Delhi District Court
Anshul Bhargava vs Surabhi Bhargava on 30 March, 2021
IN THE COURT OF SH. SUDESH KUMAR II
ADDITIONAL SESSIONS JUDGE-02, SOUTH DISTRICT
SAKET COURTS/NEW DELHI
IN THE MATTER OF
CA No. 381/19
Anshul Bhargava Vs Surabhi Bhargava
Anshul Bhargava
S/o Sh. Gopal Bhargava,
R/o S-333, 3rd Floor,
Panchsheel Park, New Delhi
.............Appellant
Versus
Ms. Surabhi Bhargava
W/o Shri Anshul Bhargava
R/o 512, SD-Block, Pitampura,
New Delhi
...........Respondent
DATE OF INSTITUTION: 17.10.2019 DATE OF RESERVING ORDER: 12.03.2021 DATE OF PRONOUNCEMENT: 30.03.2021
1. This is an appeal U/s 29 of Protection of Women from Domestic Violence Act, 2005 filed on behalf of appellant thereby challenging the order dated 16.09.2019 passed by Ld. MM in CC No. 26294/17 whereby Ld. MM has awarded a sum of Rs. 1,50,000/- per month (approx) as interim maintenance to the respondent towards rent in lieu of alternative accommodation and two minor children.
2. As per the appellant, the respondent/wife has filed a CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 1 of 15 complaint U/s 12 DV Act against him and his father before Ld. Trial Court wherein she has levelled various allegations against the appellant and his family members including allegations of demand of dowry, harassment and committing domestic violence against her. The appellant has detailed the allegations raised by complainant/respondent before Ld. Trial Court in his appeal and thereafter, he has also mentioned about detailed counter allegations against his wife (respondent herein).
3. Vide impugned order dated 16.09.2019, Ld. MM has decided the application filed by complainant/respondent for grant of interim maintenance @ Rs. 5 Lakhs per month and for securing the same level of alternate accommodation for the respondent as being enjoyed by the appellant (herein) and to pay rent in lieu of alternative accommodation to the respondent. Income affidavits and revised affidavits were filed by both the parties. Domestic Incident Report was also called from the Protection Officer by Ld. MM.
4. TCR was requisitioned. Arguments were advanced at length. I have gone through the record.
5. Briefly the facts necessary for disposal of the appeal are that the appellant and respondent got married on 27.09.2006 in accordance with Hindu rites and ceremonies. Two children were borne out of the wedlock. Both children were stated to be minor on the date of passing impugned order. As per the income affidavits filed by both the parties, they were residing separately CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 2 of 15 since May, 2017. As per the complaint filed before Ld. MM and reply to the same, the marriage between parties was not disputed. The domestic relationship between the parties in a shared household was also not disputed. The respondent/wife had raised various allegations of infliction of physical, emotional, mental, sexual and economic abuse which were also mentioned in the DIR filed by the Protection Officer and the allegations were vehemently refuted by the appellant (herein) in his reply. The appellant has rather raised counter allegations of harassment on part of the respondent. It is stated on behalf of appellant that respondent has left the matrimonial home voluntarily.
6. The Ld. MM vide impugned order dated 16.09.2019 has disposed of the application for interim maintenance by observing as under:
"Now coming to the interim maintenance aspect, in the income affidavit (dated 22.12.2018) of aggrieved, she has stated her educational qualification to be post graduation (M.Sc) and professional qualification to be M.Ed. She has further stated that she is a teacher and currently drawing a salary of Rs. 65,000/- per month approximately. She has claimed her monthly expenditure to be more than Rs. 2 lacs per month and the monthly expenses of children to be Rs. 1,20,455/-. As per the aggrieved, respondent is having earning of Rs. One crore approximately per month from four companies and he also owns various movable and immovable properties and does not have any other liability except to maintain her and children. Alongwith the income affidavit, aggrieved has also filed copies of bank statements, copy of rent agreement and annual statements of the companies of the respondent.
CA No. 381/19Anshul Bhargava Vs Surabhi Bhargava Page No. 3 of 15 On the other hand in the income affidavit (dated 02.07.2019) filed by respondent, he has stated his educational qualification to be graduation and professional qualification to be B.E. Electronics and Communication. He has also stated his occupation to be business and he has claimed that for the year 2018-2019, he suffered a total loss of Rs. 27,54,922/- as declared in his personal ITR and consolidated loss of Rs. 4.1 Crores in all the companies. As per him, his monthly expenditure is Rs. 75,000/-. Alongwith the income affidavit, respondent has filed his bank statements and bank statements of the companies.
