IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST) KARKARDOOMA COURTS, DELHI
CA No. 37/2014
Smt. Swati Kaushik W/o Sh. Ashwini Sharma R/o C501, Nagarjuna Aparments, Mayurkunj, Near Chilla Regulator Delhi110096
Versus Sh. Ashwini Sharma S/o Sh. C. Paul Sharma R/o B37, Cel Apartments, Plot No. B14, Vasundhra Enclave New Delhi110096
1.By this order I shall dispose of the appeal u/s 29 D.V.
Act whereby appellant challenged the order dated 22/09/14.
2. The marriage between the parties is admitted and so is the birth of child. The parties has leveled allegations and counter
allegations. The parties filed respective affidavits of income and
assest before the trial court. After considering the prima facie case
Ld. Trial Court held that the appellant/ wife was working with Tata
Sky Ltd. She had a Master Diploma and she could maintain herself.
The minor child, however, was granted a maintenance of Rs.
15,000/ from the date of petition. Respondent was also granted Rs.
10,000/ in lieu of expenses for residence. The income of the
respondent was considered as Rs. 65,000 to Rs. 75,000 per month.
The order has been challenged interalia on the ground that the
appellant is an unemployed lady and has to take care of her minor
child. The respondent and his family members had assets and
had huge income. Appellant is living with her father and is dependent
on him. The expenditure of respondent as per affidavit is much more
than his income which shows that he earns more. He lives
luxurious life, maintains driver, servant etc. The respondent has
also challenged the order vide separate appeal stating that the
appellant can maintain herself. It was argued by the Ld. Counsel for
the appellant that she is living with the minor child separately from
the respondent, however, the respondent has not paid a single
penny for the maintenance of minor child despite the filing of the petition under DV Act in September 2011. It was argued that the
though the appellant was working earlier, now she has the
responsibility of the minor child. The appellant cannot move out of
her house to take up a job leaving the minor child behind. It was
argued that the respondent to avoid his liability has taken personal
loans and education loan. As per the records the income of
respondent is about 2 lacs per months and the wife and child are
entitled for 60 % of the income.
3. Ld. Counsel for the respondent on the other hand
argued that the respondent had to quit his job due to litigation. He
wanted to keep appellant with him but she filed the Divorce. He
argued that the child is of 5 years old now and if the appellant
chooses not to work for the rest of her life, the respondent cannot be
made to pay for her for the rest of her life despite the fact that she is
educated woman who can maintain herself.
4. Ld. Counsel for the appellant relied upon the judgment
of Hon’ble Delhi High Court in 140 (2007) DLT 16, Bharat Hegde
Vs. Saroj Hegde where it was held that the applicant ( wife) had
a right to live in a similar life style as she enjoyed in
matrimonial home. He has also relied upon some more judgment
which lay down more or less similar rule, the judgment being of the
period of 2005 to 2009. The law has changed since then, by the
judgment in In 171 (2010) DLT 644, Sanjay Bhardwaj & Ors. Vs.
State wherein the Hon’ble High Court held that where the parties
have equal educational qualification, both must take care of
5. Similar judgments have been delivered by the Hon’ble
High Court over the period. The appellant is contesting that her
husband earns a lot of money and she is entitled for a share in it.
She herself cannot work because she has to take care of the minor
child. The child would be 5 years plus as of now and as argued by
the Ld. Counsel for the respondent, the appellant will have to take
up some work sooner or later, she being an educated woman
having earlier work experience. So far as the minor child is
concerned the respondent cannot run away from the liability towards
child even if the appellant who is the mother of the child, is working
and is independent.
6. Ld. Counsel for the appellant argued that the respondent
of the appellant. Rest of the order remains unaltered. The order is
modified in above terms.
7. TCR be sent back along with copy of this order. Appeal
file be consigned to Record Room.
Announced in the open
court on 12/03/2015 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI
earns much more than is reflected from its affidavits. The admitted
income of the respondent as of now is Rs. 75,000/. His actual
income is a matter of trial. If the appellant proves that he is earning
more, she would be entitled for enhanced maintenance payable
from back date. At prima facie stage, respondent having admitted
that he earns Rs. 75,000/, it shall be taken as his income. The
order in so far as it relates to the maintenance granted to the child
at Rs. 15000/ is without any error. There is no error in the relief of
residence granted to the wife as Rs. 10,000/ per month as well.
Since the wife has pleaded that she had to leave her job due to
marriage and birth of child, and as of now she is unemployed, the
respondent has a liability to provide for her maintenance. This
maintenance however, cannot be perpetual as argued by the Ld.
Counsel for the respondent. The take away salary of Rs. 75,000/
has been admitted by the respondent. He is already paying Rs.
10,000/ towards residence to the appellant. He shall pay an
additional amount of Rs. 10,000/ per month to the wife. This
maintenance however, shall be for restricted period i.e. for one year
from the date of this order. The appellant shall during this period of
one year look for a job and start an independent life. After the
conclusion of one year , respondent shall not pay the maintenance
Crl. (A) No. 37/2014 Page 5 of 6 Swati Kaushik Vs. Ashwani Sharma