Partly allowed

Aupama Gupta v. Pankaj Goel

Himachal Pradesh HC2 Jul 2024CRMMO/678/2023

Case brief

AI extract

What is this about?

This court allowed the wife's petition for enhanced maintenance and residence under the Domestic Violence Act, dismissing the husband's revision. The court held that the earlier award was insufficient, noted the husband's ownership of the firm, and ruled that compelling separation qualifies as domestic violence.

What did the court decide?

Enhanced monthly maintenance awarded to the wife to Rs. 10,000/-; rent for alternate accommodation enhanced to Rs. 5,000/-.

Aupama Gupta Vs Pankaj Goel — Domestic Violence | Himachal Pradesh HC (2024)

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2024:HHC:4655

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MMO No.678 of 2023 a/w Cr. Revision No.682 of 2022 Decided on: 02.07.2024

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____________________________________________________________ 1. Cr.MMO No.678 of 2023
Anupama Gupta ………..Petitioner
Versus
Pankaj Goel and Others ……….Respondents
____________________________________________________________ 2. Cr. Revision No.682 of 2022
Pankaj Goel ………..Petitioner Versus
Anupama Gupta ……….Respondent
____________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹
For the Petitioner : Mr. Hamender Singh Chandel, Advocate, for the petitioner in Cr.MMO No.678 of 2023.
Mr. J.S. Bagga, Advocate, for the petitioner in Cr. Revision No.682 of 2022.
For the Respondents : Mr. Hamender Singh Chandel, Advocate, for the respondent in Cr. Revision No.682 of 2022.

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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Mr. J.S. Bagga, Advocate, for the respondents in Cr.MMO No.678 of 2023.

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Sandeep Sharma, Judge (oral):

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Since common question of facts and law are involved in both the above captioned cases, same are heard together and are now being disposed of vide common judgment.

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Precisely, the facts of the case, as emerge from the record are that petitioners in both the cases namely Pankaj Goel and Anupama Gupta ( hereinafter referred to as, ‘husband’ and ‘wife’ ) were divorcee and on 06.07.2012, they solemnized marriage as per Hindu rites and ceremonies. Out of their wedlock, one child namely Master Govind was born, but allegedly, husband, named hereinabove, had adopted Master Kumud, son of the respondent/wife from her earlier marriage. After solemnization of marriage, both the parties lived in one accommodation for quite some time, but subsequently, on account of matrimonial discord, wife was

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compelled to leave her matrimonial house on 18.03.2020 and since then, she had been residing with her parents.

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Since wife had no source of income, she filed petition under Section 12 of Domestic Violence Act (hereinafter referred to as ‘Act’) , praying therein for grant of maintenance as well as order of residence.

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In the petition, referred hereinabove, wife alleged that after marriage, she was treated well for sometime, but thereafter, husband along with other family members not only maltreated her, but also shunted her out from the matrimonial house. She alleged that her husband is an ablebodied person and having an industry in the name of M/s Krishna Lime at village Lohgarh, District Ambala, Haryana. She alleged that husband earns more than Rs.1,00,000/- per month. She also alleged that till date, she has been not returned the dowry articles.

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After having obtained domestic incident report, Court concerned issued process against husband, who while

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refuting the claim putforth by wife, though admitted factum with regard to their marriage, but claimed that at no point of time, he had adopted Master Kumud, son of the respondent/wife from her earlier marriage. He alleged that immediately after the birth of child namely Govind, her wife left her matrimonial house for no plausible reasons. He also alleged that he does not own the company, detailed hereinabove, rather claimed that he is an employee and his income is not Rs.1,00,000/-, as claimed by the wife. He alleged that wife, named hereinabove, is a quarrelsome lady and throughout, she remained under the influence of her brothers namely Dharampal Gupta and Yashpal Gupta. He stated in his reply that though he started residing separately from his parents in rented accommodation on account of behavior of his wife, but yet, she failed to mend her ways.

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Respondent/wife, with a view to prove her case, examined herself as AW1, wherein she reiterated the stand taken by her in the complaint, as taken note hereinabove. In

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her cross-examination, she admitted that her first marriage was solemnized with Mr. Sumit Bansal in the year 2007 and she had divorced him in the year 2009. She admitted factum of her having received Rs.2,00,000/-, from previous husband. She admitted that no adoption deed was executed qua adoption of his son Master Kumud by respondent No.1. She also admitted that she along with her husband had started residing in Jaggi Colony, Ambala in 2019, because family of the husband i.e. respondents No.2 to 4 had abused and assaulted her in the year 2013. She admitted that her husband resides separately from his parents for past threefour years and she is still ready to join the company of his husband. She specifically denied the suggestion put to her that she left the matrimonial house of her own will.

