Delhi District Court
Smt. Aparna Gangully vs (2) Sh. Ramanshu Gangully on 26 August, 2022
1
IN THE COURT OF MS.NEHA PALIWAL SHARMA
ADDITIONAL SESSIONS JUDGE -05: WEST : DELHI
CNR No. DLWT01-002381-2022
CA No.62/2022
Smt. Aparna Gangully,
W/o Sh. Gaurav Gangully,
R/o S-4/115, 3rd Floor,
Old Mahavir Nagar,
New Delhi- 110 018. .........Appellant
v.
(1) Sh. Gaurav Gangully,
S/o Sh. Ramanshu Gangully,
R/o A-1/210, Mayur Apartment,
Sector-9, Rohini,
New Delhi- 110 085.
(2) Sh. Ramanshu Gangully,
R/o A-1/210, Mayur Apartment,
Sector-9, Rohini,
New Delhi- 110 085. ......... Respondents
(3) Ms. Anjali Chakraverty, R/o A-1/210, Mayur Apartment, Sector-9, Rohini, New Delhi- 110 085.
(She is not treated as respondent in this appeal) CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 1 of 15 2Date of Institution : 14.03.2022 Date of Reserving Judgment : 20.08.2022 Date of Judgment : 26.08.2022
JUDGMENT in Appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against the impugned order dated 05.02.2022 passed by Ms.Sonam Gupta, ld.MM (Mahila Court-02), West District, Tis Hazari Courts, Delhi in CIS No. 5550181/2016, titled as Aparna Gangully V. Gaurav Gangully
1. The present appeal has been preferred by appellant Aparna Gangully against the order dated 05.02.2022 passed by ld.MM (Mahila Court-02), West, THC, Delhi (hereinafter referred to as ld. Trial Court), whereby the interim application of the appellant seeking residence rights was disposed of with the directions that interim maintenance awarded to the appellant would be inclusive of the residence of the appellant and the appellant was further directed to lead evidence.
2. Before adverting to the contentions averred in the appeal, this Court will first consider the application moved on behalf of the appellant for amended memo of parties as directed by the Court.
3. The appellant in the appeal had impleaded her husband Gaurav CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 2 of 15 3Gangully as respondent no.1, her father-in-law Ramanshu Gangully as respondent no.2 and one Ms. Anjali Chakarvarty as respondent no.3. On 19.04.2022, it was contended by the ld. Counsel for respondent no.1 before the ld. Predecessor that respondent no.3 is not a family member of respondent no.1 and is only a house helper. The said fact was conceded by the ld. Counsel for the appellant, however, it was stated by him that respondent no.3 was treated as family member by respondent no.1. It was recorded by the ld. Predecessor that ld. Counsel had sought permission to delete respondent no.3 from the array of parties. However, thereafter, appellant had filed application that respondent no.3 is not a maid servant. She had performed customary rights in the marriage of the appellant and respondent no.1 alongwith respondent no.2 i.e. father of respondent no.1. Respondent no.1 had introduced respondent no.3 as his mother to the appellant. Respondent no.3 is a permanent resident of the house of respondent no.1 and the same is evident from the Aadhar Card and electoral rolls of Election Commission of India pertaining to respondent no.3. Thus, it is prayed that this Court may issue an appropriate order as deemed fit for continuation of respondent no.3 as a party to the proceedings or for deletion of her name from the array of parties.
4. Perusal of the TCR reveals that till date, though DIR was filed CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 3 of 15 4before the ld. Trial Court, there was no order from the ld.Trial Court to issue notices to respondent nos. 2 & 3 of the application of the appellant u/s 12 of the PWDV Act. On 07.01.2021, for the first time, attendance was marked of ld. Counsel for other respondents through CISCO Webex. Thereafter, on 23.03.2021, respondent no.2 appeared with his ld. Counsel and vakalatnama was filed on behalf of respondent no.2 only. On 25.03.2021, arguments on the application of the appellant seeking residence rights were heard in the presence of the appellant and her counsel and respondent nos. 1 & 2 and their counsels. On 05.02.2022, the attendance of counsel Sh. A.K.Bhardwaj was marked as counsel for other respondents through CISCO Webex. However, perusal of the order-sheets of the entire file reveal that there is no specific order for issuance of notice of the complaint u/s 12 of the Act to respondent nos. 2 & 3 and though respondent no.2 had appeared alongwith his counsel and his counsel had filed vakalatnama, respondent no. 3 had never entered appearance before the Court. Perusal of vakalatnama of Sh. A.K.Bhardwaj, filed on 22.03.2021 also shows that the same is with respect to respondent no.2 only and he has never represented no.3. Thus, respondent no.3 was never given notice of the complaint u/s 12 of the Act by the ld. Trial Court. Therefore, there is no ground to make her a party in the appeal before this Court. Thus, the amended memo of parties filed by the appellant is taken CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 4 of 15 5on record and is treated as the memo of parties. The application of the appellant qua memo of parties is accordingly disposed of.
