Richa Arya Vs State Of Nct of Delhi and Anr
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) Protection of Women
from Domestic Violence Act, 2005 - Section 18, 19, 20, 21, 22, 23 - Interim
monetary relief - Already granted granted maintenance pendente lite of
Rs.5000/- per month under section 24 of the Hindu Marriage Act, 1955 in a
proceeding for divorce – 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 aggrieved
person whether such proceeding was initiated before or after the commencement
of the Domestic Violence Act - 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 – Orders do
not stand the scrutiny of law and are therefore set aside.
(ii) Protection of
Women Domestic Violence Act, 2005 - The object behind enacting the Act is to
provide civil law remedies, which hitherto, had not been provided, for
elimination of all kinds of discrimination/ abuse against women.
The Act, thus, provides
for the rights of women to secure housing, to obtain protection orders against
any form of domestic violence, monetary reliefs (interim and permanent),
custody of children and compensation. [Para 13]
HIGH COURT OF DELHI AT NEW
DELHI
CRL.REV.P. 300/2015
RICHA ARYA –
Petitioner,
versus
STATE OF NCT OF DELHI
& Anr - Respondents.
Ms.Aishwarya Rao, Adv.
For the peitioner.
Through Mr. M.P. Singh,
APP. SI Mousam Ghani, PS Mayur Vihar. Mr. Mohit
Mathur, Sr. Advocate
with Mr.Narinder Sharma, Adv. for R-2
Present: Hon’ble Mr. Justice Ashutosh Kumar
Present: Hon’ble Mr. Justice Ashutosh Kumar
JUDGEMENT
ASHUTOSH KUMAR , J. –
(Reserved on: 17.12.2015 Date of decision: 09.02.2016)
Crl.M.A No.17968/2015
Exemption allowed
subject to all just exceptions.
Application is disposed
of.
CRL.REV.P. 300/2015
1. Richa Arya has
questioned the legality of the order dated 15.10.2014 passed by the learned
Metropolitan Magistrate (Mahila Court-02) East, whereby the prayer made on her
behalf for monetary relief, as an interim measure, under section 23 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to
as the 'Act') was rejected primarily on the ground that she had been granted
maintenance pendente lite of Rs.5000/- per month under section 24 of the Hindu
Marriage Act, 1955 in a proceeding for divorce instituted by her husband
(respondent no.2) and therefore she was not entitled to the grant of additional
maintenance; as also against the appellate judgment and order dated 24.01.2015
passed by the Additional Sessions Judge-03 East, Karkardooma Courts, Shahdara,
Delhi in Crl. Appeal no. 120/2014, whereby the
order passed by the
learned Metropolitan Magistrate, referred to above, was affirmed and upheld.
2. In order to
appreciate the contention of the petitioner, it would be necessary to set out
the facts leading to invocation of the provisions of the Act by the petitioner.
3. The petitioner was
married to respondent no.2 on 10.02.2010 and within a short span of about 3
months, she was subjected to an additional demand of 8-10 Lakhs as dowry and
was harassed for nonpayment of the same. In the fourth month of the matrimonial
relationship of the petitioner with the respondent no.2, she was beaten up and
ousted from her matrimonial home. When she attempted to enter the matrimonial
household on 21.08.2010, she was put to a shameful incident when half of her
body remained inside the gate of the house and the half remained inside: the
gates were deliberately closed by the in-laws while the petitioner was entering
the house. The aforesaid incident was published in print and visual media.
