Himmat Singh vs Priyanka Singh
2020 Latest Caselaw 2397 Del

                                                                                           SINDHU KRISHNAKUMAR

                                                                                           18.08.2020 19:11


                                $~6
                                *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                  Date of decision: 13th August, 2020
                                +          CRL. REV.P. 263/2020 & CRL.M.As. 10733-34/2020
                                       HIMMAT SINGH                               ..... Petitioner
                                                    Through: Mr. Prabhjit Jauhar, Advocate with
                                                                Petitioner in person along with his
                                                                mother Smt. Manju Deshbir Singh.
                                                                (M: 9811139939)
                                                    versus
                                       PRIYANKA SINGH                             ..... Respondent
                                                    Through: Mr. Trideep Pais and Ms. Sanya
                                                                Kumar, Advocates with Respondent
                                                                in person along with her two
                                                                daughters.
                                       CORAM:
                                       JUSTICE PRATHIBA M. SINGH
                                Prathiba M. Singh, J. (Oral)

1. This hearing has been done by video conferencing.

2. The present dispute has arisen between Mr. Himmat Singh and Ms. Priyanka Singh, husband and wife as also the mother-in-law, Mrs. Manju Deshbir Singh. A complaint under the Protection of Women from Domestic Violence Act, 2005 (hereinafter, "PWDVA") was filed by the wife and the same was considered by the ld. Metropolitan Magistrate. Vide order dated 12th March, 2020, the ld. Metropolitan Magistrate rejected the plea of the wife for maintenance. The only protection given to her was an injunction in respect of the property owned by the husband. The operative portion of the said order reads as under:

"...

As far as the claim of complainant for maintenance for the daughters is concerned, admittedly

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12 daughters are major and they have not been impleaded as petitioners/aggrieved in the present petition, therefore, complainant cannot claim maintenance on their behalf merely on the allegations of domestic violence being committed upon the complainant and no prima facie case to grant maintenance to the major daughters in the present petition is made out. Similarly, for the same reasons, complainant cannot seek relief to direct the respondent no.1 to make payment towards educational expenses of the daughters.

The complainant/aggrieved has sought interim maintenance for herself and her daughters at the rate of Rs.2,00,000/- per month and for directions to respondents to renew the lease and to continue to pay the rent as per lease.

Admittedly, respondent no.2 was paying the rent of the lease property. Now as far as the renewal of lease deed is concerned, admittedly, the landlord /owner of the property is not a party to present litigation and court cannot give any directions or reliefs to the parties affecting the right/interest etc. of a third party who is not a party to present lis. Therefore, court cannot give any directions to the respondent no. 1 to renew the lease deed and consequently no question to give directions to the respondents to pay further rent is made out.

Further, admittedly, complainant owns a property i.e. 307A, Beverly Park -1, Condominium, DLF Phase-II, MG Road worth Rs. 02 crores approximately. Thus, it is not a case where complainant is not having any house or cannot arrange a roof over her head and therefore, there is no requirement to provide any alternative residence to the complainant nor there is any requirement to give any amount as rent to the complainant.

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12 Considering the pleading of the parties, the material available on record and the income affidavit of aggrieved, this court is of the view that as per record, complainant has not filed anything on record to show that at present respondent no.1 is earning anything though she has claimed that respondent no.1 is Managing Director in Harig India Ltd. Further, complainant has mentioned in the income affidavit that respondent no. 1 owns approximately 06 immovable properties and 03 movable properties but complainant herself admitted that she did not have any document to support the averments as respondent had not shared any financial documents with the complainant.

On the other hand, respondent no.1 has filed affidavit stating that at present, he is not earning and he has even filed income tax returns and bank statements for last three years showing that since 2016 his business is running under loss and his company has gone under liquidation.

Admittedly, since September 2016 till March 2019, respondent no. 1 has paid approximately Rs. 85,000/- towards monthly maintenance and till January 2019, respondent no. 1 has even paid rent also.

Admittedly, complainant is earning Rs. 55000/- per month. Considering the facts and circumstances of the case, financial status of both the parties: and income affidavits of both the parties, it is clear that complainant is capable enough to maintain herself and therefore, she is not entitled to any monetary interim maintenance at this stage.

