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Neelam Gupta vs Mahipal Sharan Gupta on 29 April, 2020

CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER

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Non-reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 417-418 OF 2020
(Arising out of Special Leave Petition (Criminal) Nos.4044-4045 of 2019)

NEELAM GUPTA …APPELLANTS

VERSUS

MAHIPAL SHARAN GUPTA AND ANOTHER …RESPONDENT

ORDER

Uday Umesh Lalit, J.

1. Leave granted.

2. These appeals arise out of the common Judgment and Order dated

15.11.2018 passed by the High Court of Delhi at New Delhi in Criminal M.C.

No.3391 of 2017 and in Criminal M.A. No.13845 of 2017, by which the High

Court affirmed (i) the order dated 26.10.2016 passed by Mahila Court in

proceedings initiated by the appellant under Section 12 of the DV Act1 and (ii)
1
The Protection of Women from Domestic Violence Act, 2005
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER

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the order dated 15.04.2017 passed by Additional Sessions Judge-2, (North),

Rohini Courts, Delhi in Criminal Appeal No.30 of 2016.

3. The facts leading to the passing of the order dated 26.10.2016, as

captured in the aforementioned order dated 15.04.2017 are as under:-

“The short history of the litigation between the
appellant and the respondents, as brought on record, is that
Sh. Mahipal Gupta (respondent No.1 herein) was married
to one Ms. Geeta Gupta and two issues, one son namely
Arnav Gupta and a daughter Garima were born out of their
wedlock and after the demise of Ms. Geeta Gupta on
October 10, 2004, the respondent No.1 married the
appellant Mrs. Neelam Gupta and both were residing in the
premises in question that basically was owned by Ms.
Geeta Gupta, the first wife of the respondent No.1.

After some time of the marriage of the appellant, Ms.
Neelam Gupta with her second husband Sh. Mahipal Gupta
turned sour and parties were before the courts of law as Ms.
Neelam Gupta, the appellant had filed a petition for
protection of her rights of her residence etc., under the
Protection of Women from Domestic Violence Act, 2005
(hereinafter referred as the DV Act) and claimed a right of
residence claiming such property as shared household and
vide order dated 17-06-2008, the Ld. Trial Court had
passed a protection order of the residence to the appellant
in such premises. The appellant has also filed a civil suit
No.295/2009 qua such premises and she had obtained an
interim injunction against here husband from her
dispossession form the premises in question.

Thus, the appellant had two protective orders qua the
property in question, one under the DV Act and another
under the injunction suit.

Sh. Arnav Gupta, respondent No.2, the son of the first
wife of respondent No.1 (the husband of the appellant
herein) filed the partition suit qua the premises in question
that got decreed and even the final decree was made
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER

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executable vide orders dated 03-04-2013 of the Hon’ble
High Court, in the Chamber Appeal against the orders
dated 06-08-2011, vide which the application of the
appellant (Ms. Neelam Gupta) seeking impleadment in the
suit of partition under Order 1 Rule 10 CPC was dismissed
and such appeal was also dismissed thereby the final decree
passed in the CS (OS) 858/2010, made executable, subject
to the vacation/variation of order dated 17-06-2008 in DV
Act.

The appellant herein, had also preferred an RFA
(OS)/96/2013 against the final decree that was also
dismissed vide order dated 19-02-2014 passed by the two
judges’ bench of HMJs Sh. Pradeep Nandrajog and Jayant
Nath, J.J. of Hon’ble High Court, with the observations:

‘Under the Protection of Women from
Domestic Violence Act, 2005 the appellant
would certainly be entitled to a shared residence
being her matrimonial home or in lieu thereof
her husband to provide her with a suitable
reasonable accommodation in accordance with
law.

The vacation/variation contemplated by
the impugned order would mean the appellant’s
possessory rights cannot be disturbed with
respect to the flat in question unless the husband
obtains an order from the learned Metropolitan
Magistrate to offer an alternative
accommodation to the appellant in accordance
with law’.

