Delhi District Court
Sarita Gupta vs Ravi Gupta on 5 May, 2018
CA No.81/17
Sarita Gupta vs Ravi Gupta
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS, NEW
DELHI
CA No.81/17
ID No.388/17
CNR No.DLSW010158082017
Sarita Gupta vs Ravi Gupta
Smt. Sarita Gupta
W/o Sh. Ravi Gupta
R/o F63B, Mohan Garden,
Uttam Nagar, New Delhi ... Appellant
Versus
Ravi Gupta
S/o Sh. Prem Gupta
R/o WZ1391/28, BlockD,
Nagalraya, Janakpuri,
New Delhi ... Respondent
Date of institution of appeal :29.11.2017
Date on which judgment reserved :01.05.2018
Date on which judgment pronounced :05.05.2018
JUDGMENT
1. The appellant/wife is aggrieved by the order dated Page: 1/12 CA No.81/17 Sarita Gupta vs Ravi Gupta 01.11.2017 of the ld. Trial court (hereinafter referred to as 'impugned order') vide which the interim application u/s.23 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as PWDV Act) was dismissed.
2. The brief facts which are relevant for deciding the present appeal are that the appellant had filed an application u/s.12 of PWDV Act wherein it was alleged that she was subjected to domestic violence by the respondent by way of physical assault and by way of denying any kind of financial help to the appellant and her minor son. Accordingly, a prayer was made in the application for passing of protection order u/s. 18 of the PWDV Act and for grant of compensation u/s.22 of PWDV Act. Further, a prayer was made for directing the respondent to pay monthly maintenance of Rs.15,000/ per month to the appellant and Rs.10,000/ per month for the son of the appellant.
3. Alongwith the application u/s.12 of PWDV Act, the Page: 2/12 CA No.81/17 Sarita Gupta vs Ravi Gupta appellant had filed a separate application u/s.23 of PWDV Act seeking interim order. Ld. Trial court, after perusing the complaint/application, had summoned the respondent on being prima facie satisfied regarding existence of specific allegations of domestic violence. A domestic incident report was also sought from the Protection Officer and the same was filed on record.
4. Thereafter, the respondent had appeared and had filed his detailed written submissions. Both the parties had also filed on record detailed affidavit of income and expenditure. Thereafter, the ld. Trial court had heard arguments on the interim application of the appellant and after hearing the same, it was dismissed vide the impugned order. The reason for the dismissal given by the ld. Trial court was that the appellant had not disclosed complete and true facts before the ld. Trial court. Aggrieved by the impugned order, the appellant has approached this court.
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5. Notice was issued to the respondent/husband, who on being served, had filed a detailed reply.
6. I have heard Sh. S.K.Karan, ld. Counsel for the appellant and Sh. Deepak Jhakhar, ld. Counsel for the respondent/husband. I have also summoned the trial court record and have carefully perused the same.
7. It was submitted by ld. Counsel for the appellant that in the present case, the ld. Trial court has committed grave illegality by dismissing the interim application of the appellant vide the impugned order. It was submitted that the appellant had made specific allegations of physical and economic violence against the respondent but despite that, the application was dismissed by the ld. Trial court.
8. It was submitted that due to dismissal of the interim application of the appellant, the appellant is facing acute financial hardship. It was submitted that the appellant is a housewife, having no source Page: 4/12 CA No.81/17 Sarita Gupta vs Ravi Gupta of income and is also required to bear the educational expenses of around Rs.6,000/ per month of her minor son.
9. It was further submitted that on the other hand, respondent/husband is running a photography business from where he is earning Rs.50,000 60,000/ per month. However, ld. Trial court did not decide the issue of granting of interim maintenance to the appellant/wife and dismissed the application on the ground of appellant not disclosing the true facts. It was submitted that the appellant could have deposed regarding the entire facts only at the stage of evidence and it was premature of the ld. Trial court to have observed that the appellant had not disclosed the true facts or her making some kind of contradictory statement in her complaint. Accordingly, a prayer was made to set aside the impugned order and to pass appropriate order in favour of the appellant towards interim maintenance.
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10. On the other hand, ld. Counsel for the respondent/husband has submitted that there is no infirmity or illegality in the impugned order as the appellant had not approached the ld. Trial court with clean hands as she had concealed material facts from the ld. Trial court. It was submitted that the appellant has not suffered any kind of cruelty at the hands of the respondent/husband but on the contrary, it is the respondent/husband who has been treated with cruelty by the appellant and her brother. It was submitted that the respondent was forced to leave his house in the month of January, 2016 and even the photography business being run by the respondent, from the shop situated on the ground floor, had to be closed down as the appellant and her family members did not allow the respondent to run his business from the said shop. Therefore, the respondent has been rendered jobless and he is not having any income. It was further submitted that the appellant has forcefully Page: 6/12 CA No.81/17 Sarita Gupta vs Ravi Gupta trespassed into the property of the respondent and due to the act of the appellant, it is the respondent who is made to live elsewhere. Accordingly, a prayer was made to dismiss the appeal.
