Jyotsana Sharda vs Gaurav Sharda
2009 Latest Caselaw 5339 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Crl. Rev. P. No. 132/2009

                                           Reserved on : 03.08.2009
                                       Date of Decision : 22.12.2009

Jyotsana Sharda                                      ......Petitioner
                                   Through:   Mr. R.P. Lao, Adv.

                                   Versus

Gaurav Sharda                                         ...... Respondent
                                   Through:   Mr. Jai Bansal, Adv.


                          Crl. Rev. P. No. 133/2009

Gaurav Sharda                                        ......Petitioner
                                   Through:   Mr. Jai Bansal, Adv.

                                   Versus

Jyotsana Sharda                                       ...... Respondent
                                   Through:   Mr. R.P. Lao, Adv.



CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers can be
       allowed to see the judgment?                     YES
2.     To be referred to the Reporter or not ?          YES
3.     Whether the judgment should be reported
       in the Digest ?                                  YES

V.K. SHALI, J.

1. Both these criminal revision petitions, one filed by Jyotsana

Sharda/wife and another by husband/Gaurav Sharda, are

assailing the orders dated 1st February, 2008 passed by the

learned JMIC, Gurgaon wherein he dismissed the application

filed by the wife of Jyotsana Sharda for her own ad interim

maintenance and the maintenance of infant child as well as the

accommodation in the matrimonial home. The second order

which is assailed is dated 9th May, 2008 passed by the learned

Additional Sessions Judge who dismissed the appeal of the

Jyotsana Sharda against the order of the learned Magistrate on

the ground of limitation and so far as the cross appeals which

were filed by the husband against the order of the learned JMIC

granting maintenance of Rs.10,000/- only to the minor child are

concerned, the learned Judge said that the same was in far

excess than which ought to have been given.

2. The facts of the case are that the Gaurav Sharda got

married on 16th February, 2004. They were blessed with a son

who was named Aryaman. It is alleged by the husband Gaurav

Sharda that his wife lodged the false complaint with Gurgaon

Police on 17th June, 2006 for physical beating given by Gaurav

Sharda and his brother which ultimately culminated into filing

an undertaking from Gaurav Sharda and the parents of the

petitioner that they will not visit the matrimonial home. It is

further alleged by the husband Gaurav Sharda that on 29th

September, 2006 he was not allowed to enter the house and the

respondent lodged a false complaint. On 18th November, 2006

respondent wife lodged an FIR under Sections 406/498A IPC at

P.S. Gurgaon. On 5th December, 2006 Jyotsana Sharda filed a

complaint under Section 23 of Protection of Women from the

Domestic Violence Act, 2005 which is still pending. On 1st

February, 2008 the JMIC, Gurgaon passed an order deciding the

application of Jyotsana Sharda under Section 23 of Protection of

Women from the Domestic Violence Act, 2005 wherein Gaurav

Sharda was directed to pay a sum of Rs.10,000/- towards the

maintenance of the minor child and further he was restrained

from disposing Jyotsana Sharda from house No. 502, Tower-4,

Shushant Estate, Sector-52, Gurgaon. The petitioner was also

restrained from creating third party interest or taking the

custody of the minor child.

3. The wife Jyotsana Sharda feeling aggrieved by the order of

the JMIC, Gurgaon filed an appeal under Section 29 of the

Protection of Women from the Domestic Violence Act, 2005

against the said order raising a grievance that the grant of

interim maintenance to her was wrongly rejected by the learned

Magistrate and that she was having no means to maintain herself

as she was unemployed, and therefore, was entitled to

maintenance. It may be pertinent to mention here that so far as

the minor child Aryaman is concerned, the learned Judicial

Magistrate had directed a payment of Rs. 10,000/- as interim

maintenance to minor child although there was no clear cut

evidence with regard to the earnings of Gaurav Sharda brought

on record however his averment to the effect that he is earning

Rs.40,000/- per month were taken as a basis for passing such

an order.

