Delhi High Court
Kinri Dhir vs Veer Singh on 4 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 04th JULY, 2022
IN THE MATTER OF:
+ CONT.CAS(C) 60/2022
KINRI DHIR ..... Petitioner
Through: Ms. Shivani Luthra Lohia, Mr. Nitin
Saluja, Mr. Anubhav Singh, Ms.
Priyanka Prasanth, Advocates
versus
VEER SINGH ..... Respondent
Through: Mr. Manu Sharma, Ms. Gauri Rishi,
Ms.SrishtiJuneja, Ms. Garima Sehgal,
Mr.Abhyuday Sharma, Advocates for
R-1
Mr. Shubham Budhiraja, Advocate
for R-2 & R-3
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
REVIEW PET. 141/2022 & CM APPL. 26165/2022
1. The instant review petition under Order XLVII read with Section 114
of the CPC has been filed against the Judgment of this Court dated
26.04.2022 rendered in CONT.CAS(C) 60/2022, whereby the contempt
petition of the Petitioner herein/Wife was dismissed.
2. The facts, in brief, leading to the instant petition are as under:-
i. The Petitioner herein/Wife filed a petition under the Guardian
and Wards Act, 1890, and an application under Sections
18(1)(e) read with Sections 23 & 26 of the Protection of
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Women from Domestic Violence Act, 2005 (hereinafter
referred to as the "DV Act").
ii. Vide Order dated 09.11.2021, the learned Principle Judge,
Family Court (South-East), Saket Courts, New Delhi, in G.P.
No. 16/2021, directed as under:
"Regarding the maintenance which has been claimed by
the Petitioner, it is an admitted fact that the rent of the
serviced apartment along with all the amenities and bills
are being provided by the Respondent till date to the
Petitioner. Therefore, in addition to the facilities which
have been provided to the Petitioner by the Respondent
and which he will continue to provide, he will also provide
to the petitioner a monthly maintenance of ₹1,00,000/- to
the Petitioner and ₹1,00,000/- per month for the minor son
from the date of filing of application till the decision of
case on merits"
iii. It is stated that MAT Appeal (F.C.) No. 2/2022 against the
Order dated 09.11.2021 had been filed by the Petitioner
herein/Wife, and vide Order dated 06.01.2022, this Court
recorded Respondent No.1/Husband's statement that "the
Respondent is complying in letter and spirit with the impugned
order and shall continue to pay the amounts due as per the
same".
iv. It is stated that alleging consistent violations on the part of the
Respondent No.1/Husband of the directions rendered by the Ld.
Family Court in its Order dated 09.11.2021 as well as the
undertaking given by the Respondent No.1/Husband, the
Petitioner/Wife approached this Court by way of Cont.Cas(C)
60/2022.
v. This Court, vide its Judgement dated 26.04.2022, dismissed the
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contempt petition of the Petitioner herein/Wife and recorded the
following observations:
"20. Material on record in the instant case
discloses that the Respondent No.1 has been
paying the requisite maintenance that has been
directed by the learned Family Court in its Order
dated 09.11.2021. In the said Order, the
Respondent No.1 had been directed to pay the
rent of the serviced apartment, along with all the
amenities and bills, as well as to provide the
Petitioner and the minor son a monthly
maintenance of Rs.1 Lakh each from the date of
filing of the Petition, i.e. 18.01.2021.
21. The Trial Court based its decision on the
income and expenditure affidavit filed by the
Respondent. The relevant portion of the income
and expenditure affidavit reads as under:
27 Whether your spouse Yes, staying at C-
is staying in the 99, Defence Colony,
matrimonial home? If New Delhi, Delhi -
not staying at 110024
matrimonial home,
relationship and
income of the person Rent:-3,91,911/-
with whom the spouse P.M (Car parking,
is staying? If staying housekeeping and
in a rented room service,
accommodation what Internet Access,
is the rent being paid? Satellite TV,
breakfast, 24 hrs
reception
assistance, AC
maintenance, F & B
service, 24 hrs
running hot water
and Linen
laundary) Paid by
the deponent Veer
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Singh
28 Name and age of Shakyasimha Singh
children from the - 2 years
marriage?