After hearing the arguments and considering the record, this court is of the view that following facts are pertinent for deciding the amount of interim maintenance to be awarded to aggrieved in the present case:-
i) In the income affidavit dated 30.11.2017 filed by the aggrieved, she has stated her professional qualification to be B.Ed. but in her income affidavit dated 22.12.2018, she has disclosed her professional qualification to be M.Ed. There is no explanation on record to show that she was pursuing her M.Ed. at the time of filing previous income affidavit or she acquired qualification of M.Ed. after filing the first affidavit.
ii) In her affidavit dated 30.11.2017, aggrieved has stated that she is claiming interim maintenance of Rs. 1 lac per month, but in her application u/s 23 DV Act, she has claimed maintenance to the tune of Rs. 5 lacs per month.
iii) The amount of expenses declared by the aggrieved in her income affidavits are also drastically varying. It is relevant to note in this regard that in income affidavit dated 30.11.2017, aggrieved has claimed the expenses of children to be Rs. 85,000/- and her own expenses to be Rs. 1 lac CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 4 of 15 per month for groceries. Thereafter, in her income affidavits dated 22.12.2018 and 26.04.2019, she has declared expenses of children to be Rs. 1,20,455/- per month and her expenses of groceries to be Rs. 50,000/- per month. The sudden change in the expenses is totally unexplained and shows that the aggrieved has declared her expenses arbitrarily.
iv) Aggrieved has also stated in para 54 of her complaint that ever since her marriage, respondent had extracted moneys from her and economically exploited her by forcibly withdrawing her savings to be invested in various businesses. She has further stated in her complaint that approximately a sum of Rs. 5.84 crores had been taken by respondent from the aggrieved for investing in his business. In this regard, the complainant has also relied upon photocopy of her passbook wherein several amounts have been transferred in favour of the companies of the respondent and his own personal account. Interestingly, the aggrieved has not explained the source of huge deposits made in her account. But the perusal of the passbook shows that huge deposits had also been made in her account from the personal account of the respondent and from the accounts of companies of respondent. Thus, the aggrieved herself has not disclosed complete facts to the court and has not come to the court with clean hands.
v) Aggrieved is well qualified and she is working and she is in a position to maintain herself.
vi) As regards the contention of respondent that his companies and he himself have been incurring huge losses, it is relevant to note that the respondent himself is maintaining a luxurious lifestyle and is staying in posh colony of Panchsheel Enclave and is enjoying luxurious cars such as BMW, Mini Cooper etc. It is further seen from the bank account statement of the respondent that he made a purchase from Caratlane for Rs. 50,000/- in CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 5 of 15 September, 2018 and has withdrawn a sum of Rs. 2,50,000/- in the same month. He has also invested as sum of Rs. 5 lacs in IDBI dividend equity fund in the month of December, 2018 and received a dividend yield of Rs. 4.96 lacs approximately in January, 2019. The said expenses and investments prima facie do not support the contention of respondent that he is incurring losses of crores of rupees. It is also the case of the respondent that the aforesaid cars are taken on loan or the same are owned by the company or that the house in Panchsheel Enclave has been allotted to his father by the company only. In this regard, it is pertinent to note that perusal of bank statements filed by the respondent, show that the finances of the companies and the personal finances of the respondent are mixed up and no clear distinction is maintained. It is so seen from the huge amount of money transfers made between the personal account of respondent and the accounts of the companies. Thus, the respondent cannot contend that the cars or the house in Panchsheel Enclave belong to the companies as it is his money which is being invested in the companies and it is he who is enjoying the cars and the house. Thus, the respondent cannot shrug his liability to maintain the aggrieved and the children on the pretext of losses being incurred by him or his companies while he himself is enjoying a luxurious lifestyle.
