Delhi District Court
Rahul Bhargava vs Divya Sharma on 27 August, 2022
IN THE COURT OF MS. VRINDA KUMARI,
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 354 OF 2019
CNR NO. DLST01-06527-2019
IN THE MATTER OF
Rahul Bhargava,
S/o Sh. Deepak Bhargava,
R/o 4, Hillsborough Court,
Cherrybrook, NSW, Sydney,
Australia. ........ Appellant
Versus
1. Divya Sharma,
W/o Sh. Rahul Bhargava,
R/o 1/6, Siri Fort,
Institutional Area, New Delhi.
2. State NCT of Delhi ........ Respondents
DATE OF INSTITUTION : 24.09.2019
DATE OF RESERVING ORDER : 25.08.2022
DATE OF PRONOUNCEMENT : 27.08.2022
JUDGMENT
1. The present appeal u/s 29 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the DV Act) has been preferred against the Impugned Order dated 23.08.2019 pronounced by Ld. MM-02 / Mahila Court (South), CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 1 of 14 Saket on the point of interim maintenance u/s 23 of the DV Act in CC No. 46/1/2016 (467302/2016) titled as Divya Sharma Vs Rahul Bhargava.
2. The defence of the appellant-husband since beginning in the above-said complaint case under the DV Act is that Ld. Trial Court did not have the territorial jurisdiction to try the present case as the shared household was in Australia.
3. The appellant-husband had filed a petition bearing Crl. M.C. No. 2304/2016 & Crl. M.A. Nos. 9669/2016 & 15253/2017 as well as WP (Crl.) 2787/2016 & Crl. M. A. No. 14289/2016 titled as 'Rahul Bhargava Vs State (NCT) of Delhi & Anr.' before Hon'ble High Court of Delhi seeking quashing of the DV Act case under consideration as well as case FIR No. 469/2016 PS Hauz Khas u/s 498A/406/34 IPC on the ground that the Trial Courts did not have the territorial jurisdiction to entertain the complaint case under the DV Act or the case FIR No. 469/2016 PS Hauz Khas. It was submitted by the appellant before Hon'ble High Court of Delhi that all acts of alleged cruelty and domestic violence were committed outside the territorial jurisdiction of the Delhi Courts.
4. Vide Order dated 20.02.2018 in the above-said petition, Hon'ble High Court of Delhi observed as follows :
"9. ... The fact that Rahul Bhargava and Divya Sharma were related to one another through marriage is not in CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 2 of 14 dispute. The fact that they were living together after their registered marriage (on 03.02.2015) is also not in dispute. The husband had gone back only after staying in India with his wife. The dates are not exactly clear but otherwise it is not disputed that after their registered marriage on 03.02.2015 they lived together. The fact that parties had a runaway marriage is again not in dispute. The formal wedding between the parties took place on 20.07.2015. They left for Australia on 22.07.2015. Apart from the incidents of cruelties and domestic violence relating to episodes which had occurred both in India and in Australia, the details of incidents of October, 2015 & November, 2015 where the husband of the complainant and his family came back to India and both physically and mentally tortured the complainant and her family have already been detailed supra."
5. Hon'ble High Court of Delhi also discussed the scope of 'shared household' and 'domestic violence' as defined in the DV Act as also Section 27 of the DV Act dealing with 'jurisdiction'. It was held as follows :
"13. The jurisdiction of the Magistrate has been detailed. The aggrieved person which in this case was the complainant and being a resident of Delhi where the CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 3 of 14 incidents/acts of domestic violence (noted supra) had occurred were within the territorial jurisdiction of Delhi. The averments in the FIR also disclose the manner in which the cruelties have been levelled upon the complainant. The territorial jurisdiction of this Court to entertain this complaint and FIR is prima-
facie writ large. On merits, the question as to whether the averments made by the complainant were the gospel truth or not can only be decided after the parties are relegated to trial. The Court at this stage cannot grant the prayers made in the present petitions. There is no case made out for quashing either the complaint (filed by the complainant under the DV Act) or the FIR registered at the behest of the complainant (under Sections 498-A/406/34 of the IPC). The powers under Section 482 of the Cr.PC have to be exercised sparingly and only if there is no perversity in the order of the Court below. This Court finds that there is no such perversity. "
6. The above-said Order of Hon'ble High Court of Delhi was challenged by the appellant before Hon'ble Supreme Court of India vide SLP (Crl.) No. 3938/2018 (Arising out of impugned final judgment and order dated 20.02.2018 in CRLMC No. 2304/2016 passed by the High Court of Delhi at New Delhi). Vide Order dated 16.05.2018, Hon'ble Supreme Court of India held as follows :
CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 4 of 14 "The special leave petition is dismissed.
