A Court in Delhi says that Interim maintenance has to be given to a woman who continues to reside in her matrimonial home.
From Paras 3 and 4,
3. After perusing the complaint u/s. 12 of Prevention of Woman from Domestic Violence Act (PWDV Act), the reply thereto and the documents filed, the learned trial Court passed the Impugned Order holding that the appellant is not entitled to any interim maintenance. Aggrieved of this order, the appellant has now approached this Court praying that she is indeed entitled to interim maintenance from her husband and therefore the impugned order must be set aside. On the other hand learned counsel for the respondent has argued that the impugned order has been correctly passed and is a well reasoned one, which should not be interfered with.
4. The relevant portion of the impugned order is reproduced below :-
“In the opinion of this Court, there is no ground to grant interim maintenance to the complainant at this stage. This is so because admittedly the children are in joint custody and are being taken care of by respondent no. 1 in the matrimonial home. Moreover, since the complainant is residing in the matrimonial home, it is difficult to believe that no expenses are being paid by respondent no. 1 for her sustenance. Thus, there is no ground to grant interim maintenance to the complainant. It is also pertinent to note that the complainant is well qualified and holds an MBA and B.Ed. Degree and also a diploma in Art and Craft and hence, in a position to earn a living for herself.
In view of the reasons mentioned in the aforesaid paragraphs, the application for interim maintenance stands dismissed.”
This Court is unable to agree with the above said findings and the reasoning behind it as given in the impugned order. Thus, for reasons discussed in detail below in the paragraphs that follow, the impugned order is set aside.
Now the verbal vomit begins…
From Para 5,
5. The trial Court has basically denied any interim maintenance to the appellant herein on the ground that since she is residing in the matrimonial house, it is difficult to believe that no expenses are being paid for her sustenance. Admittedly, the husband and the wife were residing in the same household at the time of passing of the Impugned Order. However, the trial Court was wrong in coming to the conclusion that merely because the aggrieved person before it was residing in her matrimonial house, she is not entitled to any maintenance. The appellant has made specific allegations of domestic violence in her complaint u/s. 12 of the PWDV Act before the trial Court. In fact an FIR has also been registered upon allegations of cruelty as made by the complainant wife to the concerned police authorities. The Domestic Incident Report (DIR) filed by the protection officer also corroborates the complaint of the appellant. As is usually the case, such instances of domestic violence as are narrated by the appellant before the trial Court, in her complaint, took place within the four walls of house and in support of her grievance, the complainant can only rely on the averments made in her complaint and cannot place much material on record to substantiate her averment at the initial stage. However, in view of this court, considering the detailed allegations as made in the complaint U/s 12 of the PWDV Act, there is sufficient material to give rise to at least a prima facie assumption that the appellant was treated with domestic violence.
From Paras 9, 10 and 11,
Sonika Vs Vikas on 06 Jan 2022
9. Also the trial Court did not apply the correct legal position and reasoning while holding that since the appellant is an M.A., B.Ed., so she is also capable of earning a decent salary and taking care of her own financial needs. Thus, she is not entitled to any maintenance. It is a settled law that the capacity to earn is totally different from the actual earnings. A middle aged woman, a mother of 3, who has accused her husband and in laws of threatening her with domestic violence, can not be denied maintenance on the ground that many years ago she had procured a B.A. and B.Ed. Degree. The complainant has specifically alleged in her complaint u/s. 12 of PWDV Act that despite her degree, she was not allowed to work by her husband and in laws ever since her marriage. The respondent husband never placed on record any material before the trial Court to show any earning of his wife since the date of marriage. He has not mentioned anywhere in his reply to the complainant u/s. 12 of PWDV Act or in his income affidavit what amount was ever earned by the complainant after marriage, who her employer was and for how many days she had so worked? If, indeed the wife had ever earned a decent amount for herself, the husband should have at least mentioned some details of the said earning and employment but the respondent is silent on this aspect. This only grants more credibility to the version of complainant that she has never worked after her marriage. Indeed the couple has three minor children aged around 11 (eleven) years, 09 (nine) years and 7 (seven) years. Thus, as is usually a practice in many Indian households, an educated woman despite her qualification may not be allowed to join any regular employment to take care of her young children born in quick succession and to attend to the needs of her husband and family.
10. Considering the admitted income of the respondent husband in the present case, while the appellant cannot be found entitled to any lavish life style, however, this does not mean that she is not entitled to even a single penny as her maintenance. Thus, considering the admitted income of the respondent husband, which is around Rs. 1,400/- (Rupees one thousand four hundred only) per working day (which amounts to around Rs. 32,000/- (Rupees thirty two thousand only) per month, the appellant is found entitled to an interim maintenance amount of Rs. 5,000/- (Five thousand only) per month towards her daily expenses of food, medicines, toiletries and such like needs. This amount has been arrived at after taking into account the fact that the respondent husband is also maintaining his three school going children and the complainant does not require any amount towards her residential needs as the appellant is residing in her matrimonial house as was admitted by the counsel for the appellant before the trial court on 26.03.2021.
11. The respondent no. 1 is hereby directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as interim maintenance to the appellant till the disposal of the complaint u/s. 12 of PWDV Act before the trial Court. This amount is to be paid from the date of filing of the complaint before the trial Court. Arrears be cleared within twelve months. A long time is given for clearing the arrears considering the salary of the respondent and his legal obligation towards maintaining his three children also.