Full Text
SPECIAL LEAVE PETITION (CRIMINAL) NO. 3935 OF 2016
SHALU OJHA .....PETITIONER(S)
JUDGMENT
(a) insofar as domestic violence proceedings before the Family
Court are concerned, necessary documents shall be filed by both the parties within four weeks from today and evidence led pursuant thereto. The trial court shall endeavour to decide the case finally, within a period of eight months from today, on the basis of evidence and fix the rate of maintenance finally; and
SLP (Crl.) No. 3935 of 2016
Court shall endeavour to dispose of the same as expeditiously as possible and determine at what rate interim maintenance is to be given, i.e. whether order dated
February 13, 2015 passed by the learned ASJ need any modification or not.
2) Thereafter, review petition was filed by the petitioner pointing out that there was apparent error in passing the aforesaid directions inasmuch as matter was remitted to the High Court for presumption that proceedings were pending but the fact is that no such proceedings are pending under the Protection of Women from Domestic Violence Act, 2005 (for short the ‘DV Act’). Realising this error, the review petition was allowed and the Special Leave Petition was restored which has been heard afresh.
3) Notwithstanding the aforesaid factual error which had crept in the order dated September 4, 2017, the other factual details recorded in the said order are a matter of record. Therefore, it would be in the fitness of things to reproduce the same: Though this case has a chequered history, only those facts which are very material are taken note of, eschewing other unnecessary details, in order to avoid burdening this judgment with the facts which may not be relevant. The petitioner is the respondent’s wife. It is unfortunate that after their marriage on April 20, 2007 in Delhi, they stayed together hardly for four months. Thus, for almost ten years they have parted company and are living separately. It is not necessary to go into the reasons which led to the matrimonial discord as in the present petition this Court is concerned only with the dispute regarding the rate of maintenance. The petitioner had filed an application sometime in June 2009 claiming maintenance under the provisions of Section 12 of the DV Act. In that application, apart from other reliefs, she has claimed maintenance as well. Order dated July 05, 2012 was passed by the learned Metropolitan Magistrate granting interim maintenance @ Rs.2,50,000/- per month with effect from the date of filing of the complaint as well as compensation of Rs.1,00,000/-. Since the respondent did not honour the said order, the petitioner filed the execution petition for recovery of the arrears of maintenance. In the meantime, the respondent challenged the order of the Metropolitan Magistrate granting maintenance, by filing appeal under Section 29 of the DV Act, in the Court of Additional Sessions Judge, Delhi (for short, the ‘ASJ’). In the said appeal, the learned ASJ issued interim directions dated January 10, 2013 for depositing of the entire arrears of maintenance within two months. As this order was not complied with, the appeal filed by the respondent was dismissed on May 07, 2013. This order of dismissal was challenged by the respondent before the High Court. In those proceedings, order dated July 23, 2013 was passed allowing the appellant herein to file the reply, etc. As no stay was granted, order dated July 23, 2013 was challenged by the respondent in this Court by filing a special leave petition. This Court, however, did not entertain the same. At the same time, while disposing of the special leave petition, observations were made to the effect that if the parties apply for mediation, the matter shall be referred to the Delhi High Court Mediation and Conciliation Centre at the earliest. Keeping in view these observations, the High Court referred the dispute to the Mediation Centre at the Delhi High Court and also stayed the execution proceedings in the meantime. Mediation proceedings failed. As a result, the High Court took up the matter on merits and passed orders dated September 10, 2013 directing the respondent to pay Rs.5,00,000/- on or before September 30, 2013 and another sum of Rs.5,00,000/- on or before October 31,
2013. The petitioner filed an application seeking modification of these orders and prayed for the directions to the respondent to pay entire arrears of maintenance as per the order of the Family Court in domestic violence proceedings. In the said application only notice was issued and since interim stay on the execution proceedings continued, the petitioner filed special leave petition in this Court for vacation of the interim order passed by the High Court in the execution proceedings. This special leave petition was converted into appeal on grant of leave, in which judgment was delivered on September 18, 2014 allowing the said appeal. Operative portion of the said judgment reads as under:
4) We may point out that during arguments, it was contended by learned counsel for the respondent that apart from the monthly maintenance amount which the respondent was giving to the petitioner every month, the petitioner had some other source of income as well. This submission was based on the premise that the amount of maintenance so far received by the petitioner, which was to the tune of Rs.49 lakhs, was kept by the petitioner in the fixed deposits accounts in the banks. According to him, it proves that the petitioner had other source of income and she was employed/self-employed and from that income, she was meeting her day to day needs. We accordingly passed order dated January 29, 2018 directing the petitioner to file an affidavit of her income which would be in the fomat as prescribed in the judgment of Delhi High Court in the case of Kusum Sharma v. Mahinder Kumar Sharma decided on January 14, 2015 (FAO No. 309/1996). Respondent was also given opportunity to file additional documents along with affidavit. Such an affidavit of income was, therefore, filed by the petitioner. Respondent also filed reply to the said income affidavit to which petitioner filed her rejoinder.
