* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No. 64/2009 & CM Nos. 1801, 4625 & 4770 of 2009
% Decided on : 6th May, 2009
MEENA CHAUDHARY @ DR. MEENA P.N. SINGH
..... Appellant
Through: Appellant in person.
versus
COMMISSIONER OF POLICE & ORS. ..... Respondents
Through: Ms. Jyoti Singh, Mr. Amandeep
Singh and Mr. Ankur Chhibber,
Advocates for Respondent Nos.
1, 2, 3, 5 and 6.
Mr.M.N.Krishnamani, Sr.Adv.
with Mr. Atul Jha, Adv. for
Respondent No. 4
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
1. Whether the Reporters of the local newspapers be allowed to
see the Judgment? Yes
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be reported in the Digest? No
ORDER
1. The present appeal is directed against the judgment of the
learned Single Judge dated 7th January, 2009. Briefly stated, the
facts of the present case are as follows:-
2. The appellant had filed a writ petition against certain police
officers as also respondent No. 4, Mr. Basant Kumar Chaudhary, who
she stated is her husband and one Mr. Jaspal Singh who is said to be
a R/o B-108, Hill View Apartments, Vasant Vihar, Delhi. The writ
LPA No. 64/2009 Page 1 of 11
petition was filed by the appellant (the original petitioner in the writ
petition) inter alia to seek a writ of mandamus to direct the police
authorities to provide her full security of life, liberty and property.
She also sought a writ of mandamus to direct the police authorities
from obstructing her from using the residential premises bearing No.
B-108, Hill View Apartments, Vasasnt Vihar, Delhi and to direct the
said respondent to allow her to occupy and use the said premises.
3. The case of the appellant is that she is the legally wedded wife
of respondent No. 4, Mr. Basant Kumar Chaudhary. The appellant
and the respondent No. 4, admittedly, have two issues from their
wedlock. According to the appellant, she filed a case against
respondent No. 4 in Crime Against Women Cell (in short ‘CAW Cell’)
complaining that she was not being allowed to reside in the aforesaid
apartment of her husband. This complaint, according to the
complainant, was filed on 30th April, 2008. It is the case of the
appellant as also her statement made to the police that she was
married to respondent No. 4 in the year 1973, who deserted her in
1989 and thereafter married another woman in U.K. She further
stated that in November, 2004 she came to know that Mr. Basant
Kumar Chaudhary was living in Hill View Apartments. She tried to
contact Mr. Basant Kumar Chaudhary but she was not permitted to
talk to him. She was left with no money, so she came to B-108, Hill
View Apartments, Vasant Vihar, Delhi. She entered the flat as she
was having the keys to the door. She was only cleaning the
apartment and had called the ‘kabadi’ for removing the waste
articles. While she was doing so, she was stopped by the police. On
LPA No. 64/2009 Page 2 of 11
the other hand, Mr. Basant Kumar Chaudhary stated that he had
been living with his wife Ms. Vidushi for the last 20 years in the
aforesaid apartment. He further stated that prior to this marriage, he
was married to the appellant but later the two had been divorced by a
court in Bhutan in the year 1989. Since both parties had set up
contradictory cases, the police could not arrive at any definite
conclusion. Consequently, both parties were directed to maintain
peace in the area. It was further stated by the police that on enquiry
being conducted from the neighbours, the neighbours had stated that
respondent No. 4, Mr. Basant Kumar Chaudhary was living for the
last 20 years along with his wife Ms. Vidushi. They had never seen or
heard of the appellant at his place. It was further stated by the police
that on 14th May, 2008, an application under Section 156 (3) of the
Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) had been
received from the court of Sh. Sameer Vajpayee, Patiala House
Courts, New Delhi, in which Mr. Basant Kumar Chaudhary,
respondent No. 4 herein had prayed for registration of a case against
the appellant herein. An action taken report was called for by the
learned Magistrate on 16th May, 2008. After perusing the same and
hearing the arguments of the counsel for respondent No. 4, the
learned Magistrate had directed registration of a case on 16th May,
2008 itself. Accordingly, a case being FIR No. 125/08 dated 17th
May, 2008, under Sections 457/380 of the Indian Penal Code, 1860
had been registered in the police station and the same is pending
investigation. It was further stated that the dispute between the
appellant and Mr. Basant Kumar Chaudhary, respondent No. 4 was a
civil dispute. Pertinently, the police authorities also stated that no
LPA No. 64/2009 Page 3 of 11
threat to the life of the appellant has been perceived and in the facts
and circumstances of the case, no police protection was at present
warranted. It was lastly stated that the police officials were in no
manner responsible for dispossessing any party from the occupation
of the apartment in question or in putting any party into possession
thereof. A further status report was filed by the police on 15th
October, 2008. As per this status report, an enquiry was conducted
into the complaint made by the appellant to the CAW Cell.