In view of aforesaid, considering the lifestyle of respondent, qualification and employment of aggrieved and conduct of aggrieved, at this preliminary stage, I deem it appropriate and reasonable that the aggrieved is well qualified and in a position to maintain herself and thus she is not entitled to any interim maintenance at this stage. However, aggrieved cannot be single handedly expected to maintain the children. Accordingly, the respondent is directed to bear the school fees and transport fees of both the children on actual basis. He is at liberty to deposit the same directly in the CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 6 of 15 school or to reimburse the same to the aggrieved on the basis of fees receipts. He is further directed to pay a sum of Rs. 25,000/- each to the aggrieved towards the maintenance of both the children, over and above the school and transport fees. As regards the rent in lieu of alternative accommodation, it is noted that as per the settlement dated 15.07.2016, it was agreed between the parties that the aggrieved and both the children shall continue to reside in the share household in Panchsheel Enclave. However, while it is the case of aggrieved that she was dispossessed from the said premises, the respondent has vehemently contended that the aggrieved left on her own and took away jewelery and valuables from the said premises. Considering the contradictory averments and no document brought on record by aggrieved or by respondent to prove their contention, I am not inclined to grant rent in lieu of alternative accommodation of the similar status as being enjoyed by the respondent. However, considering that the aggrieved is residing with two children and her salary may not be sufficient to pay the rent, at this preliminary stage, I deem it appropriate to grant a sum of Rs. 50,000/- to be paid by respondent to aggrieved towards rent in lieu of alternative accommodation. The amount of interim maintenance granted shall be paid from the date of filing present petition till the pendency of trial. The amount of rent in lieu of alternative accommodation shall be payable from the date of aggrieved taking a rental accommodation after filing of present application till the pendency of trial subject to production of rent receipts by the aggrieved.
Aggrieved is directed to provide bank account details to respondent, if any, so that the interim maintenance can be deposited in the account of aggrieved directly on or before 7th day of each English Calender month. Arrears be cleared within six months from today. The default shall be viewed in terms of the judgment of Hon'ble High Court in CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 7 of 15 Gaurav Sondhi Vs. Divya Sondhi - 120 DLT (2005)
426. Any maintenance that has already been ordered to be paid shall be accordingly adjusted. Aggrieved is directed to utilize the amount of interim maintenance for the benefit of the children only.
The application U/s 23 of the DV Act is disposed of accordingly.
Aggrieved is directed to lead her evidence by filing her affidavit and that of other witnesses, if any, by supplying advance copy to the opposite party.
Put up for CE on 05.12.2019.
Copy of order be given dasti as prayed for."
7. The said order however has been challenged by the appellant on number of grounds as detailed in the appeal. In most of his contentions raised in the appeal, he has raised counter allegations against respondent/wife.
8. It has been contended on behalf of the appellant that a lenient view has been taken by Ld. Trial court on the ground that "considering the objective of the PWDV Act, the court has to take a lenient view at this stage and prima facie it has to be presumed that there was infliction of domestic violence and therefore, the respondent (aggrieved) is entitled to claim interim maintenance from the appellant (respondent)."Hence, it is evident from the above text in the order dated 16.09.2019 that the Trial Court itself was not satisfied that there was infliction of domestic violence, but the court took a lenient view considering the objective of the PWDV Act, 2005. It has been alleged that the CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 8 of 15 respondent is misusing the due protection provided under the Indian Law which is provided with the object of empowering women for the good cause, but the respondent is using the peculiar protection to fulfil her ulterior motive and to milk the money from the appellant.
9. It is stated on behalf of the appellant that the respondent used to call the PCR on petty issues just to harass and torture the appellant. The respondent has also alleged in the Domestic Violence complaint U/s 12 of PWDV Act, 2005 that she was dispossessed from the household but it is hard to believe that respondent being the person who used to call PCR on such petty issues did not call PCR when as per her allegation she was dispossessed by the appellant and his family.
10. It is stated on behalf of the appellant that respondent (herein) has left the house on her own. She herself was a shareholder in the company which owns the household from which she was dispossessed as per her averment. It is stated that the respondent has made false submissions as observed by Ld. MM also. She has also made false submissions at various stages in regard to expenses, threatening of children and herself.
