Delhi District Court
Manisha Swarup vs Mukand Swarup on 3 April, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
Criminal Appeal No. 54/2008
Manisha Swarup
W/o Sh Mukand Swarup
Presently R/o M-15, Lajpat Nagar-II,
New Delhi ...........Appellant
Vs.
1. Mukand Swarup
S/o Shri D K Swarup
R/o H-40C, SFS Flats,
Saket, New Delhi
2. D K Swarup,
S/o Shri I R Swarup
R/o R/o H-40C, SFS Flats,
Saket, New Delhi ........ Respondents
Date of Institution of the appeal : 22/09/2008
Date on which the order was reserved : 27/03/2010
Date of Decision : 03/04/2010
Criminal Appeal No. 87/2008
Mukand Swarup
S/o Sh. D K Swarup,
R/o Ward No. 10,
C/o Sh. Hari Singh Verma,
Rampur Ghat Road,
Devi Nagar, Ponta Saheb (H.P.) ...........Appellant
Vs.
CA No. 54/2008 Page1/18
1. Smt. Manisha Jain
D/o Shri N K Jain
R/o H. No. M-15, 1st Floor,
Lajpat Nagar-III, New Delhi
2. D. K. Swarup,
S/o late Shri I. R. Swarup,
R/o 40-C, Block H, Saket,
New Delhi-17 ........ Respondents
Date of Institution of the appeal : 23/12/2008
Date on which the order was reserved : 27/03/2010
Date of Decision : 03/04/2010
JUDGMENT
By this common judgment I shall decide the two appeals one filed by the wife Manisha Swarup against her husband Mukund Swarup and her father in law DK Swarup and the other filed by the husband Mukund Swarup against his wife Manisha Swarup and his father DK Swarup as common questions of facts and law are involved in these two appeals pending between the same parties. In both the appeals respondent DK Swarup is formal respondent. The real dispute is between husband and wife. Both appeals arose out of the common impugned order dated 24/5/2008 passed by learned Metropolitan Magistrate. I am dictating this common judgment in Criminal Appeal No. 54/2008 and the other appeal No. 87/2008 shall be disposed of accordingly.
In the appeal filed by Manisha Swarup she has claimed the following relief from the respondent husband:
1. Modify/alter the order of the Hon'ble Metropolitan Magistrate and CA No. 54/2008 Page2/18 increase the maintenance amount of the appellant Manisha Swarup from Rs. 10,000/- to Rs. 50,000/- per month.
2. A sum of Rs. 40,000/- may be awarded to the appellant Manisha Swarup in order to secure same level of accommodation as enjoyed by her in shared household of her matrimonial home.
3. Order of sum of Rs. 50,00,000/- under Section 22 of Protection of Women from Domestic Violence Act, 2005 for compensation and damages for the injries including mental torture and emotional distress caused by the acts of the domestic violence committed by the respondent may be passed in favour of the appellant Manisha Swarup.
4. Order of restraining the respondent from alienating the istridhan and jewellery articles of the appellant be passed in favour of the appellant Manisha Swarup.
The learned trial court refused the custody of the children of the erring spouses to the appellant wife after giving personal hearing to the children and the parties in the chamber of learned presiding officer for about 30 minutes. It was directed that the children shall remain with the father. However, learned trial court awarded a sum of Rs.10,000/-- towards the rental charges of accommodation as per section 19 of the Act and an equal amount is monthly maintenance payable by 10th day of every month by the husband Mukund Swarup to the wife Manisha Swarup. The learned trial court also directed the husband Mukund Swarup to pay a sum of Rs. 20,000/-- as litigation charges to the wife Manisha Swarup.
In the appeal filed by the wife Manisha Swarup she has prayed for increasing the maintenance amount to her from Rs. 10,000/-- to Rs. 50,000/-- per month in view of the status, earning and living standard of the CA No. 54/2008 Page3/18 parties. She has also demanded a sum of Rs. 40,000/-- per month in her favour and against her husband Mukund Swarup to secure same level of accommodation as was enjoyed by her in shared household in her matrimonial home, keeping in view the earning of her husband Mukund Swarup. He has also demanded a sum of Rs. 50 lacs under section 22 of the Act as compensation and damages for the injuries including mental torture and emotional distress caused by the acts of the domestic violence and committed by her husband. She has also demanded an order restraining the husband from alienating her istridhan and jewellery articles.