The respondent no.1 had admitted that he owns a property in Revla Khanpur Village, Near Pushpanjali Farm, Delhi and he is joint owner of the property with other owners. The parties have

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12 disputed with respect to quantum of shares of the respondent no. 1 in the property, however, considering the overall facts and circumstances as well as the fact that respondent no.1 being husband of complainant is bound to maintain the complainant, the respondent no.1 is hereby restrained from alienating, selling, transferring, mortgaging or creating third party interest etc. in his undivided share in the above mentioned property.

Further, complainant has sought the relief to restrain the respondents from alienating their immovable and movable assets. This relief is not granted as the exact details of assets is not given and even the details of cars etc. is mentioned without giving their numbers etc. The application U/s. 23 of the DV Act is disposed off accordingly.

Further, ld. Counsel for complainant has vehemently argued that respondent no.2 should be summoned as respondent in the present matter as admittedly she was paying the lease amount and there are correspondences between complainant and respondent no.1 to show that respondent no.2 is having domestic relationship with complainant and in a preplanned conspiracy respondent no.1 and 2 have kept the complainant in dark and all the family business is being run in the name of respondent no. 2 and respondent no. 1 has also transferred the family funds and his income in the family business just to outset the complainant. It has been further argued that respondent no. 2 being karta of the business should be summoned as respondent in the present case. Complainant has relied upon the judgments in case titled as "S. R. Batra Vs. Taruna Batra", (2007) 3 Supreme Court Cases 169; "Eveneet Singh & Ors. Vs. Prashant Chaudhari & Ors.", 177(2011)DLT 124,

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12 1(2011)DMC 239 and "Preeti Satija Vs. Raj Kumar & Ors.", 2014 III AD(Delhi) 329.

As far as this plea of complainant is concerned, vide order dated 12.09.2019, it was specifically held that there was no domestic between the complainant and respondent no.1, therefore, no notice is issued to respondent no.2. No ground for review or recalling of the said order is made out. The judgments relied upon the complainant are not applicable to the fact in hand. Therefore, this request of the complainant is declined.

Aggrieved/complainant is directed to file evidence by way of affidavit and that of other witnesses if any by supplying advance copy to the opposite party.

Put up for CE on 08.07.2020.

Copy of order be given dasti as prayed for."

3. This order was appealed against by the wife before the ld. ADJ. Vide the impugned order dated 29th July, 2020, the ld. ADJ has directed the payment of interim maintenance of Rs.70,000/- per month, educational expenses, rent of Rs.65,000/- per month along with electricity and water charges and Rs.1,00,000/- as compensation. The operative portion of the order of the Ld. ADJ is set out below:

"38. In these circumstances, the appeal is disposed of accordingly with following directions:

1). The respondent/ husband shall pay a compensation of Rs.1,00,000/- to the appellant herein for causing mental agony and for shifting of house.

2). The respondent/husband shall bear the educational expenses including the expenses of Durham University, U.K

3). The respondent/ husband shall pay a sum of

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12 Rs.65,000/- per month on account of monthly rent along with electricity and water charges from 01.08.2020 to the appellant and her daughters.

4). The respondent/husband shall pay a sum of Rs.70,000/- towards interim maintenance to the appellant

5). The respondent/husband shall not alienate the appellant/wife, sell, transfer, mortgage or create third party interest etc. in the property in Revla Khanpur Village, Near Pushpanjali Firm, Delhi."

4. The above order is impugned in this revision petition. Mr. Prabhjit Jauhar, ld. counsel appearing for the Petitioner has taken the Court through various documents and the pleadings to argue that the husband does not have the means to pay the amounts as directed by the ld. ADJ. He submits that the first and foremost objection against the impugned order is that the ld. ADJ has taken into consideration the maintenance of the two daughters, who are both majors. According to him, under Section 2(b) of the PWDVA, a child would only be a person who is below the age of 18 years. Both the daughters are above 18 years of age and thus, they are not entitled to get any benefit of the provisions of the PWDVA.

5. The second submission is that the mother of the husband has been taking care of the expenses of the household as the husband has not been earning anything. He relies upon various documents relating to the liquidation of the family company and the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, as also the loan by the Bank of India. He submits that it is the admitted position that the wife herself owns a flat in Beverly Park-1, DLF Phase-II, MG Road and is a well-qualified person. The mother-in-law had agreed to fund the education of both the grand-daughters,

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12 one of whom is studying in Durham University, England. He submits that as per the agreement, the expenses for the grand-daughter's education for the first two years was to be borne by the mother-in-law and the expenses for the final year were to be borne by the maternal grand-parents. The mother-in-law is also willing to fund the education of her second granddaughter, who has taken admission in the Pearl Academy for fashion. He submits that the husband has already moved out of the Vasant Vihar house and has been living in a flat which has been taken on rent by his brother. It is therefore submitted that the amount awarded by the ld. ADJ is very steep, unaffordable and thus, the order does not deserve to be continued.