4. Gaurav Sharda/husband also felt aggrieved by the order of

the JMIC fixing up the interim maintenance at Rs.10,000/- per

month in favour of his son. It was his case that the interim

maintenance be reduced as he had limited resources from which

he had to maintain not only his parents but also to pay the

installments of the loan which he had taken in respect of the flat.

The learned Additional Sessions Judge considered both these

appeals together and rejected the appeal of the wife of Jyotsana

Sharda on the ground of limitation as it was filed with a delay of

52 days for which allegedly no explanation was furnished by her

was not accepted.

5. So far as the appeal of the husband Gaurav Sharda is

concerned, that was also dismissed on the ground that there is

no merit in the same. The order of the learned Additional

Sessions Judge did not satisfy either of them and both of them

preferred revision petition against the order of the learned

Magistrate and the learned Additional Sessions Judge in Punjab

and Haryana High Court. However, as the wife Jyotsana Sharda

filed a petition in Supreme Court she was able to get both the

revision petition apart from other matters pending in the Court of

District Court Gurgaon transferred to Delhi. This is how the

main matter of divorce etc. were transferred to AD&SJ, Patiala

House Courts, Delhi and the present revision petition bearing

Nos. 132/2009 and 133/2009 filed by husband and the wife

which have come to be assigned to the High Court.

6. I have been informed that as on date there are 10 cases

pending between the parties in different forums and are highly

contested. The intervention of the Court to settle the dispute

between the parties amicably by referring them to Mediation and

Conciliation Centre has also failed to yield any positive result.

7. I have heard the learned counsel for the parties and

perused the record.

8. The main contention of the learned counsel for Gaurav

Sharda is two-fold. Firstly, the contention of Mr. Lao is that the

husband is earning approximately Rs.40,000/- per month from

which he has to repay the installments of loan in respect of the

flat which is presently fully under the occupation of his wife

Jyotsana Sharda though it is owned jointly by Gaurav and his

mother and he has to maintain his parents also. Therefore, the

grant of Rs.10,000/- per month as interim maintenance in

favour of an infant is highly excessive. It was also urged by him

that the respondent Jyotsana Sharda in order to show high

expenditure of the infant child has shown the amount in the

receipts purported to have been received from the school where

he was admitted, which are all interpolated. In this regard, the

learned counsel has drawn my attention especially to the receipt

which was issued for a sum of Rs. 21,100/- dated 7th May, 2008

wherein the amount of Rs.3,000/- has been added subsequently

by the respondent. It was also urged by Sh. Lao that so far as

the cross petition for grant of interim maintenance by the wife is

concerned, that is untenable in law because she has admittedly

been working with different banks like City Bank and HSBC

Bank and even with Taj Hotel where she has voluntarily resigned

and thereafter she is doing a lucrative trading business in the

shares for which documentary proof has been placed by the

husband on record. It is alleged that she is earning sufficiently

well to maintain not only herself but also her minor child. Next,

it was contended that if a sum of Rs.10,000/- has been fixed by

way of an ad interim maintenance by the learned JMIC the same

is to be shared by Gaurav Sharda and his wife Jyotsana Sharda

because both of them have independent source of income and

can maintain themselves.

9. This argument was refuted by the learned counsel for the

Jyotsana Sharda/wife who stated that the maintenance of the

infant was essentially primary responsibility of the husband

father. It was also stated by the learned counsel for Jyotsana

Sharda that presently she is unemployed as she has to take care

of her infant child. It was also denied by her that she was

making profit by trading in shares to which the learned counsel

said admittedly is in recession presently, and therefore, the

learned counsel justified the grant of ad interim maintenance @

Rs.10,000/- per month not only the infant child but herself also

at the same rate.

10. The learned counsel contended that the respondent

Jyotsana Sharda was unemployed at present, therefore, she

must be granted interim maintenance and the Judicial

Magistrate had fallen into an error by rejecting the prayer of

Jyotsana Sharda for grant of interim maintenance and similarly

the learned Additional Sessions Judge, Gurgaon had also fallen

into error by not condoning the delay in filing the appeal and

disposing of the same on merits.