4. Forced by such act
of cruelty by the abusers including respondent no.2, a complaint was lodged on
26.08.2010 with CAW cell. Relevant would it be to state that the petitioner
gave birth to a child namely Krisha @ Mishty on 24.11.2010. So shameless were
the matrimonial relatives of the petitioner that she was even roughed up in the
CAW cell and the police, per force, had to draw up a Kalandra under section
107/151 Cr.P.C. This was followed by registration of FIR bearing no. 87/2011
instituted under Sections 498A/406/34 IPC in PS Mayur Vihar against respondent
no.2 and his other family members. As part of clever strategy, the respondent
no.2 filed a petition for divorce in the Family Court at Ghaziabad, U.P. IN the
aforesaid petition for divorce, the petitioner preferred an application under
section 24 of the Hindu Marriage Act, 1955 for maintenance pendente lite and
was granted maintenance at rate of Rs. 5000/- p.m.
5. The petitioner also
filed an application under section 12 of the Act before the learned Magistrate,
Karkardooma Courts, for protection, residence, monetary reliefs, custody of
child and compensation. She simultaneously moved an application under section
23 of the Act for interim relief.
6. In the aforesaid
application, the petitioner asserted that respondent no.2 was a man of
substance and was earning at least Rs. 1,20,000/- p.m. from different sources,
whereas she did not have any independent source of income and was unable to
maintain herself as well as her daughter.
7. The respondent no.2,
though, admitted the factum of marriage and birth of the child out of the said
wedlock but denied all instances of domestic violence alleged by the petitioner
and her assertion of respondent no.2 earning Rs. 1,20,000/- p.m. from various
sources. On the contrary, it was averred on behalf of respondent no.2 that the
petitioner was a post-graduate/MCA and working in an MNC in Gurgaon, Haryana,
which fetched approximately Rs. 15,000/- p.m. to her. It was further contended
that the petitioner was already getting Rs. 5000/- p.m as maintenance under
orders of the Family Court, Ghaziabad, passed under Section 24 of the Hindu
Marriage Act, 1955.
8. The petitioner as
well as the respondent no.2 filed their affidavits of income and assets before
the learned Metropolitan Magistrate with their respective claims.
9. However, the learned
Metropolitan Magistrate adopted the shortest route holding that in view of
contradictory stand with respect to the financial strength made by the parties,
the Court was only required, at that stage, to take a prima facie view of the
matter for granting interim relief under the Act. The learned Metropolitan
Magistrate, on consideration of the fact that the petitioner had been awarded
maintenance by a Family Court in a divorce proceeding, held that she was not
entitled to any additional maintenance.
10. In Crl. Appeal
120/2004, where the aforesaid order was put to challenge, it was held that
since interim maintenance is only awarded to prevent vagrancy and starvation
and that the petitioner was already getting Rs. 5000 p.m. so there was no
requirement of giving any additional maintenance amount. The order of the learned
Metropolitan Magistrate was, therefore, upheld and affirmed.
11. Ms. Aishwarya Rao,
Advocate who was requested by this Court to help the petitioner, submitted that
the affidavit of income and assets given by the respondent no.2 concealed his
actual income; both the Courts below were wrong in holding that if maintenance
pendente lite was awarded by the family court, no interim maintenance could be
granted under the Act; there were other prayers in the petition filed under
section 12 of the Act which were completely ignored and that the interim
maintenance application was disposed of in three years when the prescribed
period of time for disposing such application is one year. It was further
argued that both the courts did not consider the aspect of maintenance of the
minor daughter.
12. The respondent
no.2, on the other hand, submitted that the petitioner herself was well
qualified having a degree of MCA/PG and had been working in an MNC in Gurgaon
and was earning Rs. 50,000/- p.m. It was further contented that the petitioner
had other sources of income as well. He has been residing in a rented
accommodation since 25.06.2010 on a monthly rental of Rs. 3,000/-.
The personal belongings
of the petitioner are also said to have been returned by the respondent no.2.
It was lastly submitted that the petitioner could not claim maintenance from
different forums.
13. The object behind
enacting the Act is to provide civil law remedies, which hitherto, had not been
provided, for elimination of all kinds of discrimination/abuse against women.
The Act, thus, provides for the rights of women to secure housing, to obtain
protection orders against any form of domestic violence, monetary reliefs
(interim and permanent), custody of children and compensation.
