Delhi District Court
Vijay Kumar vs State on 9 January, 2025
IN THE COURT OF SH. NAVJEET BUDHIRAJA
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 265 OF 2023
CNR NO. DLST01-009131-2023
IN THE MATTER OF
Vijay Kumar
S/o Sh. Gamman Ram,
R/o D-1, House No. 86,
Madangir, New Delhi. ........ Appellant
Versus
1. State (GNCT of Delhi)
Through Ld. Additional PP
2. Raj Kumari
W/o Vijay Kumar
R/o House No. L-1, 2535,
Gali No. 15, Sangam Vihar,
New Delhi.
3. Jyoti
R/o House No. L-1, 2535,
Gali No. 15, Sangam Vihar,
New Delhi. ........ Respondents
DATE OF INSTITUTION : 20.09.2023
DATE OF RESERVING ORDER : 17.12.2024
DATE OF PRONOUNCEMENT : 09.01.2025
JUDGMENT Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:57:54
+0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 1 of 34
The present appeal under Section 29 of the Protection
of Women from Domestic Violence Act, 2005 (hereinafter referred
to as the 'DV Act') has been preferred against the impugned order
dated 20.05.2023 pronounced by Ld. Metropolitan
Magistrate/Mahila Court-03, South District, Saket Courts, New
Delhi (hereinafter referred as 'Ld. MM') on an application under
Section 12 of the DV Act in Complaint Case No. 470050/2016 titled
as Raj Kumari Vs Vijay Kumar & Ors.
2. The brief facts, as culled out from the appeal, are that
the marriage of the appellant Vijay Kumar and respondent no. 2 Raj
Kumari was solemnized on 27.04.1990 as per Hindu rites and
customs and out the said wedlock, respondent no. 3 Jyoti (daughter)
was born on 02.03.2000. Thereafter, respondent no. 2 lodged an FIR
No. 623/2001 under Section 498A/406/34 of the Indian Penal Code,
1860 (IPC) against the appellant and his family members in which
appellant and his family members were acquitted on 08.01.2004.
Thereafter, respondent no. 2 left her matrimonial home on
25.02.2015 and on 10.12.2015, she lodged the complaint against the
appellant and other family members of the appellants. In the said
complaint case, vide order dated 20.05.2023, Ld. MM directed the
appellant to pay the maintenance to respondent no. 02 and 03,
relevant extract of which is as under :
"42. The aggrieved and her Digitally
daughter are entitled to receive
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:01
+0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 2 of 34
an amount of Rs.5000/- from the
date of filing of application till
31.03.2016, an amount of Rs.
6000/- from 01.04.2016 till
31.03.2017, an amount of Rs.
7000/- from 01.04.2017 till
01.03.2018.
43. Since the daughter attained
majority on 02.03.2018, the
amount is being segregated
thereafter. From 02.03.2018 till
31.03.2019, the aggrieved and
the major daughter are entitled
to a sum of Rs. 4000/-each, from
01.04.2019 till 31.03.2020, the
aggrieved and the major
daughter are entitled to a sum of
Rs. 4500/-each, from 01.04.2020
till 31.03.2021, the aggrieved
and the major daughter are
entitled to a sum of Rs. 5000/-
each, from 01.04.2021 till
31.03.2022, the aggrieved and
the major daughter are entitled
to a sum of Rs. 5500/-each; from
01.04.2022 till 31.03.2023, the
aggrieved and the major
daughter are entitled to a sum of
Rs. 6000/-each and from
01.04.2023, the aggrieved is
entitled to a sum of Rs. 6500/-
till further orders and the major
daughter is entitled to a sum of
Rs. 6500/- till her marriage or
her obtaining a job, if an
application is moved in that
behalf by respondent in future.
The arrears are directed to be
cleared within a period of eight
months.
44. The amount of maintenance
is to be paid from the date of this
order directly into the bank of
Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
the aggrieved on or before 10th
2025.01.09
17:58:06
+0530
of every month. Maintenance
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 3 of 34
that may have been received, or
being received by the aggrieved
in interim or in any other case
shall be adjusted. The
respondent is also entitled to
claim waiver of paying the
maintenance/ amount for the
period that he was in JC in FIR
No. 375/2016 PS Ambedkar
Nagar.
45. The aggrieved has adduced
sufficient evidence in the form
of medical documents Ex.
CW1/4 regarding physical injury
received by her and has even
specified date and time of the
alleged physical tortind Hence,
she is also entitled to receive a
one time compensation of Rs.
5,000/-."
3. The said impugned order has been challenged on
various grounds that Ld. MM has assumed that appellant must be
earning the minimum wages as prescribed by the Government of
NCT of Delhi and respondent no. 2 was not able to maintain herself,
Ld. MM has failed to appreciate that no cause of action has arisen as
no specific incident of domestic violence has been mentioned in the
complaint, respondent no. 3 has attained the age of majority on
02.03.2018, Ld. MM has wrongly relied upon the MLC dated
14.03.2012 wherein the respondent no. 2 levelled allegations of
beating and throwing her on the road by the appellant whereas the
respondent no. 2 fell at the house of her father at Sangam Vihar and
sustained injuries, appellant did not make any PCR call, respondent
no. 2 was working but her income was not considered by Ld. MM
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 4 of 34
Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:11
+0530
while granting the maintenance, Ld. MM granted maintenance to
respondent no. 3 after attaining the age of majority, however, as per
Section 20 of the DV Act, children are entitled for maintenance till
they attained the age of majority, Ld. MM had passed the impugned
order without considering the evidence on record.
4. On behalf of respondents no. 2 and 3, written
arguments were filed wherein the grounds of the appeal have been
denied. It is stated that the present appeal is a gross abuse of law and
is full of conjectures and surmises and has been filed with malafide,
fraudulent and ulterior motive to harass the respondents. It is further
stated that the present appeal is hopelessly time barred as it has been
filed after a period of 56 days from the date of the order and no
plausible explanation has been tendered for the delay. It is further
submitted that the impugned order is not bad in law in any manner
and has been passed on the basis of evidence available on record. It
cannot be said that the monetary award passed is excessive or
exorbitant. Respondent no.2 has disclosed all the incidents of the
domestic violence in her complaint which have been rightly taken
into consideration by the court.