11. The second submission which has been vehementally urged

by the learned counsel for Jyotsana Sharda was to the effect that

the respondent Jyotsana Sharda is presently occupying the

house No. 502, Tower-4, Shushant Estate, Sector-52, Gurgaon

which admittedly was the property jointly owned by the Gaurav

Sharda and his mother. It was contended that the Gaurav

Sharda and his mother intended to go to the flat in question but

are being restrained from doing so without their being the Court

order. It was contended by the learned counsel for Gaurav

Sharda that Jyotsana Sharda may have a right of residence in

the matrimonial home or in an accommodation owned by her

husband or by the joint family of which her husband is a

member, but she does not have any right to stay in a

accommodation which is owned by her mother in law as she is

not under any obligation to provide the residence to her. It was

contended by the learned counsel for Gaurav Sharda that he is

ready to provide an accommodation to Jyotsana Sharda by hiring

a premises to which she can shift while as they will pay the rent,

and the electricity bills, water charges to the landlord.

Alternatively it was contended that the property could be either

divided half and half and she could share one half of the said

property while the other half could fall to the share of Gaurav

Sharda and his mother after partition. The third alternative

given by the petitioner husband is that the property in question

should be itself be disposed of and wife gets one fourth share

because she at best is entitled half share in the share of her

husband.

12. This argument was contested by the learned counsel for the

Jyotsana Sharda on the ground that the property may be in the

name of the mother but actually the entire sale consideration has

been received by the son. It is alleged that the mother was only

at best benami owner of the house of the property. It was also

pointed out that Gaurav Sharda had himself given in writing

before the police in Sector 29 Gurgaon when the Jyotsana

Sharda was subjected to physical beating that neither he nor his

family members or any relations would ever visit the matrimonial

home to dislodge Jyotsana Sharda forcibly.

13. I have considered the submissions advanced by the learned

counsel for Jyotsana Sharda as well as the learned counsel for

Gaurav Sharda. I have also gone through the record.

14. The first grievance of Jyotsana Sharda/wife is that the

learned Additional District Sessions Judge has arbitrarily and

erroneously dismissed the appeal of the appellant on the ground

that it is time barred. A perusal of the impugned order passed by

the learned Additional Sessions Judge holding the appeal of the

Jyotsana Sharda/wife as time barred is liable to be set aside.

The learned Additional Sessions Judge has rejected the appeal of

Jyotsana Sharda on the ground that she has not explained each

and every day's delay in filing the appeal. The total number of

days delay which was there in the filing of appeal of the Jyotsana

Sharda/wife was to the tune of 52 days. No doubt, originally the

Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351

had held that while seeking condonation of delay under Section 5

of the Limitation Act the application must not only show as to

why he did not file the appeal on the last day of limitation but he

must explain each days delay in filing the appeal. The later

judgments of the Apex Court have considerably diluted this

requirement of explaining each days delay by a party. The latest

trend and the ratio cases which the Apex Court has laid down in

the judgments is that the Court must adopt a liberal approach

rather than pedantic approach while doing so. It must see the

bonafides of the person who is preferring the appeal rather than

seeing the quantum of delay which has been occasioned.

Reliance in this regard can be placed on Collector, Land

Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. AIR 1987

SC 1353

15. Coming back to the facts of the present case the quantum

of delay which is occasioned in the instant case is just 52 days.

