Delhi District Court
vs Prabhat Agrawal on 28 January, 2019
1
IN THE COURT OF SH.SANJEEV AGGARWAL, ASJ02, NORTH,
ROHINI COURTS, DELHI.
New Registration CA No.: 93/2018
Old CA No.: 29/18
Parul Agrawal
Wife of Prabhat Agrawal
Daughter of Late H. S. Shah
Resident of 174, Gujranwala Town
Part II, Delhi
Appellant
Versus
Prabhat Agrawal
Son of Late Mahendra Kumar Agrawal
Resident of 174, Gujranwala Town
Part II, Delhi
Respondent
28.01.2019
JUDGMENT:
1. Vide this judgment, I shall dispose off the present appeal filed by the appellant u/S. 29 of Protection of Women from Domestic Violence Act against the impugned order dated 20.03.2018, passed by Ld. MM, North (Mahila Court), Rohini CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 1 of 14 2 Courts, Delhi thereby dismissing the application of the petitioner by observing that no ground has been made out for claiming any maintenance from the respondent. (Parties are hereinafter being referred to by their respective status before the Trial Court).
2. The brief facts pertinent to the present appeal, which can be gleaned from the order of Ld. Trial Court are reproduced hereunder:
"Present: None.
1. Vide this order the court shall decide the interim application moved by the complainant under Section 23 of Protection of Women from Domestic Violence Act, 2005.
2. Pleadings are complete and income affidavits of both the parties are on record. Arguments have been advanced from both the sides, at length.
3. The complainant submits that she was married to respondent on 01.02.2004 and she is aggrieved person as defined under Section 2 of Domestic Violence Act, 2005. It is submitted that the property bearing kothi no. 174, Gujranwalan Town Part II, Delhi is the shared household and the said property is in the name of respondent who is its exclusive owner. It is submitted that the complainant has to bear lot of cruelty/trauma at the hands of respondent and this creates nuisance for her at the marital home. It is submitted that respondent is harassing her for bringing insufficient dowry with persistent demands/threats for bringing CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 2 of 14 3 more dowry/cash at the matrimonial home. She even submits that she has been repeatedly beaten by the respondent, who is torturing her in one way or another. It is submitted that two children were born out of the wedlock i.e. one male and one female on 19.05.2005 and 05.06.2008 respectively, and the children are studying at Montfort School, Ashok Vihar, Delhi. It is also submitted that the complainant is staying with children in the above mentioned address with the respondent. It is further submitted that her father had given an amount of Rs.80,000/ and other expenses to the respondent on his specific demand in the year 2007 and her parents had given even dowry much beyond their status. It is further submitted that on one occasion, the respondent had declared that he shall throw out the complainant from the shared household and he has also declared that he has a girlfriend with whom he wishes to marry. It is submitted that the complainant kept compromising throughout her married life, however, the cruelty of the respondent is increasing day by day. It is also submitted that she is suffering from pain and mental depression due to the behaviour of the respondent.
4. It is further submitted that the respondent is working as a Senior Manager(Staffing) in the Sapient Consulting Pvt. Ltd. and his monthly salary is around Rs.1,50,000/. It is also stated that the respondent also owns a Fortuner and i10 grand cars and also has number of bank accounts in his name. Also, the respondent is having property at Jay Pee Greens, Noida. Hence, it is submitted that the respondent belongs to high status and having huge income but he has failed to maintain and take care of his wife and children. Hence, it is prayed by this application that proper orders may be passed to restrict the CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 3 of 14 4 respondent from relinquishing his share in the joint family property of his parents which was purchased from the funds of the joint family profession/business. It is also prayed that the maintenance of Rs.1,00,000/per month may be directed to be provided to the complainant from the respondent.
5. On the other hand, each and every allegation of the complainant has been denied by the respondent and it is submitted that the present petition has been filed only to harass the respondent who has not committed any type of the domestic violence against the complainant. It is submitted that the complainant is not entitled to any relief as she has not come to the court with clean hands.