29 Who has the custody Joint
of the children?
30 Name and address of NA
school(s) where the
children are studying?
31 Monthly expenditure Total Exp Per
of the children? month: 1,79,159/-
32 Details of
4xpenditure/e on
children
i) School/College fees NA
ii) Creche/Day NA
care/After School care
iii) Books/Stationery 8,747/- P.M
iv) Private Tuitions NA
v) 23,567/- P.M
Sports/Music/Theater
vi) Outings/summer NA
camps/vacations
vii) Entertainment NA
viii) Pocket NA
Money/Allowances
ix) Others Paid by Deponent:
Rent Apartment-
INR 3,91,911/- P.M.
Nanny Salary-INR
80,180/- P.M.
Paid by Deponent's
Company (Vana
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Ventures Ltd.):
House Keeper &
Cook Room Rent-
INR 1,30,937/- P.M.
House Keeper &
Cook Salary-INR
76,744/- P.M.
Total:- INR
6,79,474/- Per
Month
Total Expenditure Annual Rs.1,06,
91,367/-
Monthl Rs.8,90,
y 947/-
22. A perusal of the income and expenditure
affidavit shows that the Respondent
No.1/Husband was spending Rs. 8,90,947/- per
month for the purpose of maintaining the
Petitioner/Wife and the minor son. It is pertinent
to mention at this juncture that the Respondent
No.1/Husband was residing with the
Petitioner/Wife at the time when the income and
expenditure affidavit had been filed. Subsequent
to the filing of the income and expenditure
affidavit, the Respondent No.1/Husband shifted
out from the said premises. However, the
expenditure has not been reduced despite the fact
that the Respondent No.1/Husband has moved out
from the premises. It has been submitted that
Respondent No.1/Husband has been paying a sum
of Rs. 4.5 lakhs towards the rent of the serviced
apartment, which is more than the amount shown
in the income and expenditure affidavit. The
Respondent No.1/Husband is also paying a sum of
Rs. 1,30,937/- per month towards the payment for
the housekeeper and cook's room rent, and Rs.
76,744 per month for the payment of the salary of
the housekeeper and the cook.
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23. At this juncture, the controversy before
this Court is restricted to whether non-payment of
salary for the nanny would amount to contempt or
not. The Order dated 02.03.2022 directing
payment for various facilities and amenities, as
well as payment to the nanny would be a matter of
interpretation. The learned Senior Counsel
appearing for Respondent No.1/Husband states
that the nanny appointed at the time of filing of
the income and expenditure affidavit was a
medical specialist and had been appointed at a
time when the minor son was not keeping good
health. However, that position does not continue
as of today. In wake of the changed
circumstances, this Court is of the considered
opinion that a sum of Rs.80,000/- is highly
excessive for a nanny who has been employed to
take care of a child.
24. The Order of this Court dated 28.01.2022
has recorded the submission that Rs.24 Lakhs
have already been paid by Respondent
No.1/Husband which would cover the period till
17.01.2022. The learned Senior Counsel
appearing for the Respondent No.1/Husband has
informed the Court that around Rs.4.5 Lakhs per
month is being expended towards the rent of the
serviced apartment, and that the Respondent
No.1/Husband is also paying an additional
Rs.1Lakh per month for the Petitioner/Wife's
daily expenses like groceries. Therefore, a total of
almost Rs.8 Lakhs is being paid by the
Respondent No.1/Husband towards maintenance.
Further, the Respondent No.1/Husband has also
undertaken to pay for the services of the nanny
and the home staff of the Petitioner/Wife.
25. In view of the same, this Court does not
find any wilful disobedience on the part of the
Respondent No.1/Husband in fulfilling the
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directions given to him by the learned Family
Court as well as this Court that would attract any
penal consequences and, therefore, no contempt is
made out against Respondent No.1/Husband.
26. The petition is, therefore, dismissed along
with the pending application(s), if any.
