Delhi District Court
Kavita Rao vs Satyavol Venkat Rama Krishna Rao on 23 October, 2021
Kavita Rao V. Satyavol Venkat Rama Krishna Rao
AND
Satyavol Venkat Rama Krishna Rao V. Kavita Rao
IN THE COURT OF ARUN SUKHIJA,
ADDL. SESSIONS JUDGE-03 (EAST DISTRICT),
KARKARDOOMA COURTS, DELHI.
CRIMINAL APPEALS NOS. - 133/2019 AND 109/2019
IN THE MATTER OF :
Kavita Rao
W/o Satyavol Venkat Rama Krishna Rao,
Aged about 49 years,
R/o A-145, 1 st Floor, Priyadarshni Vihar,
Laxmi Nagar, New Delhi-92. ...Appellant
Versus
Satyavol Venkat Rama Krishna Rao
S/o S.S. Shankar Rao
R/o Flat No. S-1, Second Floor,
Plot No. C-12/A, Kaushambi Ghaziabad,
Uttar Pradesh. ...Respondent
AND
Satyavol Venkat Rama Krishna Rao
Aged about 49 years
S/o Late S.S. Shankar Rao
R/o A-8/30, Ground Floor,
Rana Pratap Bagh, Delhi-110007. ...Appellant
Versus
Kavita Rao
W/o Shri S.V. Rama Krishna Rao,
D/o Shri M.D. Chaudhary
R/o A-145, First Floor, Priyadarshini Vihar,
Delhi-110092. ...Respondent
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Kavita Rao V. Satyavol Venkat Rama Krishna Rao
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Satyavol Venkat Rama Krishna Rao V. Kavita Rao
::- COMMON JUDGMENT -::
By way of present judgment, this Court shall decide respective appeals
filed by Smt. Kavita Rao (hereinafter referred to as Petitioner/Complainant)
and Shri S.V. Rama Krishna Rao (hereinafter referred to as Respondent).
The petitioner/complainant has filed the petition under Section 12 of
the Protection of Women from Domestic Violence Act, 2005 (in short PWDV
Act). The Ld. Trial Court has decided the petition vide impugned judgment
dated 22.04.2019 granting certain reliefs in favour of the petitioner/
complainant and turned down certain reliefs. The petitioner/complainant as
well as respondent is aggrieved from certain parts of the said judgment and
accordingly, they have separately challenged the same. This Court shall
decide both the appeals through this common judgment.
The petitioner/complainant has filed the petition under Section 12 of
the PWDV Act, inter alia on the following facts:-
(a) The petitioner was married with the respondent on 29.03.1994
according to Hindu rites and ceremonies at Delhi and in her
marriage, her parents had spent beyond their capacity. Their
marriage was a love marriage, which was initiated by the
respondent/husband.
(b) Out of this wedlock, one male child namely Pratyaksh Rao was
born on 22.09.1996, who was in the custody of the petitioner. The
Petitioner was harassed and treated mercilessly by the respondent
and her life became a living nightmare.
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(c) The petitioner was working with Air India, since before her
marriage. The respondent is an able bodied person, working as a
buying agent, exporter and has different companies under the name
and style of Business Premier Overseas, PRK Exports, Twist and
Turns etc. Just a few days after their marriage, the respondent
informed her that he had left his job at Mumbai as he had
adjustment problems there and so, the petitioner's family had
supported him and taken care of all his needs. After marriage, the
behavior of the respondent changed suddenly and when he was
asked the reason for the same, he wryly told her that he was not
happy with the gifts given in the marriage. The respondent then got
a new job which was based in Bangalore. The respondent, however,
told the petitioner that he wouldn't take her along with him to
Bangalore, by feigning some issues pertaining to settling down
there. The petitioner would, at that time, visit the respondent on
weekends and holidays.
(d) The petitioner is also aggrieved by the respondent for the reason
that he allegedly remained indifferent to her needs even during her
pregnancy and even post-delivery. The respondent had not even
paid for her delivery.
(e) In December 1997, the petitioner shifted to Delhi where she used to
stay alone and she was told by the respondent not to expect any
help from his family as they were pre-occupied with their jobs. In
December 1997, the respondent again left his job and asked her to
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bear all the expenses. During this period, the respondent took
control over all bank accounts of the petitioner and insisted that she
open a joint bank account, where she was to put all her earnings.
(f) In the year 1999, the respondent demanded money from her for
starting his own business and when she and her father had
expressed their inability to arrange for the funds, the respondent
had abused her and her father. To pacify the respondent, the father
of the petitioner somehow managed a loan of Rs.3 lakhs.
(g) The respondent was very irresponsible with finances and had traits
of financial profligacy and whenever the petitioner asked him for
accounts, he would get upset and abused her.
(h) In the year 2002, the petitioner and respondent jointly bought a flat
in ELDECO, Greater Noida in their joint names for investment
purposes. Later in the year 2005-2006, when the petitioner's father
had built two more floors in his house and wanted to gift one of it
to the petitioner, the respondent had insisted the same be
transferred in his name. However, when the petitioner's father
insisted that he will transfer it in the petitioner's name, the
respondent had become furious. The petitioner has averred that by
this time, the marriage had lost its sheen and she had realized the
true, greedy intentions of the respondent for marrying her. She had
realized that the respondent had just married her to grab her
property.