6. It is submitted by the respondent that the complainant is a highly qualified lady and she has done post graduate diploma in Business Management and also done course in counseling and Company Secretary. It is submitted that even prior to the marriage and even after it, for a long time, she was working in Bank of Punjab Ltd. Hence, she is perfectly capable to maintain and support herself. It is stated that the complainant has inherited half of the house and substantial amount from her deceased father and as such she is not entitled for any maintenance. It is submitted that the allegations of cruelty and harassment have been made without any supporting evidence.
7. It is further submitted that the fact is that the complainant herself used to misbehave with the respondent and his parents. It is also stated by the respondent that the marriage between the complainant and himself was love and inter caste marriage, hence, there was no question of any dowry demanded by the respondent or his CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 4 of 14 5 parents at that time or even after marriage. The respondent submits that his father was a Professor in Political Science Department of Delhi University and he was renowned Scholar of Gandhian Philosophy and he was strictly against the dowry system. It is submitted that the complainant and himself had got married in simple and decent ceremony on 01.02.2004 and after the marriage the complainant joined the respondent in matrimonial home i.e. 1715, Outram Line, Kingsway Camp, Delhi where at that time the respondent used to live with parents and one married sister. It is submitted that in the year 2006, the father of the respondent died after prolonged illness and the complainant never bothered to take care of his father and always insisted for living separately. After the death of his father, the complainant forced the respondent and his mother to sell the house i.e. 1715, Outram Line, Kingsway Camp, Delhi as there was no separate floor. It is stated that the complainant always wanted to live separately from the family of the respondent. It is further submitted that due to persistent demand of the complainant to live separately, the mother of the respondent sold the house no.1715, Outram Line, Kingsway Camp, Delhi and bought another house in the year 2007, which consisted three and a half separate floors and shifted there. It is submitted that the complainant and respondent shifted on the first floor of the said house and mother of the respondent alongwith his unmarried sister shifted on the ground floor and the complainant set up her separate kitchen. It is submitted that this arrangement was done to keep the complainant happy. It is submitted that eventually two children were born out of the wedlock and all the expenses of the treatment etc. were borne by the respondent. It is submitted that even the first birthday of the CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 5 of 14 6 male children was celebrated at a grand scale where all the relatives and friends of the complainant were invited.
8. It is also submitted that the children were got admitted in the reputed school i.e. Montfort School, Ashok Vihar, Delhi, and from the date of admission till December 2016, the respondent has paid all the school fee and other expenses of the children. However, the complainant without informing the respondent paid the fee of the quarter from January to March 2017, just to mislead the court that the respondent is not paying the school fee of the children. It is submitted that the respondent has taken the complainant and children for their vacations to abroad and the said fact will reveal that the respondent has never harassed the complainant or caused any economic deprivation to her. It is further submitted that after the marriage and birth of children the respondent took several LIC and investment policies in the name of the complainant as well as both the children and is regularly paying the same. It is submitted that even at the time of illness of father of the complainant, it was the respondent and his family who had taken his care.
9. The respondent further submits that in the year 2008, the complainant decided to leave her job and her decision was actively supported by the respondent. After leaving the job, the complainant was out of house most of the time and used to frequently go to kitty parties and other outings and left the care of the children in the hands of maid. The respondent further submits that his mother was diagnosed with cancer and after prolonged illness she expired on 08.01.2012, and prior to her death she had executed a registered will and gift deed and gifted the house no.174, Gujranwala Town, Part CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 6 of 14 7 II, Delhi to the respondent. It is submitted that as per the said Will, the respondent has become the owner of the house but he has to pay a sum of Rs.41,50,000/to the three married sisters of the respondent and unmarried sister has a right to live permanently on the ground floor of the house. For the purpose of paying about Rs. 41,50,000/ to the three sisters, the respondent has taken a loan of Rs. 70,00,000/from Axis Bank after mortgaging his home and made a FDR for the same and against the said FD, overdraft facility was taken and as such the matrimonial home (no.174, Gujranwala Town, PartII, Delhi) is mortgaged with the Axis Bank.
10. The respondent also submits that his mother has also booked a flat with Jaypee Greens, Noida for her unmarried daughter as she was concerned with her future and the said flat was though booked in the name of respondent, and he has to pay the remaining installments and it has been laid down in the will of his mother that after taking possession of the said flat, the same has to be transferred in the name of his unmarried sister Poornima Aggarwal. It is submitted that the complainant is very well aware of the terms of the Will of the deceased mother of the respondent, but she has deliberately not placed the same and had furnished only the gift deed executed by his mother.
