Delhi High Court
Sonia Mann vs State on 22 May, 2009
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: April 22, 2009
Decision on : May 22, 2009
CRL.M.C. No. 1586 of 2008
SONIA MANN ..... Petitioner
Through: S/Shri Ujjwal Jha with Brijesh
Sharma, Naveen Sharma and Jagjit,
Advocates.
versus
STATE & ANR. ..... Respondents
Through: Mr. Jaideep Malik, APP.
Mr. N.S. Dalal, Advocate for R-2.
WITH
CRL.M.C. No. 1806 of 2008
GAURAV MANN ..... Petitioner
Through: Mr. N.S. Dalal, Advocate.
versus
SONIA MANN ..... Respondent
Through: S/Shri Ujjwal Jha with Brijesh
Sharma, Naveen Sharma and Jagjit,
Advocates.
AND
CRL.M.C. No. 1840 of 2008
ISHWAR SINGH & ANR. ..... Petitioners
Through: Mr. N.S. Dalal, Advocate.
versus
SONIA MANN ..... Respondent
Through: S/Shri Ujjwal Jha with Brijesh
Sharma, Naveen Sharma and Jagjit,
Advocates.
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 1 of 14
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
JUDGMENT
22.05.2009
1. These three petitions arise out of the common set of facts and
are being disposed of by this common order.
2. Crl. M.C. No. 1586 of 2008 by Sonia Mann seeks to challenge
an order dated 12th March 2008 passed by the learned Additional
Sessions Judge („ASJ‟) disposing of an appeal filed by Respondent
No.2 Gaurav Mann thereby upholding an order dated 7th November
2007 passed by the learned Metropolitan Magistrate („MM‟) in
Complaint Case No.79 of 2007 awarding Rs.10,000/- per month as
interim maintenance to Sonia Mann but modifying it to the extent that
it was held to include a sum of Rs.4,000/- available to her under
Section 24 of the Hindu Marriage Act, 1955 („HMA‟).
3. Crl. M.C. No. 1806 of 2008 by Gaurav Mann challenges both
the orders dated 7th November 2007 passed by the learned MM as well
as the order dated 12th March 2008 passed by the learned ASJ.
Among the contentions raised is that the learned ASJ failed to take
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 2 of 14
note of the fact that after 7th November 2007 Sonia Mann was
permitted to reside in House No. 135/9 village Kishangarh, Mehrauli,
New Delhi and therefore there was no justification in the order of the
learned MM, as confirmed by the learned ASJ, restraining Gaurav
Mann and his parents from selling House No. 135/9 village
Kishangarh, Mehrauli, New Delhi.
4. Crl. M.C. No. 1840 of 2008 is by Ishwar Singh and Barfo Rani,
the father-in-law and mother-in-law respectively of Sonia Mann,
challenging the order dated 7th November 2007 in Complaint Case
No. 79 of 2007 seeking restoration of possession of the House No.
135/9 village Kishangarh, Mehrauli, New Delhi.
5. The facts in brief are that the marriage of Sonia Mann and
Gaurav Mann took place on 25th November 2003 and a female child
was born to them on 16th November 2004. It is stated that in 2005
Gaurav Mann shifted to Faridabad. On 10th February 2006 Gaurav
Mann filed a petition for divorce in the court of the learned Civil
Judge, Faridabad.
6. According to Sonia Mann, she was subjected to cruel treatment
by Gaurav Mann and his parents and she was compelled to file a
criminal case resulting in registration of FIR No. 254 of 2006 under
Sections 343/498A/323/34 IPC at Police Station Vasant Kunj on 3rd
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 3 of 14
May 2006.
7. Sonia Mann filed a complaint under the Protection of Women
from Domestic Violence Act, 2005 („PWDVA‟) which was numbered
as CC No. 79 of 2007 in the court of learned MM on 5 th May 2007.