14. It would be
necessary and desirable to refer the relevant provision of the Domestic
Violence Act, 2005.
15. The definition of
an “aggrieved person” is provided under Section 2(a) of the Domestic Violence
Act, 2005, which is as follows:
“2. (a) “aggrieved
person‟ means any woman who is, or has been, in a domestic relationship with
the respondent and who alleges to have been subjected to any act of domestic
violence by the respondent.”
16. On perusal of the
foregoing, it is amply evident that in addition to a woman who is in a domestic
relationship, any woman who has been, in a domestic relationship with the
respondent, if alleges to have been subjected to act of domestic violence by
the respondent, would come within the meaning of “aggrieved person”.
17. The definition of a
“domestic relationship” reads as follows:
“2. (f) “domestic
relationship‟ means a relationship between two persons who live or have, at any
point of time, lived together in a shared household, when they are related by
consanguinity, marriage or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family;”
18. In view thereof an
aggrieved person, who at any point of time has lived together with husband in a
shared household, is also covered by the meaning of “domestic relationship”.
19. Chapter IV of the
Domestic Violence Act, 2005 deals with “procedure for obtaining the orders of
reliefs”.
20. Section 12 relates
to the application to Magistrate, which reads as follows:
“12.Application to
Magistrate.—
(1) An aggrieved person
or a Protection Officer or any other person on behalf of the aggrieved person
may present an application to the Magistrate seeking one or more reliefs under
this Act:
Provided that before
passing any order on such application, the Magistrate shall take into
consideration any domestic incident report received by him from the Protection
Officer or the service provider.
(2) The relief sought
for under sub-section (1) may include a relief for issuance of an order for
payment of compensation or damages without prejudice to the right of such
person to institute a suit for compensation or damages for the injuries caused
by the acts of domestic violence committed by the respondent:
Provided that where a
decree for any amount as compensation or damages has been passed by any court
in favour of the aggrieved person, the amount, if any, paid or payable in
pursuance of the order made by the Magistrate under this Act shall be set off
against the amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of
1908), or any other law for the time being in force, be executable for the
balance amount, if any, left after such set off.
(3) Every application
under sub-section (1) shall be in such form and contain such particulars as may
be prescribed or as nearly as possible thereto.
(4) The Magistrate
shall fix the first date of hearing, which shall not ordinarily be beyond three
days from the date of receipt of the application by the court.
(5) The Magistrate
shall endeavour to dispose of every application made under sub-section (1)
within a period of sixty days from the date of its first hearing.”
21. The Act empowers
the Magistrate to grant relief to protect the right to reside in the shared
household (section 17), to pass protection orders (section 18) to prevent the
commission of any act of domestic violence, pass residence orders (Section 19)
to prevent the aggrieved person from being deprived of her right to reside in
the shared household, award monetary reliefs (Section 20), pass orders awarding
temporary custody of children (Section 21), pass compensation orders (Section
22), and pass interim and ex parte orders (Section 22) under the aforementioned
sections.
“20.Monetary reliefs.—
(1) While disposing of
an application under subsection (1) of Section 12, the Magistrate may direct
the respondent to pay monetary relief to meet the expenses incurred and losses
suffered by the aggrieved person and any child of the aggrieved person as a
result of the domestic violence and such relief may include, but is not limited
to—
(a) the loss of
earnings;
(b) the medical
expenses;
(c) the loss caused due to the destruction,
damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for
the aggrieved person as well as her 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) or any other law for the time being in
force.
(2) The monetary relief
granted under this section shall be adequate, fair and reasonable and
consistent with the standard of living to which the aggrieved person is
accustomed.
(3) The Magistrate
shall have the power to order an appropriate lump sum payment or monthly
payments of maintenance, as the nature and circumstances of the case may
require.