27. However, in the event that the serviced
apartment at C-99, Defence Colony, New Delhi, is
not provided to the Petitioner/Wife and the minor
son, Respondent No.1/Husband is directed to
provide an alternate accommodation of the same
nature to the Petitioner/Wife. Furthermore, the
Respondent No.1/Husband is directed to continue
paying a sum of Rs.1 Lakh towards the
Petitioner's daily expenses like groceries, etc. as
stipulated in the Order of this Court dated
02.03.2022."
vi. The Petitioner/Wife has now preferred the instant petition
seeking review of the Judgement dated 26.04.2022.
2. Ms. Shivani Luthra Lohiya, learned Counsel for the Petitioner/Wife,
submits that Judgement dated 26.04.2022 suffers from error of law and facts,
and therefore, a review of the same is required. The learned Counsel for the
Petitioner/Wife has recorded the following contentions with regard to the
changes that must be made to the Judgement dated 26.04.2022:
A. It has been submitted that Judgement dated 26.04.2022
proceeded on the incorrect assumption that the Income Affidavit
was filed at a time when the Petitioner/Wife and Respondent
No.1/Husband were residing together, and that subsequent to the
filing of the income and expenditure affidavit, the Respondent
No.1/Husband shifted out of the said premises. The learned
Counsel for the Petitioner states that the Respondent
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No.1/Husband had moved to another floor of the rented premises
around March/April, 2021, and that the Income Affidavit was
exchanged before the Ld. Family Court on 31.07.2021 when the
Respondent No.1/Husband had stopped residing with the
Petitioner/Wife. It is further submitted that the admitted
expenditure of Rs. 8,90,947/- in the Income Affidavit was solely
toward the basic upkeep of the Petitioner/Wife and the minor
child, and does not capture other amounts that Respondent
No.1/Husband had been directed to expend, which was upwards
of Rs. 10,00,000/-. The learned Counsel for the Petitioner/Wife
states that the total expenditure on the maintenance of the
Petitioner/Wife and the minor child is present on Page 24 of the
Income Affidavit and amounts to Rs. 11,37,012/-.
B. It has been submitted that the observation that the Respondent
No.1/Husband is paying a sum of Rs. 1,30,937/- per month
towards the payment for the housekeeper and cook's house rent,
and Rs. 76,744/- per month for the payment of the salary of
housekeeper and the cook, is incorrect as the Respondent
No.1/Husband had stopped providing for the salary of the cook,
housekeeper as well as the nanny, along with their rent. It has
also been submitted that the material on record as well as the
arguments made by Respondent No.1/Husband reveal that only
Rs. 1,00,000/- was being paid for all the groceries and salaries of
the staff, and no payment was done for the room rent of the staff.
C. It has been submitted that the issue with regard to non-payment
of maintenance on behalf of the Respondent No.1/Husband
traverses beyond the non-payment of the salary for the nanny as
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it has been exhibited time and again that the Respondent
No.1/Husband has made various attempts to get the
Petitioner/Wife evicted from the serviced apartment and, in
wilful disobedience of the directions of the Ld. Family Court in
the Order dated 09.11.2021, he has unilaterally reduced the
amount that is to be paid for various facilities for the
Petitioner/Wife and the minor child.
D. It has been submitted that the nanny who was employed to take
care of the minor child was not a medical specialist and that her
salary of around Rs. 80,000/- was in tune with the fact that she
had been hired by Respondent No.1/Husband so as to be on duty
24/7. It has further been submitted that the nanny was relieved of
her services on 14.04.2022 due to Respondent No.1/Husband's
refusal to pay for her salary, despite the Order dated 02.03.2022
whereby this Court had directed Respondent No.1/Husband to
pay for the salary of the nanny.
