Full Judgment Text
ITEM NO.1A COURT NO.10 SECTION XIV
[FOR JUDGMENT]
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 8439-8440/2009
MEENA CHAUDHARY Appellant(s)
VERSUS
COMMISSIONER OF DELHI POLICE AND ORS. Respondent(s)
Date : 18/09/2014 These appeals were called on for pronouncement
of judgment today.
For Appellant(s)
in-person (NP)
For Respondent(s)
Mr. Dharmendra Kumar Sinha, A.O.R.
Ms. Anil Katiyar, A.O.R.
*
Hon'ble Mr. Justice Fakkir Mohamed Ibrahim
Kalifulla pronounced the judgment of the Court for
a Bench comprising of His Lordship and Hon'ble Mr.
Justice Shiva Kirti Singh.
For the reasons stated in the signed reportable
judgment, the appeals stand disposed of.
Applications for impleadment are also dismissed.
No costs.
All the other pending applications stand
disposed of.
[KALYANI GUPTA]
[SHARDA KAPOOR]
Signature Not Verified
COURT MASTER
COURT MASTER
Digitally signed by
Kalyani Gupta
Date: 2014.09.19
15:06:31 IST
Reason:
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE.]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8439-8440 OF 2009
Meena Chaudhary …Appellant
VERSUS
Commissioner of Delhi Police and Ors. …Respondents
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. In the present appeals the Appellant, who is a
Gynaecologist by profession and has appeared before us as a
party-in-person, is aggrieved by the order of the Division Bench of
the High Court of Delhi dated 06.05.2009 in LPA No.64/2009
along with CM Nos. 1801,4625 & 4770 of 2009.
2. The brief facts, which are required to be stated in order to
appreciate and find a solution to eliminate the grievances of the
Appellant, are that the Appellant got married to Respondent No.4
herein in the year 1973 and thereafter, a son and a daughter
were born out of the said wedlock in the years 1974 and 1977,
respectively. Differences stated to have arisen as between the
Appellant and Respondent No.4 with regard to their matrimonial
affair and according to the Appellant, Respondent No.4 deserted
her in the year 1989. There were two matrimonial Suits initiated,
one at the instance of the Appellant being Suit No.T.S. (M) No.7
of 1991, which was transferred to the Additional District Judge,
Jorhat, Assam with a new number T.S. (M) No.10/91 and
th
another at the instance of the 4 Respondent being matrimonial
Suit No.4/1996. Both the suits were stated to have been
dismissed. It is the further case of the Appellant that thereafter,
th
the 4 Respondent claimed to have divorced her by relying upon
an alleged divorce decree dated 29.09.1989 by consent from the
Court of Bhutan and also another divorce decree dated
05.03.1999 granted by the Court in England at the instance of
the Appellant apart from another divorce decree at Jorhat. The
Appellant does not admit to the existence of any of the decrees
relied on by the Respondent No.4.
3. Be that as it may, according to Respondent No.4, the
divorce as between the Appellant and Respondent No.4 had come
into existence by virtue of the above decrees granted by the
competent courts and that he was subsequently married to one
Smt. Vidushi Shah in 1991 and that the present marriage was
also upheld by the Delhi High Court by an order dated
25.01.2012 in Crl M.P. No.3845 of 2010. The Appellant
contended that the marriage as between her and Respondent
No.4 continued to subsist, that she was living in her matrimonial
PAGE NO. 2 OF 16
home at B-108, Hill View Apartments, Vasant Vihar, New Delhi
from where she was forcibly evicted on 05.05.2008. It is the
further contention of the Appellant that the said matrimonial
home, being a joint family property, was acquired by her
father-in-law, namely, Respondent No.4’s father which was
transferred by his mother in his favour after the demise of her
husband and that subsequently Respondent No.4 was taking
every effort to transfer the said property without the consent of
other members of the family.
4. It is in the above stated background the Appellant filed a
Suit No.51/2008 on the file of the Metropolitan Magistrate,
Patiala House Courts, New Delhi under Section 12 of the
Protection of Women from Domestic Violence Act, 2005
(hereinafter to be called as “the Act”) claiming various reliefs,
namely, protection orders under Section 18 of the Act, residence
orders under Section 19 of the Act, monetary relief under Section
20 of the Act, compensation and damages under Section 22 of
the Act, interim orders under Section 23 of the Act and order
prohibiting Respondent No.4 from committing acts of domestic
violence and from repeating the same and such other interim
orders as the Court may deem fit, just and proper in the facts
and circumstances of the case.
