Bharat Bararia vs Priyanka Bararia on 17 May, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 17th May, 2017

+ CRL.M.C. 4936/2015

1. BHARAT BARARIA
2. GEETA BARARIA
3. YUVRAJ BARARIA ….. Petitioners

Through: Mr.B.N.Singhvi, Adv.

versus

1. PRIYANKA BARARIA ….. Respondent

Through: Mr.Vineet Mehta, Adv. with
Mr.Prateek Kumar and Mr.Vikramjeet
Singh, Adv.

CORAM:
HON’BLE MR. JUSTICE I.S.MEHTA

JUDGMENT

I. S. MEHTA, J.

1. By way of the instant petition, the petitioners invoke the
inherent jurisdiction of this Court under Section 482 of the Code of
Criminal Procedure, 1973 to set aside the impugned orders dated
07th August, 2015 passed by the learned Special Judge (PC Act)-03:
CBI, Patiala House Courts, New Delhi, in Criminal Appeal No. 03
of 2015 and the interim maintenance order passed by the learned
Metropolitan Magistrate on 11th February, 2015 under Section 23 of
the Protection of Women from Domestic Violence Act, 2005

CRL.M.C. 4936/2015 Page 1 of 9
(hereinafter referred to as “the DV Act“) in Complaint Case No.
20/4/14, wherein the learned Metropolitan Magistrate has granted
interim maintenance amounting to Rs. 30,000/- (Rupees Thirty
Thousand Only) in favour of the respondent.

2. The brief facts stated are that, the marriage between the
petitioner No.3 and the respondent was solemnized on 26th August,
2010 as per Hindu rites and customs and out of the wedlock one
female child named Alisha was born on 17 th February, 2013.
Thereafter, on 15th December, 2012 the respondent was forced to
leave the matrimonial home with her minor daughter and she is
completely dependent on her parents. It has been alleged by the
respondent that the petitioners had neither taken her back nor made
any provision for her maintenance. It has been further alleged that
the petitioners have refused the respondent to stay in her
matrimonial home and have further refused to hand over the
stridhan articles including jewellery to the respondent despite
repeated requests.

3. Subsequently, on 18th January, 2014, the respondent filed an
application under Section 12 read with Sections 18, 19, 20, 21 and
22 of the Protection of Women from Domestic Violence Act, 2005
against the petitioners herein, along with an application under
Section 23 (2) of the DV Act in the Court of Chief Metropolitan
Magistrate, Patiala House Courts, New Delhi.

4. The learned Metropolitan Magistrate after hearing the
arguments of both the parties and after considering the complaint,
affidavit and other material on record, passed the order dated 11th

CRL.M.C. 4936/2015 Page 2 of 9
February, 2015 directing the petitioners herein to pay maintenance
of Rs.30,000/- per month (including Rs.6000/- being paid by the
petitioner no. 3 towards maintenance of baby Alisha) from the date
of filing of the petition, i.e. 18.01.2014, and further directed the
petitioner No.3 to clear the arrears by 31st March, 2015 and to pay a
sum of Rs.5000/- p.m. towards the rent for the alternate
accommodation of the respondent on supplying of documents.

5. Aggrieved by the said order, the petitioners filed an appeal
under Section 29 of the DV Act being Criminal Appeal No. 03/15
before the Court of District and Sessions Judge (PC Act)-03, CBI
Patiala House Courts, New Delhi on 21st February, 2015.

6. Consequently, the learned Special Judge (PC Act)-03, CBI
Patiala House Courts, New Delhi vide impugned judgment dated 7th
August, 2015 dismissed the aforesaid appeal of the petitioners for
want of merit.

READ  Ujjal Mandal vs State Of West Bengal on 21 January, 1972

Hence, the present petition.

7. The learned counsel for the petitioners has submitted that the
order dated 11th February, 2015 passed by the learned Metropolitan
Magistrate is arbitrary and without any basis and is liable to be set
aside.

8. The learned counsel for the petitioners has further submitted
that maintenance cannot be permitted under Section 23 of the DV
Act because as per Section 20 of the DV Act, it provides for interim
relief, i.e. the monetary relief to meet the expenses incurred and
losses suffered as a result of the domestic violence which is

CRL.M.C. 4936/2015 Page 3 of 9
different from maintenance either under Section 125 Cr.P.C. or
Section 25 of the Hindu Marriage Act.