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(i) In September 2006, she came to know about the illicit relations of
the respondent with one girl namely Ruchi and when she
confronted the respondent regarding that, he had unabashedly
admitted the same.
(j) In July 2008, the respondent had left her for good on the pretext
that he needed independent space and all efforts by the parents of
the petitioner and the respondent to make him change his mind,
proved to be an exercise in futility.
(k) The petitioner has also alleged that the respondent was
continuously threatening to sell the House No. A-145, 1st Floor,
Priyadarshini Vihar, Delhi, where she was residing along with her
son.
The petitioner has also mentioned several other behavioral oddities of
the respondent and has also alleged that he would not let her freely meet or
call her relatives or friends. Aggrieved by the conduct of the respondent, the
petitioner filed the petition claiming multiple reliefs.
Ld. Trial Court has granted the following reliefs to the petitioner/
complainant:-
(a) The right of residence to the petitioner/complainant and her son in
property bearing no. A-145, First Floor, Priyadarshini Vihar, Delhi
and the Respondent is injuncted from dispossessing the petitioner/
complainant from the same without adopting due process of law.
(b) The release of title deed of property bearing no.A-145, First Floor,
Priyadarshini Vihar, Delhi (in short P.D. Vihar) to the
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petitioner/complainant. However, the petitioner/complainant is
directed to release the title documents to the respondent in the
eventuality that he wants to sell the P.D.Vihar property and has
found a suitable buyer for it. The sale transaction shall be done in
the presence of the petitioner so that her right of lien to the extent
of payment made by her to clear the loans is not rendered nugatory.
(c) The respondent had a bounden obligation to support his son
Pratyaksh till he attained majority and an amount of Rs.12,000/-
per month would be a reasonable amount to pay for the expenses
incurred on raising the minor son Pratyaksh and this amount would
be sufficient to cater to his developmental needs.
I have heard at the arguments of the Ld. Counsel for parties at length
and perused the material on record.
ON THE QUESTION OF PLEADINGS, SUBSEQUENT EVENTS
AND RELIEFS GRANTED BY THE LD. TRIAL COURT
The Ld. Counsel for the respondent has vehemently argued as under:-
(a) The Ld. Trial Court has not taken into consideration the pleadings
specifically the complaint and relief(s) sought by the
Petitioner/Complainant.
(b) Some portion of the evidence of the Petitioner/Complainant was
not part of the original complaint and there were various averments
in evidence which were subsequent to the filing of the
complaint/petition and the Ld. Trial Court ought not to have looked
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into the allegations which were made subsequent to the filing of the
petition under Section 12 of the PWDV Act.
(c) The Ld. Trial Court cannot grant the reliefs which were not even
prayed for by the Petitioner/Complainant and in order to buttress
the said arguments, the Ld. Counsel for the respondent has relied
upon following judgments:-
1. Messers. Trojan & Co. Vs. RM.N.N. Nagappa Chettiar
AIR 1953 SC 235: 1953 SCR 780;
2. Krishna Priya Ganguly etc. etc. Vs. University of
Lucknow & Ors. etc. AIR 1984 SC 186;
3. Om Prakash & Ors. Vs. Ram Kumar & Ors. AIR 1991 SC
409;
4. Fertilizer Corporation of India Ltd. & Anr. Vs. Sarat
Chandra Rath & Ors. AIR 1996 SC 2744;
5. Krishna Priya Ganguly etc. Vs. University of Lucknow &
Ors. etc. AIR 1984 SC 186; 1984 SCR (1) 302: (1984) 1
SCC 307;
6. Om Prakash Vs. Ram Kumar: (1991) 1 SCC 441
7. Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi
& Ors., AIR 2010 SC 475;
8. Manohar Lal (D) By LRs Vs. Ugrasen (D) by LRs. & Ors.
on 3 June, 2010 passed by Hon'ble Supreme Court;
The Ld. Counsel for the Petitioner/complainant has assiduously argued
as under:-
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(a) The entire basis of subsequent events were the orders and
judgments of DRT, DRAT and Hon'ble High Court and there was
absolutely no dispute or quarrel between the parties qua the said
orders and Judgments and further the same are admitted facts from
both the sides.
(b) The petitioner/complainant has already laid the foundation in the
complaint regarding threat of sale of the P.D.Vihar property by
HDFC Bank Officials on the behest of respondent.
(c) The pleadings have to be looked as a whole and in case, the need
arises, then, the Court is not powerless to grant the relief, as per the
situation arises in the case. The Court is also required to see the
report of Protection Officer, as per mandate of Section 12 of the
PWDV Act, 2005.
FINDINGS & CONCLUSIONS OF THE COURT
The perusal of the complaint/petition reveals that it is a specific
averment in the complaint that the respondent has threatened that he has
already taken into confidence the HDFC Bank officials and they will sell off
the P.D. Vihar property, where the complainant and her son are staying, just
to teach a lesson to the complainant and her family. As per para No. 41 of
the complaint, it is mentioned that the respondent averred in the judicial
proceedings that the respondent has suffered heavy losses and bankruptcy
but he is still maintaining three rented properties.