She prayed for the passing of a protection order under Section 18, a
residence order under Section 19, monetary relief under Section 20
and compensation for damages under Section 22 of the PWDVA. She
also sought interim orders restraining the Respondents i.e. Gaurav
Mann, Ishwar Singh and Barfo Rani and four other relatives, all
shown to be resident of House No. 135/9 village Kishangarh,
Mehrauli, New Delhi (hereinafter „the property‟), from selling or
alienating the property. The specific prayer was that Respondents
should be directed "not to disturb and dispossess the applicants and
also not to dispose of the assets such as property owned by them in
Delhi which stand in the name of the Respondents."
8. A reply to the complainant case was filed on behalf of
Respondents Gaurav Mann, Ishwar Singh and Barfo Rani and others
before the learned MM in which it was contended that Ishwar Singh
and Barfo Rani have been residing separately in a rented
accommodation at E-192, Uttam Nagar, New Delhi. Likewise,
Respondent No.4 Samira, the married sister of Gaurav Mann was
having a grown up child and was residing separately at Gurgaon in
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 4 of 14
Haryana. It was stated that Gaurav Mann and Sonia Mann have been
living separately since 5th February 2006 and there is no scope for the
reunion. It was stated that Sonia Mann had left the matrimonial home
at Faridabad along with the minor daughter on her own on 9th
February 2006. Later she had stormed into the property in question
with her parents, relatives and some anti-social elements. They
manhandled Ishwar Singh and Barfo Rani who were present there at
that time. The two of them i.e. Ishwar Singh and Barfo Rani then
were compelled to shift to a rented house.
9. On 25th April 2006 a writ petition was filed by Sonia Mann
alleging that she had been confined in the property against her will.
This Court directed the Deputy Commissioner of Police [South-West]
to enquire into the matter and file a status report. The status report
filed by the DCP indicated that Sonia Mann had been living at 135/9,
Kishangarh, Vasant Kunj, New Delhi along with her daughter and
therefore there was no question of her being confined in that house
against her will. It was stated that she was "living in one of the rooms
for some time and no other person was present in that building at that
time." The DCP stated that after being satisfied that there was no case
of forcible confinement of Sonia Mann "I left the spot leaving
SDPO/Delhi Cantt on the spot to make further local inquiry." The
said writ petition was accordingly disposed of after the said status
report was filed.
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 5 of 14
10. It was stated by Gaurav Mann in his reply dated 25th May 2007
filed before the learned MM that "Sonia Mann had every right of the
residence in the matrimonial home and the answering respondent fully
honour this right of her. Her peaceful residence in her matrimonial
house has not been and will not be disturbed." It was added that
Gaurav Mann "is duty bound to protect and to provide a good
environment to the child for her proper upbringing and to the
petitioner/application being the mother of the child. So safety and
security of these two will always be a concern for them... The
answering Respondent No.1 still feels duty bound to protect the
petitioner/application from anybody else subject to his limits." It was
added by Gaurav Mann "that she is always at liberty to take a house
on rent (in commensurate with the status) which shall be paid by the
answering Respondent No.1."
11. In the reply of the remaining Respondents it was stated that
they were 40 to 60 km, away from the place where Sonia Mann was
living and therefore they were not concerned in any way with the
disputes concerning Sonia Mann, her husband and her in-laws.
12. A perusal of the trial court record reveals that as regards the
property in question a rough site plan was placed on record by both
sides. On their part the Respondents filed a hand drawn rough sketch
of the property along with other properties at Khasra No. 2727/1674
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 6 of 14
and House No. 135 of Mohan Lal. A floor plan of the property in
question was also filed with a portion thereof marked in red which
was under the occupation of Sonia Mann.
13. This Court has heard the submissions of Mr. N.S. Dalal, learned
counsel appearing for the Petitioner Gaurav Mann, Ishwar Singh and
Barfo Rani and Shri Ujjwal Jha, learned counsel appearing for Sonia
Mann.
14. It is submitted on behalf of Ms. Sonia Mann that the learned
ASJ was not justified in reducing the amount of Rs.10,000/- for the
maintenance of the Petitioner as well as her young daughter by
Rs.4,000/- which was awarded to her as interim maintenance under
Section 24 of the HMA. It was submitted that an order under Section
24 HMA could not be disturbed in an appeal under the PWDVA. The
question of maintainability of the petition by Ishwar Singh and Barfo
Rani, without exhausting the remedy of a statutory appeal, is also
raised.