5. Briefly, it is the case of the appellant that she had moved an application u/s 23 read with section 18 & 19 of PWDV Act, 2005 (hereinafter referred to as the Act), before the ld. Trial Court, praying for directions that she be allowed to enter her matrimonial home i.e. Flat No. A-1/209, Mayur Apartment, Sector-9, Rohini, Delhi and to have peaceful possession and stay therein and that the respondents be restrained from alienating or disposing of or encumbering her matrimonial home.
6. It is further the case of the appellant that the notice of the said application was duly served upon respondent Gaurav Gangully on 08.06.2019 as per the report of the process server. However, despite receipt of the said notice regarding the application of the appellant, the respondent surreptitiously and unlawfully sold off the said flat on 23.07.2019 for a total consideration of Rs.36,50,000/-, without the permission of the Court, to willfully obstruct the administration of justice. The respondent in the reply to the appellant's application under section 12 of Contempt of Court's Act had admitted that he had sold the property. The appellant had thereafter, submitted the application u/s 452, 451 Cr.P.C. for confiscation/attachment of sale proceeds, bank account thereof in the interest of Justice. However, on 05.02.2022, the CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 5 of 15 6ld.Trial Court had disposed of the application dated 15.05.2019 without granting any relief as was prayed for and had simultaneously directed for recording of prosecution evidence. She in her application dated 13.10.2021 had prayed for directions to the respondents to either accede to her contentions or submit their rebuttal for facilitating the due adjudication of the matter. On 21.10.2021, the ld. Trial Court had taken the application dated 13.10.2021 on Court record.
7. It is further the case of the appellant that the ld. Trial Court had failed to appreciate the fact that the respondent had sold her matrimonial home for Rs.36,50,000/- without permission/leave of the Court and thereby had denied her right to residence and protection. The flat was sold off by the respondent in fragrant violation of the provisions of law. The ld. Trial Court had failed to appreciate the legislative intent to ensure three separate non- interchangeable rights of protection order, residence order and monetary relief contained in sections 18,19 & 20 respectively.
8. The appellant had assailed the impugned order dated 05.02.2022 on the ground that no relief was granted to the appellant and the provisions of sections 18 & 19 were over-looked, the ld.Trial Court further over-looked the fact that matrimonial home of the appellant was disposed of by the respondent for Rs.36,50,000/- without permission/leave of the Court and therefore, the flat should be CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 6 of 15 7confiscated and be handed over to the appellant to ensure her right of residence or that the sale proceeds from the said unlawfully sold flat should have been confiscated for securing the same level of accommodation for the appellant as was enjoyed by her in her shared household, that the ld.Trial Court had over-looked the legislative intent to ensure three separate non-interchangeable rights of protection order, residence order and monetary relief u/ss 18, 19 & 20 of the Act and that the ld. Trial Court was wrong in issuing directions for leading prosecution evidence even before the respondent denied or acceded to the charges.
9. Thus, the appellant has prayed that interim orders for residence and protection in favour of the appellant be granted to her by confiscating the flat and handing over the same to the appellant, interim orders for urgent attachments of all bank accounts of respondents and his relatives where sale proceeds from the said sale has been deposited for subsequent utilization of the said sale proceeds for outright purchase and arrangement of alternate housing for the appellant thereby securing same level of accommodation for the appellant and to stay the order to lead prosecution evidence till submission of the reply by the respondent either denying or acceding the charges.
10. Notice of the Appeal was issued to the respondent on which the respondent nos.1 & 2 entered their appearance and reply was filed CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 7 of 15 8by respondent no.1. TCR was also summoned.