5. Sh. Anoj Kumar Singh, Ld. Counsel for the appellant
and Sh. Rizwan Ali, Ld. Counsel for respondents no. 2 and 3
advanced the arguments. Written synopsis along with supporting
judgments came to be filed on behalf of the appellant.
Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:14
+0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 5 of 34
6. I have combed through the appeal as well as the Trial
Court Record and have heard Ld. Counsel for appellant and Ld.
Counsel for respondent.
7. At the outset, the application for condonation of delay
in filing the appeal is being considered. Though, the whys and
wherefores of the delay in filing the appeal as mentioned in the
application is that the appellant could not contact a lawyer of his
own choice causing delay of 56 days and thereafter father of the
appellant has arranged the fee of the counsel, which ground is not at
all tenable, however, in order to afford an opportunity to the
appellant to challenge the impugned order on merits, without
adopting a hyper-technical approach, I deem it expedient to condone
the delay and proceed to return a finding on the appeal on merits.
8. The first substantive ground raised in the appeal on
behalf of the appellant is that no cause of action has arisen in favor
of respondent no.2 as no specific incident of domestic violence has
been mentioned in her complaint, respondent no.2 herself deserted
the appellant on 25.02.2015, the complaint was filed to extort the
money from the appellant and respondent no.2 suffered the injuries
by falling at her father's house.
8.1. Apropos above, the relevant discussion in the
impugned judgment is reproduced herein under:
Digitally
signed by
"26. The aggrieved has examined
NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
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CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 6 of 34
herself and her daughter in evidence
as CW1 and CW2 respectively for
proving the commission of domestic
violence against her and her
daughter. CW1 has reiterated the
contents of her complaint wherein
she has alleged various instances of
physical beatings as well as mental
harassment against the respondents.
In particular, the allegation of
14.03.2012 is relevant wherein she
has levelled specific allegation
against respondent no.1 for giving
beatings to her and throwing her on
the road. She has even relied upon
medical documents in support of
such allegation which are Ex.CW1/4
(colly 3 pages). In such document, it
has been mentioned "alleged history
of assault on March 14 2012" and
the diagnosis therein can be seen as
nasal bone fracture which also
corroborates her version that due to
the beatings she suffered fractures of
bone in her mouth and nose. In reply
to the said allegation, the respondent
merely stated that the same are false
and that when the aggrieved was at
her father's house at Sangam Vihar
she fell from the stairs and suffered
from the alleged injury. He had
stated that no complaint or PCR call
was made by anyone. However, no
cross examination of the aggrieved
was done by the respondent upon
this point when the aggrieved had
entered into the witness box. Thus,
the version of the respondent is not
believable.
27. Furthermore, the allegation of
25.02.2015 is also relevant as she
has again specified the episode of
beatings given by respondent no.1 to
her as well as her daughter. To
support her allegation, she has relied
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 7 of 34
upon copy of a complaint MARK D
and in the said complaint as well, the
allegations of beatings are reiterated.
On this point as well, there is no
cross examination conducted by the
opposite counsel.
28. The only argument raised by the
counsel for respondent at the time of
final argument was that in the
medical document Ex.CW1/4, it has
not been mentioned that it is assault
by husband and merely assault has
been written. He therefore, argued
that such document does not prove
the allegations levelled by the
aggrieved. He further argued that no
PCR call was made on 14.03.2012.
Further, as far as incident of
25.02.2015 is concerned and MARK
D complaint is concerned, it has
been argued that the same is merely
a hand written complaint which
cannot be relied upon.
29. The arguments raised by the
opposite counsel do not stand any
ground and the aggrieved has been
able to prove the commission of
domestic violence by respondent
no.1 by deposing on oath and relying
upon the above mentioned
documents and has discharged the
burden of proof of preponderance of
probabilities. Not making a PCR call
on 14.03.2012 or the absence of
'husband' in Ex.CW1/4 is not
material as the same are not a sine
qua now for proving an incident
while she has stepped in witness box
to depose regarding the said incident
and her testimony has not been
shaken. The respondent on the other
hand, has failed to rebutt the case of
the aggrieved as he has not cross
examined the aggrieved on the
incident alleged by her which she
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 8 of 34
has deposed on oath and has not
even given specific denial in his
reply. The Respondent examined
himself in evidence as RW1. His
evidence has also not been sufficient
for rebutting the case of the
aggrieved. He further examined
RW2, a neighbour, however, her
testimony is also not relevant for
rebutting the case of the aggrieved as
she admitted in her cross
examination that she does not
remember any specific date when
the aggrieved used to cause scuffle
or fight with the respondent."
8.2. It is manifest from the above extract of the impugned
judgment that Ld. MM has comprehensively dealt with the afore-
noted ground and it stands sufficiently established that respondent
no.2 suffered domestic violence at the hands of the appellant.
Medical documents Ex.CW1/4 (colly) clearly demonstrate the
alleged history of assault on 14.03.2012 which was diagnosed as
nasal bone fracture, which fact undergirds the version of respondent
no.2 that due to beatings inflicted by the appellant, she suffered
fracture of bone in her nose. Mere bald submission on behalf of the
appellant that she suffered fall at her father's house is not sufficient
to dispel the documentary evidence in the form of MLC of
respondent no.2 and her specific allegation. The fact that no PCR
call was made by the respondent no.2 cannot be said to be sufficient
enough to discard the medical documents as the injuries suffered by
the respondent no.2 speak volumes about the violence meted out to
her. Digitally signed
by NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:23 +0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 9 of 34
8.3. Ld. MM has also noted the allegation pertaining to
25.02.2015 wherein the episode of beating given by the appellant to
the respondents were mentioned in support of which complaint
Mark D was filed. Ld. MM also rightly noted that no specific cross
examination of respondent no.2 was conducted by the appellant on
these counts. Thus, this ground on behalf of the appellant does not
hold any merit.