PAGE NO. 3 OF 16
5. When the said Suit was pending, the Appellant moved the
High Court by way of a writ petition against some Delhi Police
officers as well as Respondent No.4 herein for issuance of a Writ
of Mandamus to direct the police authorities to provide the
Appellant full security of life, liberty and property apart from
direction to the police authorities not to obstruct her from using
the residential premises bearing number B-108, Hill View
Apartments, Vasant Vihar, New Delhi. The said writ petition was
dismissed by the learned Single Judge. As against the said order
of dismissal of the writ petition, the Appellant preferred LPA
No.64/2009 and also filed miscellaneous applications being CM
Nos.1801, 4625 & 4770 of 2009. The Division Bench after
referring to the various facts relating to the marriage of the
Appellant with Respondent No.4 and also the subsequent events
held that the claim of the Appellant about the subsisting nature
of her married life with Respondent No.4 is a highly contested
issue, which involved very many disputed questions of facts as
regards the alleged consent decree of divorce issued by the
Courts of Bhutan, England, as well as the Court at Jorhat,
including the claim of the Appellant that such orders were either
forged or not valid for want of jurisdiction. The Division Bench
further held that such disputed questions of facts will have to be
examined only by an appropriate Court and cannot be examined
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and answered in the writ proceedings. Therefore, the Division
Bench held that the Appellant having initiated proceedings
under Section 12 of the Act which was pending on the file of the
Additional Chief Metropolitan Magistrate, Patiala House Courts,
New Delhi in Suit No.51/2008, all the contentious issues can be
thrashed out in the said proceedings. The Division Bench,
however, taking note of the plight of the Appellant based on her
grievances expressed, thought it appropriate to direct
Respondent No.4 to pay to the Appellant interim maintenance of
Rs.25,000/- per month till a decision on grant of ad-interim
maintenance is taken in Suit No.51/2008 apart from directing
payment of a sum of Rs.25000/- towards litigation expenses in
Suit No.51/2008. On deposit of the said sum, the Appellant was
also permitted to withdraw the said amount. The Division Bench
also directed the learned Magistrate to decide the application for
interim maintenance expeditiously and in any event within a
period of three months from the date of the order, namely,
06.05.2009.
6. While the Appellant came forward with these appeals
against the said order of the Division Bench, Respondent No.4
also filed an appeal against the very same order in Civil Appeal
No.8190/2009 in so far as it related to direction for payment of
interim maintenance. When these appeals were heard on earlier
PAGE NO. 5 OF 16
occasions, the Appellant came forward with I.A. Nos.7-8, 9-10,
11-12 and 13-14 of 2011. In I.A. Nos.7-8 of 2011, the Appellant
prayed for an urgent interim order of maintenance and residence
in a suitable form of a matrimonial home, an order to secure
compliance with Respondent No.4 by confiscating his passport
and his current Commercial Pilot Licence and also pass an order
of sentence against Respondent No.4 for Contempt of Court. I.A.
Nos.7-8 of 2011 were dismissed by an order of this Court dated
23.09.2011 as being misconceived. This Court noted that the
prayer ‘a’ made by way of an interim relief is the core issue to be
determined in these appeals and the other prayers do not arise for
consideration in the main appeal. It was also brought to the
notice of the Court that the main Suit, namely, Suit No.51/2008
itself was dismissed by the Metropolitan Magistrate on
21.09.2011. That apart, whatever interim maintenance, which
was directed to be paid by the Division Bench, which worked out
to a sum of Rs.9,00,000/- up to the date of dismissal of the Suit,
was also paid; once by way of Demand Draft to the value of
Rs.5,50,000/- on 01.06.2011 as reflected in this Court’s order
dated 01.06.2011. Mr. M.N. Krishnamani, learned Senior Counsel
appearing for Respondent No.4 stated that the balance amount
was also duly paid, which was not disputed by the Appellant
before us. The appeal preferred by Respondent No.4 (viz) C.A.
PAGE NO. 6 OF 16
No.8190/2009 was dismissed by this Court on 21.02.2014.
7. Keeping the above stated factors relating to the grievances of
the Appellant raised in Suit No.51/2008, as well as, in the writ
petition from which the impugned order came to be passed by the
Division Bench, we heard the Appellant-in-person at great length.
In her submissions, the Appellant after making detailed reference
to the various factors in her written submissions noted by us in
the earlier paragraphs, contended that the marriage as between
her and Respondent No.4 continue to subsist even as on date,
that she is entitled to share the matrimonial home at B-108, Hill
View Apartments, Vasant Vihar, New Delhi, that the said property
which was owned by her father-in-law came to be transferred in
favour of her mother-in-law and that thereafter continued to
remain as joint family holding in the hands of Respondent No.4
and as a lawfully wedded wife of Respondent No.4, she is entitled
to share household in the said premises. According to her,
Respondent No.4 cannot, therefore, forcibly evict her from the
said premises and such action of Respondent No.4 needs to be
restrained by the orders of this Court. She also contended that
the reliance placed upon by Respondent No.4 on the order dated
25.01.2012 of the High Court of Delhi in Crl.M.P. No.3845 of
2010 by which Respondent No.4’s subsequent marriage with Smt.
