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Manjeet Bhatia vs State Govt Of Nct Of Delhi & Anr on 24 November, 2022

Author: Yogesh Khanna

Bench: Yogesh Khanna

                                $~7
                                *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                +      CRL.M.C. 2487/2021, CRL.M.A.16301/2021
                                       MANJEET BHATIA                                             ..... Petitioner
                                                            Through: Mr.Peeyoosh Kalra and Mr.Rohan J
                                                                         Kapoor, Advocates.
                                                            versus
                                       STATE GOVT OF NCT OF DELHI & ANR.                     ..... Respondents
                                                            Through: Mr.Sunil Kumar Gautam, APP for the
                                                                         State with SI Ram Niwas, PS Malviya
                                                                         Nagar.
                                                                         Mr.O.P.Gulabani, Advocate for R2
                                                                         with R2 in person.
                                       CORAM:
                                       HON'BLE MR. JUSTICE YOGESH KHANNA
                                                            ORDER

% 24.11.2022

1. This petition is filed with the following prayers:-

(i) Impugned order dated 25.09.2021 passed the Ld. Additional Sessions Judge-02, South District, Saket Courts, Delhi in Revision Petition No. 80 of 2020, titled as "Manjeet Bhatia Vs. The State & Anr."

(ii) Impugned order dated 07.02.2020 passed by Ld. Metropolitan Magistrate-03, Mahila Court, South District, Saket Courts, Delhi in CC No.11802/2017 titled Kanta Bhatia vs. Manjeet Bhatia & Ors.

2. The facts of the case do show on 04.03.1995 petitioner married to respondent No.2 as per Hindu rites and rituals. On 20.01.1998 it is alleged the petitioner had purchased the property No.39/1343, DDA Janta Flats, Madangir, New Delhi - 110062 with his own funds and with assistance of his father. On 19.03.2002, petitioner sold the said property and purchased another property No.31/969 in the vicinity, in name of respondent No.2 with such sale proceeds. In the year 2016, both sold the subsequent property and purchased Flat No.1G, Third Floor, Pocket-L, Phase-II, Sheikh Sarai, New Delhi, which floor had another unit constructed above the third floor being CRL.M.C. 2487/2021 Page 1 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:25.11.2022 16:13 treated as fourth floor (hereinafter referred as the subject premises). On 01.05.2017, on account of illness of father of petitioner, the petitioner went to take care of his old aged father for two days but the respondent No.2 lodged a false missing person report. In September 2017, the respondent No.2 filed a complaint under DV Act before the learned Trial Court. On 15.12.2017, the respondent No.2 again lodged a complaint vide DD No.48B against petitioner alleging he has trespassed in subject premises. On 19.12.2017 protection order was passed by the learned Trial Court in favour of respondent No.2 qua physical violence upon her. On 16.09.2019, respondent No.2 moved an application under Section 19 (1)(b) of the DV Act for removing the petitioner from subject premises and such application was allowed by the learned Trial Court vide order dated 07.02.2020. Feeling aggrieved, the petitioner preferred Revision Petition No.80/2020, which was also dismissed per impugned order dated 25.09.2021, hence this petition with above prayers.

3. It is the submission of the learned counsel for petitioner from the date of the protection order i.e. 19.12.2017 till the date of filing the application under Section 19(1)(b) of the Act i.e. within two years there was never any complaint filed by the respondent which may lead to satisfaction of the learned Trial Court as to if the petitioner has committed any cruelty upon respondent. Rather the averments made in the application under Section 19(1)(b) of the DV Act, more particularly in para No.8, runs as under:-

8.That the respondent continues to perpetuate various acts of Domestic Violence against the aggrieved including but not limited to using abusive language against the aggrieved, threatening her with dire consequences etc. etc.

4. It is submitted though allegations were made the petitioner is abusive CRL.M.C. 2487/2021 Page 2 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:25.11.2022 16:13 and threatening her with dire consequences, but no evidence was ever filed in respect of these allegations viz CCTV footage, photographs, recordings to the effect the respondent has ever abused her physically or mentally. The protection order passed by the learned Trial Court is annexure P2. It is the submission of the learned counsel for petitioner no prima facie satisfaction was ever recorded by the learned Trial Court while passing the impugned order. The operative portion of impugned order notes:-

Heard. Perused.

It is noted that vide order dated 19.12.2017 protection order was passed in favour of aggrieved. Further, considering the arguments of both the sides and material on record including the complaint dated 15.12.2017 vide DD No.48B and copy of complaint dated 02.01.2018 filed by complainant it is deemed expedient to direct the respondent no.l to remove himself from the premises bearing no. 1G,Pocket -L,Phase-II, Delhi-110017. Till the disposal of the main case, within 2 weeks from today. Aggrieved is also at liberty to approach SHO concerned and SHO concerned is directed to provide necessary support/assistance to the aggrieved, in case of any problem faced by the aggrieved in regard to above said facts.

Needless to say nothing contained herein above shall be considered to be an opinion on the merits of the case or on the title of the property in question.

Application under Section 19(1)b PWDV Act filed by aggrieved shall disposed of in aforesaid terms. List for RE/further proceedings on 15.04.2020.