9. The next substantive ground on behalf of the appellant
is that the appellant is a pauper, totally dependent upon his parents,
his father is getting a pension of Rs.8000/- and that respondent no.2
has suppressed her monthly income in order to extort money from
the appellant.
9.1. In the impugned judgment, Ld. MM has sufficiently
dealt with this ground as under:
"35. The respondent no. 1 has
remained evasive about his income.
When his income affidavit was filed
before the court, he stated that he
was working as a temporary
gardener and earning Rs.5000/- to
Rs.6000/- per month. Even in his
evidence by way of affidavit, he has
stated that earlier he was working as
gardener in different houses, but
after litigations started by the
aggrieved, he could not continue his
work and became unemployed and
he is not earning anything and that
he also does not have and property
in Delhi, Noida and Rajastha and
anywhere else and he has no income
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 10 of 34
at all. In his cross-examination, he
again goes on to state that he used to
work as a gardener, but presently he
is not doing the same. He was
confronted with certain photographs
Ex.RW1/E (OSR) wherein he is seen
outside a plant nursery on a Maruti
800, a bike and another car. He
stated that the photographs are of
his, but he has no concern with the
cars and plant nurseries shown in the
photographs.
36. In his income affidavit as well
as in his cross examination, he has
stated that he is not residing with his
father as his father has disowned
unemployed, the same cannot be
believed. He must at least earning
income equivalent to a minimum
wager of an unskilled labour which
is around Rs.17,234/- in NCT of
Delhi at present."
9.2. As noted above, appellant remained evasive about his
income. In his income affidavit, he professed to be working as a
temporary gardener and earning Rs.5000 to Rs.6000/- per month but
after litigation started by respondent no.2, he could not continue his
work and became unemployed. Ld. MM, after considering the
evidence on record, concluded that the appellant being unemployed
and disowned by his father cannot be believed and that he must be
deemed to be earning income equivalent to a minimum wages of an
unskilled labor which was around Rs.17,234/- in NCT of Delhi at
the time of impugned judgment.
9.3. Apart from the above, it is also worthwhile to note that
Digitally signed
by NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date: 2025.01.09
17:58:30 +0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 11 of 34
in the appeal the appellant has claimed that he works as painter in
private house but has not divulged his monthly income out of the
said work, therefore, adverse inference can be drawn against the
appellant. Also, there is disharmony in the stand of the appellant in
appeal as on one hand, he claims to be totally dependent upon his
parents and on the other hand, he claimed the maintenance awarded
to be exorbitant as he has to survive along with his societal
responsibilities, being only the son of his parents. This shows the
vacillating stand of the appellant whether he is dependent on his
father or being the only son his parents are dependent upon him.
10. It is also one of the grounds in the appeal that
respondent no.2 herself left her matrimonial home and that earlier
also she had filed FIR no. 623/2001 under Section 498A/406/34 in
which appellant was acquitted. As against this, the stand of the
respondents is that after the said FIR, the appellant and his family
members settled the case with them and in the hope of saving her
matrimonial alliance and for the future of respondent no.3, she did
not support her FIR before the court on the basis of which appellant
and his family members were acquitted.
10.1. As regards the afore-said ground also, the appellant has
failed to furnish any material to strengthen the argument that
respondent no.2 herself left the matrimonial home. There is no
material on record to indicate that the appellant made any efforts to
bring back the respondents to the matrimonial home. The cross
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 12 of 34
examination of respondent no.2 also does not reveal that any such
suggestion was posed to her that she herself deserted the
matrimonial home.
11. The last substantive ground on behalf of the appellant
is that respondent no.3 has attained majority and the domestic
violence act is applicable only for aggrieved and her minor children
and since respondent no.3 is neither aggrieved nor minor any more,
she is not entitled for any maintenance under the act. To buttress this
argument, Ld. Counsel for the appellant referred to the judgments of
High Court of Karnataka in Sri G Kalasegowda Vs. Smt. N K
Nethravathi, Criminal Revision Petition No.795/2015, dated
23.08.2023 and the Supreme Court in Amrendra Kumar Paul Vs.
Maya Paul and Ors, dated 04.08.2009, 2009 AIR SCW 6568.
11.1. The High Court of Karnataka has held in paragraph 10
and 12 that under the provision of DV Act, the unmarried daughter
is not entitled for maintenance and only aggrieved persons or
children are entitled for maintenance. It also propounded that the
major daughter can claim maintenance under the provision of
Hindu Adoption and Maintenance Act. For reference, those
paragraphs are reproduced as under:
"10. The monitory benefit is awarded
under Section 20 of the protection of
women from Domestic Violence Act.
Under Section 20(1)(d) there is a
provision for awarding maintenance Digitally
to the aggrieved person as well as the signed by
NAVJEET
NAVJEET BUDHIRAJ
children. The definition of the child is BUDHIRAJ Date:
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+0530
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 13 of 34
given in Section 2(d) of the act
wherein child is described as any
person below the age of 18 years and
it includes adopted, step or foster
child. Hence, under the provisions of
Section 20, maintenance can be
awarded only to aggrieved person and
children. But admittedly, in the
instant case the daughters are now
major and when the petition was filed
they were minors. However, the
learned Magistrate has awarded
maintenance till their marriage. But
under the provisions of the DV Act,
the unmarried daughter is not entitled
for maintenance and only aggrieved
persons or children are entitled for
maintenance .
........