However, the petitioner will be at liberty to raise such contentions as may be advised so, after the evidence is led.
As a sequel to the above, pending interlocutory applications, if any, stand disposed of."
7. It is noted that before the arguments were addressed on the interim maintenance application, the appellant had moved an application before Ld. Trial Court for deferring the disposal of the interim application after the cross examination of the complainant.
Vide Order dated 16.05.2018, Ld. Trial Court dismissed the application of the appellant and proceeded on to hear arguments on the interim maintenance application u/s 23 of the DV Act. The said Order was challenged by the appellant before Ld. ASJ-03 (South)/ Saket Courts vide CA No. 286/2018 titled as Rahul Bhargava Vs Divya Sharma. Vide Order dated 10.08.2018, Ld. Appellate Court of ASJ-03 (South) held as follows :
"7. ... In the aforementioned facts and circumstances of the case, I am of the considered view that Ld. Trial court was justified in dismissing the application vide which the appellant had prayed for deferring the disposal of the interim application after the cross-examination of complainant. As per the mandate of law, the interim application u/s 23 of D.V. Act is decided by the court by taking a CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 5 of 14 prima facie view of the matter and the court is not required to wait for the evidence to be led in the matter for deciding the application u/s 23 of D.V. Act which is an interim remedy provided to meet the urgent need of the aggrieved person till his application u/sec. 12 of DV Act is decided by the court. As per Sub section (2) of Sec. 23 of DV Act, if the Magistrate is satisfied that an application prima facie disclosing that respondent is committing or has committed an act of domestic violence, or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of affidavit in such form, as may be prescribed, of the aggrieved person u/s 18,19, 20, 21, or as the case may be, section 22 against the respondent. Even as per the order of Hon'ble Apex Court, the petitioner has been given a liberty to raise his contentions after the evidence is led in the matter. As regard the plea that there never existed any domestic relationship between the parties, said argument can always be raised before trial court even at the time of arguments on interim application because, it is a settled position of law that even for grant of interim relief u/s 23 of DV Act, the court has to record its prima facie satisfaction as to the existence of domestic relationship as well as to the fact that the aggrieved persons was subjected to the CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 6 of 14 acts of domestic violence by the respondent. However, there is absolutely no justification or reason for deferring or postponing the disposal of interim application u/sec. 23 of DV Act after the cross-
examination of the complainant as prayed by the appellant."
8. The above-said Appeal was dismissed by Ld. Appellate Court subject to cost of Rs 10,000/- to be deposited with DSLSA.
9. Coming back to the Impugned Order on the point of grant of interim maintenance, the issue of territorial jurisdiction was raised before Ld. Trial Court again during the arguments. While granting interim maintenance in sum of Rs 80,000/- per month to the respondent-aggrieved, Ld. Trial Court observed as follows :
"... Several objections have been raised on behalf of the respondent to submit that the complainant is not entitled to any interim or final relief as she was never subjected to domestic violence and there has been no domestic relationship between the parties. Based on a prima facie case, the respondent had been summoned in this case for having allegedly subjected the complainant to domestic violence. It is important to mention here that the respondent has filed a writ petition before the Hon'ble High Court for quashing of the present case on ground of territorial jurisdiction and CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 7 of 14 falsity of the case, which had been dismissed by the Hon'ble Delhi High Court 20.02.2018. It is reiterated by this court that the veracity of the averments/allegations made by the complainant in her application u/s 12 of the D.V. Act would have to be tested at the stage of trial and on the objections raised to the present application, the complainant cannot be denied relief which she may be entitled to under the D.V. Act. ..."
