not end when the child attains majority even though he is stillpursuing his studies. In this regard, reference may be made to the judgment

of the Coordinate Bench of this Court in Urvashi Aggarwal v. InderpaulAggarwal, (2021) SCC OnLine Del 4641. Relevant observations of the saidjudgment are set out below:

“12. This Court cannot shut its eyes to the fact that at the age of18 the education of petitioner No.2 is not yet over and thepetitioner No.2 cannot sustain himself. The petitioner No.2 wouldhave barely passed his 12th Standard on completing 18 years ofage and therefore the petitioner No.1 has to look after thepetitioner No.2 and bear his entire expenses. It cannot be saidthat the obligation of father would come to an end when his sonreaches 18 years of age and the entire burden of his educationand other expenses would fall only on the mother. The amountearned by the mother has to be spent on her and on her childrenwithout any contribution by the father because the son hasattained majority. The Court cannot shut its eyes to the risingcost of living. It is not reasonable to expect that the mother alonewould bear the entire burden for herself and for the son with thesmall amount of maintenance given by the respondent hereintowards the maintenance of his daughter.”18 the education of petitioner No.2 is not yet over and thepetitioner No.2 cannot sustain himself. The petitioner No.2 wouldhave barely passed his 12th Standard on completing 18 years ofage and therefore the petitioner No.1 has to look after thepetitioner No.2 and bear his entire expenses. It cannot be saidthat the obligation of father would come to an end when his sonreaches 18 years of age and the entire burden of his educationand other expenses would fall only on the mother. The amountearned by the mother has to be spent on her and on her childrenwithout any contribution by the father because the son hasattained majority. The Court cannot shut its eyes to the risingcost of living. It is not reasonable to expect that the mother alonewould bear the entire burden for herself and for the son with thesmall amount of maintenance given by the respondent hereintowards the maintenance of his daughter.”

31.The Appellate Court noted that the approach of the Trial Court ofdetermining the income of the Husband on the basis of profit and lossstatement of the company while ignoring the income tax returns of theHusband was misplaced. It was further noted that the documents on the basisof which the maintenance was fixed by the Trial Court was brought onrecord by the Wife by way of an application for additional evidence whichwas allowed by the Trial Court without giving notice to the Husband, eventhough the Husband had not been proceeded ex-parte at that stage.

32.Despite noting the aforesaid errors in the judgment of the Trial Court,the Appellate Court failed to return any findings on the following issues,which were raised before the Appellate Court:

(i)Whether the Trial Court was correct in proceeding with the mattereven though the Husband was not appearing before the Trial Court;even though the Husband was not appearing before the Trial Court;

(ii)Whether the finding of the Trial Court that the Wife was an‘aggrieved person’ as per section 2(a) of the DV Act, was corrector not;‘aggrieved person’ as per section 2(a) of the DV Act, was corrector not;

(iii)Whether the Husband was justified in not filing his incomeaffidavit before the Trial Court;affidavit before the Trial Court;

(iv)Whether the Wife continued to work and earn after filing of thepresent complaint;present complaint;

(v)Whether the Wife was entitled to receive any maintenance towardsalternate accommodation;alternate accommodation;

(vi)Whether the Husband was bearing any expenses towards theupbringing of the son of the parties;upbringing of the son of the parties;

(vii)Till what period was the son of the parties entitled to maintenance.33.The Appellate Court, instead of adjudicating and returning findingon the aforesaid issues, simply remanded the matter back to the Trial Courtwithout giving any reasons or justification for the same. The relevantextracts from the Appellate Court order are set out below:on the aforesaid issues, simply remanded the matter back to the Trial Courtwithout giving any reasons or justification for the same. The relevantextracts from the Appellate Court order are set out below:

“49. In view of the aforesaid observations, the impugned judgmentof learned trial court dated 16.11.2016 in respect of directing theappellant to pay Rs.1 lakh per month towards the maintenancewhich includes the provision for alternate accommodation and anyother ancillary expenses to the respondent as well as directing theappellant to pay compensation under section 22 of DV Act for themental and physical injuries suffered by respondent at the hands ofappellant herein is set aside and the matter is remanded to thelearned trial court to retry the case.”of learned trial court dated 16.11.2016 in respect of directing theappellant to pay Rs.1 lakh per month towards the maintenancewhich includes the provision for alternate accommodation and anyother ancillary expenses to the respondent as well as directing theappellant to pay compensation under section 22 of DV Act for themental and physical injuries suffered by respondent at the hands ofappellant herein is set aside and the matter is remanded to thelearned trial court to retry the case.”

34.In Manik Kutum v. Julie Kutum, 2020 (14) SCC 469, the SupremeCourt has observed that the matter should be remanded back by superiorcourt to trial court only when some factual inquiry is required to be heldwhich cannot be undertaken at the appellate stage. The relevant observations

in Manik Kutum (supra) are set out below:

“8.In our considered opinion, the High Court erred inremanding the case to SDJM for fresh inquiry and for fixing themaintenance for the respondent (wife).

9.The High Court having recorded finding of fact inpara 22 of the impugned order that the respondent wife is thelegally wedded wife of the appellant, it should not have thenremanded the case to SDJM for any inquiry and instead shouldhave fixed the maintenance payable by the appellant (husband)to the respondent (wife) in the revision itself. It is more sobecause we find that the respondent is not earning and has noindependent source of any income to maintain herself.