12. No doubt all these citations are
under the provisions of Hindu
Adoption Act or under Section 125 of
Cr.P.C. But it is evident that the
maintenance can be claimed by
daughters under the provisions of
Hindu Adoption Act if they are
unable to maintain themselves. But in
the instant case, admittedly, the major
daughters are not parties and they
have not sought any maintenance
independently. They have got remedy
under the provisions of Hindu
Adoption Act to seek the maintenance
on attaining majority in case they are
unable to maintain themselves.
Hence, under the provisions of
Domestic Violence Act, question of
awarding maintenance till marriage
of the daughters does not arise at all
and the maintenance can be granted
till the attainment of age of majority
by the child. ”
11.2. The judgment of the Supreme Court in Amrendra
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 14 of 34
Kumar Paul Vs. Maya Paul and Ors pertains to execution of an
order passed under section 125 of Cr.P.C and is not directly
applicable to the facts of present case.
11.3. Having noted the view point of Karnataka High Court
on the issue of whether adult daughter would be entitled for
maintenance under DV Act, I wish to spell out the view of
Allahabad High Court in a recent judgment delivered on 10.01.2024
in Naimullah Sheikh and Another Vs. State of UP and 3 Ors, Neutral
Citation no. 2024 AHC:4853. The High Court in this judgment has
reiterated the object of the DV Act, import of section 20, definition
of aggrieved person in section 2(a) of the DV Act and also whether
an independent substantive right for monetary relief flows from
section 20 of the DV Act. The germane paragraphs are reproduced
herein under:
“5. The Protection of Women from
Domestic Violence Act, 2005 has
been enacted with an object to
provide for ‘more effective
protection to women’, guaranteed
under the Constitution, who are the
victims of violence of any kind
occurring within the family and for
matters connected therewith or
incidental thereto. The use of the
word ‘more’ before the phrase
‘effective protection of rights of
woman’ is not an insignificant
addition. The matter shall be further
elaborated at appropriate places in
the judgment.
6. Under the aforesaid Act of 2005, Digitally signed
by NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:58:42 +0530CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 15 of 34
any aggrieved person may apply to
the Magistrate for seeking one or
more relief under the Act. Broadly
the reliefs available under the Act
are titled as “Right to reside in a
shared household under section 17,
Protection orders under section 18,
Residence orders under section 19,
Monetary reliefs under section 20,
Custody orders under section 21 and
Compensation orders under section
22.”
Section 20 under which monetary
relief may be granted to an
aggrieved person has been worded
as below:-
(1) While disposing of an
application under sub-section (1) of
section 12, the Magistrate may direct
the respondent to pay monetary
relief to meet the expenses incurred
and losses suffered by the aggrieved
person and any child of the
aggrieved person as a result of the
domestic violence and such relief
may include but is not limited to–
(a)the loss of earnings;
(b) the medical expenses;
(c)the loss caused due to the
destruction, damage or removal of
any property from the control of the
aggrieved person; and
(d) the maintenance for the
aggrieved person as well as her
children, if any, including an order
under or in addition to an order of
maintenance under section 125 of
the Code of Criminal Procedure,
1973 (2 of 1974) or any other law
for the time being in force.
(2) The monetary relief granted
under this section shall be adequate, NAVJEET
BUDHIRAJ
fair and reasonable and consistent Digitally signed bywith the standard of living to which NAVJEET BUDHIRAJ
Date: 2025.01.09
17:58:45 +0530the aggrieved person is accustomed
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 16 of 34
(3) The Magistrate shall have the
power to order an appropriate lump
sum payment or monthly payments
of maintenance, as the nature and
circumstances of the case may
require.
(4) The Magistrate shall send a copy
of the order for monetary relief made
under sub-section (1) to the parties
to the application and to the in-
charge of the police station within
the local limits of whose jurisdiction
the respondent resides.
(5) The respondent shall pay the
monetary relief granted to the
aggrieved person within the period
specified in the order under
sub-section (1).
(6) Upon the failure on the part of
the respondent to make payment in
terms of the order under sub-section
(1), the Magistrate may direct the
employer or a debtor of the
respondent, to directly pay to the
aggrieved person or to deposit with
the court a portion of the wages or
salaries or debt due to or accrued to
the credit of the respondent, which
amount may be adjusted towards the
monetary relief payable by the
respondent.”
7. Perusal of the above provision
demonstrates that any aggrieved
person including any child of the NAVJEET
aggrieved person, who has been
BUDHIRAJ
subjected to domestic violence, may Digitally
signed by
NAVJEET
BUDHIRAJ
Date:
claim monetary relief to meet the
2025.01.09
17:58:49
+0530expenses incurred and losses
suffered as a result of domestic
violence and also monetary relief for
such incidental matters like
monetary relief for loss of earnings,
medical expenses, loss of any
property and also for maintenance.
This provision of law furtherCA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 17 of 34
provides that such reliefs of
monetary nature can also be claimed
which do not fall under the
categories enumerated above as the
provisions clearly lay down that
reliefs need not be limited to reliefs
as described under section 20(1),
20(1)(a), 20(1)(b), 20(1)(c) and
20(1)(d). Section 20(1)(d) of the DV
Act further expands the scope of
monetary relief for maintenance. For
better understanding I am
reproducing section 20(1)(d) again
as below:-
“(d) the maintenance for the
aggrieved person as well as her
children, if any, including an order
under or in addition to an order of
maintenance under section 125 of
the Code of Criminal Procedure,
1973 (2 of 1974) or any other law
for the time being in force.”
This part of the provision of law
says that not only the aggrieved
persons but also her children, if any,
may claim maintenance ‘under’ and
‘in addition’ to order of maintenance
under section 125 Cr.P.C. And
further that the maintenance can be
claimed under or in addition to any
other law for the time being in force.
The way provision has been worded,
gives a clear indication that section
12 of the DV Act is essentially a
procedural law, which can be
resorted to by any aggrieved person, Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
who draws a substantive right for BUDHIRAJ Date:
2025.01.09
17:58:55
+0530maintenance from any other law,
whether under section 125 Cr.P.C. or
personal law applicable to the parties
or any other law for the time being
in force. Thus law is quite clear to
the extent that maintenance can be
claimed under any law which
provides for the same. Further thatCA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 18 of 34
even if maintenance has already
been granted under one law, the
aggrieved person can ask for
monetary relief for maintenance
under any other law in addition,
under the provisions of the DV Act.