3. In the above-noted brief history and the relevant facts
of the case, the respondent No.2 Sh.Arnav Gupta, (the
Decree Holder) filed an application for variation of the
protection orders dated 17-06-2008 that was disposed of
vide orders dated 26-10-2016, against which the appeal has
been preferred by the appellant.”
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER

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4. The application for variation of the protection order dated 17.06.2008

was disposed of by Mahila Court with following observations:-

“It is seen that petition suit has already decreed and
property at Hudson Lines has been ordered by Hon’ble
High Court subject to variation of order dated 17.06.2008.
Further, it is seen that respondent has offered to
complainant the premises at the place where she is not
comfortable. It is settled law that complainant is entitled to
same standard of living as she had during her marriage at
the time when she was living at her matrimonial home.
Keeping in view the above facts respondent is directed to
provide similar accommodation in the same locality where
complainant is presently living or rent of Rs.15000/- p.m.
in lieu of same. Accordingly, application stands disposed
of.”

5. In Criminal Appeal No.30 of 2016 arising therefrom the relevant

issues were considered as under:-

“9. On going through the records, in the light of
contentions of both the parties the law referred above
during the course of arguments and the settled legal
propositions of law as settled by the higher courts including
the Hon’ble Apex Court in catena of judgments, for the
‘shared household’ for providing interim protection to the
appellant under the Act, in the above-noted history of the
case in hand, it is observed that admittedly the premises in
question in which the interim protection of right of
residence has been granted vide orders dated 07-06-2008,
was belonging to and was in absolute ownership of one Ms.
Geeta Gupta, the first wife of respondent No.1 and the
respondent No.1 as husband of his demised wife, in the
partition suit filed by his son born out of the wedlock of his
first wife, had been awarded only a ⅓rd share of sale
proceeds of the proposed sale of the premises in question
and in no stretch of imagination, such premises could be
assumed to be a ‘shared household’ within the definition, as
prescribed within the Act.”
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER

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10. The right of protection for residence available to the
appellant is only against the respondent No.1, her husband
and in the light of observations made by Hon’ble High
Court in orders dated 19-02-2014, her husband, the
respondent No.1 was “to provide her with a suitable,
reasonable accommodation in accordance with law.”

13. Also, if the alternative accommodation offered by the
respondent No.1, her husband, is not acceptable then the
appellant may move an appropriate leave/application before
the Ld. Court thereby rejecting such offers and
offering/proposing such kind of accommodation available
in the area of ‘her choice’ and if the rent ordered within the
impugned orders is not sufficient then appropriate
application/leave may be moved before such court within
the provisions of the Act, seeking modification of such
orders qua the quantum of rent.

It is observed that certain available accommodation
with the limits of rent @ Rs.15,000/- have been shown
through a website other websites can also be visited to
fetch an alternative accommodation of her choice.”

6. In further challenge raised at the instance of the appellant, the

aforesaid orders dated 26.10.2016 and 15.04.2017 were affirmed by the High

Court. The present appeals were being entertained by this Court principally to

explore the possibilities of settlement between the appellant and the

respondent No.1. The rival submissions on the point were noted in the order

dated 18.11.2019 as under:-

“It is submitted by the petitioner that she is willing to move
into a smaller apartment (one bed room set) either in the
locality where she is presently residing or in or around
Lajpat Nagar III where her brother is presently residing.

CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER

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Let options in that behalf be given by the respondent-
husband within a day to the petitioner who shall thereafter
exercise her choice within 10 days.

Alternatively, it is suggested by Mr. Gogia that ⅓rd value of
the apartment where the petitioner is residing (equal to the
share of the respondent-husband in said apartment) can be
made over to the petitioner by way of permanent
settlement. In order to effectuate this part, the apartment
will be required to be sold whereafter ⅓rd share of the
value will be handed over to the petitioner.

The aforesaid options are given by the respondent-husband
subject to the petitioner agreeing to the annulment of the
marital relationship between the parties and to a decree for
divorce.”

