DVA after 20 years of Seperation

 IN THE HIGH COURT OF DELHI AT NEW DELHI  
+ LPA No. 64/2009 & CM Nos. 1801,4625 & 4770 of 2009   % Decided on : 6th May, 2009 

MEENA CHAUDHARY @ DR. MEENA P.N. SINGH     ….. Appellant Through: Appellant in person.

                          versus

COMMISSIONER OF POLICE & ORS. ….. Respondents Through: Ms. Jyoti Singh, Mr. Amandeep   Singh and Mr. Ankur Chhibber,

                                Advocates for Respondent Nos.

                                1, 2, 3, 5 and 6.

                                Mr.M.N.Krishnamani, Sr.Adv.

                                with Mr. Atul Jha, Adv. for

                                Respondent No. 4

CORAM:HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE NEERAJ KISHAN KAUL

1. Whether the Reporters of the local newspapers be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? No

3. Whether the Judgment should be reported in the Digest? No   ORDER

 

1. The present appeal is directed against the judgment of the  learned Single Judge dated 7th January, 2009. Briefly stated, the  facts of the present case are as follows:-

 

2. The appellant had filed a writ petition against certain police  officers as
also respondent No. 4, Mr. Basant Kumar Chaudhary, who  she stated is her
husband and one Mr. Jaspal Singh who is said to be  a R/o B-108, Hill View
Apartments, Vasant Vihar, Delhi. The writ LPA No. 64/2009 Page 1 of 11 petition
was filed by the appellant (the original petitioner in the writ  petition) inter
alia to seek a writ of mandamus to direct the police  authorities to provide her
full security of life, liberty and property.  She also sought a writ of mandamus
to direct the police authorities  from obstructing her from using the
residential premises bearing No.  B-108, Hill View Apartments, Vasasnt Vihar,
Delhi and to direct the  said respondent to allow her to occupy and use the said
premises.

3. The case of the appellant is that she is the legally wedded wife  of
respondent No. 4, Mr. Basant Kumar Chaudhary. The appellant  and the respondent
No. 4, admittedly, have two issues from their  wedlock. According to the
appellant, she filed a case against  respondent No. 4 in Crime Against Women
Cell (in short ‘CAW Cell’)  complaining that she was not being allowed to reside
in the aforesaid  apartment of her husband. This complaint, according to the
complainant, was filed on 30th April, 2008. It is the case of the  appellant as
also her statement made to the police that she was  married to respondent No. 4
in the year 1973, who deserted her in  1989 and thereafter married another woman
in U.K. She further  stated that in November, 2004 she came to know that Mr.
Basant  Kumar Chaudhary was living in Hill View Apartments. She tried to
contact Mr. Basant Kumar Chaudhary but she was not permitted to  talk to him.
She was left with no money, so she came to B-108, Hill  View Apartments, Vasant
Vihar, Delhi. She entered the flat as she  was having the keys to the door. She
was only cleaning the  apartment and had called the ‘kabadi’ for removing the
waste  articles. While she was doing so, she was stopped by the police. On  LPA
No. 64/2009 Page 2 of 11 the other hand, Mr. Basant Kumar Chaudhary stated that
he had  been living with his wife Ms. Vidushi for the last 20 years in the
aforesaid apartment. He further stated that prior to this marriage, he  was
married to the appellant but later the two had been divorced by a  court in
Bhutan in the year 1989. Since both parties had set up  contradictory cases, the
police could not arrive at any definite  conclusion. Consequently, both parties
were directed to maintain  peace in the area. It was further stated by the
police that on enquiry  being conducted from the neighbours, the neighbours had
stated that  respondent No. 4, Mr. Basant Kumar Chaudhary was living for the
last 20 years along with his wife Ms. Vidushi. They had never seen or  heard of
the appellant at his place. It was further stated by the police  that on 14th
May, 2008, an application under Section 156 (3) of the  Code of Criminal
Procedure, 1973 (in short ‘Cr.P.C.’) had been  received from the court of Sh.
Sameer Vajpayee, Patiala House  Courts, New Delhi, in which Mr. Basant Kumar
Chaudhary,  respondent No. 4 herein had prayed for registration of a case
against  the appellant herein. An action taken report was called for by the
learned Magistrate on 16th May, 2008. After perusing the same and  hearing the
arguments of the counsel for respondent No. 4, the  learned Magistrate had
directed registration of a case on 16th May,  2008 itself. Accordingly, a case
being FIR No. 125/08 dated 17th  May, 2008, under Sections 457/380 of the Indian
Penal Code, 1860  had been registered in the police station and the same is
pending  investigation. It was further stated that the dispute between the
appellant and Mr. Basant Kumar Chaudhary, respondent No. 4 was a  civil dispute.
Pertinently, the police authorities also stated that no  LPA No. 64/2009 Page 3
of 11 threat to the life of the appellant has been perceived and in the facts
and circumstances of the case, no police protection was at present  warranted.
It was lastly stated that the police officials were in no  manner responsible
for dispossessing any party from the occupation  of the apartment in question or
in putting any party into possession  thereof. A further status report was filed
by the police on 15th  October, 2008. As per this status report, an enquiry was
conducted  into the complaint made by the appellant to the CAW Cell.