15. The grievance on behalf of Gaurav Mann, Ishwar Singh and
Barfo Rani was that Sonia Mann was already in possession of a
certain portion of the property in question. Therefore there was no
justification in restraining Gaurav Mann, Ishwar Singh and Barfo Rani
and the other Respondents in the complaint case from alienating or
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 7 of 14
disposing of the remaining portion of the property in question. In the
alternative, it was stated that they cannot in any way be denied
possession of the remaining portion of the property which was not in
her occupation. It was pointed out that for herself and minor child,
Sonia Mann does not require to be in possession of the entire
property. As regards maintenance, it is pointed out that although the
learned MM did take note of the order for interim maintenance to the
extent of Rs.4,000 per month under Section 24 HMA, he questioned
this aspect when finally determining the interim maintenance at
Rs.10,000/- per month.
16. It may be mentioned here that pursuant to the orders passed by
this Court on 15th April 2009, the arrears of maintenance directed by
the impugned order dated 12th March 2008 passed by the learned ASJ
was paid by Gaurav Mann to Sonia Mann.
17. The rival submissions have been considered as regards the
amount of interim maintenance to be paid, the order dated 7th
November 2007 passed by the learned MM did take note of the fact
that under Section 24 HMA the court had awarded Sonia Mann a sum
of Rs.4,000/- as alimony pendente lite. However in arriving at the
final figure this was not taken note of. In para 8 it was noticed that
Sonia Mann had claimed expenses of Rs.27,500 per month of which
Rs.5,000/- was towards food, clothes, medicines etc., Rs.7,500/-
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 8 of 14
towards household expenses, Rs.10,000/- towards school fees and
other expenses towards the maintenance, upkeep maintenance and
clothing etc. of the child and Rs.5,000/- towards personal expenses.
In para 10 of the order after noticing that Rs.8,000/- per month under
the head of food, clothes, etc. would be appropriate, it was held that a
sum of Rs.1,000/- towards school fees of the child and Rs.1,000/-
towards summary expenses of the child would be sufficient.
Accordingly, the Respondent Gaurav Mann was directed to pay
Rs.10,000/- per month as monetary compensation. It appears to this
Court that after noticing that temporary alimony of Rs.4,000/- was
already directed to be paid to Sonia Mann under Section 24 HMA, the
learned MM did not account for it while computing the final figure.
In the circumstances the directions passed by the learned ASJ by the
impugned order dated 12th March 2008 modifying the order of the
learned MM to the extent that it was directed that the sum of
Rs.10,000/- would include Rs.4,000/- per month to be paid under
Section 24 HMA by Gaurav Mann to Sonia Mann, was the correct
order to be passed in these facts and circumstances. To this extent the
order of the learned ASJ does not call for any interference.
18. Turning to the question to the property in question, the learned
MM has in para 7 observed as under:
"7. The petitioner has also sought residence order
u/s 19 of the Act. She has asked for a direction to
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 9 of 14
allow her to enter the portion of the shared
household where she resides and restrainment
against the respondents from dispossessing her
from the shared household. The respondents have
admitted her claim to the shared household and
therefore, the respondents are restrained from
obstructing the entry or exit of the petitioner from
the portion of the shared household wherein she
resides. They also restrained from dispossessing
her from the shared household."
19. In his appeal before the learned ASJ, Gaurav Mann had
submitted that there is no justification for said restraint order. Sonia
Mann is already in occupation of certain rooms in the property. By
the impugned order dated 12th March 2008 the learned ASJ only dealt
with the question of maintenance after noticing that by an order dated
4th January 2008 it had been recorded that the only grievance of the
Appellant Gaurav Mann concerned maintenance. This does not
appear to be correct. The memorandum of appeal is filed by Gaurav
Mann includes grounds questioning the residence order. As regards
maintainability of the petition by Ishwar Singh and Barfo Rani, it is
seen that Gaurav Mann did file the statutory appeal although his
parents did not. When it is plain that any order in the petition by
Gaurav Mann is likely to affect the rights of his parents to the
property, it is not considered appropriate to relegate Ishwar Singh and
Barfo Rani to the statutory remedy of an appeal at this stage only with
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 10 of 14
a view to awarding multifarious proceedings.