11. Reply was filed by respondent no.1 to the said appeal wherein respondent no.1 specifically denied the contentions of the appellant and stated that his father/respondent no.2 is 79 years old and suffers from multiple disorders. He is bed ridden and had remained admitted in Sir Ganga Ram hospital from 17.01.2019 to 13.02.2019 for a period of approximately one month for hypertension, CAD post PTCA, admitted with complaint of fever with chills. Further, on 29.04.2019, his father had suffered a heart attack and remained admitted in Sir Ganga Ram Hospital from 29.04.2019 to 08.05.2019 and thereafter, again remained admitted in the said hospital from 10.10.2019 to 11.10.2019 for the treatment of retention of urine and was found to have bladder outlet obstruction.
12. It is further the case of the respondent that all his household savings were exhausted in the treatment of his father and he is not in a position now to maintain even himself. It is further submitted that property no. A-1/209, Mayur Apartment, Sector-9, Rohini, Delhi was owned by the mother of the respondent and after her death, the said property had devolved upon her three legal heirs i.e. the respondent, his father and his sister. There was dispute among the legal heirs of his mother with respect to the ownership of the property. The respondent sold out the said property in order to give better treatment to his father, to incur litigation expenses and day to CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 8 of 15 9day expenses and to wind up the increasing disputes between him and his sister with regard to the said property and thereafter, divided the consideration amount of the said property equally. Settlement deed was also arrived at between him, his father and his sister to that effect. He had also relied upon the bank account statement in order to corroborate the same.
13. It is further submitted by the respondent that the appellant is B.Com pass and was employed in Bharat Bhushan Equality Tejas Ltd. situated at Jhandewalan Extension, Delhi from 01.04.2008 to 31.08.2012 as Assistant Accountant, however, she had not disclosed the same in her complaint u/s 12 of the Act. She had deliberately not disclosed her bank account details in her income & expenditure affidavit and had further stated that she does not possess any bank account details or PAN Card. Thus, it is prayed that the appeal of the petitioner be dismissed be exemplary cost.
14. I have heard the arguments as advanced by the ld. Counsel for the appellant and ld. Counsel for respondent. I have also perused the entire material available on record as well as the TCR.
15. Perusal of the TCR reveals that Domestic Incident Report (DIR) was called in the present case by the ld. Trial Court. The same was filed by the Protection Officer on 22.04.2017. As per the DIR, the date of marriage between appellant and respondent no.1 was 24.11.2014 and the date of separation was 29.01.2015, that is, CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 9 of 15 10parties lived together for a period of approximately two months in the shared household, that is, A-1/209-210, Mayur Apartment, Sector-9, Rohini, New Delhi. The appellant had prayed for protection order, residence order, maintenance order and compensation. However, in the application u/s 23 of the Act, the appellant had prayed only for interim maintenance from respondent no.1 alongwith any further order which the Court deemed fit and proper.
16. On 27.11.2018, the ld. Trial Court granted interim maintenance to the tune of Rs. 6,667/- per month to the appellant from the date of application and listed the matter for prosecution evidence. On 21.05.2019, file was taken up on the application moved by the appellant for enforcement of order dated 27.11.2018 and for grant of interim order of residence and notice was directed to be issued to respondent no.1 of that application returnable by 22.06.2019. On 22.06.2019, respondent no.1 had appeared alongwith his counsel and appellant had appeared alongwith her counsel before the ld. Trial Court, however, no mention was made regarding the application of the appellant seeking relief of residence order. The copy of that application was supplied to ld. Counsel for respondent on 16.10.2019 i.e. the next date of hearing before the ld. Trial Court. On 22.01.2020, an application u/s 12 of Contempt of Court Act was filed by the appellant. On 04.03.2020, another application CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 10 of 15 11u/s 456 Cr.P.C. was moved on behalf of the appellant. On 21.10.2021, an application was filed by the appellant seeking directions to respondent no.2 to file reply. On 05.02.2022, the application of the appellant seeking residence rights was disposed of by the ld.Trial Court on the ground that income of respondent no.1 was assessed as not less than Rs.20,000/- per month vide order dated 27.11.2018 and no document has been placed on record by the appellant showing that there was any change in the income of respondent no.1. Accordingly, the ld. Trial Court held that the maintenance awarded to the appellant @ Rs.6,667/- per month vide order dated 27.11.2018 is inclusive of her right to residence. Thereafter, the ld. Trial Court had fixed the matter for prosecution evidence.
17. Section 23 of the Act grants power to the Magistrate to pass such interim orders as he deems just and proper. The appellant in her application seeking relief of residence orders, dated 15.05.2019 had averred that she was forced by the respondents to leave the matrimonial house and had not resided in that house since 29.01.2015. The respondents be restrained from alienating or disposing of the matrimonial house or encumbering the same. She prayed that she be allowed to enter in the matrimonial house and to reside therein and the respondents be restrained from alienating, disposing off or encumbering the said matrimonial home.
