IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CA No. 54/2018
In the matter of:
Tanya Banon Danani
W/o Mr. Shome Nikhil Danani,
R/o Flat B2, 44 Amrita Shergill Marg,
New Delhi 110003 ….Appellant.
Versus
1. Shome Nikhil Danani
S/o Mr. Nikhil Jaisingh Danani
R/o 3rd Floor, Steesha Condominium
Bandra West, Mumbai 400050
2. Nikhil Jaising Danani
S/o Mr. Jaisingh Danani,
R/o 3rd Floor, Steesha Condominium
Bandra West, Mumbai 400050
3. Roshan Nikhil Danani
W/o Mr. Nikhil Jaisingh Danani,
R/o 3rd Floor, Steesha Condominium
Bandra West, Mumbai 400050 …..Respondents.
Date of Institution : 25.04.2018
Date of Arguments : 17.09.2018
Date of Decision : 26.09.2018
JUDGMENT
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1. Vide this judgment, I shall decide appeal against the order dated
06.04.2018 passed by Ld. MM, vide which Ld. MM has dismissed the
application under Section 23 of the Domestic Violence Act filed by the
appellant.
2. Aggrieved by order dated 06.04.2018, the appellant has filed the
present appeal on the grounds that the appellant has filed application under
Section 23 of the Domestic Violence Act and has sought the following
reliefs:
(a) Monetary Reliefs U/s 20 DV Act.
(b) Residence Orders U/s 19(f) DV Act and
(c) Prevention of Alienation of Assets U/s 18(e) DV Act.
It is mentioned that the impugned order suffers from non
application of mind and the same is against the settled principle of law and
liable to be settled. The appellant was being continuously harassed by the
respondent no. 1 and other respondents since her marriage and she had to
seek shelter at her parents house from time to time to avoid aggressive and
violent situations. On many occasions, appellant was subjected to such
aggressive and violent situations and she was thrown out of her shared
household on 28.05.2015. Due to the harassment and torture appellant is
residing with her parents in New Delhi. The appellant is now dependent on
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her parents. Firstly, she was forced to leave her employment on account of
the hostile and unreasonable environment created by the respondents in the
shared household and secondly due to the emotional, mental and physical
violence inflicted on her and she is unable to find employment despite
opportunities. It is mentioned that appellant has been granted maintenance
of Rs. 1,20,000/ per month by Ld. Principal Family Judge, PHC. It is also
mentioned that order suffers from non application of mind. Ld. Trial Court
erred in dismissing the interim application. Ld. Trial Court erred in not
granting any interim relief to the appellant when the she has shown that she
had suffered domestic violence at the hands of the respondents. Ld. Trial
Court erred in dismissing the appellant’s prayer for monetary relief only on
the ground that the Ld. Family Court has already granted the appellant
interim maintenance u/s 125 Cr.P.C. Ld. Trial Court has failed to
appreciate that a previous order u/s 125 Cr.P.C is not a bar for a Magistrate
to pass an interim order granting monetary relief as the provisions of the DV
Act consciously provide for such a situation u/s 20(1)(d) which reads as
under:
“Monetary reliefs
…such relief may include but not limited to,
….
(d) the maintenance for the aggrieved person as well as her
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children, if any, including an order under or in addition to an
order of maintenance under Section 125 of the Code of
Criminal Procedure, 1973 (2 of 1974) of any other law for the
time being in force”
Ld. Trial Court also did not appreciate that the scope of the
powers of the Court provided under the DV Act as the statute itself provides
a concurrent jurisdiction. Therefore, it cannot be said that there is overruling
effect of one of jurisdiction while granting maintenance in different
proceedings. Ld. Trial Court has failed to appreciate the law as settled in
the various judgments of the Hon’ble Supreme Court and Hon’ble High
Court. Ld. Trial Court has failed in exercising its power u/s 19 DV Act in
providing an alternate accommodation to the appellant especially when the
appellant had been thrown out of her shared household on 28.05.2015. The
appellant is entitled to an accommodation at par with her shared household.
Ld. MM did not consider the judgments of Hon’ble Supreme Court of India.
It is prayed that appeal be allowed and order dated 06.04.2018 be set side.
3. Reply to the appeal filed by the respondents and in reply the
allegations were controverted. It is mentioned that Ld. Trial Court has
rightly relied upon the judgment titled as “Rachna Kathuria v. Ramesh
Kathuria” 173 (2010) DLT 289 passed by Hon’ble High Court and rightly
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dismissed the application of the appellant. In reply on merits, the averments
of the appeal were denied. It is also mentioned that Ld. Trial Court has
correctly placed reliance on judgment titled as “Sh. Bharat Hegde Vs. Smt.
Saroj Hegde” 140 (2007) DLT 16, I (2007) DMC and rightly dismissed the
application of the appellant. It is prayed that appeal be dismissed.
