Delhi District Court
Vijay Prakash Gupta vs Smt. Chitra Gupta @ Divya Gupta on 28 July, 2014
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0148682013
Criminal Appeal Number : 25/1/14 dated 01.02.2014
CC No. : 93/1
PS: : R. K. Puram
U/S: : 12 Domestic Violence Act
Vijay Prakash Gupta
S/o Sh. D.P. Gupta
R/o No. 59/1/, 3rd Floor
Rajajinagar Ist, N Block
Bangalote560010 .....Appellant
versus
1. Smt. Chitra Gupta @ Divya Gupta
W/o Sh Vijay Prakash Gupta
D/o Sh. Yash Pal Malhotra
2. Master Yash Gupta (Minor)
S/o Sh Vijay Prakash Gupta
(Through his mother & natural guardian
Smt. Chitra Gupta @ Divya Gupta)
Both Resident of:
C/o Rakesh, No. 211, Satya Niketan
South Campus, University of Delhi
New Delhi .....Respondents
CA No. 25/1/14 Page No.1/8
Vijay Prakash Gupta v. Chitra Gupta & Anr.
Appeal received by Court : 01.02.14
Arguments concluded : 28.07.14
Date of order : 28.07.14
JUDGMENT:
1 By way of present appeal, the appellant herein has challenged the order dated 16.4.2013 passed by Ms. Jyoti Kler, the Ld. Metropolitan Magistrate, (Mahila Court), South District, New Delhi, whereby, in a petition filed by the respondent no. 1 herein under section 12 of the Protection of Women from Domestic Violence Act, 2005 ( hereinafter referred as "DV Act"), the Ld. MM was pleased to awarded an amount of Rs.10,000/ per month towards interim maintenance to each of the petitioners before it, i.e. wife and a minor son of the appellant, hence awarding a total amount of Rs.20,000/ per month and the Ld. MM was further pleased to award Rs.5000/ per month towards rent for arranging alternative accommodation to the respondents herein. The aforesaid amount was awarded in favour of the respondents herein from the date of filing of the application under section 12 Domestic Violence Act, till further orders.
2 The aforesaid directions of the ld. MM have been challenged by the appellant by way of present appeal on the following amongst other grounds: 3 That the impugned order was passed by the Ld. MM against the law and facts on record and was a result of an erroneous approach which tentamounted CA No. 25/1/14 Page No.2/8 Vijay Prakash Gupta v. Chitra Gupta & Anr.
to the error of law which was apparent on the face of it.
4 The other ground with respect of lack of territorial jurisdiction of the court has also been cited for challenging the impugned order as the respondent no. 1 was stated to be residing at Noida, UP and respondent no. 2 who was aged about 4 years was stated to be studying at Ryan International School, Ghaziabad, Uttar Pradesh whereas the present petition under the DV Act has been filed at New Delhi with a malafide design before a court having no jurisdictional power to entertain the same.
5 However, I am not impressed with this contention of the appellant as it is a matter of record purely triable by the Ld. Trial Court on merits and the appellant shall have a right to counter the residence aspect of respondents by producing on record the documents to the contrary, hence at this stage, when both the parties are yet to adduce their respective evidence on the above aspect, this contention does not holds good.
6 Another objection related to the present application under the DV Act being barred by limitation and hit by section 468 Cr.P.C has also been taken as ground for challenging the aforesaid impugned order by the appellant. 7 This contention of the appellant is also baseless and is contrary to the settled preposition of law as section 468 Cr.P.C deals with the period of limitation for taking a cognizance of the offences by the court and not the CA No. 25/1/14 Page No.3/8 Vijay Prakash Gupta v. Chitra Gupta & Anr.
petition/application under the DV Act, as no offence perse has been provided therein carrying any punishment in the form of a sentence. Rather only non compliance of directions of the court has been cited in the said Act as a cognizable and nonbailable offence, which is a special Act and special legislations shall have an over riding effect over general procedural law as provided under the Cr.P.C and hence provisions of section 468 Cr.P.C have no application to the facts of the present case.
8 It has been further stated that the Ld. Trial Court had failed to appreciate that it was the respondent no. 1 who herself had willfully deserted the the appellant on 8.5.2011 and no such application was filed by her immediately after desertion or even prior to filing of the divorce case by the appellant on 29.8.2011, as she had filed the present application under DV Act only on 16.4.2012 to extort money and thereby to make herself unlawfully enrich by abusing the process of law.