Vidushi Shah was held as valid should also be declared as null
PAGE NO. 7 OF 16
and void. She further contended that her prayer for interim
maintenance as provided under Section 26 of the Act should,
therefore, be granted as prayed for in her miscellaneous petitions
filed in LPA No.64 of 2009.
8. Mr. M.N. Krishnamani, learned Senior Counsel who
appeared for Respondent No.4 also vehemently contended that
the Appellant has not come with clean hands, that the decree of
divorce granted by the Bhutan Court in the year 1989 was a
consent decree, that the decree of divorce granted by the British
Court was at the instance of the Appellant herself, that the third
decree granted by the Court at Jorhat was also valid in law, that
the Appellant herself, while making her claim for a share in the
family properties against her brothers admitted the dissolution of
marriage as between her and Respondent No.4 and, therefore, it
is too late in the day for the Appellant to claim nearly after 20
years, in the year 2008, that she is the wife of Respondent No.4.
The learned Senior Counsel further pointed out that the children,
namely, the son and the daughter are 39 and 36 years old
respectively and are well settled in England and are practicing
medicine and law and that the Appellant herself is well placed.
The learned Senior Counsel, in his written submissions, pointed
out that the Appellant has got a built up property bearing
No.K-1467, Palam Vihar, Gurgaon measuring 836 sq. yards
PAGE NO. 8 OF 16
where she is running her clinic apart from earning substantial
rental income, that she purchased a property in Sainik Farms,
Delhi in the name of her son which was confirmed by her son
who is living in United Kingdom and who is a British Citizen,
that the Appellant is in possession of Flat No.1260, Sector-D,
Pocket-1, Vasant Kunj since January, 2002 which was provided
to her by a medical company in view of her services as a doctor,
that she is also running a Women’s Medical Centre in her Palam
Vihar House, that even as per her own statement in paragraph
2.22 of CWP No.4023/2008 she had Rs.15,00,000/- with her in
July, 2003 and that she also stealthily removed valuables,
jewellery and cash of Respondent No.4 and his present wife
worth more than Rs.20,00,000/- when she forcibly entered into
their living house when both of them were away on holidays
outside India. The learned Senior Counsel, therefore, contended
that now as Suit No.51/2008 was also dismissed on 21.09.2011
nothing survives in these appeals and they deserve to be
dismissed.
9. Having heard the strenuous contentions of the Appellant as
well as the submissions of Mr. M.N. Krishnamani, learned
Senior Counsel appearing for Respondent No.4 and having
perused the various materials placed before this Court in these
appeals, we find that the substantial grievance of the Appellant
PAGE NO. 9 OF 16
relating to the subsistence of her marriage with Respondent
No.4, as well as, her prayer for grant of protection for share in
the matrimonial household as well as interim maintenance were
all subject matter of consideration in Suit No.51/2008, which
was filed by the Appellant before the Additional Chief
Metropolitan Magistrate, Patiala House Courts, New Delhi. In
this respect, we fully concur with the conclusion of the Division
Bench in the impugned order, wherein the Division Bench took
the view that various claims of the Appellant as regards the
subsistence of the marriage with Respondent No.4 as well as her
other grievances involved determination of very seriously
disputed questions of fact and unless and until such disputed
questions of facts are determined one way or the other based on
relevant legally acceptable material evidence, there is no scope
for granting any other relief except the relief of interim
maintenance, which the Division Bench decided to grant and
ultimately granted in a sum of Rs.25,000/- per month. While
issuing the said direction, the Division Bench gathered the
details as to the income of Respondent No.4 by directing him to
produce the salary certificate and other sources of income as
well as the income tax returns for the assessment years 2007-08
and 2008-09, which was duly filed by Respondent No.4 before
the Division Bench. Based on the above records, the take home
PAGE NO. 10 OF 16
pay of Respondent No.4 was noted as Rs.3,49,000/- per month.
