Tarun Chadha vs Karishma
2013 Latest Caselaw 1061 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Crl. M.C. No.215/2011
+                                   Date of Decision: 4th March, 2013

#      TARUN CHADHA                                        ....Petitioner
!                Through:                 Mr. Shailender Dahiya,
                                          Advocate

                                    Versus

$      KARISHMA                                      ....Respondents
                               Through:   Mr. Davinder N. Grover,
                                          Advocate

                                          &

                            Crl. M.C. No.254/2011

#      KARISHMA                                          .....Petitioner
 !                                    Through: Mr. Davinder N. Grover,
                                         Advocate

                                    Versus
$      TARUN CHADHA & ANR.               ....Respondents
                Through: Mr. Shailender Dahiya, Advocate for
                         respondent No.1
                         Mr. M.N. Dudeja, APP for the State


      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN




Crl. M.C. Nos.215/2011 & 254/2011                               Page 1 of 8
                                     ORDER

P.K. BHASIN, J:

Petitioner in Crl. M.C.No.215/2011 is the husband of the petitioner in Crl.M.C. 254/2011 and he has sought setting aside of the order dated 03rd August, 2010 passed in C.C. No.26/1/10 vide Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('The Act of 2005' in short) by Ms. Jyoti Kler, Metropolitan Magistrate (Mahila Court), West District, Delhi, whereby he was directed to pay Rs.5,000/- per month as rent to his wife from the date of passing of the said order and Rs.8,000/- per month as maintenance from the date of filing of application by her under Section 12. He also sought setting aside of the order dated 26th October, 2010 passed by Shri Satinder Kumar Gautam, learned Additional Sessions Judge, whereby the appeal filed by him against the aforesaid order dated 03rd August, 2010 was partly allowed and the direction of the Magistrate for payment of ` 5,000/- per month as rent was set aside.

2. Petitioner in Crl. M.C. No.254/2011 has sought setting aside of the order dated 26th October, 2010 of the learned Additional Sessions Judge and also enhancement in the amount of rent and maintenance. Additionally, she also prayed for payment of compensation of ` 1.50 lacs which she had claimed in her application under Section 12 of the Act of 2005.

3. As both these petitions were heard together and common submissions were advanced at the time of hearing, the same are being

disposed of by this common order. Reference to the parties shall hereinafter be made as the petitioner husband and petitioner wife.

4. The petitioner wife had filed the application under Section 12 of the Act of 2005 seeking certain reliefs against the petitioner husband, his mother, his sister and her husband. The learned Magistrate, however, took cognizance only against the petitioner husband. The relevant facts were noticed in the order dated 3rd August, 2010 of the Magistrate and are as follows:-

3. "Applicant married to respondent no.1 according to Hindu rites and customs on 15.2.2008. Respondent number 2 demanded ` 2.5 lacs from the applicant for purchase of a Maruti car which was given by the father of the applicant at the time of shagun but the car was never purchased. A huge amount of Rs.6,50,000/- was spent in the marriage and there was a gathering of around 900 people. Jewellery worth over Rs. 4 Lac was given to the applicant by her parents and jewellery worth Rs. 1 Lac was given to the respondent no. 2 and 4 at the time of marriage. After marriage jewellery given by the parents of the applicant was taken away by the Respondent no. 2 and

4. On 16.2.2008 when the applicant went to her parental house for pagphera ceremony, respondent no. 2 demanded ` 3 lacs for purchase of a new car and on non fulfillment of the said demand - the applicant was beaten up. She was also sexually abused by the respondent no. 1. On 17.2.208, respondent no. 2 forced the applicant to search a job for herself. Respondent no. 1 was a heavy drunkard and used to beat up the applicant. On 18.2.2008 ` 50,000/- were given by the father of the applicant for honeymoon and parties went to Goa on 20.02.2008 where respondent no. 1 forced the applicant to drink alcohol and on refusal of the applicant she was slapped and beaten up by the respondent no. 1. On

24.2.2008, parties came back to Delhi. On reaching hack, respondent no. 2 and Respondent no. 4 demanded Rs. 3 Lacs from the applicant as the balance amount for purchasing car. On refusal, she was beaten up by respondent no. 1, 2 and 4. On 26.2.2008, father of the applicant reached at the matrimonial house with sweets and fruits which were thrown by the respondents before their pet dog. Respondent no. 4 used to take away the clothes and make up kit of the applicant without prior permission. On her request to respondent no. 4 to ask before taking away the articles applicant was hit due to which she lost her consciousness. Respondent no. 2 repeatedly called her a prostitute. Applicant got a job in the month of March but she was beaten up by the respondents without any rhyme or reason on 5 th, 6th and 7th March before leaving for the job. Respondent no. 1 used to force the applicant to watch blue films and act accordingly. On her refusal she was tortured. Applicant was thrown out of the matrimonial house on 8.3.2008.

4. Applicant is now praying for protection order, residence order, monetary relief to the tune of ` 1.5 lacs stating that the respondent no. 1 is carrying a business of fruit merchant at Pahar Ganj, New Delhi and deals in the business of exporting garments. He is also the owner of two luxurious cars i.e. Honda City and Maruti Esteem.

