Full Text
HIGH COURT OF DELHI
Date of Decision: 04th JULY, 2022 IN THE MATTER OF:
KINRI DHIR ..... Petitioner
Through: Ms. Shivani Luthra Lohia, Mr. Nitin Saluja, Mr. Anubhav Singh, Ms. Priyanka Prasanth, Advocates
Through: Mr. Manu Sharma, Ms. Gauri Rishi, Ms.SrishtiJuneja, Ms. Garima Sehgal, Mr.Abhyuday Sharma, Advocates for
R-1 Mr. Shubham Budhiraja, Advocate for R-2 & R-3
JUDGMENT
1. The instant review petition under Order XLVII read with Section 114 of the CPC has been filed against the Judgment of this Court dated 26.04.2022 rendered in CONT.CAS(C) 60/2022, whereby the contempt petition of the Petitioner herein/Wife was dismissed.
2. The facts, in brief, leading to the instant petition are as under:i. The Petitioner herein/Wife filed a petition under the Guardian and Wards Act, 1890, and an application under Sections 18(1)(e) read with Sections 23 & 26 of the Protection of 2022:DHC:2393 Women from Domestic Violence Act, 2005 (hereinafter referred to as the “DV Act”). ii. Vide Order dated 09.11.2021, the learned Principle Judge, Family Court (South-East), Saket Courts, New Delhi, in G.P. No. 16/2021, directed as under: “Regarding the maintenance which has been claimed by the Petitioner, it is an admitted fact that the rent of the serviced apartment along with all the amenities and bills are being provided by the Respondent till date to the Petitioner. Therefore, in addition to the facilities which have been provided to the Petitioner by the Respondent and which he will continue to provide, he will also provide to the petitioner a monthly maintenance of ₹1,00,000/- to the Petitioner and ₹1,00,000/- per month for the minor son from the date of filing of application till the decision of case on merits” iii. It is stated that MAT Appeal (F.C.) No. 2/2022 against the Order dated 09.11.2021 had been filed by the Petitioner herein/Wife, and vide Order dated 06.01.2022, this Court recorded Respondent No.1/Husband’s statement that “the Respondent is complying in letter and spirit with the impugned order and shall continue to pay the amounts due as per the same”. iv. It is stated that alleging consistent violations on the part of the Respondent No.1/Husband of the directions rendered by the Ld. Family Court in its Order dated 09.11.2021 as well as the undertaking given by the Respondent No.1/Husband, the Petitioner/Wife approached this Court by way of Cont.Cas(C) 60/2022. v. This Court, vide its Judgement dated 26.04.2022, dismissed the contempt petition of the Petitioner herein/Wife and recorded the following observations:
2. Ms. Shivani Luthra Lohiya, learned Counsel for the Petitioner/Wife, submits that Judgement dated 26.04.2022 suffers from error of law and facts, and therefore, a review of the same is required. The learned Counsel for the Petitioner/Wife has recorded the following contentions with regard to the changes that must be made to the Judgement dated 26.04.2022:
No.1/Husband is paying a sum of Rs. 1,30,937/- per month towards the payment for the housekeeper and cook’s house rent, and Rs. 76,744/- per month for the payment of the salary of housekeeper and the cook, is incorrect as the Respondent No.1/Husband had stopped providing for the salary of the cook, housekeeper as well as the nanny, along with their rent. It has also been submitted that the material on record as well as the arguments made by Respondent No.1/Husband reveal that only Rs. 1,00,000/- was being paid for all the groceries and salaries of the staff, and no payment was done for the room rent of the staff.
3. The learned Counsel for the Petitioner/Wife, submits that the Judgement dated 26.04.2022 has led to the perpetration of grave miscarriage of justice and is being weaponised by the Respondent No.1/Husband to oust the Petitioner/Wife from the rented premises at C-99, Defence Colony, New Delhi. She, therefore, prays for a review of the Judgement dated 26.04.2022.
4. Heard Ms. Shivani Luthra Lohiya, learned Counsel for the Petitioner, Mr. Manu Sharma, learned Counsel appearing for Respondent No.1, and perused the material on record.
5. The power of review is not to be confused with the appellate power which enable an appellate Court to correct all manner of errors committed by the subordinate Court. There are definitive limits to the exercise of power of review, and the Supreme Court has iterated the circumstances wherein the review of a judgement or an order can be sought. In Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.), (1995) 1 SCC 170, the Supreme Court had observed as under: “8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of AribamTuleshwar Sharma v. AribamPishak Sharma [(1979) 4 SCC 389: AIR 1979 SC 1047], speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3) “It is true as observed by this Court in Shivdeo Singh v. State of Punjab [AIR 1963 SC 1909], there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.”” (emphasis supplied)
6. The Apex Court in Haridas Das v. Usha Rani Banik (Smt.), (2006) 4 SCC 78, while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC, has observed as under:
9. In the instant review petition, it has been submitted that the Income Affidavit was filed by the Respondent No.1/Husband after he had shifted out of the floor on which Petitioner/Wife and the minor child resided, and therefore, the amount reflected in the said Affidavit did not capture the expenditure of the Respondent No.1/Husband on himself. This contention of the Petitioner cannot be sustained as the perusal of the Income Affidavit indicates that at point no. 27, the Petitioner/Wife has admitted that her spouse is staying at the matrimonial home, and that the rent that was being paid is Rs. 3,91,911/- per month. After the filing of the Income Affidavit it is stated that the Respondent No.1/Husband has shifted out of the floor where the Petitioner/Wife and the minor child were residing, and that the rent of the serviced apartment has increased to Rs. 4,50,000/- per month. Therefore, there is no error apparent on the face of the record and this does not have bearing on the final outcome of the contempt petition. Even if the Income Affidavit was filed after Respondent No.1/Husband moved out, it would not take away from the fact that the increased rent was being expended by the Respondent No.1/Husband.