In the appeal filed by appellant/husband Mukund Swarup, he has prayed for setting aside the judgment and order dated 24/5/2008 passed by learned Metropolitan Magistrate insofar as it directs the appellant husband to pay a sum of Rs. 10,000/-- per month to the wife Manisha Swarup towards maintenance charges with effect from 14/11/2007.
The contention on behalf of the appellant wife Manisha Swarup is that out of Rs. 20,000/-- (Rs. 10,000/-- are amongst towards maintenance and Rs. 10,000/-- per month towards rental accommodation) directed by learned trial court to be paid by Mukund Swarup to the appellant Manisha Swarup the latter is almost regularly paying maintenance amount at the rate of Rs. 10,000/-- per month. The income of Shri Mukund runs into crores annually and he is also owner of six properties in Gurgaon and is paying Rs. 3.5 lacks per month for repayment of the loans. The children are also with Shri Mukund Swarup and istridhan is also retained by him. The case is decided as permissible under Section 28 of the Act without evidence of the parties. Therefore, relief as sought in CA No. 54/2008 Page4/18 the appeal of Manisha Swarup should be granted and the appeal filed by her husband Mukund Swarup should be dismissed.
The contention on behalf of the husband Mukund Swarup is that in the FIR lodged under section 498A and 406 IPC by the wife Manisha against her husband and other relatives she has indicated that her husband Mukund Swarup is greedy and demands car and the dowry articles and has meagre resources while in the petition under the provisions of Act and the arguments addressed in the appeal the husband Mukund Swarup is shown as effluent person. It is argued that the basis of findings is not given by the learned trial court in the impugned order and the affidavit in evidence of the husband is not taken into consideration nor the pleadings of the respondent/husband are taken into account by learned trial court while passing the impugned order. Therefore, the proper procedure is not followed to give a reasoned judgment by learned trial court. It is also argued that the wife Manisha Swarup is given a share by her parents in a three-storey house in Lajpat Nagar and she is living in that house so her appeal should be dismissed and appeal of Mukand Swarup should be allowed.
I have heard the learned counsel for the parties and have gone through the trial court record, record of the both appeals and the relevant provisions of law.
Arguments are raised on behalf of the husband Mukund Swarup touching the procedure adopted by the learned trial court in adjudicating upon the petition under section 12 of the Act and ignoring the fact stated in the affidavit in evidence of the husband and also his pleadings. Therefore, the first and foremost question is whether the procedure adopted by CA No. 54/2008 Page5/18 learned trial court in deciding the petition under section 12 of the Act was fair, permissible and proper. Before dealing with the contentions advanced by both sides on the question of non compliance or the extent of compliance of the principles of natural justice, before inflicting the impugned order, it will be useful to briefly discuss the dominance of that principle in decision making in matters adversely affecting the interests of others. The aim of the rules of natural justice is to secure justice. Soul of the rule is fair play in action. The laws of nature are designed to promote survival rather than justice. Nature is governed by principles such as the survival of the fittest and prevalence of might over right. When a herd leaves its weak members behind there is no question of the weak being supported or protected. Therefore, 'natural' justice is not justice found in nature; it is a compendium of concepts which must be naturally associated with justice, whether these concepts are incorporated in law or not. Justice is a great civilizing force. It ensures that the rule of law rather than the rules of nature prevail in regulating human conduct.
Natural justice is a concept of common law and represents higher procedural principles developed by the courts, which every judicial, quasi-judicial and administrative agency must follow while taking any decision adversely affecting the rights of a private individual. Natural justice implies fairness, equity and equality. In India, the principles of natural justice are firmly grounded in Article 14 & 21 of the Constitution. With the introduction of concept of substantive and procedural due process in Article 21, all that fairness which is included in the principles of natural justice can be read into Art. 21. The violation of principles of natural justice results in arbitrariness; therefore, violation of natural justice is a violation of Equality CA No. 54/2008 Page6/18 clause of Art. 14.
