Delhi District Court
Tezbir Choudharie vs Garima Choudharie on 5 September, 2023
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02,
NORTH-WEST, ROHINI COURT: DELHI
CRL. APPEAL No. 205 of 2023
CNR No. : DLST01-007283-2023
TEZBIR CHOUDHARIE,
S/O LATE SH. YASHBIR CHOUDHARIE
R/O GROUND FLOOR, FLAT NO.1,
CHATTARPUR EXTENSION, NEW DELHI.
......... APPELLANT
VERSUS
GARIMA CHOUDHARIE
W/O TEZBIR CHOUDHARIE
D/O DR. B.S. KUNDU,
R/O E-93, SAKET, NEW DELHI
.........RESPONDENT
DATE OF INSTITUTION : 02.08.2023
ARGUMENTS HEARD ON : 21.08.2023
DATE OF JUDGMENT` : 05.09.2023
* The Judgment in this case was reserved while the Presiding Officer
was holding the Court of Ld. ASJ-5, South, Saket, Delhi but has got
transferred vide General Transfer Posting Order issued by Hon'ble
High Court of Delhi vide order No.35/G-I/Gaz.IA/DHC/2023 Dated
29.08.2023 and the note no.2 appended to the said Transfer Posting
Order required the reserved judgment to be pronounced by the same
Judge in the Court to which he has been transferred.
JUDGMENT
1. Tezbir and Garima married in the year 2017 but parted ways shortly thereafter. Smt. Garima filed a petition under DV Act against Sh. Tezbir and his mother alleging domestic violence and prayed for several reliefs. She also prayed for interim reliefs, one of which pertained to access of shared household through main entrance gate (clearly, she was using other gate for entrance till then, otherwise, there would not have been any occasion to C.A. No.205/2023 Tezbir Choudharie Vs. Garima Choudharie Page No.1 of 10 pray for such a relief). On such request being made, Ld. Magistrate passed an order dated 26.04.2019 directing the respondents before her to give a spare key of the main entrance but the said order was subsequently kept in abeyance.
2. Later on, vide a detailed order dated 06.06.2019, the Ld. Magistrate revoked the earlier direction and directed status- quo to be maintained between the parties. Almost 4 years elapsed after the said order and the said Smt. Garima continued to use the other gate i.e. back entrance and did not make any serious complaint regarding the order dated 06.06.2019 (except a modification application in the year 2021, which will be referred a little later) or regarding any inconvenience being caused to her with the usage of the shared household from the back side entry.
3. On 25.07.2023, however, an order was passed by the Ld. Magistrate modifying the earlier order dated 06.06.2019 to the effect that the said Smt. Garima should be granted access from the front entry gate and the respondents shall provide one spare key for the same. This was done on the basis of an application moved by Garima for modification of the earlier order.
4. The ground taken in the aforesaid application dated 25.03.2023 is that her mother-in-law has expired and that it is not dignified for her to use the back entrance, more so, when there was construction material lying there. On this modification application, the aforesaid order dated 25.07.2023 was passed by the Ld. Magistrate. The said order was challenged by the said Tezbir by preferring an appeal. The appeal shall be disposed of by the present judgement.
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5. I have already heard the arguments from both the sides. I have also gone through the written arguments of Tezbir (filed on 26.08.2023) and Garima (filed today on 05.09.2023).
6. Only two reasons have been cited by the Ld. Magistrate for modifying the earlier order. The first reason is that the mother-in- law has expired. The second reason is that the back entry is in bad shape and therefore, entry-exist from such place would undermine the dignity of the said Smt. Garima.
7. I am of the opinion that both the reasons cited by the Ld. Magistrate are completely unjustified. It appears that the mother-in-law expired on 26.04.2021, which was well within the knowledge of the said Garima. Subsequent thereto, Smt. Garima had filed similar modification application on 22.10.2021 but had specifically withdrawn the same by her statement dated 12.11.2021 indicating that the application became infructuous due to change of circumstances. The said statement was given voluntarily and the said Garima had undertaken to remain bound by her statement. Ld. Counsel for Smt. Garima has tried to argue (in the written arguments) that withdrawal of earlier application does not prohibit filing of subsequent application. I am, however, of the view that no litigant can be allowed to file repeated applications for the same purpose unless very exceptional circumstances are shown to exist. Nothing exceptional has been averred in the application. Clearly, therefore, the death of mother- in-law cannot again be used as a change of circumstance to press for modification of earlier order dated 06.06.2019.