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The petitioner/complainant has laid foundation in the pleadings that
the respondent had taken a loan from HDFC Bank and he has been
threatening to evict the petitioner/complainant from the property of P.D.
Vihar with the help of HDFC Bank officials. The subsequent judicial
proceedings in respect of P.D. Vihar and ELDECO properties are matter of
record and the same are not disputed by the parties at any point time before
the Ld. Trial Court.
Furthermore, the Petitioner/Complainant has relied upon the detailed
evidence by way of affidavit, which was exhibited as PW-1/A, however, at
the time of its exhibition in examination in chief and even at the start of cross
examination, the respondent had not taken any objection that certain portion
of the evidence is beyond pleadings i.e. the complaint filed by the petitioner/
complainant. The strict interpretation of the plaint and pleadings cannot be
given to the petition/Complainant under PWDV Act, 2005 as the provisions
of CPC are not applicable to the said petition.
The perusal of the heading of the complaint filed by the
Petitioner/Complainant reveals that petition under Section 12 of PWDV Act,
2005 filed by her in order to seek protection order, order of grant of right of
residence, monetary relief including maintenance and order of compensation.
Section 12(1) of the PWDV Act, 2005 envisages that an aggrieved person or
a protection officer or any other person on behalf of the aggrieved person
may present an application to the Magistrate seeking one or more reliefs
under this Act, however, proviso of the same provides that before passing
any order on such application, the Magistrate shall take into consideration
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any domestic incident report received by him from the Protection Officer or
the service provider. As per Para No.6 of the Domestic Incident Report, the
petitioner/complainant wants from the Court Protection order under Section
18, Residence order under Section 19, Maintenance order under Section 20
and Compensation order under Section 22 and other order also.
As per Rule 2(b) of PWDV Rules 2006, the complainant means any
allegation made orally or in writing by person to the Protection Officer. Rule
6(5) of PWDV Rules, 2006, provides that the applications under Section 12
shall be dealt with and orders enforced in the same manner as laid down
under Section 125 of Code of Criminal Procedure, 1973 (in short Cr.P.C.,
1973). In view thereof, the provisions of Cr.P.C., the procedure which are
applicable to petition under Section 125 Cr.P.C, 1973, would also be
applicable to complaint under Section 12 of PWDV Act, 2005. Therefore, the
procedure envisaged in the Code of Civil Procedure, 1908 is not applicable
to the complaint(s) filed under PWDV Act, 2005.
This Court is of the considered view that the Court may grant
appropriate relief(s) as per facts and circumstances of each and every case.
None of the Judgments, as relied upon by the Ld. Counsel for the respondent,
relates to the complaint filed under PWDV Act, 2005 and the same are not
applicable to the factual matrix of the case. Furthermore, the PWDV Act,
2005 is a Social legislation for the aggrieved person and this Court is of the
considered view that strict rigorous of pleadings or procedure cannot come
into the way of granting substantial relief, if the situation so demands for.
The Court, after looking into the facts and circumstances of each case, has to
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do the substantial justice and it cannot be tied down by procedural laws
which are otherwise subservient to the substantial law. The Court can always
look into the subsequent events, which were happened between the parties,
specifically with respect to the ELDECO and P.D. Vihar Property, more so,
the judicial proceedings which are admitted documents and after considering
the totality of facts can grant appropriate relief(s).
In view of the discussions made hereinabove, the arguments addressed
by the Ld. Counsel for the respondent are devoid of any merits and the same
are hereby rejected.
ON THE QUESTION OF DOMESTIC VIOLENCE
FINDINGS & CONCLUSIONS OF THE COURT
The perusal of the record reveals that it is only the
petitioner/complainant who has led evidence and respondent was given an
opportunity to lead the evidence in the matter, however, the respondent has
not availed the opportunity of leading evidence despite filing the evidence by
way of affidavit running into 39 pages. The perusal of the order dated
01.04.2015 reveals that the right of the respondent to lead the evidence was
closed and the matter was fixed for final arguments. The respondent has not
challenged the said order instead filed the written final arguments on
15.04.2015, which was the next date of hearing. Thus, the testimony of the
petitioner/complainant has remained almost uncontroverted, unchallenged
and un-rebutted.
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This Court can also see the plight of the petitioner/complainant how
the petitioner/complainant has suffered not only physical and mental agony,
verbal and emotional abuse but also the economic abuse at the hands of the
respondent. The respondent had taken the loan for his business purpose from
HDFC bank and mortgaged the two vital properties i.e. ELDECO and P.D.
Vihar. The Petitioner/Complainant was owner of half of the property of
ELDECO and P.D. Vihar property was originally belonged to her father. The
petitioner/complainant was to run pillar to post and she had single handedly
the following acts:-
1. To bring-up the minor child namely Pratyaksh Rao and looking after
her day to day requirements towards education, food, clothing, shelter,
status, etc.
2. Day-to-day requirements of her job as she was/is working in AIR
India.
3. The Litigation qua the aforesaid properties i.e. ELDECO & P.D. Vihar
which were mortgaged by the respondent for his business loans.