Thus this law seeks to avoid
multiplicity of proceedings. Now a
question may arise that when rights
have been provided for elsewhere,
why such enactment was needed at
all? In my opinion the legislature
has, keeping up with the objective of
this enactment, has cut down the
procedural formalities and facilitated
grant of quicker reliefs.
Section 20(2) of the DV Act says
that the monetary relief granted
under this section shall be adequate,
fair, reasonable and consistent with
the standard of living to which the
aggrieved person is accustomed. The
scope for grant of particular kind of
monetary relief that is
“maintenance” is further widened in
section 20(3) of the DV Act which
says that an appropriate lump-sum
may be ordered to be paid as
maintenance in the nature of
circumstances of a particular case. In
my opinion, if the provisions of
section 20(1)(d) of the DV Act are
interpreted in harmony with rights
given to an aggrieved person under
any other law, it appears that the
substantive right to receive
maintenance may emanate from
other laws, however quick and
shorter procedure to obtain the same,
has been provided in the the DV Act,
2005. The rights which the parties
may have under other laws whether
civil or criminal, have been given a NAVJEET
cutting edge by the Act. In my view, BUDHIRAJthis explains the use of words “more Digitally signed
by NAVJEET
BUDHIRAJ
Date: 2025.01.09
17:58:59 +0530CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 19 of 34
effective protection to women” in
the foreword which described the
reasons behind this enactment.
8. Having said that, now I come to
some other provisions in the DV Act
which strengthen and fortify the
above view regarding giving more
effective protection to women.
Section 2(a) of the DV Act defines
“aggrieved person” as any woman
who is, or has been, in a domestic
relationship with the respondent and
who alleges to have been subjected
to any act of domestic violence by
the respondent. The woman who has
been in domestic relationship with
the respondent and who has been
subjected to any domestic violence,
is entitled for relief under the Act,
irrespective of her minority or
majority. The rights of an aggrieved
person flow from the fact that she
has been subjected to violence which
may be of physical, mental, sexual,
verbal and emotional nature and may
even in the nature of the economic
abuse. The other essential
requirement is that the aggrieved
person has been living in a shared
household or had, at any point of
time lived together in a shared
household with the respondent, who
is related to her by marriage,
adoption, consanguinity or living
together, in a joint family as a family
member.
9. Now an important question is
whether an independent substantive
right for monetary relief flows from
section 20 of the DV Act or whether NAVJEET
section 20 read with section 12 of BUDHIRAJ
the DV Act, 2005 merely provides Digitally signed
by NAVJEET
for procedure and no more? BUDHIRAJ
Date: 2025.01.09
17:59:04 +0530
……….
11. With the above perspective in
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 20 of 34
mind, lets go through some of the
judgments of the Supreme Court and
the High Court as below:-
In Noor Saba Khatoon vs. Mohd.
Quasim; (1997) 6 SCC 233, before
the Supreme Court, a Muslim
woman claimed maintenance from
her husband for herself and her three
minor children under section 125
Cr.P.C. The trial court allowed the
application and directed the OP (her
husband) to pay maintenance to his
wife as well as his children till
attaining the age of majority. The
respondent divorced her wife and
thereafter filed an application
seeking modification of the order
dated 19.01.1993 in view of the
provisions of the Muslim Women
(protection of Rights on Divorce)
Act, 1986 (hereinafter referred to as
‘the Act of 1986’). The trial court
modified the order on the ground
that after divorce, she was entitled
for maintenance for 3 months only
i.e. period of ‘iddat’, as per the
provisions of the aforesaid Act of
1986, while maintaining the
maintenance order for children. The
respondent thereupon filed a petition
before the High Court and the High
Court, accepting his plea held that
the Muslim woman was entitled to
claim maintenance from her
previous husband, for her minor
children only up to the period of 2
years. However the Supreme Court
held that the children of Muslim
parents have an independent right to
claim maintenance under section 125
Cr.P.C. and that the right cannot be
allowed to be defeated except
through clear provisions of a
statutes. The Muslim father’s
obligation, like a Hindu father toCA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 21 of 34
maintain his minor children, as
contained in section 125 Cr.P.C. is
absolute and is not at all affected by
section 3(1)(b) of the Act of 1986.
In para no. 10, it was held as below:-
“10. Thus, both under the personal
law and the statutory law (Sec. 125
Cr. P. C.) the obligation of a muslim
father, having sufficient means, to
maintain his minor children, unable
to maintain themselves, till they
attain majority and in case of
females till they get married, is
absolute, notwithstanding the fact
that the minor children are living
with the divorced wife.”
In Jagdish Jugtawat vs. Manju Lata
and Others; (2002) 5 SCC 422, the
Supreme Court applied the law laid
down in Noor Saba Khatoon vs.
Mohd. Quasim (supra) and drawing
force from the aforesaid judgments
held that the right of a minor girl to
obtain maintenance from the
appellants even after attaining
majority till her marriage, is
recognized in Section 20(3) in the
Hindu Adoptions and Maintenance
Act, 1956 and therefore the order for
granting maintenance was right.
The relevant portion is as below:-
“3. In view of the finding recorded
and the observations made by the
learned Single Judge of the High
Court, the only question that arises
for consideration is whether the
order calls for interference. A similar
question came up for consideration
by this Court in the case of Noor
Saba Khatoon v. Mohd. Quasim ,
AIR 1997 SC 3280 : 1997 (6) SCC
233 : 1997 SCC (Cri) 924 relating to
the claim of a Muslim divorced
woman for maintenance from her
husband for herself and her minorCA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 22 of 34
children. This Court while accepting
the position that Section 125, CrPC
does not fix liability of parents to
maintain children beyond attainment
of majority, read the said provision
and Section 3(l)(b) of the Muslim
Women (Protection of Rights on
Divorce) Act together and held that
under the latter statutory provision
liability of providing maintenance
extends beyond attainment of
majority of a dependent girl.