E. It has been submitted that the Respondent No.1/Husband has not
paid any of the outstanding amounts of the staff as directed by
this Court vide Order dared 02.03.2022 nor has he paid for the
pending salaries of the domestic staff/house-staff. It has been
submitted that the payment for the services of the nanny and the
home staff is being borne by the Petitioner/Wife with the
maintenance that she has been receiving for daily expenses, such
as groceries. It has further been submitted that Rs. 8,90,947/- was
the admitted expenditure being incurred by Respondent
No.1/Husband for the basic upkeep of the Petitioner and their
minor child, and that this amount was supposed to be in addition
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to the various amounts being spent on groceries and other
expenses.
F. It has been submitted that the direction rendered by this Court in
its Judgement dated 26.04.2022 that "in the event that the
serviced apartment at C-99, Defence Colony, New Delhi is not
provided to the Petitioner/Wife and the minor son, Respondent
No.1/Husband is directed to continue to provide an alternate
accommodation of the same nature to the Petitioner/Wife",is
beyond the scope of contempt jurisdiction and merely fuels the
attempts of Respondent No.1/Husband to evict the
Petitioner/Wife from the said premises.
3. The learned Counsel for the Petitioner/Wife, submits that the
Judgement dated 26.04.2022 has led to the perpetration of grave miscarriage
of justice and is being weaponised by the Respondent No.1/Husband to oust
the Petitioner/Wife from the rented premises at C-99, Defence Colony, New
Delhi. She, therefore, prays for a review of the Judgement dated 26.04.2022.
4. Heard Ms. Shivani Luthra Lohiya, learned Counsel for the Petitioner,
Mr. Manu Sharma, learned Counsel appearing for Respondent No.1, and
perused the material on record.
5. The power of review is not to be confused with the appellate power
which enable an appellate Court to correct all manner of errors committed
by the subordinate Court. There are definitive limits to the exercise of power
of review, and the Supreme Court has iterated the circumstances wherein the
review of a judgement or an order can be sought. In Meera Bhanja (Smt.) v.
Nirmala Kumari Choudhury (Smt.), (1995) 1 SCC 170, the Supreme Court
had observed as under:
"8. It is well settled that the review proceedings are
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not by way of an appeal and have to be strictly
confined to the scope and ambit of Order 47, Rule 1,
CPC. In connection with the limitation of the powers of
the court under Order 47, Rule 1, while dealing with
similar jurisdiction available to the High Court while
seeking to review the orders under Article 226 of the
Constitution of India, this Court, in the case of
AribamTuleshwar Sharma v. AribamPishak Sharma
[(1979) 4 SCC 389 : AIR 1979 SC 1047] , speaking
through Chinnappa Reddy, J., has made the following
pertinent observations: (SCC p. 390, para 3)
"It is true as observed by this Court in Shivdeo
Singh v. State of Punjab [AIR 1963 SC 1909] ,
there is nothing in Article 226 of the Constitution
to preclude the High Court from exercising the
power of review which inheres in every Court of
plenary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors
committed by it. But, there are definitive limits to
the exercise of the power of review. The power of
review may be exercised on the discovery of new
and important matter or evidence which, after
the exercise of due diligence was not within the
knowledge of the person seeking the review or
could not be produced by him at the time when
the order was made; it may be exercised where
some mistake or error apparent on the face of
the record is found; it may also be exercised on
any analogous ground. But, it may not be
exercised on the ground that the decision was
erroneous on merits. That would be the province
of a court of appeal. A power of review is not to
be confused with appellate power which may
enable an appellate court to correct all manner of
errors committed by the subordinate court.""
(emphasis supplied)
6. The Apex Court in Haridas Das v. Usha Rani Banik (Smt.), (2006) 4
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SCC 78, while considering the scope and ambit of Section 114 CPC read
with Order 47 Rule 1 CPC, has observed as under:
"15. A perusal of Order 47 Rule 1 shows that review of
a judgment or an order could be sought :
(a) from the discovery of new and important
matters or evidence which after the exercise of due
diligence was not within the knowledge of the
applicant;
(b) such important matter or evidence could not
be produced by the applicant at the time when the
decree was passed or order made; and
(c) on account of some mistake or error
apparent on the face of the record or any other
sufficient reason."