The Jyotsana Sharda/wife has given her reason for delay as

misplacing of the papers and lack of communication with the

counsel. The learned Additional Sessions Judge has rejected this

explanation by observing that the explanation which has been

given by the Jyotsana Sharda is contradictory and secondly

Jyotsana Sharda had spoken to her counsel on telephone and

got the appeal prepared afresh and got it filed in Court. With

utmost respect to the impugned order I feel that it is not the job

of the Court to advise as to what ought to have been done or

ought not to have been done by a party. The Court has to only

see as to whether the explanation which is furnished by a party

for approaching the Court in after a delay whether the

explanation given by him is genuine one or not and secondly the

Court must not adopt an approach to defeat the substantive

right of a party and ignore the consideration of the merits of the

appeal on flimsy technicalities because procedural laws should

not be resorted to defeat the rights of the parties to get their

appeal considered on merits. In the light of these facts, I am of

the opinion that the learned Additional Sessions Judge was not

correct in rejecting the appeal of the Jyotsana Sharda/wife

against the order of the learned Magistrate whereby the

maintenance has been be denied to her own self and to that

extent the impugned order is set aside.

16. Normally speaking after holding that the appeal was

wrongly dismissed by the learned Additional Sessions Judge on

the ground of limitation, the matter would have been remanded

to the learned Appellate Court for consideration of the appeal

afresh. However, I feel in the instant case that will be a futile

exercise on account of the fact that much time has elapsed

between the order passed by the learned Magistrate denying the

ground of interim maintenance to Jyotsana Sharda and the

present order, therefore, in case the Jyotsana Sharda/wife has

been able to maintain herself for such a long period it would be

worthwhile to wait for the outcome by the learned Magistrate on

the merits of the case rather than pass an interim order which

will result in further multiplicity of litigation. Accordingly, the

revision petition of Jyotsana Sharda/wife stands allowed and the

impugned judgment of the learned Additional Sessions Judge

rejecting the appeal of the appellant to that extent is set aside

but no order for reconsideration of the matter is passed by the

Appellate Court as a time bound direction is given to the learned

Magistrate to dispose of the main matter itself.

17. So far as the revision petition of Gaurav Sharda/husband

is concerned, admittedly what has been ordered against him is

that he must pay an interim maintenance of Rs.10,000/- for the

benefit of his child by the learned Magistrate vide order dated

01.02.2008. The said order has also been upheld by the learned

Additional Sessions Judge. The husband/Gaurav Sharda

feeling aggrieved by the said order has preferred to challenge the

same before this Court. A question was put to Gaurav Sharda

as to how the present criminal revision petition by him is

maintainable against the interim maintenance order passed in

favour of his son which is in the nature of interlocutory order

and which cannot be subject matter of revision petition because

of the bar imposed by Section 397(2) Cr.P.C.

18. The learned counsel for the husband/Gaurav Sharda has

referred to the case titled Amarnath & Ors. Vs. State of

Haryana AIR 1997 SC 2185 wherein it has been contended that

any order which substantially effects the right of the accused or

decides certain rights of the parties cannot be said to be an

interlocutory order so as to bar the revision petition to the High

Court against the said order.

19. I have gone through the said authority no doubt the

Hon'ble Supreme Court in Amarnath's case has clearly laid

down that any order which substantially affects the rights of the

accused and decides certain rights of the parties cannot be said

to be an interlocutory order but if that principle is applied to the

case of the husband/Gaurav Sharda, I do not feel that this

judgment is of any help to him in the instant case. The rights of

the husband/Gaurav Sharda so far as the grant of maintenance

is concerned, no doubt it effects his rights and imposes

obligation on him to pay the maintenance but does not decide

the rights of the husband/Gaurav Sharda once for all. It is only

an interim arrangement which has been arrived at after seeing

the documents by the learned Magistrate in order to prevent the

child going into the vagrancy because of lack of funds. Moreover,

the judgment which has been relied upon by the

husband/Gaurav Sharda case was involving a factual situation

not under Domestic Violence Act but under Indian Penal Code.

It has been laid down by the Hon'ble Supreme Court in Haryana

Financial Corporation Vs. Jagdamba Oil Mills 2002 (3) SCC

496 that while applying the principle of law laid down in a case

the same should not be done in a mechanical manner.