4. During the course of enquiry, no evidence of harassment came
to light. The appellant was requested to get her statement recorded
in connection with the document of divorce submitted by Mr. Basant
Kumar Chaudhary but she refused to give any statement to the
police. It was also noticed that the appellant had not filed any
complaint of harassment/torture caused by respondent No. 4 during
the last 19 years since they were separated. The appellant had been
advised to utilize services of the Protection Officer to get relief under
the provisions of The Protection of Women from Domestic Violence
Act, 2005 (in short ‘PWDV Act’), if she so desired. The complaint filed
by the appellant at CAW Cell had been closed on 25th September,
2008, since the matter was subjudice on the aspect whether the
appellant is the legally wedded wife of respondent No. 4 or not.
5. It was also stated on behalf of respondent No. 4 that marriage
between the appellant and respondent No. 4 was dissolved by mutual
consent by a Bhutan court on 29th September, 1988. He further
stated that the appellant has filed for divorce before the District
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Court, Jorhat vide Matrimonial Suit No. 10/91. It has been stated
that a divorce decree was granted and this fact had been admitted by
the appellant herself in paragraphs 2 and 6 of her plaint in Suit No.
351/2000 filed by her against her brothers before the District Court,
Patna. He further stated that in the year 1996, the appellant had
also approached the British court for seeking divorce from
respondent No. 4, although she was already divorced in 1989 itself.
She obtained an ex parte decree of divorce, which was made absolute
on 22nd April, 1999. The appellant in response submitted that the
divorce decree obtained from the court in Bhutan had no force, since
the court in Bhutan had no jurisdiction to grant the said decree. She
further submitted that it was respondent No.4, who had initiated the
suit in the court of District Judge, Jorhat to seek divorce against her.
She submitted that the aforesaid suit was dismissed on 30th May,
1998 for non-prosecution and thus, there was no valid decree of
divorce between the appellant and respondent No. 4 and, therefore,
the marriage subsists.
6. The learned Single Judge held that the appellant and
respondent No. 4 were divorced on the basis of a divorce decree
passed by District Court, Jorhat which remained completely
unsubstantiated. The learned Single Judge also took note of the fact
that the appellant did not deny the fact that she had initiated divorce
proceedings against respondent No. 4 in U.K. which resulted in a
final and absolute decree of divorce between the appellant and
respondent No. 4. To this divorce decree, her reply was that the High
Court of England did not have the jurisdiction to dissolve the
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marriage between the appellant and respondent No. 4 which had
been solemnized in Patna, India.
7. The learned Single Judge took note of the fact that it was not
disputed by the appellant that in a title suit filed by her against her
brothers in respect of certain properties, the stand taken by the
appellant was that her marriage with respondent No. 4 stood
dissolved.
8. The learned Single Judge rightly came to the conclusion that
the issue whether the appellant was the legally wedded wife of
respondent No. 4 or not was, therefore, a highly contested issue and
involved the determination of disputed questions of fact as the
appellant who was confronted with mutual divorce decree passed by
the court in Bhutan and the divorce obtained by her from the British
Court contended that these were forged and fraudulent decrees
passed by courts without jurisdiction. The learned Single Judge
rightly observed that the said issue would have to be determined by a
competent court before whom this issue is raised keeping in view the
pleadings of the parties.
9. We also find no fault with the finding of the learned Single
Judge that the appellant could not have asserted a right of residence
in the said apartment even if she is assumed to be the legally wedded
wife of respondent No. 4, till the said apartment continued to remain
the property of the mother of respondent No. 4. Only after
respondent No. 4 was recognized as the owner of the said apartment,
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such a right could be claimed by the appellant, provided she had
succeeded in establishing her status as the ‘wife’ of respondent No. 4.
Merely by disposing off the said apartment, respondent No. 4 could
not have avoided his liability (if such a liability exists). The learned
Single Judge, thus, held that even if it is accepted that the said
apartment had been disposed of by respondent No. 4 in August,
2008, if the appellant was able to establish her status as the ‘wife’ of
respondent No. 4, she could lay a claim to live in any premise owned
by respondent No. 4 and such a claim would have to be examined on
its merits and would not be liable to be rejected at the threshold
without examination on merits.
10. The learned Single Judge also took note of the fact that the
appellant had already initiated proceedings under Section 12 of the
PWDV Act in the court of Additional Chief Metropolitan Magistrate (in
short ‘ACMM’), Patiala House Courts, New Delhi in Suit No. 51/2008
which is being contested by respondent No. 4. Relief sought in those
proceedings by the appellant was for a direction to respondent No. 4
herein to secure the same level of alternative accommodation for the
appellant as last enjoyed by her in her shared household or to pay
rent for the same and to restrain respondent No. 4 from entering into
the said accommodation. The learned Single Judge, thus, correctly
held that the appellant having invoked an alternative efficacious
remedy should pursue the same.