7. It is well settled that an error which has to be established by a long-
drawn process of reasoning on points where there may conceivably be two
opinions, can hardly be said to be an error apparent on the face of the record.
Where an alleged error is far from self-evident and if it can be established, it
has to be established, by lengthy and complicated arguments, such an error
cannot be cured by a writ of certiorari according to the rule governing the
powers of the superior court to issue such a writ (refer: Satyanarayan
Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC
137).
8. In order for a Court to exercise review jurisdiction, the error that is
apparent on the face of the record must be such that it may strike one as an
error by merely looking at the record and would not require a long-drawn
process of reasoning. Therefore, the allegation that an error exists on the
face of the record is not sufficient, and it must be accompanied with such an
error that is palpable and evident without requiring the Court to go into
elaborate arguments establishing the same. If the error is not self-evident
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and detection thereof requires a long debate and process of reasoning, it
cannot be treated as an error apparent on the face of the record for the
purpose of Order XLVII of the CPC. Review jurisdiction cannot permit for
an erroneous decision to be "reheard and corrected"; it has a limited purpose
and cannot be allowed to be an appeal in disguise.
9. In the instant review petition, it has been submitted that the Income
Affidavit was filed by the Respondent No.1/Husband after he had shifted out
of the floor on which Petitioner/Wife and the minor child resided, and
therefore, the amount reflected in the said Affidavit did not capture the
expenditure of the Respondent No.1/Husband on himself. This contention of
the Petitioner cannot be sustained as the perusal of the Income Affidavit
indicates that at point no. 27, the Petitioner/Wife has admitted that her
spouse is staying at the matrimonial home, and that the rent that was being
paid is Rs. 3,91,911/- per month. After the filing of the Income Affidavit it
is stated that the Respondent No.1/Husband has shifted out of the floor
where the Petitioner/Wife and the minor child were residing, and that the
rent of the serviced apartment has increased to Rs. 4,50,000/- per month.
Therefore, there is no error apparent on the face of the record and this does
not have bearing on the final outcome of the contempt petition. Even if the
Income Affidavit was filed after Respondent No.1/Husband moved out, it
would not take away from the fact that the increased rent was being
expended by the Respondent No.1/Husband.
10. It has further been submitted that the admitted expenditure of
Respondent No.1/Husband, i.e. Rs. 8,90,947/-, in the allegedly incomplete
income affidavit was the expenditure that was being incurred solely on the
Petitioner/Wife and the minor child. Further, it has been stated that the
amount of Rs. 1,79,159/- being spent on the minor child excluded the other
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amounts that were also being spent. The learned Counsel for the Petitioner
has stated that the total monthly expenditure of Rs. 11,37,012/- as stated on
Page 24 of the Income Affidavit reflects the true amount that is being spent
toward the maintenance of the Petitioner/Wife and the minor child.
However, this submission also cannot be taken into consideration by this
Court as the total monthly expenditure of Rs. 11,37,012/- as exhibited on
Page 24 forms a part of the Statement of Expenditure of the Respondent
No.1/Husband and includes the expenditure that is incurred by him on
himself as well. It would be misplaced if the entire amount in the said
segment of the Income Affidavit would be construed to be solely spent on
the upkeep of the Petitioner/Wife and the minor child.
11. The learned Counsel for the Petitioner has made the submission that
the Order of this Court dated 28.01.2022 wherein directions were given to
the Respondent No.1/Husband to pay an advance amount of Rs. 1,00,000/-
to the Petitioner/Wife for groceries, and for the same to be adjusted against
the bills and/or salary of the domestic staff, is being utilised by the
Respondent No.1/Husband to only pay for the groceries and salaries, and not
for the room rent for staff, is fallacious. The argument that had been raised
before the Court by the learned Counsel for Respondent No.1/Husband was
that despite the direction to pay Rs. 1,00,000/- as a one-time payment to the
Petitioner/Wife toward the expense of groceries, the Respondent
No.1/Husband had continued to pay Rs. 1,00,000/- every month.
