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DELHI HIGH COURT
Ashutosh Kumar, J.
Richa Arya —Petitioner
versus
State of NCT of Delhi & Anr. —Respondents
Crl.Rev.P.300 of 2015
Decided on 9.2.2016
Counsel for the Parties:
For the Petitioner:Ms. Aishwarya Rao, Advocate
For the Respondents: Mr. M.P. Singh, APP, SI Mousam Ghani, PS Mayur Vihar
For the Respondent No.2:Mr. Mohit Mathur, Sr. Advocate with Mr. Narinder Sharma, Advocate
IMPORTANT POINT
Interim monetary relief in terms of section 23 of Domestic Violence Act cannot be denied to aggrieved person wife only on ground that she had been awarded maintenance pendente lite in divorce petition filed by husband.
Headnote:Protection of Woman from Domestic Violence Act, 2005—Section 23—Monetary relief as interim measure in favour of aggrieved person wife denied by courts below on ground that she had been granted maintenance pendente lite under section 24 of Hindu Marriage Act in the proceedings for divorce instituted by husband—Legality of view—Courts below failed to appreciate ambit and scope of powers of court under the Act—Relief under Section 12 of the Act was in addition to any other relief which could be granted by any court of law to petitioner in any other forum—Impugned order was liable to be set aside and matter remanded.
Held: It is not necessary that relief available under Sections 18, 19, 20, 21 and 22 can only be sought for in a proceeding under the Domestic Violence Act, 2005. Any relief available under the aforesaid provisions may also be sought for in any legal proceeding even before a civil court and Family Court, apart from the criminal court, affecting the aggrieved person whether such proceeding was initiated before or after the commencement of the Domestic Violence Act.
This is apparent from Section 26 of the Domestic Violence Act, 2005
From a conspectus of the aforesaid provisions, it would appear that both the courts below did not appreciate the ambit and scope of the powers of the court under the Act. The orders passed by both the Courts, therefore, are off balance and skewed as the reliefs claimed by the petitioner have not at all been adverted to. The interim relief if any, could have been granted by the court for all such reliefs prayed by the petitioner.
The learned Metropolitan Magistrate, though, was right in expressing that the evidence adduced on behalf of the parties would be required to be gone into in detail for passing a final order, nonetheless, the learned Metropolitan Magistrate could not have abandoned the task of forming an opinion about grant of interim relief.
From a perusal of the orders impugned, I am of the view that both the Courts below did not take into account that a relief under Section 12 of the Act is in addition to any other relief which could be granted by any court of law to the petitioner in any forum. Both the courts have avoided giving interim relief only on the premise that the petitioner was being paid maintenance pendente lite under the orders of the competent court in divorce proceedings. I am also constrained to observe that it took the learned Metropolitan Magistrate three years to decide the interim application.
The orders therefore do not stand the scrutiny of law and are therefore set aside.
The case is remanded to the learned Metropolitan Magistrate, in seisin of the matter, who shall first decide the prayer of interim relief in terms of what has been stated above within a period of 3 months from the date of passing of the order or communication/production of a copy thereof and would dispose of the main proceedings as expeditiously as possible. (Paras 24, 25 and 26 to 30)
Result: Petition allowed accordingly.
JUDGMENT
Crl. M.A No.17968 of 2015
Exemption allowed subject to all just exceptions.
Application is disposed of.
Crl.Rev.P.300 of 2015
Richa Arya has questioned the legality of the order dated 15.10.2014 passed by the learned Metropolitan Magistrate (Mahila Court-02) East, whereby the prayer made on her behalf for monetary relief, as an interim measure, under section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the ‘Act’) was rejected primarily on the ground that she had been granted maintenance pendente lite of Rs.5000/- per month under section 24 of the Hindu Marriage Act, 1955 in a proceeding for divorce instituted by her husband (respondent no.2) and therefore she was not entitled to the grant of additional maintenance; as also against the appellate judgment and order dated 24.01.2015 passed by the Additional Sessions Judge-03 East, Karkardooma Courts, Shahdara, Delhi in Crl. Appeal no. 120/2014, whereby the order passed by the learned Metropolitan Magistrate, referred to above, was affirmed and upheld.
2. In order to appreciate the contention of the petitioner, it would be necessary to set out the facts leading to invocation of the provisions of the Act by the petitioner.
3. The petitioner was married to respondent no.2 on 10.02.2010 and within a short span of about 3 months, she was subjected to an additional demand of 8-10 Lakhs as dowry and was harassed for non-payment of the same. In the fourth month of the matrimonial relationship of the petitioner with the respondent no.2, she was beaten up and ousted from her matrimonial home. When she attempted to enter the matrimonial household on 21.08.2010, she was put to a shameful incident when half of her body remained inside the gate of the house and the half remained inside: the gates were deliberately closed by the in-laws while the petitioner was entering the house. The aforesaid incident was published in print and visual media.
4. Forced by such act of cruelty by the abusers including respondent no.2, a complaint was lodged on 26.08.2010 with CAW cell. Relevant would it be to state that the petitioner gave birth to a child namely Krisha @ Mishty on 24.11.2010. So shameless were the matrimonial relatives of the petitioner that she was even roughed up in the CAW cell and the police, per force, had to draw up a Kalandra under section 107/151 Cr.P.C. This was followed by registration of FIR bearing no. 87/2011 instituted under Sections 498A/406/34 IPC in PS Mayur Vihar against respondent no.2 and his other family members. As part of clever strategy, the respondent no.2 filed a petition for divorce in the Family Court at Ghaziabad, U.P. IN the aforesaid petition for divorce, the petitioner preferred an application under section 24 of the Hindu Marriage Act, 1955 for maintenance pendente lite and was granted maintenance at rate of Rs. 5000/- p.m.
5. The petitioner also filed an application under section 12 of the Act before the learned Magistrate, Karkardooma Courts, for protection, residence, monetary reliefs, custody of child and compensation. She simultaneously moved an application under section 23 of the Act for interim relief.
6. In the aforesaid application, the petitioner asserted that respondent no.2 was a man of substance and was earning at least Rs. 1,20,000/- p.m. from different sources, whereas she did not have any independent source of income and was unable to maintain herself as well as her daughter.
7. The respondent no.2, though, admitted the factum of marriage and birth of the child out of the said wedlock but denied all instances of domestic violence alleged by the petitioner and her assertion of respondent no.2 earning Rs. 1,20,000/- p.m. from various sources. On the contrary, it was averred on behalf of respondent no.2 that the petitioner was a post-graduate/MCA and working in an MNC in Gurgaon, Haryana, which fetched approximately Rs. 15,000/- p.m. to her. It was further contended that the petitioner was alrea