9 This contention of the appellant is also baseless as there is no bar at all in law for filing of the application by an aggrieved person of this nature at any time convenient to her. Moreover, even from the perusal of the allegations as contained in the application of the respondent under the DV Act, she had not cited any violence being committed upon her during the period of desertion and all the incidents cited pertained to the period when she was living in CA No. 25/1/14 Page No.4/8 Vijay Prakash Gupta v. Chitra Gupta & Anr.
matrimonial relationship with the appellant.
10 The judgment of the Hon'ble High Court in Vijay Verma v. State of NCT of Delhi & Anr, in Crl. M.C. NO. 3878/2009, rendered by the HMJ S.N. Dingra, J ( as his lordship then was) has also been cited as a ground to challenge the aforesaid impugned order. However, the ratio of the said judgment has no application to the facts of the present case as the Hon'ble High Court had no occasion to discuss the provisions of 27 of the DV Act, which provided that courts within whose jurisdiction the aggrieved person either permanently or temporarily resides shall have jurisdiction to entertain this kind of petition. Moreover, it was a case involving a NRI settled permanently in USA whereas in the present case the respondent no. 1 permanently resides in India and she is an Indian citizen and has no intention to settle abroad as on date.
11 Domestic Incident Report (DIR) submitted by the Protection Officer has also been stated to be contrary to the Act of which the Ld. Trial Court had erred in taking notice in a mechanical manner without bestowing its judicial mind to the same. However, it appears from the perusal of the record that the said report was not even challenged before the Ld. MM by the present appellant at any point of time. Hence, by choosing not to challenge the said DIR before the ld. MM on an earlier occasion, the appellant has now lost his CA No. 25/1/14 Page No.5/8 Vijay Prakash Gupta v. Chitra Gupta & Anr.
right to agitate and challenge the same before this court and thus citing any reference of the same is, of no use and avail to the appellant before this court. 12 It has also been stated that the Ld. MM had erred in concluding that for the purpose of deciding an issue related to awarding of interim maintenance in favour of the respondents herein though such allegations and counter allegations should not have been decided on the basis of affidavits and supporting documents produced and did not constitute a prima facie material for consideration of the court. In this regard, it is observed that despite the respondent no.1 having filed an affidavit before the Ld. Trial Court giving each and every detail about earnings and assets of the appellant, the appellant had chosen not to file any counter affidavit to contradict the version of the respondent's version.
13 It has also been stated that the Ld. MM had further grossly erred in concluding that the registration of FIR against the appellant herein, was considered to be prima facie a sufficient material to suggest commission of domestic violence upon respondent no. 1 for the purpose of awarding her the interim maintenance. Needless to mention here that it is only a prima facie view of the Ld. MM and the appellant shall have ample opportunities at the stage of trial to rebut those allegations against him.
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14 Remaining grounds, as taken by the appellant herein, related to the educational qualification and earnings of the appellant which have been stated to have been completely ignored by the Ld. MM. All these pleas and grounds taken by the appellant before this court are essentially a matter of trial which can only be proved or disproved by adducing evidence before the Ld. Trial Court. Hence, the same cannot be considered at this preliminary stage. 15 Even otherwise, a perusal of the impugned order, as passed by the Ld. MM, shows that it is based on sound and cogent reasonings wherein the Ld. MM had ignored the claim of the respondent no. 1 herein about the earnings of the appellant herein in lacs on the basis of statements of his bank accounts which even talked about the interest earnings of the appellant to be around Rs. 3 lacs per annum, and the Ld. MM had only concluded the prima facie income of appellant to be just Rs.50,000/ per month only for the purpose of awarding an interim maintenance to the respondents herein.
16 It is settled preposition of law that a person is presumed to incur maximum 1/3rd portion of his total income on himself, whereas the Ld. MM had allowed the appellant herein to retain 1/2 of his income to be used by him for himself.
17 In view of the aforesaid observations, I am of the considered opinion that no illegality or infirmity can be pointed out in the impugned order warranting CA No. 25/1/14 Page No.7/8 Vijay Prakash Gupta v. Chitra Gupta & Anr.
an interference of this court by virtue of its appellate power and jurisdiction. 18 The appeal is, thus, dismissed being devoid of any merits with cost of Rs. 50,000/, which shall be paid by the appellant before the Ld. Trial Court within 30 days from today, failing which the same shall be recovered from the appellant as arrears of land revenue.
19 TCR be sent back to the court concerned with a copy of judgment. 20 Appeal file be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 28.07.2014 (LOKESH KUMAR SHARMA)
ADDITIONAL SESSIONS JUDGE04
NEW DELHI DISTRICT/ PATIALA
HOUSE COURTS/NEW DELHI
CA No. 25/1/14 Page No.8/8
Vijay Prakash Gupta v. Chitra Gupta & Anr.