4. Applying the principle to the facts
and circumstances of the case in
hand, it is manifest that the right of a
minor girl for maintenance from
parents after attaining majority till
her marriage is recognized in
Section 20(3) of the Hindu
Adoptions and Maintenance Act.
Therefore, no exception can be taken
to the judgment/order passed by the
learned Single Judge for maintaining
the order passed by the Family Court
which is based on a combined
reading of Section 125 CrPC and
Section 20(3) of the Hindu
Adoptions and Maintenance Act. For
the reasons aforesated we are of the
view that on facts and in the
circumstances of the case no
interference with the impugned
judgment/order of the High Court is
called for.”
The High Court of Andhra Pradesh
in Menti Trinadha Venkata Ramana
vs. Menti Lakshmi and Others; 2021
SCC Online AP 2860, observed in
para nos. 4 and 5 as below:-
“4. While dealing with a similar
issue in Jagdish Jugtawat v. Manju
Lata and others1, a three Judge
Bench of the Hon’ble Apex Court
held though a girl, on attaining
majority, may not be entitled toCA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 23 of 34
maintenance from her parents under
Section 125 of Cr.P.C., such right
can be traced to Section 20(3) of the
Hindu Adoptions and Maintenance
Act, 1956 (for short, ‘the Act of
1956’) and on a combined reading of
the two provisions, the Family Court
is entitled to grant maintenance to an
un-married daughter even after
attaining majority, provided she is
unable to maintain herself. However,
the aforesaid observations in Jagdish
Jugtawat (supra) were recently
clarified by another three Judge
Bench of the Hon’ble Apex Court in
Abhilasha v. Parkash and others2,
wherein the Bench inter alia
observed though a Family Court is
entitled to grant maintenance to a
major un-married girl by combining
the liabilities under Section 125
Cr.P.C. and Section 20(3) of the Act
of 1956, a Magistrate exercising
powers under Section 125 of Cr.P.C.
is not authorized to do so.
5. However, it may be apposite to
note that the Magistrate is entitled to
entertain an application under the
Protection of Women from Domestic
Violence Act, 2005 (for short, ‘the
DV Act‘) and grant monetary relief
i.e., to meet the expenses incurred
and losses suffered by an aggrieved
person under Section 20 of the DV
Act, in the event of domestic
violence by way of economic abuse
is established. A conjoint reading of
Section 2(a) and 2(f) of the DV Act
would show that a daughter, who is NAVJEET
BUDHIRAJor was living with her father in a Digitally signed by
NAVJEET
BUDHIRAJdomestic relationship by way of
Date: 2025.01.09
17:59:10 +0530consanguinity, is entitled to seek
reliefs including monetary relief on
her own right as an aggrieved person
under Section 2(a) of the DV ActCA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 24 of 34
irrespective of the fact whether she
is a minor or major. In the present
case, the relationship between the
parties as father and daughter is
admitted and they had stayed
together in a shared household. In
view of the fact that the petitioner
neglected to maintain the 1st
respondent-wife and 2nd
respondent-daughter, proceedings
under section 125 Cr.P.C. came to be
instituted and maintenance was
awarded to respondents including to
the 2nd respondent. As the award
was not paid, the learned Magistrate
issued the impugned order, dated
14.03.2012, directing recovery of
maintenance to the tune of Rs.
22,000/- for a period of 11 months
from 17.12.2009 to 16.11.2010. In
the aforesaid facts, the order of
learned Magistrate may be traced to
his powers to grant monetary relief
under the DV Act and by a
combined reading of the provisions
of Section 125 of Cr.P.C. and
Section 20 of the DV Act, the said
order cannot be said to be illegal on
the mere ground that the 2nd
respondent had become a major. I
am further fortified to arrive at such
finding as the relief under the DV
Act can be granted in addition to
other reliefs available to the
aggrieved person as envisaged under
Section 26(2) of the DV Act.”
The Allahabad High Court in
Mustakim vs. State of U.P. and
Another; 2015 (3) ADJ 693, has
observed in para nos. 10, 11 and 12
as below:-
“10. Now a look at the judgment of
this Court in the case of Amod
Kumar Srivastava v. State of U.P.
and others, 2008 (62) ACC 591. ThisCA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 25 of 34
judgment takes a view that upon
attaining majority an
illegitimate/legitimate child
including an unmarried daughter, is
not entitled to claim maintenance,
but it does not take into
consideration the judgments of the
Apex Court in the cases of Noor
Saba Khatoon and Jagdish Jugtawat
(both supra), wherein it has been
held that notwithstanding the
ineligibility of a major unmarried
daughter to claim maintenance under
Section 125 Cr.P.C, yet an order
granting maintenance to such a
daughter is not liable to be interfered
with a view to avoid multiplicity of
proceedings provided she has a right
to claim maintenance from her father
under the personal law.
11. The Apex Court in the case of
Noor Saba Khatoon (supra), after
examining the personal law of
muslims, has already held that a
muslim father is liable to maintain
his major daughter till such time she
is not married. It is not disputed that
O.P. No.2 is major and that she is not
yet married.
12. It is held that notwithstanding
the ineligibility of a muslim major
unmarried daughter to claim
maintenance under Section 125
Cr.P.C, yet an order granting
maintenance to her is not liable to be
interfered, with a view to avoid the
multiplicity of proceedings, as such
a daughter, who is unable to
maintain herself can claim
maintenance from her father under
the personal law.”