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8. So far as the second reason given by the Ld. Magistrate is concerned, the Ld. Counsel for Smt. Garima has argued that she has right to dignified living. He has relied upon certain judgments including an order of issuance of notice in some case wherein prima-facie observation has been made about dignified living. I am in full agreement with the Ld. Counsel and therefore, I do not find any necessity to deal with the cited judgment/order. However, I am of the view that any claim made by a litigant has to be justified and supported in material particulars before a court can grant any relief. Smt. Garima has not pointed out any instance, which could support the claim that entry & exit from the back portion of the property has been proved to be undignified. Smt. Garima has been using the back entry gate for last several years (even prior to the order dated 06.06.2019, she was using the back entry gate. This is clear from the report of protection officer (filed on 21.05.2019) which says that Smt. Garima had opened the door of back entry which she had locked from inside. It is also available on record that Smt. Garima was and is residing in the back portion on the ground floor adjacent to the back entry). She has not ever complained regarding any inconvenience faced by her in using the back entry gate. She has not even averred in the application as to how such entry was undignified. Smt. Garima is in occupation of the area (of the shared household) which is adjacent to the back entry gate. Such adjacent entry would have been more convenient for a person. A bare and bald claim that it is undignified, cannot be accepted without any supporting material. The Ld. Magistrate tried to support her thinking by saying that the photographs filed by the Smt. Garima indicates that the back entry is in bad shape.
C.A. No.205/2023 Tezbir Choudharie Vs. Garima Choudharie Page No.4 of 10 However, she did not try to verify the authenticity of the photographs or the time when the same were taken or how the back entry suddenly became undignified or problematic. Despite the availability of assistance of the Protection Officer, the Ld. Magistrate chosen not to call for report of physical verification of the area and straight-away jumped to the conclusion that everything projected by the said Smt. Garima is a gospel truth. The second reason cited by the Ld. Magistrate is clearly unsupported, apart from the fact that it does not create a change of circumstance, so as to require modification of the order.
9. It needs to be noted that powers available U/s 25 DV Act is not of unlimited or original jurisdiction. It is an extraordinary power given to the Magistrate to be exercised when there is a change of circumstance that too requiring such modification and further that the power can be exercised only by recording of reasons in writing. This recording of reasons is not an empty formality. It should be on the settled line of judicious application of mind. The change of circumstance should be clearly spelled and should be supported with justified material and reasoning. In the absence of any of these, a Magistrate cannot modify the earlier order without applying her mind properly. Therefore, it would be difficult to sustain the order dated 25.07.2023 through which the Ld. Magistrate has modified her earlier order.
10. There has been a dispute between the parties as to whether Smt. Garima resides in the property or not or whether Tezbir or any of his family members reside there or not or whether Smt. Garima is now exclusively occupying the entire ground floor of the property or not. I am of the view that the Appellate Court C.A. No.205/2023 Tezbir Choudharie Vs. Garima Choudharie Page No.5 of 10 should not go into such kind of dispute. It seems that earlier it was accepted by the Ld. Magistrate in her order dated 06.06.2019 that ground floor was occupied by Smt. Garima and also by the mother of Tezbir. Though, the mother of Tezbir has expired, the same does not automatically result in creating any occupational right in Smt. Garima about the entire ground floor. It appears that in the reply to modification application filed before the Ld. Magistrate, a specific objection was raised that the property has devolved upon one Tanveer (brother of Tezbir) by way of a Will. The said Tanveer is not a party to the proceedings pending before the Ld. Magistrate. If he has become the owner of the property through any lawful means, he cannot be deprived of enjoyment of property whether he resides there or not. Pertinently, Section 18 & 19 of DV Act envisage that Magistrate can restrain any respondent of DV Act proceeding from alienating the property. However, the Ld. Magistrate never passed any such order in the present case and as such, if the mother of Tezbir executed a Will in favour of her other son namely Tanveer, the same cannot offend the law. In Delhi, probate law has no applicability and therefore, probate of Will is not a necessity. In such circumstances, a Will simplicitor can be pressed in any proceeding to show the devolution of interest in the property and if required, the same can be proved through Section 68 of the Indian Evidence Act. The Ld. Magistrate has however, not given any consideration regarding devolution of property on Tanveer. If Tanveer has become owner of the property and is not the party respondent before the Ld. Magistrate, no direction or order could have been passed in respect of the usage of property in any manner contrary to the interest of said Tanveer. Whether or not C.A. No.205/2023 Tezbir Choudharie Vs. Garima Choudharie Page No.6 of 10 the said Tanveer has become the owner of property through a Will cannot be decided on the basis of application, more particularly during any modification application. Such type of dispute has to be settled through proper proceeding but the Magistrate cannot brush aside such an objection raised in the DV Act proceeding for a simple reason that right of property is constitutionally protected and deprivation therefrom has to be through established fair procedure. Pertinently, Section 19 empowers the Magistrate to direct removal of person from shared household but the same has to be confined to a respondent of the DV Act proceeding and not to any other person. The Ld. Magistrate appears to have assumed that Smt. Garima is now in occupation of entire ground floor but she has not provided any supporting basis for such assumption. An owner of a property always remains in possession whether he resides there or not. In such circumstances, I am not inclined to give any finding on the dispute about actual occupational status of the parties.