4. Appellant has also filed rejoinder to the reply.
5. I have heard Ld. counsel for the appellant, Ld. counsel for
respondents at length and perused the records of this court as well as Trial
Court very carefully.
6. Perusal of the Trial Court Record reveals that the appellant has
filed petition under Section 12 of the Domestic Violence Act and she has
also leveled certain allegations against the respondents. The appellant has
also filed application u/s 23 of the Domestic Violence Act and also claimed
protection under Section 18 of the Protection of Women from Domestic
Violence Act. She has also prayed residence order under Section 19 of the
Protection of Women from Domestic Violence Act and also prayed
monetary reliefs under Section 20 of the Protection of Women from
Domestic Violence Act. She has also claimed compensation under Section
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22 of the Protection of Women from Domestic Violence Act and also
claimed interim and exparte orders under Sections 23 of the Protection of
Women from Domestic Violence Act.
7. Ld. Trial Court vide order dated 06.04.2018 has dismissed the
application under Section 23 of the Domestic Violence Act solely on the
grounds that Ld. Family Judge has already granted maintenance to the
appellant under Section 125 Cr.P.C. It is also held that appellant has to
move the same court and she cannot approach MM under the Protection of
Women from Domestic Violence Act by way of an application of interim or
final nature to grant additional maintenance. Thus, no relief in this regard
can be granted. Ld. MM has also placed reliance on judgment titled as
“Rachna Kathuria v. Ramesh Kathuria” 173 (2010) DLT 289 passed by
Hon’ble High Court. Ld. MM has also held that Ld. Family Court vide
order dated 23.01.2017 has already considered the rent for the rented
accommodation payable by the respondent no. 1 as is clear from para no. 16
of the said order that the prayer of rent to the tune of Rs. 2,50,000/ per
month of the complainant was considered by the Ld. Family court and
further as per para nos. 35,36 and 37 of the said order Rs. 1,20,000/ per
month was granted as maintenance after considering rent for the
complainant. So this forum cannot be used to claim enhanced maintenance
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by the complainant and thus, this relief is also not granted to the
complainant. Ld. Trial Court has also declined to grant any relief directing
the respondents from alienating their assets holding that it is a matter of trial
as to whether or not respondent no. 1 has share holding in DANMET
Chemicals Pvt. Ltd. and at this stage no relief in this regard is granted to the
complainant.
8. Ld. counsel for the respondents has heavily placed reliance on
judgment titled as “Rachna Kathuria v. Ramesh Kathuria” 173 (2010)
DLT 289 passed by Hon’ble High Court wherein, it is held that “If the
woman has already moved Court and her right of maintenance has been
adjudicated by a competent Civil Court or by a competent Court of
MM under Section 125 Cr.P.C., for any enhancement of maintenance
already granted, she will have to move the same Court and she cannot
approach MM under the Protection of Women from Domestic Violence
Act by way of an application of interim or final nature to grant
additional maintenance”. Ld. counsel for respondents has also placed
reliance on judgment titled as “S. Suriya Devi Vs. Thilip Kumar” passed
by Hon’ble Madras High Court wherein, it is held that “The petitioner
herein having chosen to invoke the provisions of the Domestic Violence
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Act seeking for monetary relief under Section 20(3), cannot
subsequently invoke Section 125 Cr.P.C., for maintenance on the same
set of facts and cause of action in view of my reasonings given above.
Even otherwise, there is no provision under the Code of Criminal
Procedure empowering the Magistrate to order for maintenance under
Section 125 Cr.P.C., when it is brought to his notice that an order for
maintenance has already been granted under Domestic Violence Act or
any other enactments. If both the Courts are permitted to adjudicate
the claim made by the respondent/wife and in case, an order is passed
granting maintenance in both the cases, there would be gross
miscarriage of justice and the petitioner would be put to serious
prejudice. Hence, it would be impediment that the subsequent
proceedings initiated by the respondent herein under the provisions of
Section 125 Cr.P.C., requires to be quashed. No prejudice would be
caused to the respondent by quashing the proceedings since her interest
has already been protected in her earlier proceedings under Domestic
Violence Act”.
On the other hand, Ld. counsel for the appellant has placed
reliance on judgment titled as “Juveria Abdul Majid Patni vs. Atif Iqbal
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Mansoori and Anr.” (2014) 10 SCC 736 passed by Hon’ble Apex Court of
India wherein, it is held that “the monetary relief as stipulated under
Section 20 is different from maintenance, which can be in addition to an
order of maintenance under Section 125 Cr.P.C. or any other law.” Ld.
counsel for the appellant has also placed reliance on judgment titled as
“Bharat Bararia Vs. Priyanka Bararia” passed by Hon’ble Delhi High
Court wherein, it is held that “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”.