The principle of natural justice encompasses following two rules:
1. Nemo judex in causa sua - No one should be made a judge in his own cause or the rule against bias.
2. Audi alteram partem - Hear the other party or the rule of fair hearing or the rule that no one should be condemned unheard.
The principles of natural justice have evolved under common law. Basically, these are principles which are necessary for a just and fair decision making. These principles are often embedded in the rules of procedure which govern the judiciary. For example, the Civil Procedure Code prescribes a detailed procedure under which the Defendant has the right to reply to the Plaint; both sides have the right to inspect the documents relied upon by the other side and both sides have the right to cross-examine one another'switnesses. The judgment must give reasons for the decision. Similarly, in the Code of Criminal Procedure, 1973 the procedure prescribed for Summons Trial or Warrant Trial or Sessions Trial makes it necessary to give opportunity to the parties to lead evidence as to their respective case besides the right to cross-examine the witnesses of the opposite party produced during evidence in trial.
In Abdul Rehman Antulay v. R.S. Nayak, AIR 1992 SC 1701 :
1992 Cri.L.J. 2717 : 1992(1) S.C.C. 225 : 1991(6) J.T. 431 : 1992(1) Crimes 193, it was observed as follows:
"50. The provisions of the Code of Criminal Procedure are consistent with and indeed illustrate this principle. They provide for an early investigation and for a speedy and, fair trial. The learned Attorney-General is CA No. 54/2008 Page7/18 right in saying that if only the provisions of the Code are followed in their letter and spirit, there would be little room for any grievance. The fact, however, remains unpleasant as it is that in many cases, these provisions are honoured more in breach. Be that as it may, it is sufficient to say that the Constitutional guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions of the Code."
In Himanshu Singh Sabharwal v. State of M.P. , (SC) 2008(2) R.C.R.(Criminal) 267: 2008(3) S.C.C. 602 : A.I.R. 2008 SC 1943 : 2008(2) SCC(Cri) 106 : 2008(3) J.T. 550 : 2008(4) Scale 93 : 2008(4) SCR 783 it was held about fair trial:
"11. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to meet out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny.
12. Failure to accord fair hearing either to the CA No. 54/2008 Page8/18 accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.
13. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. "
It was also held:
"8. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the CA No. 54/2008 Page9/18 future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators."
In Saira Bano v. Mohd. Aslam Ghulam Mustafa Khan (Bombay) 2000(1) F.J.C.C. 92 the following observations were made by Bombay High Court:
"22. We are fully in agreement with the Division Bench of the Gauhati High Court which has in categorical terms pointed out that the pleading is one thing and proof is another. Pleading is formal allegation by the parties of their respective claims and defences to provide a notice of what is to be expected at trial and proof is establishment of fact by leading evidence. There is no authority to the proposition that mere allegation in the pleading by itself should be taken either to be a proof of the fact alleged or even otherwise to be independently as a declaration of existence of cessation of legal relationship between the parties."CA No. 54/2008 Page10/18
It was further observed as follows:
"23. We are also of the view that pleading in course of proceeding or any statement made in the witness-box or in any application is for the purpose of making out a case by parties, and evidence is led for supporting the case already pleaded."
In Santosh Kumar v. Tara Singh, 1992(3) R.C.R.(Criminal) 394 (P&H) : 1992(2) Cur.L.J. 202 it was held:
"2. Learned counsel for the petitioner has drawn my attention towards the provisions of Section 126(2) of the Code of Criminal Procedure and submitted that learned Additional Sessions Judge, had no jurisdiction to entertain the Revision Petition against the order of the Chief Judicial Magistrate of November 10, 1987. I have carefully examined the said provisions, Section 126(2) of the Code of Criminal Procedure provides that all evidence in proceedings under Section 125 of the Code of Criminal Procedure shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. When the provision is analytically examined it is evident that recording of evidence in presence of such a person included his right to cross-examine the witnesses appearing against him and further to lead defence evidence."