Obviously, the said judgment in Amar Nath's case does not help

the husband/Gaurav Sharda in any manner whatsoever.

20. The second submission of the learned counsel for the

husband/Gaurav Sharda is that the learned Magistrate vide

impugned order dated 01.02.2008 has given the rights of

residence in respect of the entire flat to Jyotsana Sharda/wife

which is situated in Shushant Estate, Gurgaon. It was

contended that it has been laid down by the Apex Court in S.R.

Batra Vs. Taruna Batra AIR 2005 DELHI 270 that a property

which is owned by the parents in law, then one cannot treat it as

shared accommodation and consequently no right of residence

can be given to anyone in the said principle. Similarly,

proposition has been laid down by our own High Court in

Rajinder Singh Saluja Vs. Sarbjyot Kaur Saluja & Ors

159(2009) DLT 629 (DB). It was contended that admittedly the

flat in question is jointly owned by Gaurav Sharda and his

mother, therefore, at best the wife Jyotsana Sharda has a right to

live only in one half of the portion which falls to the share of the

husband Gaurav Sharda while as the impugned order which has

been passed by the learned Magistrate and upheld by the learned

Additional Sessions Judge has prevented the Gaurav Sharda and

his mother or any other member of the family to go into said

accommodation. It was next contended by the learned counsel

for the husband/Gaurav Sharda that the petitioner is prepared

to hire an accommodation and the wife Jyotsana Sharda may

shift to the said hired accommodation while as the husband

would continue to pay the rent and other charges for the

essential amenities or alternatively it was contented that the

petitioner Gaurav Sharda is even prepared to dispose of the said

property and give one fourth share of the sale proceeds to

Jyotsana Sharda for the purpose of hiring an accommodation

rather than suffer the impugned order regarding rights of

residence having been given to wife altogether as ordered by the

learned Magistrate.

21. I have carefully considered the submission made by the

learned counsel for the Gaurav Sharda. The learned counsel

has on the statement of the husband Gaurav Sharda provided

the right of residence in the Sushant Estate flat of the husband

which is also jointly owned by his mother. Jyotsana Sharda had

got an FIR registered against the Gaurav Sharda and his other

family members on account of threat to dispose of the flat and

also on account of subjecting her cruelty with a view to demand

dowry. It was in those proceedings that they had undertaken

before the police that they would not go to the flat in question

and disturb the possession of the wife Jyotsana Sharda. So far

as the plea of the husband Gaurav Sharda to the extent that the

house is not a shared accommodation is concerned that is not

correct because admittedly the house is owned in the proportion

of one and half each by the mother and the son Gaurav Sharda,

therefore, this is a 'shared accommodation' because Jyotsana

Sharda was living in the said accommodation as a matrimonial

before differences erupted. The contention of Gaurav Sharda to

dispose of the property or to hire the property where the wife of

Gaurav Sharda namely Jyotsana Shard could shift that plead is

fraught with danger in as much as experience of cases of this

nature shows that this is only ploy adopted by the husband

invariably to divest the wife of their possession or right of

residence in respect of shared accommodation. This offer has

neither been accepted by the other side, i.e. Jyotsana Sharda,

his wife nor approved by the Court even. The Court does not

find that there is any infirmity in the impugned order by the

learned Additional Sessions Judge upholding the order of the

learned Magistrate both with regard to the payment of

maintenance of Rs.10,000/- to the child of Gaurav Sharda or

with regard to grant of right of residence to Jyotsana Sharda in

the accommodation at Sushant Estate, Gurgaon. Both these

arrangements are interim in nature, and therefore, cannot be

varied at this stage.

22. For these reasons mentioned above, the criminal revision

petition which has been filed by the husband Gaurav Sharda is

without any merit and accordingly the same is dismissed.

23. Expression of any opinion hereinbefore shall not be treated

as an expression on the merits of the case. It is further directed

that the learned Trial Judge will try to expedite the matter.

V.K. SHALI, J.

December 22, 2009 KP