7. Certain options about rented accommodation were given by the

respondent No.1 which were not accepted by the appellant and as such while

reserving the matter for orders, it was observed by this Court in its order dated

21.1.2020 as under:-

“The petitioner is at liberty to place on record such options
as she considers appropriate where a tenement having one
bedroom apartment could be provided on rental basis. The
petitioner may give all the details including the component
of rent per month as well as the amount of security, if any
required to be kept in deposit with the landlord along with
any reasonable brokerage, if so required. The details may
be provided within a week’s time. The respondent may
respond within 3 days thereafter,”

8. Accordingly, an affidavit has been filed by the appellant on

01.02.2010. The affidavit states that despite best efforts on part of the

appellant, she was not able to find any suitable accommodation on rental basis
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
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and as such she was willing to accept the suggestion made on behalf of the

respondent No.1 on the previous occasion with regard to ⅓rd share in the

value of the apartment. The affidavit further indicates that the market value of

the apartment would be in the region of Rs. 1.85 to 2.25 crores and the

appellant be granted at least Rs.65 lakhs as ⅓rd share by way of settlement as

offered by the respondent No.1. The affidavit asserts as under:-

“19. That the petitioner expresses her reasonable
apprehensions that the respondent no.1 may utilize his
professional and personal contacts to obtain quotations for
very low sale consideration against the actual prevailing
market price and monetary receipts for the said apartment,
and offer a lesser amount of compensation to the petitioner
against her final settlement. Therefore, in view of the
prevailing market price of the said apartment, the petitioner
humbly submits that a minimum threshold of Rs.65 lakhs
as the ⅓rd share of the sale proceedings may kindly be
guaranteed to the petitioner by the respondent No.1. The
said amount should be absolute in nature and free from any
deductions on any account.

20. That having no other income of her own, the
petitioner will have to put the said money in a fixed deposit
in the bank and utilize the monthly interest to make
payment of her monthly rentals and bare survival for the
remaining period of her life. Hence, the petitioner humbly
prays that her permanent settlement amount may kindly be
fixed after due consideration of all the facts
circumstances of petitioner as explained in the above
paragraphs.”

9. No response has been filed by the respondent No.1 either disputing the

market value of the apartment as stated by the appellant or traversing the
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
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submission that the appellant be granted at least Rs.65,00,000/- (sixty-five

lakhs) by way of permanent settlement. In any case, the respondent No.1 had

shown willingness to make over to the appellant 1/3rd value of the apartment

by way of permanent settlement. This order is, therefore, premised on such

willingness and the assumption that the other sharers, namely, the son and the

daughter of the respondent No.1 from his first wife are also willing and

agreeable to the sale of the apartment.

10. In the circumstances, we direct: –

A) The respondent No.1 shall within four weeks from today deposit a

sum of Rs.5,00,000/- towards interim payment of consideration of 1/3rd value

of his share in the apartment as well as Rs.1,00,000/- (being rent for six

months at the rate of Rs. 15,000/- per month as directed by the Courts below

and Rs.10,000/- towards out of pocket expenses of the appellant) in the

Registry of this Court.

B) Within two weeks of such deposit, the appellant and the respondent

No.1 shall file an appropriate application under Section 13B of the Hindu

Marriage Act, 1955 (“the Act” for short) seeking divorce by mutual consent in
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER

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pending proceedings by way of necessary amendment or initiate fresh

proceeding in that behalf.

C) Within eight weeks of filing of such application, the appellant shall

vacate and hand over peaceful possession of the apartment to the respondent

No.1, whereafter the aforesaid sum of Rs.6,00,000/- deposited in the Registry

of this Court shall be handed over to the appellant. It will be entirely upto the

appellant to re-locate herself at such place as she deems appropriate.

D) The respondent No.1 may thereafter cause such minor repair works

including painting of the apartment, if necessary. The apartment shall then be

put up for sale. The sale shall be completed within three months of the

appellant vacating the same. All the sale proceeds shall be deposited in the

Registry of this Court.