CA No. 62/2022Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 11 of 15 1218. The respondent in his reply to the said application had stated that he had sold out the said property and had divided the sale consideration between the legal heirs of his mother.
19. Thus, at the time when the application for seeking interim relief of residence order came for hearing before the ld. Trial Court, the respondent had already disposed off the property in question. The appellant admittedly had not resided in the said household since 29.01.2015 and had moved the application seeking residence orders on 15.05.2019, that is, after a lapse of approximately four years.
20. Interim maintenance was awarded to the appellant in accordance with the assessed income of the respondent by the ld. Trial Court. Besides the averment that the respondent had obtained sale consideration out of the sale of the matrimonial house, the appellant had not shown that there was any increase in the income of the respondent. The ld. Trial Court had assessed the income of the respondent to be not less than Rs.20,000/- per month vide order dated 27.11.2018 and had awarded interim maintenance to the tune of Rs.6,667/- per month to the appellant from the date of application i.e. 02.12.2015. The appellant had not resided in the matrimonial house as discussed earlier since 29.01.2015. Even in the interim application seeking maintenance, she had not prayed for residence relief. She was residing in her parental house after her CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 12 of 15 13separation from the husband as per the DIR. Nothing is mentioned in her application for residence as to what compelled her to seek relief of residence in the matrimonial home after a lapse of four years. Moreover, maintenance awarded to her was in accordance with the assessed monthly income of the respondent.
21. In view of the same, the ld. Trial Court had correctly held that as there was no change in the income of the respondent, the interim maintenance awarded would be inclusive of her right of residence.
22. It is pertinent to point out that the reliefs u/s 23 of the Act are interim reliefs granted only to provide immediate protection, interim maintenance, residence reliefs etc. to the aggrieved person when prima-facie it is established that the complainant/appellant is an aggrieved person. The said reliefs are interim in nature and do not conclusively determined the rights and liabilities of the parties.
23. Though, the respondent admittedly had sold of his property, however, the ld. Trial Court had not disposed off the application moved by the appellant under Contempts of Court Act or the application u/s 456 Cr.P.C. so far.
24. The income status of parties, whether respondent is liable to pay maintenance to the appellant, if so, of what amount, whether appellant is entitled to compensation if any, whether the property was sold in order to evade liability by the respondents etc. are all matters of trial. At the stage of interim reliefs only prima-facie CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 13 of 15 14case is to be seen. Thus, there is no illegality or irregularity in the impugned order of ld. Trial Court dated 05.02.2022, whereby the application of the appellant seeking residence rights was disposed of with the directions that interim maintenance awarded to the appellant @ Rs. 6,667/- per month vide order dated 27.11.2018 is inclusive of her residence. Therefore, the same does not require any interference from this Court.
25. However, the appellant had also prayed that respondents be first directed to file reply admitting or denying the contention of the appellant and thereafter, the matter be fixed for prosecution evidence.
26. Perusal of the application of the appellant filed on 13.10.2021 reveals that she had prayed that respondent no.2 be directed to file reply to her petition u/s 12 of the Act on the ground that respondent no.2 is participating in the proceedings of the case for more than last six months through his advocate Sh. A.K.Bhardwaj.
27. Perusal of TCR reveals that infact respondent no.2 had entered appearance through his counsel Sh. A.K.Bhardwaj. Ld. Trial Court before proceeding further in the matter is directed to determine first whether notice is required to be issued of the complaint to respondent nos. 2 & 3 and if it is required to be issued to any or both of them then they be directed to first file their reply to the complaint of the complainant and thereafter, re-fix the matter for CA No. 62/2022 Smt. Aparna Gangully v.
Sh. Gaurav Gangully & others Page 14 of 15 15complainant's evidence.
28. With these observations, findings and directions, the present appeal stands disposed of.
29. Appeal is accordingly disposed of.
30. Trial Court record be sent back alongwith the copy of this Judgment.
31. After necessary formalities, Appeal file be consigned to Record Room.
Announced in open Court. (Neha Paliwal Sharma) Dated: 26.08.2022 ASJ-05(West)Delhi. CA No. 62/2022 Smt. Aparna Gangully v. Sh. Gaurav Gangully & others Page 15 of 15 16 CA No. 62/2022 Smt. Aparna Gangully v. Sh. Gaurav Gangully & others Page 16 of 15