Ld. counsel for the appellant has also placed reliance on judgment titled as
“Deepa Vs. Balaji” passed by Hon’ble Madaras High Court wherein, it is
mentioned that “An order passed under Section 125 Cr.P.C. will not take
away the jurisdiction of the Matrimonial Courts/Civil Courts to grant
pendent lite maintenance to the wife and children under Sections 24, 26
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of the Hindu Marriage Act. An order of maintenance passed under
Section 125 Cr.P.C shall not bear the wife and the children to recourse
to Sections 24, 26 of the said Act and seek maintenance in the pending
matrimonial proceedings. They can seek such a relief in a matrimonial
proceedings initiated either by the husband or by the wife herself”. Ld.
counsel for appellant has also placed reliance on judgment titled as “Haresh
Narayan Jaguja Ors. Vs. Namrata Haresh Jaguja Jyoti Ors.”
passed by Hon’ble High Court of Gujarat, wherein, it is held that
“Therefore, the provisions of law is very much clear that the competent
Court under the Protection of Domestic Violence Act, 2005 has wide
powers to grant loss of earning, medical expenses, loss due to other
destruction and damages or removal of any property from the control
of aggrieved person, as well as maintenance under Section 125 of Code
or even in addition to Section 125 of the Code or in any other law for the
time being in force and, therefore, once it is proved before the Trial
Court that there was domestic violence and Trial Court is empowered
to grant monetary benefits, there is no restriction to grant appropriate
amount of maintenance even if an order exists under Section 125 of the
Code”. In this judgment, it is also held that “Therefore, even if there is no
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reference of maintenance either under Subsection (2) of Section 12 or
in Section 20 of the Act, the fact remains that there is concurrent
jurisdiction the statute provides concurrent jurisdiction and, therefore,
it cannot be said that there is overruling of jurisdiction while granting
maintenance in different proceedings. At the most, what is required to
be considered while deciding the claim of maintenance is that amount
already awarded in a previous litigation may be taken into
consideration for arriving at final amount of maintenance and, thereby,
if order of only additional amount is there, then there is no overlapping
and if award is for maximum amount of maintenance that can be
awarded then setoff against amount payable under any previous
proceedings is to be extended”. Ld. counsel for the appellant has also
placed reliance on judgment titled as “Richa Arya Vs. State of NCT of
Delhi Anr.” passed by Hon’ble High Court of Delhi, wherein, it is held
that “It is not necessary that relief available under Sections 18, 19, 20, 21
and 22 can only be sought for in a proceeding under the Domestic
Violence Act, 2005. Any relief available under the aforesaid provisions
may also be sought for in any legal proceeding even before a civil court
and Family Court, apart from the criminal court, affecting the
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aggrieved person whether such proceeding was initiated before or after
the commencement of the Domestic Violence Act.” In this judgment, it is
also held that “From a perusal of the orders impugned, I am of the view
that both the Courts below did not take into account that a relief under
Section 12 of the Act is in addition to any other relief which could be
granted by any court of law to the petitioner in any forum. Both the
courts have avoided giving interim relief only on the premise that the
petitioner was being paid maintenance pendente lite under the orders of
the competent court in divorce proceedings. I am also constrained to
observe that it took the learned Metropolitan Magistrate three years to
decide the interim application.” Ld. counsel for the appellant has also
placed reliance on judgment titled as “Karamchand Ors. Vs. State NCT
of Delhi Anr.” passed by Hon’ble High Court of Delhi, wherein, it is
held that “A perusal of Section 20 of the Act clearly shows that the said
provision was made for granting monetary relief to a woman who
claims to be a victim of domestic violence. The section provides for such
relief to be paid under four heads, one of which is payment of
maintenance under or in addition to the maintenance sought under
Section 125 Cr.P.C. If the section is read in the manner suggested by the
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counsel for the petitioners, then clause 1(d) of Section 20 of the Act
would be rendered otiose and if such had been the intention of the
legislature then there would have been no need to enact a specific
provision for payment of maintenance in the Act. In this view of the
matter, the submission of the counsel for the petitioners is rejected as
being untenable.”
9. In view of the above judgments, I am of the view that Ld.
Trial Court has not discussed the judgments of Hon’ble Supreme Court of
India and Hon’ble High Courts. The order dated 06.04.2018 is set aside and
matter is remanded back to the Ld. Trial Court to decide the interim
application u/s 23 of the Domestic Violence Act afresh after taking into
consideration the above mentioned judgments and the Provisions of D.V.
Act. Ld. Trial Court is directed not to be influenced with the observations
made by this court in this judgment. Parties are directed to appear before Ld.
Trial Court on 01.10.2018.
Trial Court record be sent back along with copy of judgment.
Appeal file be consigned to Record Room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 26.09.2018. Spl. Judge, CBI02,
New Delhi District, PHC.
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