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4. During the course of enquiry, no evidence of harassment came  to light. The
appellant was requested to get her statement recorded  in connection with the
document of divorce submitted by Mr. Basant  Kumar Chaudhary but she refused to
give any statement to the  police. It was also noticed that the appellant had
not filed any  complaint of harassment/torture caused by respondent No. 4 during
the last 19 years since they were separated. The appellant had been  advised to
utilize services of the Protection Officer to get relief under  the provisions
of The Protection of Women from Domestic Violence  Act, 2005 (in short ‘PWDV
Act’), if she so desired. The complaint filed  by the appellant at CAW Cell had
been closed on 25th September,  2008, since the matter was subjudice on the
aspect whether the  appellant is the legally wedded wife of respondent No. 4 or
not.

5. It was also stated on behalf of respondent No. 4 that marriage  between the
appellant and respondent No. 4 was dissolved by mutual  consent by a Bhutan
court on 29th September, 1988. He further  stated that the appellant has filed
for divorce before the District  LPA No. 64/2009 Page 4 of 11 Court, Jorhat vide
Matrimonial Suit No. 10/91. It has been stated  that a divorce decree was
granted and this fact had been admitted by  the appellant herself in paragraphs
2 and 6 of her plaint in Suit No.  351/2000 filed by her against her brothers
before the District Court,  Patna. He further stated that in the year 1996, the
appellant had  also approached the British court for seeking divorce from
respondent No. 4, although she was already divorced in 1989 itself.  She
obtained an ex parte decree of divorce, which was made absolute  on 22nd April,
1999. The appellant in response submitted that the  divorce decree obtained from
the court in Bhutan had no force, since  the court in Bhutan had no jurisdiction
to grant the said decree. She  further submitted that it was respondent No.4,
who had initiated the  suit in the court of District Judge, Jorhat to seek
divorce against her.  She submitted that the aforesaid suit was dismissed on
30th May,  1998 for non-prosecution and thus, there was no valid decree of
divorce between the appellant and respondent No. 4 and, therefore,  the marriage
subsists.

 

6. The learned Single Judge held that the appellant and  respondent No. 4 were
divorced on the basis of a divorce decree  passed by District Court, Jorhat
which remained completely  unsubstantiated. The learned Single Judge also took
note of the fact  that the appellant did not deny the fact that she had
initiated divorce  proceedings against respondent No. 4 in U.K. which resulted
in a  final and absolute decree of divorce between the appellant and  respondent
No. 4. To this divorce decree, her reply was that the High  Court of England did
not have the jurisdiction to dissolve the  LPA No. 64/2009 Page 5 of 11 marriage
between the appellant and respondent No. 4 which had  been solemnized in Patna,
India.