The respondent had shirked his liabilities to pay off the mortgaged
money to the bank officials and on account of acts of commissions and
omissions of the respondent, the petitioner/complainant was to shell out
Rs.44 lakhs from her own pocket to save the P.D. Vihar property and she had
suffered a minimum monetary loss of Rs.22.50 Lakhs in ELDECO property.
The perusal of the cross-examination of the petitioner/complainant
reveals that the properties were mortgaged in the year 2005. The annual
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income of the petitioner/complainant was only a sum of Rs.6.5 lakhs to Rs.7
lakhs in the year 2009. It is also borne out from the cross-examination that
the flat of P.D. Vihar was surrendered to HDFC Bank by the respondent and
when the said act was done by the respondent, the Petitioner/complainant has
approached DRT, DRAT and Hon'ble High Court for saving the said flat
from being sold by the HDFC bank and the result of the same was
culminated in the final orders dated 13.02.2012 and 08.08.2012 passed by
Hon'ble High Court. With the meager annual income of Rs.6.5 lakhs in the
year 2009, the complainant/petitioner was deprived of the amount of
Rs.66.50 Lakhs i.e. approximately ten times of her annual income i.e. about
10 years of her annual income. No doubt, the Hon'ble High Court for the
said amount has created the lien on the property of P.D. Vihar, but this Court
can look into the plight of the petitioner/complainant, who has single
handedly tried to save the valuable property of P.D. Vihar by paying an
amount of Rs.44.00 Lakhs to the bank from her own pocket.
There is no dispute between the parties that the P.D. Vihar property
was originally belonged to the father of the petitioner/complainant and it is
stated in the complaint/petition and also in the evidence of PW-1 that in the
year 2005-06, the father of complainant built-up two more floors of this
house and the respondent insisted and demanded that he should get one floor
in his own name as he was son-in-law and would take care of his parents in
the old age. It is also borne from the record that the petitioner/complainant is
not having any brother. As per evidence of PW-1, the father of the
complainant/petitioner has insisted that he will put his daughter's name in
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the registry of his house and the respondent got furious and put an allegation
of mistrust on him. In good faith, the father of the petitioner/complainant did
not insist further.
The perusal of the Sale Deed dated 14.10.2005 appears that only a
paltry sum of Rs.10 Lakhs was kept as consideration amount and from the
records, it appears that in the year 2005 itself, against the said Sale Deed
dated 14.10.2005, the respondent had taken a huge amount loan on the said
property and definitely, the same appears to be much more than the amount
of Rs.10.00 Lakhs as the total amount, which was paid to HDFC Bank, was
about Rs.89 Lakhs in the year 2012, out of which, worth of the ELDECO
property was about Rs.45 Lakhs and an amount of Rs.44 Lakhs was given by
the petitioner/complainant to save the P.D. Vihar property. This Court does
not want to go into the depth and intricacy of the said Sale Deed, however,
the consideration amount shown in the Sale Deed appears to be a paltry
amount and more-so, in the light of reply of the respondent to the appeal
filed by the Petitioner/Complainant, wherein, the respondent had submitted
that at present, the value of the P.D. Vihar property is about Rs.3 Crores. As
per the respondent himself, the alleged investment of Rs.10 Lakhs in the year
2005 jumped to Rs.3 crores in the year 2020-21. However, the entire record
speaks the volume about the struggle made by the petitioner/complainant to
save the said property as this property was originally owned by the father of
the petitioner/complainant and in this property, the petitioner/ complainant
and her son is residing. There is no dispute that prior to living in the property
i.e. P.D. Vihar Flat, the parties were residing in property no. 304, First Floor,
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Bank Enclave, Laxmi Nagar, Delhi, however, the said property was a rented
property and not the owned property of any of the parties. The P.D. Vihar
property is basically the property which originally belongs to the father of
the complainant/petitioner and thereafter, the respondent has claimed his
right in the said property by means of the Sale Deed dated 14.10.2005.
As per the case of the respondent himself, he had already surrendered
the said flat to the bank to sell off the same in order to recover their dues
which were actually due and payable by the respondent and which were
actually paid by the complainant. Furthermore, the Ld. Trial Court has held
as under:-
".......She has tendered her evidence by her affidavit wherein
she has reiterated all the allegations which were incorporated in
her petition under Section 12 of the DV Act. The Ld. Counsel for
the respondent has failed to cull out any circumstance/
contradiction/inconsistency in her statement which would have
taken away the credibility of her version. The meek suggestions
given by the Ld. Counsel for the respondent in refuting the
complicity of the respondent in torturing and emotionally
abusing the petitioner have been categorically refuted by the
petitioner, who has consistently stuck to her version. The
consistency and clarity in the version of the petitioner impart a
sense of genuineness to her deposition. The respondent and his
counsel have abysmally failed to demolish the petitioner's case
by proving to the contrary. The fact that the respondent didn't
avail of the opportunities to lead evidence in support of the
defence taken by him also make his case rather weak and
rickety.
19. From the totality of material available on record and
evidence recorded, it can be said that the petitioner has
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successfully proved that she was subjected to domestic violence
at the hands of the respondent."
From the discussions made hereinabove, this Court is in complete
agreement with the aforesaid findings of the Ld. Trial Court. Therefore, the
totality of facts reveals that the domestic violence was actually done by the
respondent on the petitioner/ complainant.