E) After the sale is effected and the proceeds are deposited as stated

above, a sum of Rs.60,00,000/- shall be set apart to be handed over to the

appellant after the stage of second motion in the proceeding under Section

13B of the Act is undertaken as stated hereafter. After setting apart said sum

of Rs.60,00,000/- rest of the amount shall be handed over by the Registry to
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER

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the son and daughter of the respondent No.1 from his first wife, in equal

shares.

F) The appellant and the respondent No.1 shall appear before the

concerned Court for second motion stage in the proceeding under Section 13B

of the Act in order to dissolve the marriage by mutual consent. As an integral

part of such dissolution, Rs. 65,00,000/- by way of permanent alimony shall

be provided to the appellant, in the manner indicated in these directions.

G) After the decree for dissolution as aforesaid is passed by mutual

consent, the balance sum of Rs.60,00,000/- shall be made over to the appellant

by the Registry of this Court.

H) It is made clear that in case the sale consideration of the apartment is

greater than 1,95,00,000/- and consequently 1/3rd share of the respondent No.1

is greater than Rs. 65,00,000/-, the appropriate amount representing 1/3 rd share

of the respondent No.1 in the additional sum shall be made over to the

appellant. It is further made clear that even if the sale consideration is less

than Rs.1,95,00,000/-, the respondent No.1 shall still be liable to make over

Rs.65,00,000/- by way of permanent alimony to the appellant.
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
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Upon such payment of 1/3rd share of the respondent No.1 in the

apartment or Rs.65,00,000/- (whichever is higher) and passing of the decree

for dissolution of marriage as stated above, nothing further need be done by

the respondent No.1 towards maintenance, upkeep and residence of the

appellant and such payment shall be in full discharge of all the obligations on

part of the respondent No.1.

I) If for any reason, the apartment is not sold by the respondent No.1, the

appellant shall be entitled to retain the sum of Rs.6,00,000/- and shall also be

entitled to re-enter the apartment in question. Her re-entry shall be facilitated

by the respondent No.1 within seven days of the expression of intent to re-

enter on part of the appellant. To effectuate this, a communication shall be

sent by the respondent No.1 to the appellant within two weeks of the expiry of

period for completion of sale as contemplated by clause (D) of these

directions. In case the appellant chooses not to re-enter, the respondent No.1

shall be obliged to pay to her Rs.30,000/- per month towards rent. Needless to

state that in either of such eventualities, the application preferred by the

parties under Section 13B of the Act shall stand dismissed. However, such

dismissal shall not affect any other proceedings between the appellant and the

respondent No.1.

CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
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J) Except for the sale of the apartment to be effected in the manner set

out hereinabove, the respondent No.1 shall not create any third party rights in

respect of the apartment nor shall he deal with the apartment in a manner

which may prejudice the interest of the appellant.

K) It shall however be open to the respondent No.1 and his son and

daughter to decide not to sell the apartment and retain it unto themselves; in

which event the respondent No.1 shall make over to the appellant a sum of

Rs.70,00,000/- instead of 1/3rd value of the apartment as stated above and rest

of the terms indicated above shall apply, mutatis mutandis. In other words, in

case such decision is taken, the appellant shall be paid Rs.65,00,000/- over

and above the sums indicated in clause (A) of these directions.

L) In case the respondent No.1 fails to deposit the sum of Rs.6,00,000/-

within the time stipulated in clause (A) of these directions, this Appeal shall

stand allowed and the Orders under appeal will stand set aside. Consequently,

the application preferred by the appellant under Section 12 of the DV Act

shall stand allowed.

M) Any violation of these directions shall invite action in Contempt.
CRIMINAL APPEAL NOS.417-418 OF 2020 @ SLP (CRL) NOS.4044-4045 OF 2019
NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER

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11. With the aforesaid directions this appeal is disposed of. No order as to

costs.

.………..…..……..……J.

(Uday Umesh Lalit)

..………….……………J.

(Indu Malhotra)

..………….……………J.

(Krishna Murari)

New Delhi,
April 29, 2020

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