 

7. The learned Single Judge took note of the fact that it was not  disputed by
the appellant that in a title suit filed by her against her  brothers in respect
of certain properties, the stand taken by the  appellant was that her marriage
with respondent No. 4 stood  dissolved.

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8. The learned Single Judge rightly came to the conclusion that  the issue
whether the appellant was the legally wedded wife of  respondent No. 4 or not
was, therefore, a highly contested issue and  involved the determination of
disputed questions of fact as the  appellant who was confronted with mutual
divorce decree passed by  the court in Bhutan and the divorce obtained by her
from the British  Court contended that these were forged and fraudulent decrees
passed by courts without jurisdiction. The learned Single Judge  rightly
observed that the said issue would have to be determined by a  competent court
before whom this issue is raised keeping in view the  pleadings of the parties.

 

9. We also find no fault with the finding of the learned Single  Judge that the
appellant could not have asserted a right of residence  in the said apartment
even if she is assumed to be the legally wedded  wife of respondent No. 4, till
the said apartment continued to remain  the property of the mother of respondent
No. 4. Only after  respondent No. 4 was recognized as the owner of the said
apartment,  LPA No. 64/2009 Page 6 of 11 such a right could be claimed by the
appellant, provided she had  succeeded in establishing her status as the ‘wife’
of respondent No. 4.  Merely by disposing off the said apartment, respondent No.
4 could  not have avoided his liability (if such a liability exists). The
learned  Single Judge, thus, held that even if it is accepted that the said
apartment had been disposed of by respondent No. 4 in August,  2008, if the
appellant was able to establish her status as the ‘wife’ of  respondent No. 4,
she could lay a claim to live in any premise owned  by respondent No. 4 and such
a claim would have to be examined on  its merits and would not be liable to be
rejected at the threshold  without examination on merits.

 

10. The learned Single Judge also took note of the fact that the  appellant had
already initiated proceedings under Section 12 of the  PWDV Act in the court of
Additional Chief Metropolitan Magistrate (in  short ‘ACMM’), Patiala House
Courts, New Delhi in Suit No. 51/2008  which is being contested by respondent
No. 4. Relief sought in those  proceedings by the appellant was for a direction
to respondent No. 4  herein to secure the same level of alternative
accommodation for the  appellant as last enjoyed by her in her shared household
or to pay  rent for the same and to restrain respondent No. 4 from entering into
the said accommodation. The learned Single Judge, thus, correctly  held that the
appellant having invoked an alternative efficacious  remedy should pursue the
same.

 

11. We see no infirmity in the finding of the learned Single Judge  that the
learned Magistrate would be much better equipped to deal  LPA No. 64/2009 Page 7
of 11 with all the issues, including the issue as to whether the marriage
between the appellant and respondent No. 4 herein subsists or not,  since the
fundamental premise on which the relief sought by the  appellant is based on the
fact that she continues to be the legally  wedded wife of respondent No. 4. The
learned Single Judge was right  in not being inclined to issue any direction to
the respondent police  authorities since the police authorities stated that they
did not  perceive any threat to the life of the appellant. However, the learned
Single Judge left it open to the appellant to approach the police, in  case, any
threat was received by her to her life, liberty or property  and the police was
directed to take timely and appropriate measures  upon assessment of any further
threat perception in respect of the  appellant. The writ petition was correctly
disposed of by the learned  Single Judge leaving the appellant free to pursue
her rights and  remedies under the law including the Suit No. 51/2008 pending
before the learned ACMM, Patiala House Courts, New Delhi.

12. The appellant has contended in the present appeal as also in  her
application under Sections 26 and 36 of PWDV Act that  respondent No. 4 was
disposing of all the joint family properties along  with the matrimonial home.
The appellant has also submitted that  she has been brought on the road through
circumstances created by  respondent No. 4. The appellant has also claimed
monetary relief as  she is without any source of income and is unable to
maintain  herself.