In K.L. Tripathi v. State Bank of India, (SC) A.I.R. 1984 SC 273 : 1984(1) S.C.C. 43 it was held:
"The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept fair play in action must depend CA No. 54/2008 Page11/18 upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross- examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement.
The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases."
In Kuldip Kumar v. State of H.P., (H.P.)(DB) 1993(3) CA No. 54/2008 Page12/18 R.C.R.(Criminal) 349 : 1993(1) R.C.R.(Criminal) 50 : 1991(3) Crimes 426 it was held:
"7. Under the principles of natural justice also, a statement cannot be used against a party who has not been afforded an opportunity to cross-examine. It is a right which has to be given to every litigant unless he gives it up voluntarily. The right to cross-examine is basic for fair and just trial and needs to be protected in all circumstances. It becomes the duty of the Court to see that it is not ignored or curtailed or circumscribed in any manner. If under any provision of law the Court is given discretion to permit cross-
examination, it must exercise its discretion judicially and liberally. Therefore, we have no hesitation to hold that the statement of S/Sh. Sharif Mohammad (PW-4), Surjit Singh (PW-16), Krishan Kumar (PW-17), Roshan Lal (PW-18), Vijay Kumar (PW-19) and Mool Raj (PW-20) are no evidence in the eyes of law and set aside the judgment dated 16-12-1989 of Sessions Judge, Una."
From the above legal position and the case law it is clear that in our adversarial judicial system the disputed facts and controversies between the parties need to be decided after they are given fair opportunity to lead their respective evidence. In a recent judgment passed by our Hon'bleHigh Court titled as Nidhi Kumar Gandhi v. State, 2009(157) D.L.T. 472 : 2009(1) JCC 571 Delhi, 2009(2) A.D.(Delhi) 297 it was held :
"13. On a conspectus of the proceedings, this Court finds that the learned ASJ ought CA No. 54/2008 Page13/18 not to have interfered with the order dated 20th December 2007 of the learned MM restoring to the Petitioner the possession of the premises in her occupation prior to 17th April 2007 particularly at the interim stage. It was premature on the part of the learned ASJ to have straightaway proceeded to apply the law explained by the Supreme Court in S.R. Batra v. Taruna Batra without any evidence having been led to determine whether in fact the Respondent No.2 owned the premises and that the husband had absolutely no right to live there. It is indeed inconceivable how at an interlocutory stage where, given the purposes of the Act, the question before the learned MM is of giving urgent relief, a final determination can be made on these aspects........... "
Though the Nidhi Kumar's (supra) case does not directly deal with the question but there is enough indication in the above observations that evidence of the parties is to be recorded to adjudicate disputes between them under the Act on merits though for urgent reliefs and interlocutory orders the recording of evidence may not be required. But surprisingly in the present case both parties before learned trial court gave statement jointly on 24/5/2008 that they were agreeable that the procedure under section 28 (2) of the Act will be adopted and case be decided on the basis of averments and pleadings. They also stated that they do not want to cross-examine each other and the amount may be fixed by the court and relief granted after going through the pleadings. The question is can the parties waive the procedure, which should be followed with due regard to the principles of the natural justice? If yes, is it in the interest of justice CA No. 54/2008 Page14/18 that such a procedure should be followed. It is needless to state that there are contentious issues with regard to status and income of the husband Mukand Swarup and there is dispute between the parties with regard to the question whether the wife Manisha was subjected to cruelty and domestic violence or there was any demand of dowry from her or her dowry articles were retained by her husband. Was it proper on the part of learned trial court to adjudicate upon the contention issues between the parties without recording evidence of the parties and without affording opportunity to cross-examine the witnesses of the opposite parties on the contentious issues. To find an answer to these questions it would be proper to look into the provisions of section 28 of the Act and how the same should have been interpreted in accordance with law.