11. I have considered the rival submissions and have carefully perused the trial court record.
12. In the application filed by the appellant, she had specifically alleged that for the past one year, i.e. from January, 2016 the respondent is not residing at the matrimonial home and is not giving any kind of financial help to meet out the expenses of the household of the appellant.
13. The appellant has also alleged that on 07.02.2016, some antisocial elements were sent at the matrimonial house of the appellant to cause harm to her and her minor child. It is also alleged that in this regard, the appellant had made a police complaint vide Diary No.43B dated 07.02.2016. The appellant has further alleged that she was also assaulted by the respondent for which she had Page: 7/12 CA No.81/17 Sarita Gupta vs Ravi Gupta made a police complaint. It is also alleged that respondent, in collusion with his other family members, had filed a civil suit in Tis Hazari Court just to deprive the appellant from her lawful right to stay in the matrimonial house.
14. The allegations made by the appellant in her complaint u/s.12 of the PWDV Act regarding physical and economic violence were also duly supported with the domestic incident report of the Protection Officer dated 27.01.2017. Further, the order of summoning dated 24.01.2017 of the ld. Trial court records the fact that there are specific allegations of domestic violence against the respondent and therefore, they are summoned in the present case.
15. The reasoning given by the ld. Trial court for dismissing the interim application of the appellant seems to be erroneous. Although, it is true that in para 13 of the application u/s.12 of PWDV Act, the date of physical assault has not been mentioned by Page: 8/12 CA No.81/17 Sarita Gupta vs Ravi Gupta the appellant, but that is not a sufficient ground to dismiss the interim application. The appellant should have been granted an opportunity by leading evidence to prove the date of the physical assault. Further, since the appellant had specifically mentioned that with regard to the physical assault, she had made a police complaint, therefore the appellant could have summoned the police complaint to corroborate her allegations at the time of recording of her evidence.
16. Further, the reasoning given by the ld. Trial court that appellant has not explained as to how and when she entered into the matrimonial house is also no ground to dismiss the interim application of the appellant. It is an admitted fact between the parties that the appellant was residing at her matrimonial house from January, 2016. Prior to that, where the appellant was staying and when she returned to her matrimonial house was a fact which the appellant could have deposed in her Page: 9/12 CA No.81/17 Sarita Gupta vs Ravi Gupta evidence.
17. Further, whether the appellant was staying at her matrimonial house or at her parental house was not germane to decide the interim application. The issue which was relevant was whether the appellant was subjected to domestic violence by the respondents or not and if such domestic violence had taken place either at the parental house or at the matrimonial house of the appellant, then appellant was entitled to various reliefs being sought in the application and also at interim stage.
18. Even as per Section 23(2) of PWDV Act, sine qua non for granting of interim / ex parte orders, is the prima facie satisfaction of the ld. Magistrate that respondent is committing an act of domestic violence or that he is likely to commit an act of domestic violence.
19. Therefore ld. Trial court, without affording an opportunity to the appellant to prove her Page: 10/12 CA No.81/17 Sarita Gupta vs Ravi Gupta allegations in evidence has prematurely decided that the appellant has concealed true and material facts from the ld. Trial court. The ld. Trial court ought to have decided the interim application of the appellant as from the summoning order of the ld. Trial court, domestic incident report and the allegations made in the application u/s.12 of PWDV Act, prima facie the allegations of physical and economic violence constituting domestic violence existed against the respondent. Therefore, there was no ground for the ld. Trial court to have dismissed the application of the appellant.
20. In the light of the above discussion, the impugned order is not sustainable in the eyes of law. Accordingly, same is set aside.
21. The matter is remanded back to the ld. Trial court with the direction to decide the interim application of the appellant under Section 23 of PWDV Act having regard to the income affidavit filed by the respective parties and the reliefs Page: 11/12 CA No.81/17 Sarita Gupta vs Ravi Gupta prayed for at the interim stage.
22. Both the parties are directed to appear before the ld. Trial court on the date already fixed.
23. Trial court record be sent back to ld. Trial court alongwith a copy of this judgment.
24. Appeal file be consigned to Record Room.
VIKAS Digitally signed by VIKAS
DHULL
DHULL Date: 2018.05.05 15:24:29
+0530
Announced in the open court (Vikas Dhull)
Dated : 05.05.2018 Spl. Judge (PC Act) CBI03
Dwarka/New Delhi
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