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To the contrary, husband-Pankaj Gupta examined himself as RW1 to disprove the case of the wife. He deposed that he had resided with his parents till February 2015 and thereafter started residing separately in a rented

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accommodation. In his cross-examination, he admitted that his marriage was solemnized with the respondent/wife, named hereinabove, according to Hindu ceremonies and he had owned responsibility of Master Kumud. He deposed that his wife left him just five months after the birth of Master Govind. While denying suggestion put to him with regard to allegation of physical and mental cruelties, petitioner/husband admitted that his parents are industrialist and running an industry in the name and style of M/s Krishna Lime Industry. He stated that he used to work with his parents. While admitting his liability to maintain the responden/wife, petitioner/husband during crossexamination stated that he is not ready and willing to take her wife and son Kumud back to their matrimonial house. Husband also examined RW2-Sukhwant Singh, who stated that husband, named hereinabove, is his tenant from the year 2018.

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On the basis of aforesaid pleadings as well as evidence led on record, learned Chief Judicial Magistrate, Sirmaur, District at Nahan, H.P., allowed the application under Section 12 of the Act, thereby granting monthly maintenance of Rs.5,000/- to the wife. Apart from above, sum of Rs.3,000/- also came to be awarded in her favour on account of rent for the alternate accommodation, from the date of filing of the petition. Besides above, Court below also directed husband to pay compensation of Rs.50,000/-, on account of act of domestic violence.

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In the aforesaid background, husband namely Pankaj Goel has approached this Court by way of Cr. Revision No.682/2022, praying therein to set aside the order of maintenance as well as residence, whereas, wife namely Anupama Gupta has approached this Court in Cr.MMO No.678/2023 for enhancement.

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Precisely, the grouse of the petitioner-husband, as has been highlighted in Cr. Revision No.682/2022 and

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further canvassed by Mr. J.S. Bagga, learned counsel representing the husband is that Court below while passing order of maintenance, failed to take note of the fact that wife left her matrimonial house of her own volition and at no point of time, act of domestic violence was ever committed by the petitioner. While making this Court peruse statement of husband recorded in Court below, Mr. Bagga attempted to carve out a case that husband successfully proved on record that owner of the M/s Krishna Lime company is his mother and he was only an employee. He submitted that it has come in cross-examination that after COVID-19, husband was removed from the Company and at present, he is merely working as an employee and as such, Court below wrongly arrived at a conclusion that monthly income of husband is more than Rs.1,00,000/-. Mr. Bagga submitted that maintenance awarded by Court below is on higher side and as such, same is required to be reduced.

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To the contrary, Mr. Hamender Singh Chandel, learned counsel representing the wife though supported impugned order granting maintenance, but claimed that amount of maintenance awarded by Court below is on lower side and as such, same needs to be enhanced. While making this Court peruse statement of respondent/wife recorded before the Court below, Mr. Chandel submitted that respondent/wife specifically stated before the Court below that she is ready and willing to join the company, but husband refused to take her back, meaning thereby, that Court below rightly arrived at conclusion that on account of maltreatment, wife is compelled to leave her matrimonial house, if it is so, husband is otherwise under obligation to provide maintenance as well as residence. Mr. Chandel further submitted that though no cogent and convincing evidence ever came to be produced on record by the petitioner that he was working as an employee, but once it is not in dispute that before the year 2015, husband was living with

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his family under one roof and was also looking after the affairs of the firm, by no stretch of imagination, it can be presumed that he has been engaged as an employee. While referring the cross-examination conducted upon husband, Mr. Chandel strenuously argued that it has specifically come in the cross-examination of petitioner/husband that now he is working and residing with his parents.