ON THE QUESTION OF RELIEF(S) TO WHICH THE
PETITIONER/COMPLAINANT IS/ARE ENTITLED TO
Now, this Court will deal each relief under the following sub-
headings:-
MONETARY RELIEF
The Ld. Trial Court has granted maintenance in the sum of Rs.12,000/-
per month for the child namely Pratyaksh Rao from filing of the petition till
he attained majority. The Ld. Trial Court has held that the petitioner was also
bound to incur some expenses on the upkeep of child as petitioner/
complainant is also working woman and working with Air India.
The perusal of cross-examination of PW-1 namely Kavita Rao reveals
that the annual income of petitioner/complainant in the year 2009 was Rs.6.5
Lakhs -7 Lakhs. The said amount is after deduction of the income tax or the
same was prior to the deduction of income tax is not clear and the Court
assumes it to be the net income of the petitioner. In view of the observation
made hereinabove, the petitioner has to shed-out a sum of Rs.44 Lakhs in
order to save the P.D. Vihar property and she has suffered minimum loss of
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asset of Rs.22.5 Lakhs after the sale of ELDECO property in order to pay out
the mortgage money, which was solely taken by the respondent for his
business loan. No doubt, the said amount of Rs.66.50 lakhs is a lien amount
but since 2012 on account of the misdeeds and acts of the respondent, the
petitioner has basically suffered a huge monetary set back and the said
amount is approximately ten times or 10 years' annual income of the
petitioner/Complainant.
It is the case of the respondent during cross-examination of PW-1/
Petitioner/Complainant that he was paying the rent of Rs.60,000/- per month,
although, the said suggestion was denied by PW-1. The respondent has failed
to prove that he was paying the rent to the extent of Rs.60,000/- p.m.,
however, the said cross-examination shows that as per respondent himself,
his earning was quite high as he himself has submitted that he was paying a
rent of Rs.60,000/- per month.
Further, during cross-examination, it is the case of the respondent that
90% of the expenses towards the house, maid, electricity, son's school fee,
monthly installments of cars, houses, insurance premiums for the son and
expenses for various comforts/vacation trips were shouldered by the
respondent himself. Although, the said suggestion was also denied by the
petitioner, but as per the case of the respondent himself, he was shouldering
the said expenses. However, he has failed to lead any evidence to prove the
said aspect also. If, the case of the respondent is to be believed from the said
cross-examination, then, the respondent is a man of means and he must not
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be earning less than Rs.1.25 Lakh per month in order to shoulder the alleged
said expenses.
Ld. Trial Court has granted maintenance to the minor child till his
attaining the age of majority. There is no dispute that the said child, after his
completion of senior secondary school, has done Engineering. It is not
expected from a child to earn immediately after the age of 18 years and in
this case, as per the respondent himself, he was having the means to give
good and quality Education to the child. The minor child Pratyaksh Rao has
done his Engineering and it is expected that till the age of 22-23 years, he
must be undergoing the course of Engineering and at that time, it cannot be
expected from Pratyaksh Rao to earn for himself and even to shoulder the
burden of expenses which were incurred on his education, food, clothing,
shelter, travelling expenses, etc.
Recently, our Hon'ble High Court in Urvashi Aggarwal and Others
Versus Inderpaul Aggarwal has considered the said issue.1 The relevant
paras 10 to 17 of the said Judgment are reproduced hereunder for apt
understanding:-
"10. This Court cannot shut its eyes to the reality that simply
attaining majority does not translate into the understanding that
the major son is earning sufficiently. At the age of 18, it can be
safely assumed that the son is either graduating from 12 standard
or is in his first year of college. More often than not, it does not
place him in a position wherein he can earn to sustain or
maintain himself. It further places the entire burden on the
mother to bear the expenses of educating the children without
any contribution from the father, and this Court cannot
countenance such a situation.
1
2021 SCC OnLine Del 4641
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11. The Supreme Court and other High Courts have, in a slew of
judgments, in view of the facts and circumstances of the case
placed before them, upheld the maintenance allowance granted
to a son post attaining majority on the ground that the father has
a duty to finance basic education of the child and that the child
cannot be deprived of his right to be educated due to his parents
getting divorced. In Chandrashekhar v. Swapnil, Criminal
Appeal Nos. 265-266 of 2021, the Supreme Court had upheld
the arrangement to provide maintenance to the son until he
completed his first degree course after high school so as to
ensure that he becomes a self-supporting individual and can live
in dignity. In Rita Dutta v. Subhendu Dutta, (2005) 6 SCC 619,
the Supreme Court had maintained the allowance which had
been granted to the elder son who had attained majority.