10. Aggrieved by the Impugned Order, the present Appeal has been filed primarily on the ground that the respondent- complainant is not an aggrieved person under the DV Act as she never had domestic relationship / shared household in India. It is further contended that the procedure u/s 28 of the DV Act was not followed before interim maintenance was granted to the respondent- aggrieved. It is submitted that Hon'ble Supreme Court of India had granted the appellant a liberty to raise his contentions after evidence is led. It is further submitted that if Ld. Trial Court assumed that the allegations of domestic violence which happened in Australia could be tried in India, the Australian Police Report also have been considered. It is submitted that the Domestic Incident Report (DIR) also mentions that the shared household was in Australia. Further, appellant was an Australian citizen and a decree of divorce between the parties had also been awarded by the Australian Federal Court.
CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 8 of 14
11. During the course of arguments, however, only two major points were argued upon i.e. non-compliance of the procedure in terms of Section 28 of the DV Act while passing the Impugned Order u/s 23 (1) of the DV Act and the issue of territorial jurisdiction. It was argued that Ld. Trial Court did not follow procedure u/s 126(2) Cr.P.C. In his Written Submissions the appellant also raised following questions of law :
"I. Whether the provisions of DV Act 2005 have extra Territorial applicability?
II. Whether Australian citizens are liable under DV Act 2005 for alleged domestic incidents happened in Australia?
III. Whether a Foreign Citizen who is not liable under any Indian Law and who has committed the alleged offence outside the territory of India can be tried by any Indian Court in terms of the provisions of Section 3 & 188 of Cr.P.C.?
IV. Whether Ld. MM committed grave error by not complying with the Order dated 16.05.2018 passed by Hon'ble Supreme Court of India wherein the Appellant was given the liberty to raise his contentions after the evidence is led?
V. Whether Ld. MM violated Article 21 by not complying with due procedure of law in terms of Section 28 of DV Act while passing the Impugned Order Section 23(1) of DV Act?
VI. Whether Ld. MM CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 9 of 14 failed to take independent cognizance of the complaint/ domestic incident report prior issuing any order as mandated under sec 12(1) of DV Act 2005 r/w Rule 6(1) Form II item 2 before passing the impugned order?
VII. Whether Ld. MM has usurped a foreign jurisdiction in passing the impugned order after determining and recording in its order that entire allegations, domestic relationship and shared household was of Australia?"
12. The respondent-aggrieved has vehemently opposed the present Appeal on the ground that the issue of territorial jurisdiction has been decided by Hon'ble High Court of Delhi and SLP against the said Order was dismissed by Hon'ble Supreme Court of India. Further, the contention of the appellant that he should have been permitted to lead evidence or to cross examine the complainant before the application for grant of interim maintenance was heard had also been already decided by Ld. Appellate Court of Ld. ASJ-03 (South) in CA No. 286/2018. It is submitted that the Crl. Rev. Petition 864/2018 was filed by the appellant before Hon'ble High Court of Delhi against the Order of Ld. ASJ. Vide Order dated 04.10.2018, the said petition was dismissed as withdrawn.
13. The appellant has also placed on record an Order dated 09.01.2019 of Hon'ble High Court of Delhi in Crl. M. C. No. 1354/2018 and Crl. M.A. 4931/2018 in respect of application u/s CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 10 of 14 125 Cr.P.C. vide which Hon'ble High Court of Delhi permitted the appellant to raise the plea of territorial jurisdiction before the Trial Court after the evidence was led by the parties.
14. I have heard detailed arguments and have perused the records carefully including the Trial Court Record, written submissions as well as case laws relied upon by the parties.
15. It is noted that in the present Appeal, the financial status of the respondent-aggrieved has not been disputed. It is well settled that it is the duty of the husband to maintain his wife.
16. The chronology of the Orders passed by various Courts on the issue of prima facie territorial jurisdiction of Ld. Trial Court in the present case has been discussed above. Vide Order dated 20.02.2018, Hon'ble High Court of Delhi decided the issued. This Order attained finality after SLP against the said Order was dismissed by Hon'ble Supreme Court of India. The liberty granted by Hon'ble Supreme Court of India to the appellant to raise the issue of territorial jurisdiction after leading of evidence cannot be interpreted to mean that the application of the respondent-aggrieved for grant of interim maintenance could have been disposed of only after leading evidence. Such an interpretation is not in consonance with the spirit of the Order dated 16.05.2018 of Hon'ble Supreme Court of India by which the Order dated 20.02.2018 of Hon'ble High Court of Delhi holding that territorial jurisdiction of the Court to entertain the DV Act complaint and FIR was prima facie writ CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 11 of 14 large was upheld.