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13. During the pendency of the proceedings before us, we had  LPA No. 64/2009
Page 8 of 11 passed an order directing respondent No. 4 to produce before the
Court the following amongst other documents:-

(a) His salary certificate.

(b) His monthly income from his salary and other sources.  (c) Copies of income
tax returns for the assessment years 2007-08  and 2008-09.

        Pursuant to our directions, an affidavit was filed by respondent  No. 4
placing these documents before us. From a perusal of these  documents, it
appears that respondent No. 4 has a take home pay of  approximately Rs. 3.49
lacs per month.

 

14. Although we are in agreement with the findings of the learned  Single Judge
and conscious of the fact that the petitioner has  resorted to proceedings under
PWDV Act, we cannot be unmindful of  the physical and mental state of the
appellant, as was evident to us  during the course of hearing. A perusal of the
proceedings in Suit  No.51/2008 reveals that the hearing on the interim
application has  been delayed for a long time. C.C. No. 51/2008 was registered
on  17th July, 2008. To begin with, summons could not be served as no  proper
facilities were provided to the Protection Officer. The Chief  Secretary was
directed to file a report on 22nd July, 2008 as to why  proper facilities had
not been made available to the Protection Officer.  Thereafter, the matter came
to be listed from time to time. The  appellant made a prayer for interim relief
however, the learned  Magistrate was of the view and observed in his order dated
12th  August, 2008 that only after the matter is argued at length, the  question
of grant of relief to the appellant could be considered. The  LPA No. 64/2009
Page 9 of 11 appellant also moved a revision petition before the Additional
Sessions Judge as she had not been granted any interim relief. On  27th
September, 2008, the appellant was permitted to withdraw her  revision petition
with liberty to pursue her matter before the learned  Magistrate and also to
move an application for early hearing. The  trial court was also directed by the
learned Additional Sessions Judge  to expedite disposal of the interim
application of the appellant.  Thereafter, again the matter was listed on
several dates but got  adjourned on some ground or the other. The respondent was
proceeded ex parte on 9th January, 2009. Thereafter, the matter was  again
adjourned from time to time. The respondent moved an  application for setting
aside the ex parte order dated 9th January,  2009. On 16th February, 2009, the
ex parte order against the  respondent was set aside in the interest of justice.
Thereafter, the  same story continued and the matter was adjourned for one
reason  or the other. However, no order was passed on the application of the
appellant for interim relief. The appellant’s application for interim  relief
and maintenance is still pending.

 

15. Though the appellant is a qualified Doctor, to us it appears  that she is
not in a state to practice as a professional and earn a  living. Given the
physical and mental condition of the appellant, as  was evident to us during the
course of hearing, we deem it fit and  proper in the interest of justice to
direct the respondent No.4 to pay  to the appellant interim maintenance of Rs.
25,000/- per month till  the decision on grant of ad interim maintenance is
taken in Suit  No.51/2008. The respondent will also deposit the litigation  LPA
No. 64/2009 Page 10 of 11 expenses amounting to Rs. 25,000/- in Suit No. 51/2008
before the  learned Magistrate which the appellant would be entitled to withdraw
to enable her to pursue her legal remedies. We are persuaded to  grant this
interim maintenance because of the hapless condition of  the petitioner and the
fact that she does require some bare minimum  maintenance for her upkeep and
well being. The learned Magistrate  shall decide the application for interim
maintenance as expeditiously  as possible and in any event within a period of
three months from  today.

 

16. No observation made in this order shall be taken as an  expression of a view
by this Court on the merits of the case of either  party. The appeal is,
accordingly, disposed of in the above stated  terms. All the pending
applications also stand disposed of.    CHIEF JUSTICE

  NEERAJ KISHAN KAUL, J

May 6th, 2009

sb/RS

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