12. In Jayvardhan Sinh Chapotkat v. Ajayveer Chapotkat, Civil
Writ Petition No. 2117 of 2012, while allowing a writ petition
on the question as to whether maintenance could be paid to the
son by the father even after attainment of majority, the Bombay
High Court had held as follows:-
"16. A major son may not be entitled for maintenance
under the Hindu Marriage Act. In the present case, the
Petitioner has made out a specific claim for educational
expenses which can be availed by him after attaining the
age of 18 years. The son/claimant would attain majority
as far as age is concerned, however, it would not be the
proper age for becoming economically independent so as
to earn his living. In the given facts of the case, a major
son of a the well-educated and economically sound
parents can claim educational expenses from his father
or mother irrespective of the fact that he has attained
majority. It is not maintenance in strict senses as
contemplated under Section 125 of the Code of Criminal
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Procedure or maintenance as contemplated under
Section 20 under Hindu Marriage Act".
xxxx
"20. In view of this, this Court is of the opinion that
since the father i.e. the respondent is well placed
financially, it would be incumbent upon him to bear
educational expenses of his son till he is able to earn his
own living or till he completes his education. This is in
fact, a concession to a major son and therefore, the
Petition filed by the Petitioner deserves to be allowed".
13. The Madras High Court, in T. Vimala v. S. Ramakrishnan,
Crl. R.C. (MD) No. 180 of 2014, while noting that daughters
could be maintained after attaining majority as a result of
Section 20 of the Hindu Marriage Act, had emphasised on how
the law, i.e. Section 125 of the Code, had to be interpreted
liberally as well as the obligation of a father to meet educational
expenses of his children. It had observed as follows:-
"18. The very purpose of Section 125 Cr.P.C. is also to
protect the children from want of roof, food, clothing
and necessities of life. Education is an important aspect
in children's life. Amounts need to be spent for it. Those
expenses are educational expenses. Every father is
bound to provide a good education to his children. No
father is expected to produce a criminal or a disorderly
person. Thus, he has to bear the educational expenses of
his children. Children have to maintain their education
by meeting the educational expenses. Even a man on the
pavement will be dreaming of his children becoming a
qualified person in life. Therefore, the obligation of a
father to maintain, to meet the educational expenses of
his children cannot be excluded for the component of
maintenance. Section 125 Cr.P.C. is not only for food for
life, it should also be for food for thought. Otherwise, so
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far as the children are concerned, we will be doing
violence to the very object of Section 125 Cr.P.C."
14. In the instant case, the challenge to the maintenance granted
for the education of the major son has been mounted by the
Respondent on the ground that it is contrary to the relevant
statutory provision, i.e. Section 125, and that it diametrically
opposes the interpretation of Section 125 as has been laid down
in Amarendra Kumar Paul v. Maya Paul (supra).
15. The Supreme Court in Amarendra Kumar Paul v. Maya Paul
(supra) has interpreted Section 125 Cr.P.C. and held that an
application for grant of maintenance would be maintainable for
an illegitimate or legitimate child, whether married or not, as
long as it has not attained majority and is unable to maintain
itself. The Hon'ble Apex Court had observed as follows:-
"An application for grant of maintenance, therefore, is
maintainable, so far as the children are concerned, till
they had not attained majority. As a cause of action for
grant of maintenance would arise only in the event a
person having sufficient means, neglects or refuses to
maintain his legitimate or illegitimate minor child unable
to maintain itself, once, therefore, the children attained
majority, the said provision would cease to apply to their
cases".
16. It would be pertinent at this juncture to reproduce the
relevant portion from the impugned Judgment which has been
sought to be recalled by the Respondent herein. It reads as
follows:-
"12. The Petitioner No. 1 is working as an Upper
Division Clerk in Delhi Municipal Corporation, earning
about Rs. 60,000/- per month. The records indicate that
the respondent has filed his salary certificate which
shows that his gross monthly income, as on November,
2020, is Rs. 1,67,920/-. The two children are living with
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the mother. After attaining the age of majority, the entire
expenditure of the petitioner No. 2 is now being borne
by the Petitioner No. 1. The petitioner No. 1 has to take
care of the entire expenditure of the Petitioner No. 2 who
has now attained majority but is not earning because he
is still studying. The learned Family Court, therefore,
failed to appreciate the fact that since no contribution is
being made by the respondent herein towards the
petitioner No. 2, the salary earned by the petitioner No. 1
would not be sufficient for the petitioner No. 1 to
maintain herself. This Court cannot shut its eyes to the
fact that at the age of 18 the education of petitioner No.
2 is not yet over and the petitioner No. 2 cannot sustain
himself. The petitioner No. 2 would have barely passed
his 12th Standard on completing 18 years of age and
therefore the petitioner No. 1 has to look after the
petitioner No. 2 and bear his entire expenses. It cannot
be said that the obligation of a father would come to an
end when his son reaches 18 years of age and the entire
burden would fall only on the mother. The amount
earned by the mother has to be spent on her and on her
children without any contribution by the father because
the son has attained majority. The Court cannot shut its
eyes to the rising cost of living. It is not reasonable to
expect that the mother alone would bear the entire
burden for herself and for the son with the small
amount of maintenance given by the respondent
herein towards the maintenance of his daughter.
The amount earned by the petitioner No. 1 will not
be sufficient for the family of three, i.e. the mother
and two children to sustain themselves. The amount
spent on the petitioner No. 2 will not be available
for the petitioner No. 1. This Court is therefore
inclined to grant a sum of Rs. 15,000/- per month
as interim maintenance to the petitioner No. 1 from
the date of petitioner No. 2 attaining the age of
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majority till he completes his graduation or starts
earning whichever is earlier. The instant petition was
filed in the year 2008. The learned Family Court is
directed to dispose as expeditiously as possible,
preferably within 12 months of the receipt of a copy of
this order."