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Having heard learned counsel for the parties and perused material available on record, vis-a-vis reasoning assigned in the impugned order, though this Court finds no dispute inter se parties that they are legally wedded husband and wife and out of their wedlock, one child namely Govind has born. It is also not in dispute that both husband and wife, named hereinabove, were divorcee before their marriage in the year 2012. It also emerges from the record that with effect from 06.07.2012 to year 2015, both husband and wife, named hereinabove, lived along with their parents, but thereafter in year 2015, started living separately in rented

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accommodation. However, in the year 2018, wife was compelled to leave her matrimonial house on account of alleged maltreatment at the hands of the husband. Though, it has specifically come in the cross-examination of wife that she is ready and willing to join the company of the husband, but if the cross-examination conducted upon husband is perused, he categorically stated that he is not ready and willing to take his wife back, meaning thereby, wife, named hereinabove, is compelled to live separately on account of matrimonial discord.

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Since it is not in dispute that wife, named hereinabove, is legally wedded wife of the petitioner and she is compelled to live separately on account of certain differences, husband is otherwise under obligation to provide maintenance as well as residence, but Court below having taken note of the evidence adduced on record proceeded to award sum of Rs.5,000/- as maintenance to the wife as well as Rs.3,000/- on account of accommodation, but certainly,

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aforesaid amount awarded by Court below cannot be said to be sufficient for an individual to sustain.

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This Court cannot lose site of the fact that if one is to hire a rented accommodation, it is difficult to hire such accommodation with a meager amount of Rs.3,000/-. Similarly, no individual can maintain himself/herself with sum of Rs.5,000/-, especially when it is not in dispute that nowadays, one LPG Cylinder costs more than Rs.1500/-. It is also not in dispute that wife apart from maintaining herself is also responsible for taking care of her son Master Kumud, whose responsibility was otherwise taken by the husband, as has come in his cross-examination. There is nothing on record, suggestive of the fact that wife is earning any income, rather, she was wholly dependent upon husband after her marriage and thereafter is compelled to live with her parents.

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Though, Mr. Bagga, counsel representing the husband attempted to make out a case that no act of domestic violence was ever committed by the husband, but

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the mere fact that wife is compelled to live separately, on account of matrimonial discord, coupled with the fact that she is ready and willing to join the company of the husband is sufficient to constitute the act of domestic violence.

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Mr. Bagga, learned counsel representing the husband, while referring to the statement of RW2, attempted to argue that once it has not come in evidence that maltreatment of any kind was ever meted to wife at the hands of husband, Court below wrongly arrived at conclusion that petitioner committed domestic violence. No doubt, if the statement of RW2 is perused in its entirety, it nowhere suggests that cruelty in the shape of beatings and mental harassment, if any, was caused, but as has been repeatedly held by this Court as well as Hon’ble Apex Court that the circumstances, which compels lady to leave her matrimonial house, can be construed to be the act of domestic violence.

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Interestingly, allegation in the case was that besides husband, other family members had hurled abuses

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and thrown wife from her matrimonial house, but husband chose not to examine them as a witness, rather, landlord of rented accommodation came to be examined, who simply stated that no cruelty/mental harassment, if any, was ever caused to the wife.

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Similarly, this Court finds that though petitioner/husband claimed that he is an employee in the firm being run by his mother, but it is not in dispute that before COVID-19, petitioner/husband was working in the firm and thereafter, allegedly he was removed. Though, it has also come in the cross-examination that after COVID-19, he had again started working in the industry with his parents, meaning thereby, that he is not working as an employee, but as one of the owner of the company, which is being run by mother of the petitioner/husband.

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Since wife had specifically alleged that husband, being owner of the company, is earning more than Rs.1,00,000/- per month, onus was upon the husband to

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disprove such fact by placing on record document, suggestive of the fact that he is working as an employee and in that regard, some salary is being paid to him, however, aforesaid evidence is totally missing.

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In view of the above, this Court finds no merit in Cr. Revision No.682/2022 having been filed by the husbandPankaj Goel and as such, same is dismissed, but Cr. MMO No.678/2023 filed by wife-Anupama Gupta is allowed to the extent that the maintenance awarded by Court below @ Rs.5,000/- is enhanced to Rs.10,000/- and sum of Rs.3,000/- awarded on account of her alternate accommodation is also enhanced to Rs.5,000/-, from the date of filing of the petition. Accordingly, both the petitions are disposed of, along with pending applications, if any.

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(Sandeep Sharma), Judge

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July 02, 2024 Rajeev Raturi

Aupama Gupta v. Pankaj Goel

Case brief

What is this about?

What did the court decide?

Aupama Gupta v. Pankaj Goel

Case brief

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What did the court decide?

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