9. The learned counsel for the petitioners in order to support his
contentions has relied upon the following judgments:

1) Indra Sarma v. V.K. Sarma, (2014)(6) SCC (Crl) 593

2) Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, 2014
(10) SCC 736.

10. The learned counsel for the petitioners has further submitted
that in the present case there is no element of any incident of
domestic violence made out by the complainant and the learned
Metropolitan Magistrate lost sight of the law even under Section 12
of the DV Act, where it primarily requires consideration of
Domestic Incident Report submitted by the Protection Officer or
any other person but not that of the complainant herself.

11. The learned counsel for the petitioners has submitted that the
learned Metropolitan Magistrate found a prima facie case of
Domestic Violence without even pursuing Section 20 of the DV Act
as per which is it was essential to record the instances of domestic
violence suffered by the aggrieved person, i.e. the
respondent/complainant.

12. The learned counsel for the petitioners has further submitted
that neither inquiry nor investigation was ordered by the learned
Metropolitan Magistrate in order to satisfy and pass an orders under
Section 23(2) of the DV Act. Therefore, the order passed by the
learned Metropolitan Magistrate was arbitrary and void ab initio as
it was passed contrary to the law and the learned Court of Sessions

CRL.M.C. 4936/2015 Page 4 of 9
simply confirmed the order passed by the learned Metropolitan
Magistrate and dismissed their appeal for want of merit.

13. On the other hand, the learned counsel for the respondent has
submitted that the order dated 11th February, 2015 passed by the
learned Metropolitan Magistrate against the petitioners and in
favour of the respondent has been rightly passed and does not suffer
from any illegality or infirmity and the subsequent appeal filed by
the petitioners has also rightly been dismissed by the learned
Sessions Court vide impugned order dated 7th August, 2015

14. The learned counsel for the respondent has further submitted
that the petitioners in the present petition have challenged the
authority and jurisdiction of the learned Metropolitan Magistrate in
granting interim maintenance to the respondent. The interpretation
of the petitioners, that the Court of learned Metropolitan Magistrate
was not competent to grant interim maintenance to the respondent
under Section 23 read with Section 20 of the DV Act is wrong and
baseless. The petitioners are interpreting Section 20 of the DV Act
in manner that only monetary reliefs in the nature of expenses
incurred and losses suffered by the aggrieved person and child of
the aggrieved person as a result of the domestic violence can be
granted. The said interpretation is incorrect as the petitioners have
not gone through the entire Section 20 of the DV Act and based
their opinion on incomplete knowledge of the same.

READ  Ramkewal Paswn Alias Kush vs The State Of Jharkhand on 1 May, 2017

15. The learned counsel for the respondent has relied upon the
judgment of the Hon’ble Supreme Court in Shalu Ojha v. Prashant
Ojha
, MANU/SC/0835/2014.

CRL.M.C. 4936/2015 Page 5 of 9

16. The learned counsel for the respondent has further submitted
that Section 23 of the DV Act is clear and unambiguous and the
learned Metropolitan Magistrate has to only satisfy itself that an
application under Section 23 of the DV Act prima facie discloses
the commission of acts of domestic violence by the petitioners
herein qua the respondent/complainant.

17. The learned counsel for the respondent has submitted that the
case of Indra Sarma v. V.K. Sarama (supra) cited by the petitioners
does not apply to the present case and the other case relied upon by
the petitioners, i.e. Juveria Abdul Majid Patni v. Atif Iqbal
Mansoori (supra), the Hon’ble Supreme Court has upheld the
maintenance granted by the learned Metropolitan Magistrate and
has set aside the orders of the learned ASJ and High Court. The said
judgment in fact supports the respondent.

18. The learned counsel for the respondent has further submitted
that the order under challenge in the present petition is an interim
order and is not the final order. The pleadings of the petitioners in
the present writ petition are false and the same raises disputed
question of facts which cannot be adjudicated in the writ
jurisdiction. The same are required to be proved in the evidence by
the petitioners before the Trial Court and not before this Court.
Hence, the present petition is meritless and deserves to be
dismissed.