(4) The Magistrate
shall send a copy of the order for monetary relief made under sub-section (1)
to the parties to the application and to the in-charge of the police station
within the local limits of whose jurisdiction the respondent resides.
(5) The respondent
shall pay the monetary relief granted to the aggrieved person within the period
specified in the order under subsection (1).
(6) Upon the failure on
the part of the respondent to make payment in terms of the order under
sub-section (1), the Magistrate may direct the employer or a debtor of the
respondent, to directly pay to the aggrieved person or to deposit with the
court a portion of the wages or salaries or debt due to or accrued to the
credit of the respondent, which amount may be adjusted towards the monetary
relief payable by the respondent.”
22. In Juveria Abdul
Majid Khan Patni vs. Atif Iqbal Mansoori and Anr. (2014) 10 SCC 736, the
Supreme Court, whilst dealing with a case where the appellant had sought a similar relief under sections 18
to 23 of the Act, observed as follows:
“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.
Such monetary relief 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, which is not dependent on the question whether the
aggrieved person, on the date of filing of the application under Section 12 is
in a domestic relationship with the respondent.”
23. Sections 22, 23
& 25 of the Act provide as hereunder:-
22. Compensation
orders.—
In addition to other
reliefs as may be granted under this Act, the Magistrate may on an application
being made by the aggrieved person, pass an order directing the respondent to
pay compensation and damages for the injuries, including mental torture and
emotional distress, caused by the acts of domestic violence committed by that
respondent.
23. Power to grant
interim and ex parte orders.—
(1) In any proceeding
before him under this Act, the Magistrate may pass such interim order as he
deems just and proper.
(2) If the Magistrate
is satisfied that an 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, he may
grant an ex parte order on the basis of the affidavit in such form, as may be
prescribed, of the aggrieved person under Section 18, Section 19, Section 20,
Section 21 or, as the case may be, Section 22 against the respondent.”
24. 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 aggrieved person whether such proceeding was initiated before or
after the commencement of the Domestic Violence Act.
25. This is apparent
from Section 26 of the Domestic Violence Act, 2005 as quoted hereunder:
“26.Relief in other
suits and legal proceedings.—(
1) Any relief available
under Sections 18, 19, 20, 21 and 22 may also be sought in any legal
proceeding, before a civil court, Family Court or a criminal court, affecting
the aggrieved person and the respondent whether such proceeding was initiated
before or after the commencement of this Act.
(2) Any relief referred
to in sub-section (1) may be sought for in addition to and along with any other
relief that the aggrieved person may seek in such suit or legal proceeding
before a civil or criminal court.
(3) In case any relief
has been obtained by the aggrieved person in any proceedings other than a
proceeding under this Act, she shall be bound to inform the Magistrate of the
grant of such relief.”
26. From a conspectus
of the aforesaid provisions, it would appear that both the courts below did not
appreciate the ambit and scope of the powers of the court under the Act. The
orders passed by both the Courts, therefore, are off balance and skewed as the
reliefs claimed by the petitioner have not at all been adverted to. The interim
relief if any, could have been granted by the court for all such reliefs prayed
by the petitioner.
27. The learned
Metropolitan Magistrate, though, was right in expressing that the evidence
adduced on behalf of the parties would be required to be gone into in detail
for passing a final order, nonetheless, the learned Metropolitan Magistrate
could not have abandoned the task of forming an opinion about grant of interim
relief.
28. 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 pendent 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.
29. The orders
therefore do not stand the scrutiny of law and are therefore set aside.
30. The case is
remanded to the learned Metropolitan Magistrate, in seisin of the matter, who
shall first decide the prayer of interim relief in terms of what has been
stated above within a period of 3 months from the date of passing of the order
or communication/production of a copy thereof and would dispose of the main
proceedings as expeditiously as possible.
31. With the aforesaid
observations and directions the petition is allowed.
1. In view of the
petition having been allowed, this application has become infructuous.
2. This application is
disposed of accordingly.
Ss
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