10.In our view, the need to remand the case to SDJM iscalled for only when some factual inquiry is required to beheld to decide any factual issue involved in the case whichcannot be undertaken at the revision stage or when it isnoticed that there is no finding on any particular factualissue(s) recorded by SDJM or when additional evidence isfiled for the first time at the appellate/revision stage whichrequires examination by SDJM in the first instance and torecord finding in the light of such additional evidence. Suchis not the case here because all the material for fixing themaintenance was on record. It is for these reasons, we are ofthe view that there was no need to remand the case to SDJM asit would only prolong the litigation causing harm to therespondent (wife).”

35.In the present case, the entire record of the Trial Court was summonedby the Appellate Court vide order dated 8[th]February, 2017. Further, the

Husband filed an application for additional evidence before the AppellateCourt which was duly allowed vide order dated 15[th]April, 2019 and thedocuments filed by the Husband were taken on record. Therefore, the entirerecord was there before the Appellate Court for it to decide the appeal onmerits. There was no justification at all to remand the case back to the TrialCourt. The order of remand is completely cryptic and without giving anyreasons justifying the remand.

36.Even while remanding the matter back to the Trial Court, theAppellate Court did not deem it appropriate to fix an amount towardsinterim maintenance. The intention of the DV Act is to provide immediatesuccour to the aggrieved wife, especially when civil remedies towardsmaintenance are drastically delayed. The Supreme Court in Rajnesh v.Neha, (2021) 2 SCC 334, has observed that if the maintenance is not madein timely manner, it defeats the object of social welfare legislation.

37.The Appellate Court should have been conscious of the fact that in thepresent case, the complaint under the DV Act, was filed by the Wife as farback in 2009 and by the time the impugned judgment of remand was passedby the Appellate Court, it was already 2019. For period of ten years, theWife did not get any maintenance other than the sum of Rs.10,00,000/- thatwas paid by the Husband in terms of the order dated 18[th]July, 2018, passedby this Court in CRL.REV.P. No.22/2018 filed by the Husband. Therefore,even if the Appellate Court remanding the matter to the Trial Court, it shouldhave fixed an interim amount to be paid by the Husband to the Wife.

38.In view of the discussion above, the impugned judgment of theAppellate Court remanding the matter to the Trial Court is set aside and the

matter is remanded back to the Appellate Court for adjudication of theappeal filed by the Husband on merits and more particularly, the issuesflagged in paragraph 32 of this judgement.39.It is unfortunate that in the present case, the complaint was filed in theyear 2009 and almost 14 years have elapsed and the Wife has not beengranted any interim maintenance other than the sum of Rs.10,00,000/- paidby the Husband pursuant to the aforesaid order passed by this Court.Accordingly, even though I am remanding the matter to the Appellate Courtto decide the appeal on merits, it is deemed appropriate that an amount ofinterim maintenance is fixed by this Court pending the adjudication of theappeal on merits.

40.On the basis of the income tax returns of the Husband on record fromthe financial year 2009-10 to financial year 2019-20, the income of theHusband can be summarised below:

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41.As per the table above, taking into account the net total income of theHusband from the financial year 2009-10 to 2019-20, on an average, theHusband would have earned approximately sum of Rs.2,00,000/- permonth. As per the income tax returns of the Wife on record, her earningsafter the financial year of 2009-2010 seem to be significantly lower than thatof the husband.

42.Keeping in view the income of the parties and the judgment of theSupreme Court in Kulbhushan Kumar v. Raj Kumar, (1970) 3 SCC 129,which was reaffirmed in the judgment of the Supreme Court in Kalyan DeyChowdhury v. Rita Dey Chowdhury Nee Nandy, (2017) 14 SCC 200, I amof the view that it would be just and proper that twenty-five percent of thenet income of the Husband be granted to the Wife as interim maintenance.Accordingly, it is directed that the Husband shall pay sum of Rs.50,000/-per month to the Wife as interim maintenance from 16[th]December, 2009,when the complaint under the DV Act was filed till 1[st]November, 2019,when the impugned judgment was passed by the Appellate Court. The sumof Rs.10,00,000/- already paid by the Husband to the Wife pursuant to theorders of this Court shall be deducted from the aforesaid amount.

43.While disposing of the present revision petition, the followingdirections are passed:

(i)The arrears of interim maintenance calculated on the basis abovewill be paid to the Wife by the Husband over period of six

months in six equal monthly instalments, beginning from 1[st]March, 2024.March, 2024.

(ii)Any payment made to the Wife in terms of the above shall besubject to the final judgment that may be passed by the AppellateCourt fixing the final maintenance.subject to the final judgment that may be passed by the AppellateCourt fixing the final maintenance.

(iii)The Appellate Court shall decide the quantum of maintenance inaccordance with the guidelines laid down by the Supreme Court inRajnesh v. Neha (supra).accordance with the guidelines laid down by the Supreme Court inRajnesh v. Neha (supra).

(iv)Taking into account the long period that has elapsed since filing ofthe complaint, the Appellate Court shall decide the present appealwithin period of one year from today.the complaint, the Appellate Court shall decide the present appealwithin period of one year from today.

(v)The Appellate Court shall decide the appeal on the basis of thematerial before it. However, the parties shall be at the liberty tolead additional evidence before the Appellate Court in view of anychange in circumstances after the financial year 2019-2020.material before it. However, the parties shall be at the liberty tolead additional evidence before the Appellate Court in view of anychange in circumstances after the financial year 2019-2020.

44.The petition along with pending applications stands disposed of.

JANUARY 19, 2024rt

AMIT BANSAL, J.

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