(emphasis supplied)
17. A perusal of the relevant portion of the aforementioned
paragraph reveals that this Court has not granted the interim
maintenance allowance to Petitioner No. 2 (the son who has
attained majority), but to Petitioner No. 1 for maintaining
Petitioner No. 2 till he completes his graduation or starts
earning, whichever is earlier. In view of this, the judgment relied
upon by the learned Counsel for the Respondent is not
applicable to the instant case as maintenance has not been
granted to the major son in the first place, but to the mother.
Therefore, the ground on the basis of which the Respondent has
sought the recall of the impugned Judgment does not appertain
to the matter herein."
Section 20(1)(d) of PWDV Act, 2005 is also reproduced as under:-
".....(d) the maintenance of the aggrieved person as well
as her children, if any, including an order under or in
addition to an order of maintenance under Section 125 of
the Code of Criminal Procedure, 1973(2 of 1974) or any
other law for the time being in force."
The bare perusal of the aforesaid provision of PWDV Act, 2005
reveals that no bar or category is created under the said provision as in the
case of Section 125 Cr.P.C. and it further says that maintenance can be
awarded, in addition to an order of maintenance under Section 125 Cr.P.C.,
1973 or any other law for the time being in force.
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Considering the overall circumstances of the present case, this Court is
of the considered opinion that a sum of Rs.12,000/- per month, which was
awarded by the Ld. Trial Court, does not commensurate with the upbringing
of the child Pratyaksh Rao and status of the parties.
The respondent is directed to pay maintenance @ Rs.25,000/- per
month for the Child namely Pratyaksh Rao to the Petitioner/Complainant
from the filing of the petition by the complainant/petitioner till the said Child
completed his graduation/Engineering or started earning, whichever is
earlier. Accordingly, the relief of maintenance, as granted by the Ld. Trial
Court, is modified in terms of this order. The respondent is directed to pay
the maintenance within a period of one month from passing of this
Judgment.
COMPENSATION
This Court has already observed that the petitioner/complainant was to
run pillar to post not only in upbringing the minor child but simultaneously
doing her job. As observed hereinabove, the Petitioner/Complainant has also
struggled to protect the shared household property of P.D. Vihar, which was
originally belonged to her father and in order to save the said property, the
petitioner/complainant was also out of pocket of sum of Rs.44 Lakhs. She
has also suffered minimum asset loss of Rs.22.5 Lakhs and further she must
have incurred litigation expenses before DRT, DRAT and Hon'ble High
Court.
Considering the overall facts & circumstances of the present case, this
is a fit case where the petitioner deserves the relief of compensation.
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Accordingly, considering the entire facts & circumstances of the present
case, a sum of Rs.10.00 Lakhs is awarded towards the compensation to the
petitioner/complainant and the respondent is liable to pay her within a period
of one month from passing of this Judgment.
RESIDENCE ORDER, RESTRAINED ORDER AND
CONSEQUENTIAL RELIEFS
The Ld. Trial Court has categorically held that property bearing no.
A-145, First Floor, P.D. Vihar, Delhi is the share household property of the
respondent and which is not disproved by the respondent and from the
materials on record this Court is of the considered view that the findings of
the Ld. Trial Court are absolutely correct. The Ld. Trial Court has rightly
observed and held as under:-
"...I deem if fit to grant the right of residence to the petitioner
and her son in property bearing no.A-145, First Floor,
Priyadarshni Vihar, Delhi. Respondent is hereby injuncted from
dispossessing the petitioner from the same without adopting due
process of law...."
"....I deem it fit to direct the release of title deed of the property
bearing no.A-145, First Floor, Priyadarshni Vihar, Delhi to the
petitioner...."
After thrashing the entire materials on record, this Court is of the
considered view that in view of the findings returned by the Ld. Trial Court
from paras No.20 to 24 of the impugned Judgment (not reproduced herein
for the sake of brevity), the aforesaid reliefs are rightly granted to the
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petitioner/complainant and this Court also maintained the said reliefs. The
Ld. Trial Court has rightly turned the following relief:-
"....the prayer of the petitioner seeking directions to the
respondent to transfer the property bearing no.A-145, First
Floor, Priyadarshni Vihar, Delhi, is turned down...."
The Ld. Trial Court has also passed the following order:-
"......The petitioner is directed to release the title documents to
the respondent in the eventuality that he wants to sell the
property bearing no.A-145, First Floor, Priyadarshni Vihar,
Delhi and has found suitable buyer for it. The sale transaction
shall be done in the presence of the petitioner so that her right to
lien to the extent of payment made by her to clear the loans is
not rendered nugatory....."
The Ld. Trial Court has failed to take into consideration that in case,
the property of P.D. Vihar is sold by the Respondent, then, the right of the
residence, which is granted by the Ld. Trial Court to the petitioner and her
son, becomes nugatory and otiose and they will be shelter-less. The Ld. Trial
Court has only granted protection of repayment of the amount of Rs.66.50
Lakhs, over which the Petitioner/Complainant has right of lien and the same
were actually the amount of the Petitioner but Ld. Trial Court has failed to
secure the right of residence for future i.e. after selling of the said property.
