1. This is an appeal under section 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as PWDV Act, 2005) assailing the impugned order dated 13.04.2018 whereby the Ld. MM has CA No. 70/18 Nimisha Vs. State & Ors. Page no.1/8 dismissed the application for seeking interim maintenance filed on behalf of the appellant/ complainant.

2. The appellant filed the present appeal inter-alia on the grounds that the Ld. Trial court has erred in dismissing the application for grant of interim maintenance on the plea that the appellant is equally qualified and capable of earning as the respondent no.1 i.e. her husband; the ld. Trial Court has erred in not considering that respondent no.1 is earning about Rs.60,000/- per month and extra income of Rs.1,02,160/- besides having four wheeler in his name; respondent no.1 is having LIC policy and he is paying Rs.87,000/- p.a. as premium; respondent no.1 is having FDR of Rs.35,000/- as well as PPF, EPF and other superannuation funds of Rs.80,000/-; respondent no.1 is having servant for doing his household work and is living luxurious life.

3. It is also urged that ld. Trial Court has erred in not considering that the appellant was a working lady and had to leave her job due to harassment of her husband as well as lung disease and the appellant is now facing great hardship financially. It is also stated that the parents of the appellant had spent a huge amount in treatment of the appellant and respondent no.1 had not provided any treatment/financial help to the appellant during her stay in matrimonial house. It is therefore prayed that the impugned order dated 13.04.2018 be set aside and respondent no.1 be directed to pay the maintenance allowance as per his status till final decision of the case.

4. Ld. Counsel for the respondent no.1 has filed written submissions on behalf of the respondent.

5. During the course of arguments, Ld. Counsel for the appellant contended that the ld. The trial court has erred in observing that since the CA No. 70/18 Page no.2/8 appellant is equally qualified as the respondent herein and therefore, she has the capacity to find a suitable job. He has placed reliance on various judgments as Crl. Rev. P. 117/15 titled . decided on 11.10.17 by the Hon'ble High Court of Delhi and judgments of Hon'ble Apex Court passed in Crl. (A) No.2310/14, decided on 28.10.2014 and Civil Appeal No. 4615 titled as decided on 30.03.2017. It is also his contention that the aforesaid reasoning given by the ld. Trial court is not sustainable in view of the judgment of division bench of Hon'ble High Court of Punjab & Haryana passed in Crl. (F)280/2015 (O & M) titled on 20.09.17, wherein it is observed as :-

"...........The expression 'unable to maintain herself ' does not mean that the wife must be absolutely destitute when she applies for maintenance under Section 125 Cr.P.C". Furthermore, in Minakshi Gaur Vs. Chiranjan Gaur, AIR 2009 SC 1377, the Hon'ble Supreme Court has held to the extent that even if the wife is earning, but if her earning is insufficient and the husband has substantial salary then he is liable to pay maintenance to his wife.".......

6. During the course of arguments, Ld. Counsel for the appellant also clarified that the appellant had earlier worked for a period of six months i.e. from August 2016 to January 2017, but on the wrong legal advise of previous counsel, the appellant did not mention the same in the affidavit of assets given pursuant to the judgment of Hon'ble High Court of Delhi CA No. 70/18 Page no.3/8 passed in FAO 369/1996 titled as decided on 06.12.2017. It is submitted that the appellant has inadvertently mentioned in the column of particulars regarding occupation as "earlier the deponent was working job till September 2015 and now the deponent is house wife and she has no source of income to maintain herself and she is fully dependent upon the income of her old parents." It is his contention that non mentioning of job by the appellant for the said period of six months i.e. from August 2016 till January 2017 was neither intentional nor deliberate. He urged that the appellant should not suffer on account of the negligence of the counsel for stating incorrect facts in the personal information of the appellant/deponent herein. It is also his contention that the appellant had to leave job in January, 2017 due to health issue.

7. Ld. Counsel for the appellant has also drawn attention of this court to para 21 of the application u/s. 12 of PWDV Act, 2005 to the effect that the cruelty and atrocity of the respondent caused chest pain to the appellant in the month of June, 2015. He submitted that her medical condition is still same and she is not able to take up any job due to the treatment regarding her chest pain. The aforesaid contentions were refuted by ld. Counsel for the respondent.