11. It is submitted that after the death of mother of respondent, the complainant had started insisting and quarreling that the entire house be transferred in her name. The respondent further submits that in the month of February 2015, the respondent came to know that the complainant is having an affair with other person and when she was confronted, she admitted the same and asked sorry for the same. For the sake of his CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 7 of 14 8 children, the respondent had decided forgiving her and even took her to vacations to make fresh start but the complainant started behaving improperly, hence, in view of the above submissions, it is stated that the complainant is not entitled to claim any amount of maintenance or relief of restraining the respondent from giving up his share due to the reasons mentioned above.
12. During the arguments, it had been submitted by the respondent that he is unemployed since 30.06.2017 however, till that date, he was having a monthly income of Rs. 1,35,000/. Per contra, Ld. Counsel for complainant has argued that no sufficient reason has been furnished by the respondent for his non unemployment since 30.06.2017, which shows his malafide. Further, the respondent has vehemently argued that it was because of the behaviour of the complainant due to which he got mental depression and had resigned from his job and was unable to find any further employment since then and it is highly improbable that one will choose to sit unemployed without any income just to deprive his wife maintenance.
13. Heard the parties and perused the record.
14. The allegation and counter allegation of both the parties have been mentioned in detail above. The necessity of stating the submission of the parties had become necessary because court had failed to find any allegation of domestic violence in the petition of the complainant. She has merely stated that she had undergone lot of trauma at the hands of the respondent for insufficient dowry (underline supplied). In this regard, it has been strongly argued by Ld. Counsel for respondent that the parents of the complainant have already expired sometime CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 8 of 14 9 back, then there is no occasion for demanding any kind of dowry from the parental family of the complainant. It is further pointed out that each and every provision is being provided by the respondent to his wife and children, even he has dutifully got made LIC and mediclaim in the name of his wife and children, premiums of which he is paying. It is submitted that in such scenario, where is the question of dowry of deprivation of financial resources to the complainant. Furthermore, it is strongly argued that the complainant is equally qualified possessing professional degrees, hence, if she has any additional expenses than what is being provided by the respondent anyways, then she must earn for herself.
15. It is the admitted position that the complainant is B.com pass and having post graduate diploma of business management and company secretary. Also, from the record, it is clear that the two children of the parties are of the aged around 13 and 10 years. Hence, it is not a scenario where the complainant being the wife may have an additional responsibility of taking care of infant children on her. The children are clearly of school going age and do not require constant supervision and care of their mother. Since complainant is equally qualified who has no additional responsibility of small children, she is equally capable of earning for herself. There has been no denial on the part of the complainant that she was not working earlier. The court is also strongly persuaded by the submission of the respondent that till date it was the respondent who had been bearing all the expenses and when he has been taking care of his wife financially as well, then where is the question of any dowry or harassment. This is coupled with the fact that the respondent is unemployed at present. Reliance can be placed CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 9 of 14 10 on the following judgments: "Vijay Kumar versus Harsh Lata Aggarwal" CM(M) no.539/2008, "Sanjay Bhardwaj and Ors. Versus The State"
Crl.MC. No.491/2009, "Amit Khanna versus Priyanka Khanna and Ors" Crl MC no.4066 of 2009, and "Mamata Jaiswal versus Rajesh Jaiswal" II(2000) DMC 170. Hence, no ground is made out for claiming any maintenance from respondents. Hence, application is dismissed. Be adjourned for CE on 17.08.2018."
3. The main grounds on which the petitioner has challenged the impugned order dated 20.03.2018 are that the same has been passed without application of mind in arbitrary manner on the basis of presumptions, while ignoring the settled proposition of law, the Ld. Trial Court had also failed to appreciate the averments made in the application in question and the affidavit of income and assets filed by the present appellant and that the appellant was entitled for grant of maintenance, as per the financial and social status of her husband.
It is further stated the respondent also did not willfully file his EPF statements and current salary status. It is stated that the observations made by the Ld. Trial Court in para 15 are contrary to the law laid down by the Hon'ble Supreme Court and Hon'ble High Court(s) and at least maintenance of Rs. 10,000/ p.m. should have been paid to the appellant. Therefore, it is stated that the impugned order dated 20.03.2018 is liable to be set aside.
CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 10 of 14 11 Ld. Counsel for the appellant has relied upon the following judgments in support of his contentions :
a) Preeti Nagar Vs. State (Govt.) of NCT of Delhi 250(2018) DELHI LAW TIMES 301;
b) Shailja & Anr. Vs. Khobbanna, Criminal Appeal Nos. 125126 of 2017, decided on 18.01.2017;
c) Nayanika Thakur Mehta Vs. Mohit Mehta & Ors., CRL.M.C. 407/2016 & CRL.M.A. Nos. 6829/2016 & 7088/2016, decided on 24.03.2017;
d) Manpreet Singh Bhatia VS. Sumita Bhatia 2017(1) CIVIL COURT CASES 273 (DELHI) (DB);
e) Manish Jain Vs. Akanksha Jain 2017(2) CIVIL COURT CASES 695 (S.C.);
f) Shalu Vs. Sandeep Soni 2016(2) CIVIL COURT CASES 554 (DELHI) (DB);
g) Sunita Kachwaha & Ors. Vs. Anil Kachwaha III(2014) DMC 878 (SC).
4. Reply has been filed by the respondent to the complaint filed before the Ld. Trial Court, in which he has more or less taken the avements already reproduced above in the impugned order before the Ld. Trial Court, therefore, the same are not reproduced for the sake of brevity. It is stated that the appeal in question is totally CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 11 of 14 12 mischievous and false and malafide averments have been made in the same, therefore, the same is liable to be dismissed with cost.
5. I have gone through the rival contentions.
6. Section 23 of Protection of Women from Domestic Violence Act, 2005 is reproduced as under :
"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."
7. In the recent judgment of Hon'ble Bombay High Court in Writ Petition No. 3553/2018 titled as Mr. Prakash Kumar Singhee Vs. Ms. Amrapali Singhee, decided on 04.05.2018, it was held as under :
CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 12 of 14 13 "It is not every person, who can invoke the jurisdiction of the Court under 2005 Act simply for claiming maintenance, as the purpose of the enactment is to protect rights of women, who are victims of violence of any kind occurring within family."
It has been further observed therein as under :
"The provisions of D.V. Act cannot be invoked simply for claiming maintenance unless the party alleges an act of domestic violence and approaches the court in the capacity as an 'aggrieved person'."
It has been further held as under :
"The allegation about the violence is commission of a domestic violence is perquisite for the Magistrate or court of competent jurisdiction to exercise powers under D.V. Act and grant of any reliefs contemplated under this Act."
8. The ratio of above judgment is apt to the facts of the present case, as in this case Ld. Trial Court has prima facie found that there was no incident of domestic violence, which was a jurisdictional fact or sine qua non for awarding maintenance under this Act. The maintenance under D.V. Act can only be claimed if there is an incident of domestic violence, lest it can only be claimed under other benevolent provisions like Section 125 CrPC etc. CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 13 of 14 14
9. Since this jurisdictional fact was missing prima facie at the stage of deciding interim application u/S. 23 of D. V. Act. The Ld. Trial Court has rightly rejected the request for interim maintenance.
10. The Ld. Trial Court can always award maintenance, if after leading of evidence and conclusion of trial, it reaches the conclusion that there were / was incident of domestic violence and the petitioner was an aggrieved person within the meaning of Section 2(a) of D. V. Act.
11. In view of the aforesaid detailed discussion, there is no illegality or infirmity found in the impugned order dated 20.03.2018 of the Ld. Trial Court. The same has been decided by giving cogent reasons in support thereof. Accordingly, the present appeal has no merits. Same stands dismissed.
The present appeal stands disposed off accordingly.
12. The Trial Court record be sent back along with the copy of this order and the appeal file be consigned to record room.
Announced in the open Court (Sanjeev Aggarwal) on 28th Day of Jan., 2019. Addl. Session Judge02,(North) Rohini Courts, Delhi 28.01.2019 CA No. 93/2018 PS Model Town Parul Agrawal Vs. Prabhat Agrawal Page No. 14 of 14