5. It is submitted there was no material on record and only on vague allegations an order was passed by the learned Trial Court and after passing of such order, subsequent complaints were filed by the respondent No.2 on 14.08.2020 and 19.10.2020 regarding alleged threats given by the petitioner herein. He also referred to impugned order annexure P1, passed by learned Revisional Court, more specifically para No.20, which notes:-

20. All the above circumstances and unrebutted assertions of the respondent-aggrieved, when considered together, show that after purchase of the Sheikh Sarai property, revisionist and the respondent-aggrieved lived there together in domestic relationship for a few months from June 2016 to December 2016. This leads to an irresistible conclusion that this property constitutes a shared household. The revisionist has also not disputed the same in any of the pleadings despite specific assertion to this effect. From December.2016 onwards, the revisionist did not stay continuously with the respondent-aggrieved. In April 2017 , ·he left the Sheikh Sarai house without informing anyone and a missing report was lodged. From July 2017 onwards , he started harassing the respondent -

aggrieved and managed to trespass into the house in her absence by breaking open the locks. There are specific allegations of cruelty and domestic violence against him prior to and after the tresspass. In DIR , specific incidents of cruelty and harassment of respondent-aggrieved at her work place and home and of harassment and physical assault on her children have been mentioned. The respondent-aggrieved was constrained to seek police help repeatedly. Protection order was also passed in favour of the respondent-aggrieved on 19.12.2017. Presence of the revisionist in the house of the respondent-aggrieved, therefore, continued to pose a threat to her safety and well being as also that of the kids. A situation where the revisionist husband committed domestic violence upon the respondent-aggrieved and the kids and abandoned them without information before surreptitiously trespassing into a portion of the shared household owned by the respondent-aggrieved is unacceptable.

6. I have heard the arguments advanced by the learned counsels for parties.

7. Section 19(1) (b) of the DV Act notes:-

19. Residence orders.--

(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order--

(a) xxx;

(b) directing the respondent to remove himself from the shared household;

(c) to (f) xxx.

8. Explanation (iii) to Section 3(d) of the DV Act notes:-

3. Definition of domestic violence.--For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it--

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.--For the purposes of this section,--

(i) (ii) xxx

(iii) "verbal and emotional abuse" includes--

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

9. The complaint under Section 12 of the DV Act was filed by respondent against the petitioner contains allegations of abuse with a prayer inter alia as under:-

B. Residence order under Section 19

(i) Pass an order directing the respondent not to make entry into the house bearing No. Pocket L-1G, Sehikh Sarai, Phase-II, Delhi- 110017, which belongs to the complainant.

(ii) Pass an order restraining the respondents from alienating / disposing the shared household which belongs to the respondent No.1

(iii) Pass order directing the respondents not to alienate dispose or create encumbrance on the household property of home.

10. Admittedly, on record the petitioner has filed a copy of the complaint dated 15.12.2017 given by the respondent to the Station House Officer, police station Malviya Nagar saying on 14.12.2017 between 05.00 to 07.00PM when the respondent had gone to her parents house at Yamuna Paar, Delhi and when she returned, she saw the lights were on at the fourth floor and someone have committed theft. She called police and found the petitioner had trespassed in her flat. Admittedly, the petitioner was living CRL.M.C. 2487/2021 Page 5 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:25.11.2022 16:13 with his parents for the past one year and on that day had trespassed into the subject premises.

11. The complainant had stated her husband/petitioner was residing at premises No.35/1151, Madangir, New Delhi and he used to mentally harass and misbehaved with her and he suddenly trespassed into her house and may cause harm to her and her children. The DIR dated 23.10.2017 at page No.40 also mentions the address of the petitioner as 35/1151, DDA Flats, Madangir, New Delhi - 110062. Thus, it prima facie show at the time of filing of complaint the petitioner was very much residing with his parents but later on 14.12.2017 it appears he had trespassed into her house. The learned Revisional Court noted there is no specific denial by the petitioner that he was not residing with his parents or had trespassed into the house of respondent No.2. Last portion of para No.20 of the impugned order P1 rather notes:-

20. xxxx A situation where the revisionist husband committed domestic violence upon the respondent-

aggrieved and the kids and abandoned them without information before surreptitiously trespassing into a portion of the shared household owned by the respondent- aggrieved is unacceptable.

12. Though argument of the petitioner is the learned Magistrate did not consider prima facie case before passing such an order, however section 23(1) of the DV Act empowers the learned Magistrate to pass such an interim order in a complaint under Section 12 of DV Act after analyzing its facts. Section 23(1) of the DV Act notes:-

23. Power to grant interim and ex parte orders.--

(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) xxx.

13. The petitioner has probably ignored the series of complaints filed against petitioner viz complaint with CAW Cell in the year 2015; complaint dated 18.07.2017 - annexure R2; complaint dated 15.12.2017 - annexure R3; and complaints dated 14.08.2020 and 19.10.2020 - annexure R6. Thus, I see no perversity in the impugned orders. Each and every issue has been dealt with by the learned Courts below. The learned Magistrate in his wisdom has passed an order under Section 19(1)(b) of the DV Act on being satisfied that the presence of the petitioner would aggravate the situation and considered the fact he was earlier staying at his parents' house and had rather trespassed during the pendency of proceedings in her house. No fault could be found in the orders passed by the learned Courts below.

14. Even otherwise, order is an interim order till the conclusion of trial. Thus, looking at the circumstances, there is no merit in the petition, and it is dismissed. The petitioner shall comply with the order(s) passed by the learned Revisional Court within two weeks from today. Needless to say, the failure of petitioner will entail action by the SHO concerned in accordance with law as has already been directed by the learned Trial Court. Pending application, if any, also stands disposed of. No order as to costs.

YOGESH KHANNA, J.

NOVEMBER 24, 2022 M CRL.M.C. 2487/2021 Page 7 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:25.11.2022 16:13