8. Per contra, Ld. Counsel for the respondent submitted that the appellant has not approached the court with clean hands i.e. she had concealed her being in job admittedly for a period of six month i.e. August 2016 to January 2017, and therefore, she is not entitled to the relief sought for. He also contended that the appellant disclosed the factum of job only when the respondent filed an application u/s. 91 Cr.P.C before the court of Judge, Family Court, Karkardooma for production of documents where the appellant admitted in reply that she CA No. 70/18 Page no.4/8 was working with KAYA limited till 24.01.2017 but left the job due to illness. He also contended that the appellant is having a bank A/C in ICICI bank, Allahabad Bank, Karnataka Bank, however, she has not filed the bank statement of said account(s). It is also contention of ld. Counsel for the respondent No. 1 that the appellant has wrongfully stated in her affidavit that she is dependent on her parents though she is working. He has placed reliance the judgment reported as 2019 (2) LRC 169 (Del) tittled KN Vs. RG.

9. Heard and perused the record.

10. Admittedly, the respondent no.1 was having an income of Rs. 54,520/- per month and is graduate (B.H.M. Pusa). Perusal of affidavit of the expenditure of the respondent no.1 herein shows that he is paying Rs.4,500/- per month to part time/full time domestic servant. He is also having Santro Car 2007 model. He is also paying insurance premium of Rs.87,000/- p.a. to LIC.

11. As per the affidavit of the respondent no. 1, appellant /complainant is gainfully employed and earning Rs.35,000/- per month. He stated her qualification as Sanskrit Hons. from Miranda House, DU&NPTT. According to the appellant, she is not earning as on date as she is jobless. The Hon'ble Apex Court in (supra) as observed in para no.9 & 10 as follows:-

"9. Inability to maintain herself is the pre-

condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the CA No. 70/18. Page no.5/8 wife states that she has great hardships in maintaining herself and the daughters, while her husband's economic condition is quite good, the wife would be entitled to maintenance.

10. The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance."

12. It is enunciated in the aforesaid judgment that merely because the appellant-wife is a qualified person, it would not be sufficient to hold that she is in a position to maintain herself. Therefore, the rejection of interim maintenance application by Ld. Trial Court on the ground of educational qualification of the appellant and her capacity to earn is not in accordance with law.

13. The respondent No. 1 has filed before this court copy of income tax calculation of the appellant for the financial year 2016-17 as per which income received from the previous employer is stated to be Rs.97,372/- whereas no income is shown in Form No.26AS for the financial year 2017-18. Anyways, income tax calculation would not be considered as proof of income. As per the respondent no.1, the appellant is earning CA No. 70/18 . Page no.6/8 Rs.35,000/- per month, however, respondent no.1 has not placed any document on record to substantiate the same.

14. Notwithstanding the above, there is force in the contention of ld. Counsel for respondent no.1 that the appellant has concealed correct facts from the Ld. Trial Court court about her job at the time of filing of affidavit dated 15.11.2017. It is also contention of ld. Counsel for respondent no.1 that the appellant was earlier employed with Kaya Clinic and presently she is working with Hindustan Pvt. Ltd., which has been refuted by ld. Counsel for the respondent. However, there is no material on record to infer that the appellant has been presently working with Hindustan Pvt. Ltd.

15. During the course of hearing before this court, the appellant filed affidavit stating that she had drawn salary of Rs. 9,500/- per month from August 2016 to January 2017. The respondent is admittedly drawing salary of Rs.54,520/- per month and paying Rs. 87,000/- per annum as LIC premium. It is settled law that the appellant is entitled to equal status as that of the respondent No. 1 and her capacity to earn would not be equated with actual earning of income. In other words, the applicant is entitled to interim maintenance if she is not working though capable of earning being qualified. However, in the instant case, concealment of fact of not being in job for 6 months when the appellant was gainfully employed, is not approved of and expected from a litigant. A litigant is duty bound to disclose the correct facts before the court. The contention of the appellant that it is fault of counsel, who did not mention the correct facts in the affidavit, does not inspire any confidence. The appellant is a qualified woman and is supposed to put her signature after reading the contents of the same. It is also seen from the record that the fact of her being in job for 6 months has not been disclosed before the Ld. Trial CA No. 70/18 The appellant has also not filed any document in support of her averment that she had drawn an amount of Rs. 9,500/- pm during the said period of six months. The appellant is directed to file fresh affidavit of her income stating the true facts before the Ld. Trial Court. In terms of aforesaid observations, the matter is remanded back to Ld. Trial Court to decide the application afresh. Accordingly, appeal is disposed of

16. Copy of this order alongwith TCR be sent to the Ld. Trial Court. File be consigned to record room.

17. Parties are directed to appear before the Ld. Trial Court on Digitally signed by 10.07.2019. Location: Shahdara District, Karkardooma WADHWA Courts, Delhi Date: 2019.07.04 17:05:20 +0530 Announced in open court today on 04.07.2019 Additional Sessions Judge-03 Shahdara District, Karkardooma Courts, Delhi.

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