Furthermore, delving into the issue as to whether due payment of the
stipulated amounts for maintenance is being done by the Respondent
No.1/Husband would amount to rehearing of the contempt petition, which a
Court exercising review jurisdiction is not equipped to do.
12. With regard to the submission that the issue in the contempt case
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traverses beyond the controversy of whether the non-payment of salary for
the nanny would amount to contempt or not, this Court is of the opinion that
the attempt of the Petitioner/Wife to re-agitate the issue of deprivation of the
Petitioner/Wife of her maintenance by Respondent No.1/Husband by way of
the instant review petition and the same is not in consonance with settled
law. This also stands true for the submission of the learned Counsel for the
Petition that the Respondent No.1/Husband has not paid for the services of
the nanny and the home staff separately, and that the Petitioner/Wife is
being constrained to pay for them out of the maintenance allocated for daily
expenses, such as groceries. As has been elaborated above, review
jurisdiction may not be exercised on the ground that a decision was
erroneous on merits as the same would entail encroaching upon the province
of a court of appeal. Therefore, this Court cannot re-open issues that have
already been laid to rest and do not demonstrate any error apparent on the
face of the record.
13. This Court recalls that during the course of the arguments in
CONT.CAS(C) 60/2022, it had specifically been submitted by the learned
Senior Counsel for the Respondent No.1/Husband and had been supported
by the learned Senior Counsel for the Petitioner that the nanny in question
was a medical specialist who had been hired keeping in the mind that ill-
health of the minor child. The changed circumstances entail the health of the
minor child improving and this Court remains firm in its opinion that the
salary of almost Rs. 80,000 for the services of a nanny are unwarranted in
light of these changed circumstances. The submission of the learned Counsel
for the Petitioner that the nanny had been hired by the Respondent
No.1/Husband does not sway the decision of this Court.
14. The learned Counsel for the Petitioner has relied upon the Order dated
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09.11.2021 of the Ld. Family Court to submit that specific directions were
given to ensure that the rented accommodation at C-99, Defence Colony,
New Delhi, must be provided to the Petitioner/Wife. There is no specific
direction that under all circumstances the Petitioner must be permitted to
continue to reside at C-99, Defence Colony, New Delhi. The Order of this
Court dated 28.01.2022 states that till the Order dated 09.11.2021, passed by
the Ld. Family Court, subsists, the Respondent No.1/Husband shall pay for
all such amenities as already being provided, including the rent of
accommodation on the second floor at C-99, Defence Colony, New Delhi. It
is contended that the Respondent No.1/Husband, along with Respondent
No.2 and 3, are attempting to evict the Petitioner/Wife from the said rental
accommodation. This submission of the Petitioner that the Petitioner must
be permitted to reside at C-99, Defence Colony, New Delhi, even if the
landlord desires to evict the Petitioner, cannot be accepted. CONT.CAS(C)
60/2022 cannot be used as a tool to take away the right of the land-
lord/owner of the rented premises, i.e. C-99, Defence Colony, New Delhi, to
take steps to evict the tenant. CONT.CAS(C) 60/2022 arises out of a
matrimonial dispute between the Petitioner/Wife and the Respondent
No.1/Husband, and the landlord of the property bearing No. C-99, Defence
Colony, New Delhi, cannot be made a party to the matrimonial dispute and
his right cannot be taken away in a matrimonial proceeding.
15. It was only with a view to ensure that the Respondent No.1/Husband
continued to provide for a shelter to the Petitioner/Wife that a direction was
given to the Respondent No.1/Husband that he shall continue to provide for
residential accommodation of the Petitioner herein/Wife. It is, therefore,
cannot be said that the direction given by this Court in the Order dated
26.04.2022 is beyond the scope of contempt jurisdiction. Further, the
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direction to provide for accommodation of the Petitioner/wife is only a
reiteration of the Order dated 09.11.2021, violation of which is the subject
matter of CONT.CAS(C) 60/2022.
16. In view of the above observations, the instant review petition is
dismissed. All pending application(s), if any, stand disposed of.
SUBRAMONIUM PRASAD, J.
JULY 04, 2022
Rahul
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