17. It is now well settled that at the stage of consideration of interim maintenance application under the DV Act, a prima facie satisfaction is to be noted by the Court. The final Order on the point of maintenance would, however, be passed after evidence has been led by both the parties. The issue of requirement of leading evidence before disposing of interim maintenance application has already been decided by Ld. Appellate Court of ASJ-03(South) vide Order dated 10.08.2018 in CA No. 286/2018. This Order has also attained finality.
18. The perusal of record would show that the appellant and the respondent-aggrieved entered into a registered marriage on 03.02.2015 at Ghaziabad U.P. It was followed by economic and emotional abuse and the aggrieved applied for cancellation of marriage certificate on 10.03.2015. She was again persuaded by the appellant as well as her father-in-law subsequent to which the appellant and the aggrieved had a runaway marriage on 27.05.2015. A formal wedding was held on 20.07.2015 at Chhattarpur. The parties left for Australia on 22.07.2015. After the further incidents of domestic violence, the complainant returned to India on 18.10.2015. The appellant and his family subject the respondent-aggrieved to further abuse and cruelty between 22.10.2015 and 18.11.2015 at the house of the parents of the aggrieved. Prima facie, after 03.02.2015 when registered marriage was solemnized between the appellant and CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 12 of 14 the aggrieved, they both lived together as husband and wife before the appellant returned to Australia. As has been observed by Hon'ble High Court of Delhi in Order dated 20.02.2018, incidents of cruelty and domestic violence occurred in India as well.
19. There is a specific averment in the complaint of the aggrieved that post their marriage on 03.02.2015, the appellant and aggrieved stayed together as husband and wife at her parental home i.e. 1/6, Siri Fort Institutional Area, Khel Gaon, New Delhi for a week. There are also specific allegations of physical and verbal abuse during this period. The DIR must be considered in light of this specific averment in the complaint. No doubt, in DIR, shared household has been mentioned as that in Australia but DIR also mentions sexual violence, verbal and emotional abuse, economic violence and dowry related harassment to have occurred since the time of marriage till the aggrieved was with the appellant and even before marriage. These specific averments and allegations cannot be ignored.
20. The appellant has raised certain questions of law which have been reproduced in the preceding paras. These issues, in respect of the present case, have already been decided by Ld. Appellate Court of ASJ-03/South, Hon'ble High Court of Delhi and Hon'ble Supreme Court of India in various petitions filed by the appellant against the Orders of Ld. Trial Court. The questions do not need to be looked into again in light of the above-said Orders.
CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 13 of 14 Various case laws relied upon by the appellant regarding jurisdiction, procedure to be adopted and how cognizance is to be taken, therefore, would not help the appellant in the present Appeal.
21. Ld. Counsel for respondent-aggrieved has also moved an application u/s 340 Cr.P.C. on the ground of filing of false documents by the appellant before Ld. Trial Court regarding acceptance of his resignation by his employer. Admittedly, similar application has been moved before Ld. Trial Court as well. In such circumstances, the Court does not consider it expedient in the interest of justice to pass any directions upon the said application of respondent-aggrieved. Ld. Trial Court shall dispose of the pending application u/s 340 Cr.P.C. filed by the respondent-aggrieved before it at an appropriate stage of the matter. The application u/s 340 Cr.P.C. filed in the present Appeal is, accordingly, disposed of without any observations.
22. In view of the above discussion, the Court does not find any ground to interfere with the Impugned Order dated 23.08.2019 of Ld. Trial Court. The present Appeal is, accordingly, dismissed.
PRONOUNCED IN OPEN COURT ON THIS 27th DAY OF AUGUST 2022 VRINDA Digitally signed by VRINDA KUMARI KUMARI Date: 2022.08.29 16:02:54 +0000 (VRINDA KUMARI) ASJ-02/SOUTH/SAKET COURTS NEW DELHI CA No. 354/2019 Rahul Bhargava Vs Divya Sharma 27.08.2022 Page No. 14 of 14