The Supreme Court in Ajay Kumar
vs. Lata @ Sharuti & Others; 2019 0
Supreme (SC) 612, in the light of the
provisions of section 12 and section
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 26 of 34
20(1) of the DV Act held that the
monetary relief may include but is
not limited to an order of
maintenance of the aggrieved
persons as well as his children, if
any, including an order under or in
addition to order of maintenance
under section 125 Cr.P.C. or any
other law for the time being in force.
The Supreme Court thereafter
alluded to the definition of
‘respondent’ as given in section 2(q)
of the DV Act, definition of
‘domestic relationship’ as given in
section 2(f) of the DV Act and
definition of ‘shared household’ as
given in section 2(s) of the DV Act
and went on to observe in para no.
15 as below:-
“15. All these definitions indicate the
width and amplitude of the intent of
Parliament in creating both an
obligation and a remedy in the terms
of the enactment.”
12. In my opinion, in the above
words, the Supreme Court has
recognized that the scope of DV Act,
2005 is quite wide. The statement of
object and reasons which finds place
at the top of any particular
enactment may be of utility while
interpreting the provisions of law.
NAVJEET
BUDHIRAJ
The objective of enacting this Act Digitally signed
by NAVJEET
BUDHIRAJ
Date: 2025.01.09
has been worded as below:-
17:59:16 +0530
“An Act to provide for more
effective protection of the rights of
women guaranteed under the
Constitution who are victims of
violence of any kind occurring
within the family and for matter
connected therewith or incidental
thereto.”
………
14. From perusal of the judgments as
have been referred to earlier, thereCA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 27 of 34
remains no doubt that unmarried
daughter, whether Hindu or Muslim
has a right to obtain maintenance,
irrespective of her age. This is made
clear again that the courts have to
look for other laws applicable when
the question pertains to right to be
maintained. However, where issue
does not pertain to mere
maintenance, the independent rights
are available to an aggrieved under
section 20 of the DV Act itself.”
11.4. In the afore-noted judgment, the Allahabad High Court
has referred to three judge bench view of Apex Court in Abhilasha
Vs. Parkash, AIR 2020 SUPREME COURT 4355 wherein the court
held that a conjoint reading of section 2(a) and 2(f) of the DV Act
would show that a daughter, who is or was living with his father in a
domestic relationship by way of consanguinity, is entitled to seek
reliefs including monetary relief on her own right as an aggrieved
person irrespective of the fact whether she is a minor or major.
11.5. The above exegesis settles the position that under DV
Act, a major unmarried daughter can claim maintenance from her
father in her own right as an aggrieved person.
11.6. At this juncture, Ld. Counsel for appellant argued that
since respondent no.3 was not an independent party before Ld. MM
and there is nothing on record that she is an aggrieved person
therefore she cannot be awarded any maintenance. This argument
also deserves to be shot down as there is specific allegation that
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 28 of 34
Digitally signed
by NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:59:23 +0530
respondent no.3 was also beaten by the appellant which has been
taken note of by Ld. MM in the impugned judgment. Further, the
fact that there is nothing on record to suggest that the appellant in
any manner desired to have the company of respondent no.3 with
him, respondent no.3 was compelled to leave the house with
respondent no.2 her mother. All these circumstances, taken
cumulatively, would bring her case as well within the domain of
section 2(a) of the DV Act. Further, there is no legal bar in awarding
maintenance to a daughter who during the pendency of petition
attained majority even if she has not separately sued as an
independent person along with her mother.
12. Now, on the quantum of maintenance awarded by Ld.
MM, a discussion is warranted. Ld. MM has assessed and quantified
the monthly income of the appellant to be Rs.17,234/- which is the
minimum wages of unskilled labor in the NCT of Delhi. The
assessment of monthly income equivalent to minimum wages of an
unskilled labor by Ld. MM cannot be faulted with in view of the
settled proposition that the appellant being the husband of
respondent no.2 and father of respondent no.3 is duty bound to
provide maintenance to them as has been held by Apex Court in
case of Anju Garg Vs. Deepak Kumar Garg, 2022 SC 805. In that
case, the court also came to the conclusion that if the husband
engages himself in labor work, he may earn as an unskilled labor
about Rs.350/- to Rs.400/- per day as a minimum wages. Thus, in
case aggrieved person is unable to establish the monthly income of
Digitally signed
by NAVJEET
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 29 of 34
2025.01.09
17:59:27 +0530
the party from whom the maintenance is claimed and the other party
claims to be involved in menial jobs, the criteria of his income being
equivalent to minimum wages of an unskilled labor prevalent in a
particular state can be adopted.
13. Now, as per the impugned judgment, the entitlement of
maintenance to the respondents has been directed as under:
“42. The aggrieved and her daughter
are entitled to receive an amount of
Rs.5000/- from the date of filing of
application till 31.03.2016, an amount
of Rs.6000/- from 01.04.2016 till
31.03.2017, an amount of Rs.7000/-
from 01.04.2017 till 01.03.2018.
43. Since the daughter attained
majority on 02.03.2018, the amount
is being segregated thereafter. From
02.03.2018 till 31.03.2019, the
aggrieved and the major daughter are
entitled to a sum of Rs.4000/- each,
from 01.04.2019 till 31.03.2020, the
aggrieved and the major daughter are
entitled to a sum of Rs.4500/- each,
from 01.04.2020 till 31.03.2021, the
aggrieved and the major daughter are
entitled to a sum of Rs.5000/- each,
from 01.04.2021 till 31.03.2022, the
aggrieved and the major daughter are
entitled to a sum of Rs.5500/- each;
from 01.04.2022 till 31.03.2023, the
aggrieved and the major daughter are
entitled to a sum of Rs.6000/- each
and from 01.04.2023, the aggrieved is
entitled to a sum of Rs.6500/- till
further orders and the major daughter
is entitled to a sum of Rs.6500/- till
her marriage or her obtaining a job, if
an application is moved in that behalf
by respondent in future. The arrears
are directed to be cleared within a
Digitally signed
by NAVJEET
NAVJEET BUDHIRAJ
CA No. 265 of 2023 Vijay Kumar Vs State & Others BUDHIRAJ
Page No. 30Date:
of 34
2025.01.09
17:59:32 +0530
period of eight months.”