5. Reply has been filed by the respondent wherein he has denied all the allegations levelled by the applicant stating that the applicant has harassed the respondents and left the matrimonial house without any sufficient cause. Respondent no. 1 states that he is under matriculate and has no source of income as he depends upon his parents though applicant is a graduate and MBA. He has admitted that the applicant is residing with her parents since 8.3.2008 stating that the applicant deserted him in a pre-planned manner.

6. It is averred by the respondent that the fruit business is being run by his father and he has nothing to do with

the same. He states that his mother is running a boutique and alleged two luxury cars are owned by her. He has denied all the allegations of demand of dowry and harassment. He has also denied that the applicant was ever sexually abused and further states that during honeymoon at Goa it was the applicant who forced the respondent no. 1 to drink alcohol and she was upset as respondent no. 1 did not allow her to do so. He further states that the applicant is working since March 2008 as also admitted by her and that he has paid ` 50,000/- to the applicant during, bail for alleged unreturned dowry articles and jewellery."

5. The learned Magistrate after considering the averments made by the petitioner wife in her application under Section 12, reply of the petitioner-husband and their affidavits filed in support of their respective pleas disposed of the application of the petitioner-wife vide order dated 3 rd August, 2010 and awarded two reliefs to the petitioner-wife. One was for payment of maintenance of ` 8,000/- per month to her by the husband after accepting his income to be ` 40,000/- per month and also taking into consideration the fact that he was maintaining two cars and had taken his wife for honeymoon to Goa. The other relief given to the petitioner wife was payment of ` 5,000/- per month as rent by her husband. The reliefs of protection order under Section 18 and compensation of claimed by the petitioner-wife were rejected.

6. Against the said order of the Magistrate only the petitioner - husband filed an appeal before the Sessions Court and the learned Additional Sessions Judge vide his order dated 26 th October, 2010 set aside the order of the Magistrate granting the relief of payment of monthly rent of ` 5,000/- per month to the petitioner-wife while

the direction for payment of maintenance of ` 8,000/- per month to her was maintained. Against this order of the Appellate Court, husband and wife have both approached this Court by invoking Section 482 of the Code of Criminal Procedure, 1973.

7. I have heard the counsel for the parties and also gone through the record of the trial Court as well as the order of the appellate Court.

8. Learned counsel for the petitioner-husband had submitted that there was no material produced by the petitioner -wife to show that her husband was earning ` 40,000/- p.m. and the document relied upon by the trial Court purporting to be an application given by petitioner-husband's mother in Kirti Nagar Sanatan Dharam Sabha for the registration of his name to be given in the said Sabha's Vivaha Patrika for getting some marriage proposals for him and in which application his family income was shown to be ` 70,000/- p.m. and his individual income was shown as ` 40,000/- had not been mentioned either in the wife's application under Section 12 of the Act of 2005 nor in her affidavit filed in support of that application and appeared to have been placed on record on 23 rd July,2010 when final arguments in the matter had been concluded and the case was reserved for judgment . Therefore, counsel submitted, that document could not be taken into consideration while fixing the maintenance amount. Coun sel further submitted that if that document is excluded from consideration then there is no proof that petitioner-husband's

monthly income was ` 40,000/- and his claim that he was not having any income of his own should be accepted and the direction given to him for payment of ` 8000/- p.m. as maintenance to his wife is liable to be set aside by this Court.

9. In my view there is no merit in the petition of the husband. The petitioner-husband had claimed before the trial Court that his father was doing fruit business with his uncle and his mother was running a boutique and she was also maintaining two old cars while he himself was unemployed and totally dependant upon his parents. The case of the petitioner-wife was that the fruit business was a joint family business and he was also doing export business and his monthly income was ` 5,00,000/-. Considering the fact that the petitioner-husband has not claimed either before the appellate Court or before this Court that his mother had actually not got his name registered with the Sanatam Dharam Sabha in Kirti Nagar for getting marriage proposals for him the document relied upon by the trial Court cannot be excluded from consideration. He could have filed the affidavit of his mother also to that effect befor e the appellate Court but he did not do that also. His parents have been doing business and according to his own case they were supporting him and so he could have produced proof as to how much money he was receiving from his parents if he had no share in the family business but no proof was given by him. In these circumstances no fault can be found with the decision of the trial Court and the appellate Court awarding monthly maintenance of ` 8000/- to the petitioner-wife and that much amount cannot be said to be

excessive by any standard.

10. The appeal preferred by the petitioner-husband against the order of the learned Magistrate was partly allowed with respect to the direction given to him for paying monthly rent of ` 5,000/- and that direction was set aside. The petitioner-wife, now before this Court, is seeking its reversal. However, since she had not given any proof to show that she had been residing in a rented accommodation the appellate Court set aside that direction. The learned counsel for the petitioner-wife had simply submitted that the appellate Court should not have set aside that direction. However, in my view there is no infirmity in that decision of the appellate Court. Since the petitioner-wife had not filed any appeal against the trial Court's order rejecting other reliefs claimed by her she cannot be permitted to challenge the same by way of this petition for the first time. So, there is no scope for any interference by this Court in exercise of the inherent powers under Section 482 Cr.P.C. in the appellate Court's decision setting aside the direction of the trial Court in respect of payment of rent to her by her husband.

11. Both these petitions being devoid of merit are dismissed.

P.K.BHASIN, J MARCH 4, 2013