No doubt, in the light of Judgment of Shumita Didi Sandhu Vs.
Sanjay Singh Sandhu and Ors. 174(2010) DLT 79 (DB) the right of
residence was not the same thing as right to reside in a particular property
but it is the bounden duty of the respondent to give right of residence which
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is also recognized by the Ld. Trial Court in the aforesaid part of the order but
the Ld. Trial Court has failed to pass any order after the said property is sold
in future by the respondent. How and in what manner the residence order
would be implemented after the sale of the said property, the Ld. Trial Court
has failed to cater the said situation.
It is the case of the parties that they lived from April, 1998 to
November, 2008 in flat No.304, 1st Floor, Bank Enclave, Laxmi Nagar, Delhi
and the said property was the rental property. It is the case of the respondent
that he was paying the rent of Rs.60,000/- per month. It is the contention of
the respondent in the reply to the appeal that P.D. Vihar property is worth
more than Rs.3 Crores and if it is so, then this Court assumes that the said
property cannot fetch the rental amount of less than Rs.60,000/- per month
considering its age, area, construction and locality. The Ld. Trial Court may
have allowed the respondent to sell the property but the right of residence of
the Petitioner/Complainant was also required to be secured by the Ld. Trial
Court.
Considering the totality of facts and circumstances of the present case,
this Court is giving following directions in order to protect the lien and right
of residence:-
(i) The sale transaction shall be done in the presence of the Peti-
tioner/Complainant and if the intending buyer so requires, then,
the Petitioner/Complainant may be signatory to the agreement
to sell in order to secure the interest of the petitioner and intend-
ing buyer.
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(ii) The intending buyer firstly shall pay a sum of Rs.66.50 Lakhs to
the petitioner as the petitioner has first lien on the said property.
(iii) At-least one month prior to execution of the Sale Deed of the
said property, the intending buyer shall prepare a FD in the sum
of Rs.1.25 Crore in the name respondent in which directions
will be given to the bank that the same will be non-encashable
during the lifetime of Petitioner/Complainant and monthly inter-
est thereof would be directly credited to the account of the Peti-
tioner/Complainant and the said interest amount may be utilized
by the Petitioner/Complainant for her as well as residence of her
son in any other property of her own choice.
(iv) It is made clear that in case, the respondent shall not pay the
maintenance amount as well as compensation awarded
hereinabove within the said period, then, the maintenance
amount as well as the amount of compensation, as awarded
hereinabove, would also be charge/lien on the property of P.D.
Vihar and intending buyer shall have to pay the said amount to
the Petitioner/complainant at least fifteen days prior to the
execution of the Sale Deed.
(v) After payment to the petitioner in terms of clauses (ii) & (iv)
(hereinabove) and making of the aforesaid FDR, as per clause
(iii), the Petitioner is directed to hand-over the original docu-
ments of the property to the respondent/intending buyer, in
terms of the agreement of sale and the Petitioner is also directed
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to hand-over the possession to the intending buyer, at the time
of execution of the Sale Deed in favour of the intending buyer.
In view of the aforesaid order and directions passed by this Court, the
order of the Ld. Trial Court that "......The petitioner is directed to release
the title documents to the respondent in the eventuality that he wants to sell
the property bearing no.A-145, First Floor, Priyadarshni Vihar, Delhi and has
found suitable buyer for it. The sale transaction shall be done in the presence
of the petitioner so that her right to lien to the extent of payment made by her
to clear the loans is not rendered nugatory....." stands set-aside.
It is clarified that after execution of the Sale Deed, the respondent may
seek modification of clause (iii) of the aforesaid order from the Ld. Trial
Court after giving appropriate sound and credible security (of the interest
amount which may be credited to the account of petitioner) to the satisfaction
of the ld. Trial Court.
PROTECTION ORDER
The perusal of the Domestic Incident Report reveals that no physical
abuse/Sexual abuse/dowry related harassment was complained or done by
the respondent. This Court is of the considered view that at this stage, no
relief can be granted under this head as there does not appears to be any
sexual/physical/dowry harassment abuse to the complainant/petitioner,
however, in case, in future, if there is any such kind of harassment by the
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respondent, then, the petitioner/ complainant is permitted to approach the
competent Court of law on a fresh cause of action in accordance with law.
FINAL ORDER:
In view of the adumbrated findings and observations, this Court is
passing the following final:
ORDER
(a) The appeal of the petitioner/complainant is allowed in terms of the aforesaid reliefs granted by this Court.
(b) The appeal of the respondent is dismissed in the aforesaid terms.
(c) The parties shall bear their own respective costs.
(d) The copy of this Judgment along with the Trial Court record be sent forthwith to the Ld. Trial Court.
(e) Two sets of the Judgment have been prepared and each set has been signed in original and one set of the Judgment has been kept in each Appeal.
The Judgment is pronounced in the open Court on this 23 rd day of October, 2021 under my hand and seal. Dated: 23.10.2021 Place: Delhi (ARUN SUKHIJA) Additional Session Judge-03 (East District) Karkardooma Courts, Delhi.
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