14. It is manifest from above that out of the afore-noted
monthly income of the appellant, both respondent no.2 and 3 have
been directed to be entitled to receive a sum of Rs.6500/- each,
though as record respondent no.3 her entitlement has been qualified
till her marriage or her obtaining a job. However, this portion of
finding of Ld. MM needs to be interfered with in the light of the
judgment of High Court of Delhi in Annurita Vohra Vs. Sandeep
Vohra, 2004(74) DRJ 99 wherein it was opined that the access
income of the family is to be divided into two portion, one to the
husband and other to the wife and other members. Relevant
observations are note herein under:
“2. In other words the court must first
arrive at the net disposable income of
the Husband or the dominant earning
spouse. If the other spouse is also
working these earnings must be kept
in mind. This would constitute the
Family Resource Cake which would
then be cut up and distributed
amongst the members of the family.
The apportionment of the cake must
be in consonance with the financial
requirements of the family members,
which is exactly what happens when
the spouses are one homogeneous
unit. Ms. Geeta Luthra, learned
counsel for the Respondent, had
fervently contended that normally
1/5th of the disposable income is
allowed to the Wife. She has not
shown any authority or precedent for
this proposition and the only source
or foundation for it may be traceable
to Section 36 of the Indian Divorce
Digitally
CA No. 265 of 2023 Vijay Kumar Vs State & Others signed by
NAVJEET
Page No. 31 of 34
NAVJEET BUDHIRAJ
BUDHIRAJ Date:
2025.01.09
17:59:37
+0530
Act, 1869. This archaic statute
mercifully does not apply to the
parties before the Court, and is a
vestige of a bygone era where the
wife/woman was considered inferior
to the husband as somewhat akin to
his chattels. The law has advanced
appreciably, and for the better. In the
face of Legislatures reluctant to bring
about any change over fifty years ago
the Courts held that the deserted wife
was entitled to an equal division of
matrimonial assets. I would be
extremely loath to restrict
maintenance to 1/5th of the
Husband’s income where this would
be insufficient for the Wife to live in
a manner commensurative with her
Husband’s status or similar to the
lifestyle enjoyed by her before the
marital severance. In my view, a
satisfactory approach would be to
divide the Family Resource Cake in
two portions to the Husband since he
has to incur extra expenses in the
course of making his earning, and one
share each to other members.
3. Observations in similar vein have
been made by a Learned Single Judge
of this Court in Harminder Kaur vs.
Sukhwinder Singh, 2002 VI AD
(DELHI) 797. S.N. Kapoor, J. had
opined that one should not be
oblivious of the fact that equal status
has been given to the Indian women
under Articles 14 and 16 of the
Constitution and that she should live
according to the status of her husband
along with the child of the parties.
The Learned Judge had ordered that
the income has to be equitably
apportioned for maintenance of wife
and the child. In his opinion the
income should have been divided into
five units, two units for each of the
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 32 of 34
parents and one for the young child.
On a disposable income of
Rs.12,000/- he had granted Rs.7,200/-
per month for the maintenance of the
wife and the child. “
15. In light of the afore-noted judgment of High Court of
Delhi, since in the present case the income of the appellant has been
assessed to be minimum wages and as on 01.04.2023, the minimum
wages prevalent in NCT of Delhi was Rs.17,234/- per month, half of
the same can be allocated to the respondents for the said period and
similarly for the previous years, the maintenance can be calculated
on the basis of the applicable minimum wages for the said period,
which would warrant modification in the impugned judgment. It is,
thus, held that the entitlement of the respondents to receive the
maintenance stands modified as under:
15.1. Respondent no.2 (wife) and respondent no.3 (daughter)
are entitled to receive an amount of Rs.4500/- from the date of filing
of application till 31.03.2016, an amount of Rs.5000/- from
01.04.2016 till 31.03.2017, an amount of Rs.6700/- from 01.04.2017
till 01.03.2018.
15.2. Since respondent no.3 attained majority on 02.03.2018,
the amount is being segregated thereafter as done by Ld. MM in the
impugned judgment. From 02.03.2018 till 31.03.2019, respondent
no.2 and respondent no.3 are entitled to a sum of Rs.3500/- each,
from 01.04.2019 till 31.03.2020, respondent no.2 and respondent
no.3 are entitled to a sum of Rs.3750/- each, from 01.04.2020 till
Digitally
signed by
NAVJEET
NAVJEET BUDHIRAJ
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 33 of 34
BUDHIRAJ Date:
2025.01.09
17:59:49
+0530
31.03.2021, respondent no.2 and respondent no.3 are entitled to a
sum of Rs.3900/- each, from 01.04.2021 till 31.03.2022, respondent
no.2 and respondent no.3 are entitled to a sum of Rs.4000/- each;
from 01.04.2022 till 31.03.2023, respondent no.2 and respondent
no.3 are entitled to a sum of Rs.4200/- each and from 01.04.2023,
respondent no.2 is entitled to a sum of Rs.4400/- and respondent
no.3 is entitled to a sum of Rs.4400/- till her marriage or her
obtaining a job, if an application is moved in that regard by
appellant in future.
The amount deposited, if any, by the appellant in favor
of the respondents towards the maintenance stands adjusted
accordingly.
16. In the result, the appeal is partly allowed in above
terms and is disposed of.
PRONOUNCED IN OPEN COURT
ON THIS 9th DAY OF JANUARY 2025 Digitally signed
by NAVJEET
BUDHIRAJ
NAVJEET Date:
BUDHIRAJ 2025.01.09
17:59:55
+0530
(NAVJEET BUDHIRAJA)
ASJ-02/SOUTH/SAKET COURTS
NEW DELHI/09.01.2025
CA No. 265 of 2023 Vijay Kumar Vs State & Others Page No. 34 of 34