6. On the other hand, Mr. Trideep Pais, ld. counsel appearing for the Respondent submits that the wife and her daughters have always lived in the house belonging to the family, firstly in Safdarjung Enclave, which house belonged to the husband's maternal grand-mother and thereafter, in 2015 they moved into the house in Vasant Vihar on the 4th floor in a three bedroom porta cabin. They lived in Vasant Vihar until disputes arose between the parties from 2016 to 2018. Thereafter, the wife and daughters were forced to move out of the Vasant Vihar house and an apartment was taken on rent in Aurobindo Marg by the husband for a period of two years. One year was the lock-in period. Thereafter, the husband refused to renew the lease. Under these circumstances, the wife and the daughters are now being forced to look for accommodation and also maintain themselves. Ld. counsel therefore submits that the amounts awarded by the ld. ADJ are completely reasonable.

7. This Court had, on 10th August, 2020, directed the parties to join the

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12 video-conferencing hearing so as to explore the possibility of an amicable resolution. Today, the Court has interacted with all the parties, including the two daughters. After interacting with them it appears that at this stage there is no consensus between the parties either for final resolution or even for an interim resolution.

8. The family of the husband, consisting of his mother, brother and his brother's spouse and children, live in Vasant Vihar. The Vasant Vihar house has several apartments. The various members of the family live in different portions of the said house. Two portions of the house are admitted to have been rented. The wife and the two daughters no longer live in Vasant Vihar and are now planning to move into an apartment in the Safdarjung Development Area. Since the marriage of the Petitioner and the Respondent in 1998, the house had always been provided by the husband, either by himself, through his mother or through family owned companies. Accordingly, the impugned order, to the extent that it directs rent and other charges for the accommodation, to be paid by the Petitioner, does not deserve to be interfered with at this stage.

9. Insofar as maintenance is concerned, the ld. Magistrate has noticed the fact that the wife owns an apartment in DLF Phase-II and is also a well- qualified professional, who was working for some time with her father. The wife is an educated person. From the records and from the interaction, at this stage, prima facie, it appears that the husband does not have any fixed income. From the rent which is being received and from other properties, his income is not clearly determinable. The fact that the mother in law, the husband and his brother are closely knit cannot be disputed. Even now the husband is living in a premises which is apparently rented by his brother.

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12 The family is reasonably well-off. Under such circumstances by simply arguing that he has no source of income would not absolve him of his responsibility towards his wife and daughters. Their maintenance would have to be taken care of, at least partially.

10. Accordingly, as an interim arrangement, this Court directs that monthly maintenance of Rs.35,000/- shall be paid by the husband on or before the 10th of every month directly into the account of the wife - Ms. Priyanka Singh. As far as the amount for the month of August is concerned, the same would be deposited by 25th August, 2020.

11. Keeping aside the question of law which is to be decided at the final hearing, since the mother-in-law admits that she would be willing to fund the education of the elder granddaughter who is studying in Durham University, in order for her to obtain her visa and process other documents to enable her study in the said University, the assets/bank statements/income tax returns of the mother-in-law shall be used. The amount which is to be paid to the said University would, from time to time, upon the fee-invoice being given to the husband/mother-in-law, be paid by the husband/mother- in-law within the prescribed period. The fee of the second daughter shall also be paid by the husband/mother-in-law. If there are any other directions that are required by either party, they are permitted to move an application.

12. The question of law as to whether a home owned by the mother-in- law can constitute a shared-household, as per Mr. Prabhjit Jauhar, ld. counsel, is being heard by a three-judge Bench of the Supreme Court tomorrow i.e. 14th August, 2020. Accordingly, final hearing in this petition is being postponed. The above interim arrangement shall continue till the final hearing. Mr. Jauhar, ld. counsel assures the Court that there would be

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12 no impediment from his client's side in the smooth processing of the elder daughters visa documents and her pursuing her education at the University of Durham.

13. List on 5th October, 2020.

PRATHIBA M. SINGH JUDGE AUGUST 13, 2020/dk/T (corrected and released on 18th August, 2020)

Signature Not Verified Digitally Signed By:PRATHIBA M SINGH Signing Date:18.08.2020 18:12