Subsection (1) of Section 28 of the Act mandates that the proceedings under section is 12 and 18 to 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Further, Rule 6 (5) of The Protection of Women from Domestic Violence Rules, 2006 (in short Rules) clearly mandates that the application under section 12 shall be dealt with in the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973. Therefore, normal procedure to be adopted by the learned Metropolitan Magistrate in dealing with application under section 12 of the Act is the procedure which is followed by learned Metropolitan Magistrate in dealing with the application under section 125 of the CrPC.. Section 126 (2) which deals with the procedure to be followed in dealing with the application under section 125 CrPC states that all evidence to such proceedings shall be taken in the presence of person against whom an CA No. 54/2008 Page15/18 order for payment of maintenance is proposed to be made, or, when his personal attendances dispensed with in the presence of his leader, and shall be recorded in the manner prescribed for summons-cases. The proviso to subsection (2) of section 126 CrPC is not relevant for the purpose of our discussion. Therefore, like in summons-cases the evidence is to be recorded in the application under section 125 CrPC and both parties are to be given opportunity to lead evidence which, of course, includes a right to cross-examination of the witnesses produced by the opposite party. The experience shows that all the courts of learned Metropolitan Magistrates are dedicating the applications under section 125 CrPC after giving opportunities to the parties to lead evidence which includes the right to cross-examine the witnesses of the opposite party. Therefore, the same procedure needs to be followed in dealing with the application under section 12 of the Act. No doubt, the learned Metropolitan Magistrate has discretion under subsection (2) of section 28 of the Act to lay down its own procedure for disposal of an application under section 12 or under subsection (2) of section 23. But the procedure adopted should be fair, proper and just. There has to be some cogent and compelling reason for departing with the procedure prescribed in dealing with the application under section 125 CrPC read with section 28 (1) of the Act. As for instance when the parties are not at dispute in pleadings and the documents filed by one party are admitted by the respective opposite party. In such a case there is no need for leading evidence by either of the parties as they are not at issue , the parties admitting the case of the respective opposite party. However, when the disputed questions as to facts alleged by one party and controverted by the other are in issue the normal procedure as CA No. 54/2008 Page16/18 specified in section 28 (1) of the Act read with Rule 6 (5) of Rules read with section 126 (2) of CrPC should be followed and parties should be allowed to lead evidence and allowed to cross examine the witnesses produced by opposite party.
In view of the above discussion the disputed questions raised by the parties in the pleadings and documents ought not have been decided by the learned trial court in the impugned order on the basis of pleadings, mere filing of documents and affidavits of the parties without affording opportunity of cross-examination to the respective opposite party and without affording the opportunity to the parties to lead evidence and prove their case and documents, notwithstanding the fact that the parties had agreed to forego the right to lead evidence in cross-examination of each other.
There is no need to go into other arguments raised on behalf of both the parties. However, the impugned order passed by the learned trial court without evidence and without opportunity to cross-examine the witnesses has rendered it of the nature of interim order or an order passed by taking prima facie view of the matter at pre-evidence stage under section 23 of the Act. Therefore, keeping in view the fact that the provisions of the Act are for the benefit of the woman I direct that the impugned order dated 24/5/2008 passed by learned trial court be treated as the interim order under section 23 of the Act till the disposal of the contentious issues between the parties after affording parties to lead their respective evidence and also affording them opportunities to cross-examine witnesses of the opposite party touching the reliefs claimed in the petition under section 12 of the Act. Both the appeals are accordingly disposed of in terms of these CA No. 54/2008 Page17/18 observations.The order be sent to the server (www delhidistrictcourts.nic.in). The trial court record be returned along with the copy of this, judgment. A true copy of this, judgment be placed in Criminal Appeal No. 87/2008 which shall be disposed of accordingly. The parties shall appear before learned trial court on 09/04/2010 and learned trial court shall fix the case for recording evidence of appellant wife Manisha Swarup on contentious issues. The appeal files consigned to the record room.
Announced in the open Court on 03/04/10 (S. K. SARVARIA) Additional Sessions Judge:01,South Patiala House Courts, New Delhi CA No. 54/2008 Page18/18