20. In the petition filed by Ishwar Singh and Barfo Rani it is
pointed out that the property in question belonged to them. In relation
thereto, Sonia Mann had already filed a separate civil suit for
permanent injunction which was pending. In the circumstances, no
order could have been passed by the learned MM under the PWDVA.
Reliance was placed upon the judgment of the Supreme Court in S.R.
Batra v. Taruna Batra (2007) 3 SCC 169 to contend that Sonia Mann
could not claim a right to residence in the property not belonging to
her husband but to her in-laws. Moreover, the parties were last
residing in Faridabad.
21. From the photocopy of the site plan of the property in question
which is at page 433 of the trial court record and which is annexed
hereto at mark „A‟, it is seen that a kitchen, two rooms and two toilets
on the left side of the property when viewed from the front common
passage is under the occupation of Sonia Mann. Learned counsel for
the Respondents himself, on instructions has marked out the portion
which according to them can continue to remain in possession of
Sonia Mann during the pendency of this petition. This is of course
without prejudice to their rights and contentions. This portion is
shaded by horizontal lines (as well as red in the original). It is
accordingly directed that this portion marked by the horizontal lines
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 11 of 14
will continue remaining in the possession of Sonia Mann and the
minor child during the pendency of the Complaint Case No. 79 of
2007 in the court of the learned MM.
22. However in order to effectuate this part of the order, the
entrance to one room adjoining the kitchen on the left side rear of the
property will have to be shut. Likewise, the front room on the right
side which has one of the doors opening out into the portion under the
occupation of Sonia Mann and the minor child as indicated will also
have to remain shut. The half portion of the common area will also
have to be clearly delineated by some appropriate means. In order to
effectuate these arrangements it is directed that the trial court will
appoint a court commissioner to go to the site and ensure that the
aforementioned arrangement is put in place in the presence of the
parties with whatever assistance such court commissioner
further requires. The expenses, if any, in making the changes in the
property to the above extent will be borne by the Respondents. It is
made clear that within a period of three weeks from today and in any
event not later than 15th June 2009 the aforementioned portion will be
clearly demarcated. The possession of the remaining unshaded portion
will be handed over to the Respondents by the court commissioner in
the presence of both parties on or before 15th June 2009 and a report
thereof will be filed before the trial court. The common private
passage in the property is shaded by vertical lines (and in blue in the
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 12 of 14
original) in the enclosed site plan „A‟. This will be kept open for use
by both parties.
23. There is one main gate opening out in this common passage.
Sonia Mann is permitted to place locks on this main gate so that she
controls the entry and exit therefrom. After 15th June 2009, when the
possession of the unshaded portion is given to the Respondents they
will not access the portion under the occupation of Sonia Mann but
use the other gate as indicated in the site plan „A‟. This arrangement
also will continue till the disposal of CC No. 79 of 2007 before the
learned MM.
24. The case will now be placed before the court of the learned MM
on 28th May 2009 for directions. The learned MM will appoint a
suitable court commissioner, affix his or her fees which will be paid
by both Sonia Mann as well as Respondents in equal share and ensure
that the above time bound directions are strictly complied with.
25. Given the nature of the disputes, it is desirable that the learned
MM should dispose of the main complaint case CC No. 79 of 2007
within a period of six months from today and in any event not later
than 1st December 2009.
26. With these directions all these petitions are disposed of. The
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 13 of 14
impugned order dated 12th March 2008 passed by the learned ASJ will
stand modified to the above extent.
27. A certified copy of this order along with its enclosure will be
sent along with the trial court record forthwith to the learned MM
concerned. Order dasti to the parties.
S.MURALIDHAR, J
MAY 22, 2009
dn
CRL.M.C. Nos. 1586, 1806 & 1840 of 2008 page 14 of 14