11. It is contended on behalf of the appellant that in her affidavit dated 30.11.2017, complainant/respondent (herein) has stated the expense of children to be Rs. 85,000/- per month and her own expenses to be Rs. 1,00,000 per month for groceries, but in income affidavit dated 22.12.2018 and 26.04.2019, CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 9 of 15 complainant has declared expenses of children to be Rs. 1,20,455/- per month and her expenses of groceries to be Rs. 50,000/- per month. Whereas complainant in her complaint dated 30.11.2017 herself mentioned that the total expenses she has paid for the children for the whole year are Rs. 2,37,000/-. The complainant has failed to explain the justification behind demanding Rs. 14,45,460/- from the appellant. Moreover, it is also submitted that there are various contradictions in the case filed by the respondent in the NCLT and the Domestic Violence Complaint, to prove this contention a report filed by handwriting expert is already submitted by the appellant in the main suit. It is further contended that the complainant has never approached the court with clean hands.
12. Ld. Counsel for appellant further submitted that from the above facts, it is crystal clear that respondent has not come to the Hon'ble Court with clean hands and is trying to misuse the special protection provided to women under the Indian Law with the object to empower women. That Hon'ble Trial Court has also mentioned in the order that the "respondent (aggrieved) has declared her expenses arbitrarily" and in the next para itself the Hon'ble Trial Court also mentioned that "the respondent (aggrieved) herself has not come to the court with clean hands". Hence, the words of the respondent cannot be trusted; moreover besides her frivolous allegations and words, respondent has vehemently failed to provide any evidence which depicts any infliction of domestic violence by the appellant.
CA No. 381/19Anshul Bhargava Vs Surabhi Bhargava Page No. 10 of 15
13. It has been contended on behalf of the appellant (herein) that the Ld. Trial Court in the order dated 16.09.2019 has stated that "the appellant is maintaining a luxury lifestyle. The Ld. Trial Court has stated the above statement on the basis that respondent purchased a caratlane for Rs. 50,000/- and withdrawn a sum of Rs. 2,50,000/-. It has been submitted that Ld. Trial Court itself mentioned in the order that the respondent has suffered a personal loss of Rs. 27,54,922/- and his companies suffered an accumulated loss of Rs. 4.1 crores, with all the losses and tensions in business and appellant's personal life, appellant's astrologer recommended a particular caratlane which the appellant purchased in the hope to turn things around in his professional and personal life. In response to withdrawal of Rs. 2,50,000/-, the said amount was withdrawn for the treatment of appellant's father."
14. It has been further stated on behalf of appellant that the Ld. Trial Court has further mentioned that the appellant invested a sum of Rs. 5 Lacs in IDBI dividend equity fund in December 2018 and received a dividend yield of Rs. 4.96 lacs approximately in January, 2019. Appellant vehemently submits that the said amount of Rs. 4.96 lacs is not profit but the withdrawn invested amount of Rs. 5 Lacs, instead of profit, appellant has suffered a loss of Rs. 3,500/- and the Hon'ble Trial Court has wrongly interpreted the transaction.
15. That the Ld. Trial Court has wrongly granted a sum of Rs. 50,000/- to be paid by appellant to the respondent towards CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 11 of 15 rent in lieu of alternative accommodation as the "shared household" of the parties is H. No. 36 (a) MIG Flat, Pocket C, Ashok Vihar where the parties moved after the marriage. However, the Hon'ble Trial Court has wrongly interpreted the accommodation of Panchsheel park as"shared household" of the parties. That the house in Panchseel Park does not fall under the definition of shared household under the Act.
16. It is further contended that in the order dated 16.09.2019, the Hon'ble Court has itself mentioned that the appellant has suffered a personal loss of Rs. 27,34,922/- in the year 2018-2019 and the companies in which appellant is a director suffered accumulated loss of Rs. 4.1 crores. Moreover appellant being on a salary of Rs. 1,00,000/- and the respondent herself being a qualified post graduate earns more than Rs.65,000/- per month which establishes the fact that the resources earned by both the parties need to be considered while passing an order for maintenance which the Hon'ble Court has failed to do so. Also, the fact that respondent is more qualified than the appellant needs to be considered while passing the maintenance order as the respondent is more qualified than the appellant."
17. Ld. Counsel for appellant has relied upon the following Judgments:
(i) Bheekha Ram vs Goma Devi And Ors, 1999 CriLJ 1789 passed by the Hon'ble Rajasthan High Court.
(ii) Vjayanand Dattaram Naik v. Vishranti Vijayanand CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 12 of 15 Naik, 2019 SCC OnLine Bom 314 passed by the Hon'ble High Court of Bombay at Goa.