11. It is pertinent to note that DV Act was enacted to protect the women as a class and when a lady approaches a Magistrate with allegations of domestic violence, she basically reposes faith in the said Magistrate that she would be protected from any kind of violence or disturbance. The Magisterial Court has to act as a guardian of such lady in distress and has to decide the best available course for proper living. In Shachi Mahajan vs Santosh Mahajan 257 (2019) DLT 152, the Hon'ble Delhi High Court was faced with a situation where residency in shared household was not found proper and in the absence of any prohibition, the shared household was alienated. In such C.A. No.205/2023 Tezbir Choudharie Vs. Garima Choudharie Page No.7 of 10 circumstances, it was found that the daughter-in-law therein was required to be protected with a similar residential status without disturbing the property right of the person, in whose favour the alienation was made. This Judgment was confirmed as the Hon'ble Supreme Court had dismissed the SLP. A Magistrate should act to protect the woman and not to pass orders which can protract the sufferings of such woman. It seems that the proceeding before the Ld. Magistrate has not been making any progress as the Ld. Magistrate has to give time in disposing repeated modification applications of either parties. The Ld. Magistrate should decide the DV Act case at the earliest, so that the suffering of woman is curtailed and her rights are protected properly.
12. However, if there is even a slight chance of inconvenience to Smt. Garima by the usage of back gate entry of the shared household, Ld. Magistrate should inquire into the matter properly by asking for a physical verification report from the Protection Officer and instances of problems being faced by the Smt. Garima. The Ld. Magistrate shall also take into consideration the objections raised by Tezbir regarding devolution of property through Will. Thereafter, the Ld. Magistrate may take a decision as to what would be in the best interest of Smt. Garima. The Ld. Magistrate may then exercise any power of modification of order dated 06.06.2019 or any power of passing interim order regarding residential status. Till a conscious decision is taken by the Ld. Magistrate, the parties should maintain status-quo as it was before the passing of first order dated 26.04.2019 by the Ld. Magistrate.
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13. In the last, one contention of the Ld. Counsel for Smt. Garima needs to be dealt with. He has pointed out that after the order dated 25.07.2023, there was some development wherein the Ld. Magistrate passed another order dated 31.07.2023 allowing Smt. Garima to prepare one spare key of front gate and that such key has been prepared and additionally, Tezbir has given one key thereafter. He contended that in such a manner, the order dated 25.07.2023 has been satisfied and therefore, appeal cannot be treated as maintainable.
14. I am, however, of the view that the aforesaid contention is liable to be rejected. The order dated 31.07.2023 was passed by the Ld. Magistrate on another modification application on the premise that the order was not being complied with. Litigants cannot be allowed to get execution of orders by filing modification application. If anyone was not complying with the order dated 25.07.2023, the proper way was to get the order executed in accordance with law and not to get a modification of the relief itself that too in the absence of opposite party (the order dated 31.07.2023 was passed without issuing notice to the opposite side). Be that as it may. Order dated 25.07.2023 requires grant of access from front side which admittedly has not happened till date (this is also clear from the fact that Smt. Garima has filed one more modification application to gain access). In such circumstances, it cannot be said that order dated 25.07.2023 has been satisfied so as to exclude the possibility of interference in appeal.
15. Moreover, Hon'ble Supreme Court in State of Punjab vs Davinder Pal Singh Bhullar 2011 14 SCC 770, has clearly C.A. No.205/2023 Tezbir Choudharie Vs. Garima Choudharie Page No.9 of 10 stated that if initial action is not in consonance with the law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. On similar lines, the judgment in Mangal Prasad Tamoli vs Narwadheshwar Mishra 2005 3 SSC 422 says that if an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non-est and have to be necessarily set aside.
16. In view of the aforesaid discussion, the appeal is allowed and the order dated 25.07.2023 passed by the Ld. Magistrate is set-aside. All consequential proceedings and orders passed by the Ld. Magistrate in relation to or in consequence of the order dated 25.07.2023 shall be treated as non-est and parties shall not utilize the same for any purpose.
17. The Ahlmad of the Court of Ld. ASJ-05 (South), Saket, Delhi shall send a copy of this judgment alongwith TCR to the Trial Court and consign the appeal file to the record room after, due formalities.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 05TH DAY OF SEPTEMBER, 2023 (RAKESH KUMAR SINGH) ADDITIONAL DISTRICT JUDGE-02 (NORTH-WEST):ROHINI COURTS:DELHI C.A. No.205/2023 Tezbir Choudharie Vs. Garima Choudharie Page No.10 of 10