11. We see no infirmity in the finding of the learned Single Judge
that the learned Magistrate would be much better equipped to deal
LPA No. 64/2009 Page 7 of 11
with all the issues, including the issue as to whether the marriage
between the appellant and respondent No. 4 herein subsists or not,
since the fundamental premise on which the relief sought by the
appellant is based on the fact that she continues to be the legally
wedded wife of respondent No. 4. The learned Single Judge was right
in not being inclined to issue any direction to the respondent police
authorities since the police authorities stated that they did not
perceive any threat to the life of the appellant. However, the learned
Single Judge left it open to the appellant to approach the police, in
case, any threat was received by her to her life, liberty or property
and the police was directed to take timely and appropriate measures
upon assessment of any further threat perception in respect of the
appellant. The writ petition was correctly disposed of by the learned
Single Judge leaving the appellant free to pursue her rights and
remedies under the law including the Suit No. 51/2008 pending
before the learned ACMM, Patiala House Courts, New Delhi.
12. The appellant has contended in the present appeal as also in
her application under Sections 26 and 36 of PWDV Act that
respondent No. 4 was disposing of all the joint family properties along
with the matrimonial home. The appellant has also submitted that
she has been brought on the road through circumstances created by
respondent No. 4. The appellant has also claimed monetary relief as
she is without any source of income and is unable to maintain
herself.
13. During the pendency of the proceedings before us, we had
LPA No. 64/2009 Page 8 of 11
passed an order directing respondent No. 4 to produce before the
Court the following amongst other documents:-
(a) His salary certificate. (b) His monthly income from his salary and other sources. (c) Copies of income tax returns for the assessment years 2007-08 and 2008-09.
Pursuant to our directions, an affidavit was filed by respondent
No. 4 placing these documents before us. From a perusal of these
documents, it appears that respondent No. 4 has a take home pay of
approximately Rs. 3.49 lacs per month.
14. Although we are in agreement with the findings of the learned
Single Judge and conscious of the fact that the petitioner has
resorted to proceedings under PWDV Act, we cannot be unmindful of
the physical and mental state of the appellant, as was evident to us
during the course of hearing. A perusal of the proceedings in Suit
No.51/2008 reveals that the hearing on the interim application has
been delayed for a long time. C.C. No. 51/2008 was registered on
17th July, 2008. To begin with, summons could not be served as no
proper facilities were provided to the Protection Officer. The Chief
Secretary was directed to file a report on 22nd July, 2008 as to why
proper facilities had not been made available to the Protection Officer.
Thereafter, the matter came to be listed from time to time. The
appellant made a prayer for interim relief however, the learned
Magistrate was of the view and observed in his order dated 12th
August, 2008 that only after the matter is argued at length, the
question of grant of relief to the appellant could be considered. The
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appellant also moved a revision petition before the Additional
Sessions Judge as she had not been granted any interim relief. On
27th September, 2008, the appellant was permitted to withdraw her
revision petition with liberty to pursue her matter before the learned
Magistrate and also to move an application for early hearing. The
trial court was also directed by the learned Additional Sessions Judge
to expedite disposal of the interim application of the appellant.
Thereafter, again the matter was listed on several dates but got
adjourned on some ground or the other. The respondent was
proceeded ex parte on 9th January, 2009. Thereafter, the matter was
again adjourned from time to time. The respondent moved an
application for setting aside the ex parte order dated 9th January,
2009. On 16th February, 2009, the ex parte order against the
respondent was set aside in the interest of justice. Thereafter, the
same story continued and the matter was adjourned for one reason
or the other. However, no order was passed on the application of the
appellant for interim relief. The appellant’s application for interim
relief and maintenance is still pending.
15. Though the appellant is a qualified Doctor, to us it appears
that she is not in a state to practice as a professional and earn a
living. Given the physical and mental condition of the appellant, as
was evident to us during the course of hearing, we deem it fit and
proper in the interest of justice to direct the respondent No.4 to pay
to the appellant interim maintenance of Rs. 25,000/- per month till
the decision on grant of ad interim maintenance is taken in Suit
No.51/2008. The respondent will also deposit the litigation
LPA No. 64/2009 Page 10 of 11
expenses amounting to Rs. 25,000/- in Suit No. 51/2008 before the
learned Magistrate which the appellant would be entitled to withdraw
to enable her to pursue her legal remedies. We are persuaded to
grant this interim maintenance because of the hapless condition of
the petitioner and the fact that she does require some bare minimum
maintenance for her upkeep and well being. The learned Magistrate
shall decide the application for interim maintenance as expeditiously
as possible and in any event within a period of three months from
today.
16. No observation made in this order shall be taken as an
expression of a view by this Court on the merits of the case of either
party. The appeal is, accordingly, disposed of in the above stated
terms. All the pending applications also stand disposed of.
CHIEF JUSTICE
NEERAJ KISHAN KAUL, J
May 6th, 2009
sb/RS
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