NIHARIKA GHOSH @ NIHARIKA KUNDU Vs STATE & ANR , Delhi High court
The present petitioner had filed an application under Section 12 of the DV Act before the learned Metropolitan Magistrate seeking a protection order against the present respondent alongwith an application under Section 23 DV Act of the for grant of interim maintenance. The learned Metropolitan Magistrate, on 14.11.2018, after considering the ‘Domestic Incident Report’ and other documents, dismissed the aforesaid application for interim maintenance. The petitioner challenged the said order before the learned Additional Session Judge in appeal under Section 29 of the DV Act, which was dismissed vide the impugned order dated 02.02.2019.
The present petitioner had filed an application under Section 12 of the DV Act before the learned Metropolitan Magistrate seeking a protection order against the present respondent alongwith an application under Section 23 DV Act of the for grant of interim maintenance. The learned Metropolitan Magistrate, on 14.11.2018, after considering the ‘Domestic Incident Report’ and other documents, dismissed the aforesaid application for interim maintenance. The petitioner challenged the said order before the learned Additional Session Judge in appeal under Section 29 of the DV Act, which was dismissed vide the impugned order dated 02.02.2019. respondent.
Para 12. Another contention raised by the counsel for the aggrieved is that the aggrieved is not working for gain with Sh. Udit Raj, Member of Parliament and she is not getting any salary. However, it is not been specifically denied by counsel for the aggrieved that the aggrieved is visiting such office and working there.
Para 13. It has also been admitted by the counsel for the aggrieved that the aggrieved has worked as Accountant in Jewellery shop till 22.05.2015 and thereafter she left the job.
Para 14. During the course of arguments, counsel for the aggrieved has admitted that educational qualification of aggrieved is M. A. (Pol. Science), MBA and Ph.D. (Management). xxx 16. It is noteworthy that by way of impugned order the learned Magistrate has dismissed the application for interim maintenance. Once the contention raised by the aggrieved person has been denied by the respondent, therefore, it becomes a matter of evidence and both the parties may prove their contentions at that time. The learned Magistrate has also after considering the material available on record rightly dismissed the application of the aggrieved/appellant for grant interim maintenance.”
Learned counsel appearing on behalf of the respondents draws the attention of this Court to a judgment dated 12.09.2023, passed by learned Division Bench of this Court in MAT.APP.(F.C.) 248/2019, whereby an appeal filed by the present petitioner against an order dated 03.09.2019, passed by the learned Principal judge, Family Courts, dismissing an application for maintenance under Section 24 of the Hindu Marriage Act, 1955, was dismissed.
The learned Division Bench of this Court, while dismissing the aforesaid appeal recorded as under:-
Para 6. It is not in dispute that the appellant was M. Phil at the time of her marriage and was pursuing Ph.D which she has completed and is now having the qualification of Ph.D (Management) with professional qualification in Computers. While on the other hand the respondent is a simple graduate. It is also not denied that appellant was working at the time of her marriage at a Diamond Jewellery Showroom and was getting Rs.12,000/- per month. She had left her job since she was unable to attend her office since 22.05.2015.
Para 7. From the submissions it is evident that not only is the appellant highly qualified but had been working even at the time of her marriage.
Para 8. The second aspect of significance is that the respondent had claimed that the appellant is working in the office of M.P. Udit Raj in Connaught Place and her claim that she is unemployed, is incorrect. In support of his assertions he had relied upon a CD showing the appellant working in the office of Mr. Udit Raj and also marking her attendance in the Register. The appellant who had initially taken a stand that she was not working, when confronted with this CD, gave an explanation that she has a friend working in the office of Mr. Udit Raj and at times when she goes to visit her friend, she also looks after the office work.
Para 9. The learned Principal Judge, Family Court has rightly observed that the appellant had initially failed to disclose that she was working even if not regularly or for charity as claimed by her. She had failed to disclose any of these facts and was compelled to do so after the filing of the application under Section 151 CPC and the CD. It was also observed by learned
Principal Judge, Family Court that it is difficult to accept that a person who is so highly qualified would not be working and it is even more difficult to accept that she would be working for charity.
Para 10. We on the facts as narrated above, agree with the conclusions of the learned Principal Judge, Family Courts that the appellant not only is a highly qualified lady, but has been working even at the time of her marriage and thereafter. The documents and the admissions made by the appellant clearly lead to an irresistible conclusion that she is employed in the office of the M.P. It is no doubt that merely because a person is qualified she must be compelled to work, but here is a case where in addition to be qualified, the appellant has been working. There is no doubt a difference between “capacity” and “actual earning”, but here it is not a case where appellant had only the capacity but the document on record clearly point out that she has also been working. 11. Similar facts as in hand were considered in the case of Mamta Jaiswal vs. Rajesh Jaiswal 2000 (3) MPLJ 100 to observed that Section 10. We on the facts as narrated above, agree with the conclusions of the learned Principal Judge, Family Courts that the appellant not only is a highly qualified lady, but has been working even at the time of her marriage and thereafter. The documents and the admissions made by the appellant clearly lead to an irresistible conclusion that she is employed in the office of the M.P. It is no doubt that merely because a person is qualified she must be compelled to work, but here is a case where in addition to be qualified, the appellant has been working. There is no doubt a difference between “capacity” and “actual earning”, but here it is not a case where appellant had only the capacity but the document on record clearly point out that she has also been working. 11. Similar facts as in hand were considered in the case of Mamta Jaiswal vs. Rajesh Jaiswal 2000 (3) MPLJ 100 to observed that Section
In view of the aforesaid observations, and after examining the impugned order dated 02.02.2019, this Court is of the opinion that the case of the petitioner in the present petition is similar to the contentions raised in the aforesaid MAT.APP.(F.C.) 248/2019.