19. It is an admitted fact coming on record that the main application
under Section 12 of the Protection of Women from Domestic

CRL.M.C. 4936/2015 Page 6 of 9
Violence Act, 2005 is pending before the Trial Court. The
determination of the same will be done by the Trial Court after
leading of evidence by the respective parties and on the basis of
material documents and income affidavits of the parties.

20. Since the respondent and her minor daughter are to be
maintained by the petitioner No.3, in the absence of denial of
existence of the marriage and denial of paternity of the minor
daughter, who is stated to be admitted in school and her school fees
has been increased, the petitioner No.3 cannot shy away from his
statutory obligation of maintaining his legally wedded wife and his
minor daughter.

21. The monetary relief as provided under Section 20 DV Act is
different from maintenance, which can be in addition to an order of
maintenance under Section 125 Cr.P.C. or any other law, and can be
granted to meet the expenses incurred and losses suffered by the
aggrieved person and child of the aggrieved person as a result of the
domestic violence, and the question whether the aggrieved person,
on the date of filing of the application under Section 12 of DV Act
was in a domestic relationship with the respondent is irrelevant.

READ  Gaiv Dinshaw Irani & Ors vs Tehmtan Irani & Ors on 25 April, 2014

22. Sub-clause 2 of Section 23 of DV Act empowers the Magistrate
to pass such interim order as he deems just and proper therefore, it
is well within the jurisdiction of the Magistrate to grant the interim
ex parte relief, if the Magistrate is satisfied that the application
prima facie discloses that the respondent is committing, or has
committed an act of domestic violence or that there is a likelihood
that the respondent may commit an act of domestic violence.

CRL.M.C. 4936/2015 Page 7 of 9

23. Furthermore, an act of domestic violence once committed,
subsequent decree of divorce will not absolve the liability of the
respondent from the offence committed or to deny the benefit to
which the aggrieved person is entitled under the Domestic Violence
Act
, 2005 including monetary relief under Section 20, Child
Custody under Section 21, Compensation under Section 22 and
interim or ex parte order under Section 23 of the Domestic Violence
Act, 2005.

24. The Apex Court in V.D. Bhanot v. Savita Bhanot; (2012) 3
SCC 183, has observed that the conduct of the parties even prior to
the coming into force of the Protection of Women from Domestic
Violence Act
, 2005 could be taken into consideration while passing
an order under Sections 18, 19 and 20 of DV Act thereof. The
relevant paragraph is reproduced as under:

“12. We agree with the view expressed by the High Court
that in looking into a complaint Under Section 12 of the
PWD Act, 2005, the conduct of the parties even prior to
the coming into force of the PWD Act, could be taken
into consideration while passing an order Under Sections
18, 19 and 20 thereof. In our view, the Delhi High Court
has also rightly held that even if a wife, who had shared
a household in the past, but was no longer doing so when
the Act came into force, would still be entitled to the
protection of the PWD Act, 2005.”

25. In view of the aforesaid, I find no infirmity in the orders dated
11th February, 2015 passed by the learned Metropolitan Magistrate
and the impugned order dated 7th August, 2015 passed by the Court
of learned Special Judge (PC Act)-03, CBI Patiala House Courts,

CRL.M.C. 4936/2015 Page 8 of 9
New Delhi affirming the order passed by learned Metropolitan
Magistrate.

26. Consequently, the instant petition filed by the petitioners is
dismissed. Reliance is placed on the judgment of the Apex Court in
Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, 2014 (10) SCC

736.
However, this judgment shall not affect the merits of the case,
application under Section 12 of DV Act pending between the parties
as the determination of the same will be done by the Trial Court
after considering the evidence on record and income affidavits of
the parties.

27. The present petition is disposed of in the above terms. The
Trial Court is directed to dispose of the application under Section 12
of DV Act filed by the respondent-wife as soon as possible and
preferably within a period of six months from the date of this
judgment.

28. Copy of this judgment be sent to the concerned Court(s). No
order as to costs.

I.S.MEHTA, J.

MAY 17, 2017

CRL.M.C. 4936/2015 Page 9 of 9

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