10. It has further been submitted that the admitted expenditure of Respondent No.1/Husband, i.e. Rs. 8,90,947/-, in the allegedly incomplete income affidavit was the expenditure that was being incurred solely on the Petitioner/Wife and the minor child. Further, it has been stated that the amount of Rs. 1,79,159/- being spent on the minor child excluded the other amounts that were also being spent. The learned Counsel for the Petitioner has stated that the total monthly expenditure of Rs. 11,37,012/- as stated on Page 24 of the Income Affidavit reflects the true amount that is being spent toward the maintenance of the Petitioner/Wife and the minor child. However, this submission also cannot be taken into consideration by this Court as the total monthly expenditure of Rs. 11,37,012/- as exhibited on Page 24 forms a part of the Statement of Expenditure of the Respondent No.1/Husband and includes the expenditure that is incurred by him on himself as well. It would be misplaced if the entire amount in the said segment of the Income Affidavit would be construed to be solely spent on the upkeep of the Petitioner/Wife and the minor child.
11. The learned Counsel for the Petitioner has made the submission that the Order of this Court dated 28.01.2022 wherein directions were given to the Respondent No.1/Husband to pay an advance amount of Rs. 1,00,000/to the Petitioner/Wife for groceries, and for the same to be adjusted against the bills and/or salary of the domestic staff, is being utilised by the Respondent No.1/Husband to only pay for the groceries and salaries, and not for the room rent for staff, is fallacious. The argument that had been raised before the Court by the learned Counsel for Respondent No.1/Husband was that despite the direction to pay Rs. 1,00,000/- as a one-time payment to the Petitioner/Wife toward the expense of groceries, the Respondent No.1/Husband had continued to pay Rs. 1,00,000/- every month. Furthermore, delving into the issue as to whether due payment of the stipulated amounts for maintenance is being done by the Respondent No.1/Husband would amount to rehearing of the contempt petition, which a Court exercising review jurisdiction is not equipped to do.
12. With regard to the submission that the issue in the contempt case traverses beyond the controversy of whether the non-payment of salary for the nanny would amount to contempt or not, this Court is of the opinion that the attempt of the Petitioner/Wife to re-agitate the issue of deprivation of the Petitioner/Wife of her maintenance by Respondent No.1/Husband by way of the instant review petition and the same is not in consonance with settled law. This also stands true for the submission of the learned Counsel for the Petition that the Respondent No.1/Husband has not paid for the services of the nanny and the home staff separately, and that the Petitioner/Wife is being constrained to pay for them out of the maintenance allocated for daily expenses, such as groceries. As has been elaborated above, review jurisdiction may not be exercised on the ground that a decision was erroneous on merits as the same would entail encroaching upon the province of a court of appeal. Therefore, this Court cannot re-open issues that have already been laid to rest and do not demonstrate any error apparent on the face of the record.
13. This Court recalls that during the course of the arguments in CONT.CAS(C) 60/2022, it had specifically been submitted by the learned Senior Counsel for the Respondent No.1/Husband and had been supported by the learned Senior Counsel for the Petitioner that the nanny in question was a medical specialist who had been hired keeping in the mind that illhealth of the minor child. The changed circumstances entail the health of the minor child improving and this Court remains firm in its opinion that the salary of almost Rs. 80,000 for the services of a nanny are unwarranted in light of these changed circumstances. The submission of the learned Counsel for the Petitioner that the nanny had been hired by the Respondent No.1/Husband does not sway the decision of this Court.
14. The learned Counsel for the Petitioner has relied upon the Order dated 09.11.2021 of the Ld. Family Court to submit that specific directions were given to ensure that the rented accommodation at C-99, Defence Colony, New Delhi, must be provided to the Petitioner/Wife. There is no specific direction that under all circumstances the Petitioner must be permitted to continue to reside at C-99, Defence Colony, New Delhi. The Order of this Court dated 28.01.2022 states that till the Order dated 09.11.2021, passed by the Ld. Family Court, subsists, the Respondent No.1/Husband shall pay for all such amenities as already being provided, including the rent of accommodation on the second floor at C-99, Defence Colony, New Delhi. It is contended that the Respondent No.1/Husband, along with Respondent No.2 and 3, are attempting to evict the Petitioner/Wife from the said rental accommodation. This submission of the Petitioner that the Petitioner must be permitted to reside at C-99, Defence Colony, New Delhi, even if the landlord desires to evict the Petitioner, cannot be accepted. CONT.CAS(C) 60/2022 cannot be used as a tool to take away the right of the landlord/owner of the rented premises, i.e. C-99, Defence Colony, New Delhi, to take steps to evict the tenant. CONT.CAS(C) 60/2022 arises out of a matrimonial dispute between the Petitioner/Wife and the Respondent No.1/Husband, and the landlord of the property bearing No. C-99, Defence Colony, New Delhi, cannot be made a party to the matrimonial dispute and his right cannot be taken away in a matrimonial proceeding.
15. It was only with a view to ensure that the Respondent No.1/Husband continued to provide for a shelter to the Petitioner/Wife that a direction was given to the Respondent No.1/Husband that he shall continue to provide for residential accommodation of the Petitioner herein/Wife. It is, therefore, cannot be said that the direction given by this Court in the Order dated 26.04.2022 is beyond the scope of contempt jurisdiction. Further, the direction to provide for accommodation of the Petitioner/wife is only a reiteration of the Order dated 09.11.2021, violation of which is the subject matter of CONT.CAS(C) 60/2022.
16. In view of the above observations, the instant review petition is dismissed. All pending application(s), if any, stand disposed of.
SUBRAMONIUM PRASAD, J. JULY 04, 2022 Rahul