5) In the income affidavit filed by the petitioner in the prescribed format, she has, inter alia, mentioned that she is staying with her parents in their house in Mansarovar Garden. The petitioner has also mentioned about monthly expenditure. Col. 11 and Col. 16 of Part I being relevant are reproduced below:
┌────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. No. Description Particulars │ ├────────────────────────────────────────────────────────────────────────────────────────┤ │ 11. Monthly expenditure (as Rs. 1.5 lac approx. spent jointly │ │ mentioned in S. No. 60) by parents and self. My share in │ │ the above expenditure is around │ │ Rs. 1 lac per month. │ │ 16. If not staying at Matrimonial Staying with my parents in House │ │ home, relationship and in which my brother has a sizable │ │ income of the person with share. Income Rs. 1.5 lac p.m. │ │ whom you are staying? │ │ 6) It is not understood as to how petitioner’s share of expenditure is │ │ Rs. 1 lakh per month out of Rs.1.5 lakhs monthly expenditure. │ │ Likewise, it is not explained in Col. 16 as to in what form, income │ │ of Rs. 1.5 lakhs per month is generated and who is earning that │ │ income. Of course, the petitioner has otherwise maintained that │ │ has also stated that she is compelled to live in her parents house │ │ as the maintenance amount is not sufficient even to pay monthly │ │ rent of an aparment. │ │ 7) In Part II of the affidavit, the petitioner has made averments │ │ relating to respondent. The petitioner says that respondent is │ │ SLP (Crl.) No. 3935 of 2016 Page 11 of 15 │ │ earning about Rs.20 lakhs per month. She has given the details │ │ of certain business ventures/restaurants owned by the │ │ respondent in which he is having his share. The petitioner has │ │ also given particulars of assets allegedly owned by the │ │ respondent. The petitioner has annexed photocopies of various │ │ documents in support of her assertions. │ │ 8) In the reply affidavit filed by the respondent, it is averred that the │ │ petitioner is maintaining four bank accounts and the total amount │ │ lying in these accounts is Rs.8,36,610/-. It is also stated that the │ │ petitioner is having fixed deposits in the banks for a total sum of │ │ Rs. 35,75,000/-. In this manner, the total bank balance of the │ │ petitioner is Rs.44,11,610/-. As against this, the respondent has │ │ paid to the petitioner a sum of Rs.49 lakhs from June 4, 2009 to │ │ July, 2017. Thus, in the last eight years, against a sum of Rs.49 │ │ lakhs paid by the respondent to the petitioner, the petitioner is still │ │ having bank balance of Rs.44 lakhs. According to the │ │ respondent, it would be inconceivable that petitioner has spent │ │ only Rs.5 lakhs of rupees (or little more if interest earned by the │ │ petitioner on the aforesaid Rs.49 lakhs is added) in eight years │ │ and that shows that she has other sources of income as well. │ │ Other averments in the petitioner’s affidavit was also denied │ │ SLP (Crl.) No. 3935 of 2016 Page 12 of 15 │ │ including her share of expenditure in the neighbourhood of Rs.1 │ │ lakh per month or that respondent is earning Rs.20 lakhs per │ │ month. In respect of the particulars given by the petitioner about │ │ the businesses of the respondent, the respondent has denied the │ │ same and submits that, at present, there is no Restaurant or Bar │ │ anywhere in India in which respondent has any share or interest. │ │ He has his own explanation and has given alleged circumstances │ │ in which he had to give up his share in certain businesses. The │ │ petitioner has controverted his averments in her rejoinder │ │ affidavit. During arguments, the petitioner also tried to │ │ demonstrate, by referring to certain documents filed by her, that │ │ the respondent was indulging in falsehood. │ │ 9) We have given a glimpse of the respective cases set up by both │ │ the parties, without giving details thereof, as asserted by the │ │ petitioner and the manner in which the respondent has refuted │ │ the same. │ └────────────────────────────────────────────────────────────────────────────────────────┘
1.[5] lac approx. spent jointly by parents and self. My share in the above expenditure is around Rs. 1 lac per month.
