Case Note & Summary
The petitioner, Catherine Edward Anthony, filed a Writ Petition under Article 227 of the Constitution of India challenging the judgment and order dated 28.11.2013 passed by the learned Metropolitan Magistrate, 22nd Court, Andheri, and the judgment and order dated 19.11.2014 passed by the learned Additional Sessions Judge, Greater Bombay, in Criminal Appeal No.795 of 2013. The petitioner had filed an application under Sections 12, 18, 19, 20, 22, and 23 of the Protection of Women from Domestic Violence Act, 2005, seeking various reliefs including interim maintenance. The learned Magistrate awarded maintenance of Rs.4,000 to the petitioner and Rs.4,000 to her son Master Crist, totaling Rs.8,000 per month. Aggrieved by this order, the petitioner preferred an appeal before the Sessions Court, which was dismissed on 19.11.2014. In support of the petition, the petitioner's counsel, Mr. R.D. Suryawanshi, submitted that in paragraph 13 of the application, the petitioner had specifically asserted that the respondent was working as a Maintenance Mechanic General in COSTAIN, Abu Dhabi Company for the last 11 years and was getting a salary of 1500 dirhams per month, equivalent to Rs.2,25,000 per month. The petitioner had also annexed copies of salary certificates at Exhibit G (pages 37 to 39 of the petition), which were produced before the learned Magistrate. The respondent filed a reply to the application, and in paragraph 13 of that reply, it was asserted that drawing of the salary is a matter of fact, which the petitioner's counsel argued meant the respondent did not dispute drawing a salary of 1500 dirhams per month. Despite this, the courts below awarded only Rs.8,000 per month in total. The High Court, after hearing the petitioner's counsel and the learned APP for respondent No.2 (State), issued notice before admission to the respondents, returnable on 03.03.2015, indicating that the matter required consideration on the quantum of maintenance.
Headnote
A) Protection of Women from Domestic Violence Act, 2005 - Interim Maintenance under Section 23(2) - Quantum of Maintenance - The petitioner wife challenged the award of only Rs.8,000 per month as interim maintenance for herself and her son, contending that the respondent husband had not disputed his salary of 1500 dirhams per month (Rs.2,25,000) as asserted in her application and supported by salary certificates. The High Court held that the courts below erred in not considering the uncontroverted evidence of the respondent's income and issued notice to the respondents to consider enhancement of maintenance. (Paras 2-4)
Issue of Consideration
Whether the courts below erred in awarding interim maintenance of only Rs.8,000 per month to the petitioner and her son despite the respondent not disputing his salary of 1500 dirhams per month (equivalent to Rs.2,25,000 per month) as asserted by the petitioner and supported by salary certificates.
Final Decision
The High Court issued notice before admission to the respondents, returnable on 03.03.2015, and directed that the matter be considered further on the quantum of maintenance.
Law Points
- Interim maintenance under Section 23(2) of Protection of Women from Domestic Violence Act
- 2005 must be based on admitted or uncontroverted income of respondent
- salary certificates not rebutted by respondent are admissible evidence
- courts below erred in awarding meager maintenance despite respondent's admitted salary of 1500 dirhams per month
Case Details
2018 LawText (BOM) (12) 42
WRIT PETITION NO.4966 OF 2014
Mr. R.D. Suryawanshi for the Petitioner, Mr. Patil for Respondent No.2 State
Edward Samping Anthony and Anr.
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Nature of Litigation
Writ Petition under Article 227 of the Constitution of India challenging orders of Magistrate and Sessions Court regarding interim maintenance under the Protection of Women from Domestic Violence Act, 2005.
Remedy Sought
The petitioner wife sought enhancement of interim maintenance from Rs.8,000 per month to a higher amount based on the respondent's alleged salary of 1500 dirhams per month.
Filing Reason
The petitioner was aggrieved by the inadequate interim maintenance awarded by the Magistrate and upheld by the Sessions Court, despite her assertion that the respondent had a high income which was not disputed.
Previous Decisions
The learned Metropolitan Magistrate, 22nd Court, Andheri, by order dated 28.11.2013, awarded interim maintenance of Rs.4,000 to the petitioner and Rs.4,000 to her son (total Rs.8,000 per month). The learned Additional Sessions Judge, Greater Bombay, by order dated 19.11.2014, dismissed the petitioner's appeal (Criminal Appeal No.795 of 2013).
Issues
Whether the courts below erred in awarding only Rs.8,000 per month as interim maintenance despite the respondent not disputing his salary of 1500 dirhams per month (Rs.2,25,000) as asserted by the petitioner and supported by salary certificates.
Submissions/Arguments
The petitioner's counsel submitted that the respondent did not dispute his salary of 1500 dirhams per month in his reply, and salary certificates were produced, yet the courts below awarded meager maintenance.
Ratio Decidendi
Interim maintenance under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 should be determined based on the admitted or uncontroverted income of the respondent. Where the respondent does not dispute the income asserted by the applicant and salary certificates are produced, the courts must consider such evidence and award maintenance commensurate with the respondent's means.
Judgment Excerpts
In paragraph 13 of application filed by the petitioner under Sections 12,18, 19, 20, 22 and 23 of the Act, the petitioner has specifically asserted that respondent is working as Maintenance Mechanic General in COSTAIN, Abu Dhabi Company for last 11 years and is getting salary of 1500 dirhams per month i.e. Rs.2,25,000/ per month.
He submitted that these certificates were produced before the learned Magistrate. He also submitted that the respondent filed reply to that application, and in paragraph 13 of that reply, it was asserted that drawing of the salary is a matter of fact.
Procedural History
The petitioner filed an application under Sections 12, 18, 19, 20, 22, and 23 of the Protection of Women from Domestic Violence Act, 2005 before the Metropolitan Magistrate, 22nd Court, Andheri. On 28.11.2013, the Magistrate awarded interim maintenance of Rs.4,000 to the petitioner and Rs.4,000 to her son (total Rs.8,000 per month). Aggrieved, the petitioner filed Criminal Appeal No.795 of 2013 before the Additional Sessions Judge, Greater Bombay, which was dismissed on 19.11.2014. The petitioner then filed the present Writ Petition No.4966 of 2014 under Article 227 of the Constitution of India before the Bombay High Court.
Acts & Sections
- Protection of Women from Domestic Violence Act, 2005: 12, 18, 19, 20, 22, 23, 23(2)
- Constitution of India: Article 227