(iii) Anil Kumar vs Shashi Bala And Others on 2 May, 2017 passed by the Hon'ble Himachal Pradesh High Court.
(iv) Raj Talreja vs Kavita Talreja on 24 April, 2017, Civil Appeal No. 10719 of 2013 passed by the Hon'ble Supreme Court of India.
(v) Gurudas Sanvalo Naik and Ors Vs Saanvi Gurudas Naik and Ors., Criminal Writ Petition No. 17 of 2015 passed by the Hon'ble High Court of Bombay at Goa.
(vi) Koushik Vs Sangeeta Koushik Gharami, Criminal Writ Petition No. 32 of 2014 passed by the Hon'ble High Court of Bombay (Nagpur Bench).
(vii) S.R. Batra and Anr vs Smt. Taruna Batra on 15 December, 2006, Appeal (civil) 5837 of 2006 passed by the Hon'ble Supreme Court of India.
(viii) Sri Rajah Yenumala Latchanna Dora.... vs Sri Rajah Yenumala Mallu Dora Varun, (1940) 2 MLJ 572 passed by the Hon'ble Madras High Court.
(ix) K. Venkataratnam vs Kakinda Kamala on 21 August, 1959, AIR 1960 Ori 157 passed by the Hon'ble Orissa High Court.
(x) Mrs. Meena Dinesh Parmar vs Shri Dinesh Hastimal Parmar, AIR 2005 Bom 298, 2005 (4) BomCR 672, 2005 (2) MhLj 305 passed by the Hon'ble Bombay High Court.
(xi) Manpreet Singh Bhatia v. Sumita Bhatia, 2016 SCC OnLine Del 5598 : (2016) 234 DLT 95 (DB): (2016) 4 CCC 333 passed by the Hon'ble High Court of Delhi.
18. I have gone through the Trial Court record and also the order passed by Ld. MM.
CA No. 381/19Anshul Bhargava Vs Surabhi Bhargava Page No. 13 of 15
19. A number of grounds has been raised by the appellant in this appeal against the impugned order, however, most of them are certainly matter of trial which could be decided only after evidence is led before Ld. MM. The marriage between the parties is not disputed. The sharing of domestic relationship in their house at Panchsheel Park is also not disputed. The complainant has raised allegations of physical, emotional, mental and economic abuse. Same also finds mentioned in the DIR filed by Protection Officer. In regard to the grounds raised by the appellant (herein), Ld. MM has very specifically observed that the complainant has not approached the court with clean hands. The amount of expenses declared by her in her income affidavits were also drastically varying. She has declared the expenses arbitrarily. It has been observed that aggrieved/complainant is well qualified, is working and is in a position to maintain herself. Ld. MM however after duly considering all the submissions of the appellant held that the complainant herself was not entitled to any interim maintenance at this stage. The Ld. MM however further observed that wife cannot be single handily expected to maintain her children. It is not disputed that both children are residing with the complainant. After duly considering the income affidavits and revised income affidavits of both the parties, Ld. MM granted maintenance only to two children alongwith their school fees, transport fees on actual basis and also granted Rs. 50,000/- per month to be paid to the aggrieved towards rent in lieu of alternate accommodation. The appellant has submitted that he has incurred losses in his companies. He further submitted that he has withdrawn a sum of CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 14 of 15 Rs. 2,50,000/- for treatment of his father. No documents in support of his contentions have been filed alongwith appeal or before Ld. MM. At the stage of interim maintenance, the Court has to take into consideration DIR, income tax affidavits filed on behalf of both the parties which have been duly considered by Ld. MM. All other contentions raised by appellant are a matter of trial which has to be proved by leading evidence.
20. In the overall facts and circumstances, I do not find any illegality, irregularity or infirmity in the order passed by Ld. MM. The submissions made by appellant cannot be considered at this stage. The appeal accordingly stands dismissed.
21. Criminal appeal record be consigned to record room.
TCR be sent back to court concerned alongwith copy of Order.
ANNOUNCED IN THE OPEN COURT ON 30.03.2021 (SUDESH KUMAR II) ASJ-02/SOUTH/NEW DELHI CA No. 381/19 Anshul Bhargava Vs Surabhi Bhargava Page No. 15 of 15