16. If not staying at Matrimonial home, relationship and income of the person with whom you are staying? Staying with my parents in House in which my brother has a sizable share. Income Rs. 1.[5] lac p.m.
6) It is not understood as to how petitioner’s share of expenditure is Rs. 1 lakh per month out of Rs.1.[5] lakhs monthly expenditure. Likewise, it is not explained in Col. 16 as to in what form, income of Rs. 1.[5] lakhs per month is generated and who is earning that income. Of course, the petitioner has otherwise maintained that she is not having any other source of income except the amount of maintenance given to her by the respondent. The petitioner has also stated that she is compelled to live in her parents house as the maintenance amount is not sufficient even to pay monthly rent of an aparment.
7) In Part II of the affidavit, the petitioner has made averments relating to respondent. The petitioner says that respondent is earning about Rs.20 lakhs per month. She has given the details of certain business ventures/restaurants owned by the respondent in which he is having his share. The petitioner has also given particulars of assets allegedly owned by the respondent. The petitioner has annexed photocopies of various documents in support of her assertions.
8) In the reply affidavit filed by the respondent, it is averred that the petitioner is maintaining four bank accounts and the total amount lying in these accounts is Rs.8,36,610/-. It is also stated that the petitioner is having fixed deposits in the banks for a total sum of Rs. 35,75,000/-. In this manner, the total bank balance of the petitioner is Rs.44,11,610/-. As against this, the respondent has paid to the petitioner a sum of Rs.49 lakhs from June 4, 2009 to July, 2017. Thus, in the last eight years, against a sum of Rs.49 lakhs paid by the respondent to the petitioner, the petitioner is still having bank balance of Rs.44 lakhs. According to the respondent, it would be inconceivable that petitioner has spent only Rs.[5] lakhs of rupees (or little more if interest earned by the petitioner on the aforesaid Rs.49 lakhs is added) in eight years and that shows that she has other sources of income as well. Other averments in the petitioner’s affidavit was also denied including her share of expenditure in the neighbourhood of Rs.[1] lakh per month or that respondent is earning Rs.20 lakhs per month. In respect of the particulars given by the petitioner about the businesses of the respondent, the respondent has denied the same and submits that, at present, there is no Restaurant or Bar anywhere in India in which respondent has any share or interest. He has his own explanation and has given alleged circumstances in which he had to give up his share in certain businesses. The petitioner has controverted his averments in her rejoinder affidavit. During arguments, the petitioner also tried to demonstrate, by referring to certain documents filed by her, that the respondent was indulging in falsehood.
9) We have given a glimpse of the respective cases set up by both the parties, without giving details thereof, as asserted by the petitioner and the manner in which the respondent has refuted the same.
10) After giving conscious and objective consideration to the documents placed on record by both the sides, we are of the view that it is only after the evidence is led by both the parties, the veracity and evidential value of such material can be finally adjudged, more particularly, when the said material and assertions of the parties would be tested with their crossexamination.
11) The present proceedings arise out of the petition which was filed by the petitioner under Section 12 of the DV Act. The trial court had arrived at a figure of maintenance on the basis of affidavits filed by both the parties along with their respective documents. Same exercise is undertaken by the learned ASJ in the impugned order while adjudging the correctness of the order passed by the trial court and, in the process, reducing the maintenance from Rs.2.50 lakhs to Rs.50,000/- per month. This obviously happened as the proceedings under the DV Act are of summary nature.
12) In these circumstances, the appropriate course of action would be to allow the petitioner to file an application for maintenance under the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 so that in these proceedings, both the parties lead their documentary and oral evidence and on the basis of such material, appropriate view is taken by the said Court.
13) We accordingly dispose of this petition by granting liberty to the petitioner to move appropriate application for maintenance, as indicated above. Once such application is moved, same shall be decided by the concerned Court most expeditiously having regard to the fact that the petitioner is fighting for her maintenance for last number of years and these proceedings should attain finality at the earliest. We also make it clear that any maintenance fixed shall not, in any case, be less than Rs.50,000/- per month which figure of maintenance has already attained finality.
14) As a sequel, the respondent shall continue to pay Rs.50,000/- per month to the petitioner in the meanwhile. The present petition stands disposed of accordingly .............................................. J. (A.K. SIKRI) ............................................. J. (ASHOK BHUSHAN) NEW DELHI; JULY 23, 2018.