10. Mr. Krishnamani, learned Senior Counsel appearing for
Respondent No.4, however, pointed out that Respondent No.4 is
now 65 years old, that he is now retired and is no longer working
as a Commercial Pilot. We were also apprised of the position that
during the pendency of these appeals, whatever arrears that
were payable pursuant to the direction of the Division Bench by
way of interim maintenance were also duly paid to the Appellant
in the sum of Rs.9,00,000/- which was calculated up to the date
of dismissal of Suit No.51/2008. We also wish to note that this
Court explored the possibility of an out of Court settlement by an
order dated 01.06.2011 and directed the parties to appear before
the Mediation Centre of the Supreme Court on 18.07.2011. While
facilitating the parties to go for mediation, this Court directed the
proceedings pending between them before different Courts to
remain stayed till 18.08.2011. Subsequently, since the efforts of
the Mediation Centre did not fructify in a settlement and there
was no order extending the stay granted by this Court on
01.06.2011 and since the Appellant did not appear before the
learned Magistrate on the subsequent hearing dates it transpires
that the Suit itself came to be dismissed on 21.09.2011.
11. We find from the records that the learned Magistrate by an
PAGE NO. 11 OF 16
order dated 10.08.2009 in compliance with directions of the
Division Bench in the impugned order dated 06.05.2009, passed
orders directing Respondent No.4 to pay a sum of Rs.25,000/-
per month by way of interim maintenance by holding that all
other reliefs sought by the Appellant which are based on
contentious issues will be considered later at an appropriate
stage.
12. In the light of the above subsequent developments, we are
also of the considered view that in these appeals it will not be
appropriate to delve deep into the claim of the Appellant that her
marriage continues to subsist or that the stand of Respondent
No.4 that the relationship as between the Appellant and him got
snapped as early as in the year 1989 as well as in the
subsequent divorce decree of the year 1999. In our view, a
detailed enquiry would be required to be made by the
appropriate forum in order to give an authoritative
pronouncement as to the existence or otherwise of the
matrimonial relationship of the Appellant and Respondent No.4.
As rightly held by the learned Single Judge and as confirmed by
the Division Bench, such seriously disputed questions of fact
could not have been examined in the writ proceedings. It is also
required to be noted that according to Respondent No.4, the
Appellant owns properties in her name, which are very valuable
PAGE NO. 12 OF 16
apart from the properties which she stated to have secured in the
name of her son; who is a British Citizen; in a prominent locality
in Delhi apart from the allegation that she is carrying on her
professional activities through which she was able to get
accommodation in a flat through a pharmaceutical company, in
which premises she presently lives, are all relevant facts and the
truthfulness of such facts, therefore, requires to be ascertained
in the appropriate proceedings in order to grant or not to grant
any relief to the Appellant. Unfortunately, the Appellant’s Suit
No.51/2008 came to be dismissed on 21.09.2011, while she was
pursuing her remedies before this Court in these appeals.
13. We do not wish to go into the minute details as to who was
at fault which resulted in the dismissal of the Appellant’s Suit No.
51/2008, inasmuch as we feel that the various disputed
questions of fact which arise for consideration in these appeals
can be appropriately examined by the Additional Chief
Metropolitan Magistrate, Patiala House Courts, New Delhi if the
said Suit is revived and disposed of on merits. Since in our
considered opinion, the said course would be an appropriate
course to put an end to the long drawn litigation as between the
Appellant and Respondent No.4, we are convinced that the
Appellant can be granted liberty to get the Suit revived by filing
an appropriate application before the learned Chief Metropolitan
PAGE NO. 13 OF 16
Magistrate, Patiala House Courts, New Delhi, in which event, the
said Court can be directed to revive the proceedings taking into
account the pendency of these appeals in which the Appellant
was rigorously seeking for the redressal of her grievances. In this
context, we take into account the fact that the Appellant was duly
paid the arrears of interim maintenance ordered by the Division
Bench in the impugned order, in all a sum of Rs.9,00,000/-
which was duly paid by Respondent No.4 along with the sum of
Rs.25,000/- towards litigation expenses.
14. In the light of our above conclusion, we hold that there is
no merit in these appeals in challenging the order of the Division
Bench and the appeals are disposed of as such. We, however,
direct the Appellant that if she is so interested and keen, she
may file an appropriate application before the Additional Chief
Metropolitan Magistrate, Patiala House Courts, New Delhi in Suit
No.51/2008 for its restoration along with the necessary
application for condonation of delay in filing such application for
restoration. In the event of such application being filed within
four weeks from this date, the Additional Chief Metropolitan
Magistrate Patiala House Courts shall take up the application for
hearing and pass appropriate orders for restoration of the Suit in
order to give one final opportunity to the Appellant to contest her
claim on merits.
PAGE NO. 14 OF 16
15. It is needless to state that Respondent No.4 should also be
given due opportunity in the said Suit for resisting the claim of
the Appellant. As per the order of the learned Chief Metropolitan
Magistrate dated 10.08.2009, the said Court can decide all other
claims of the Appellant on a later date which have been duly
noted in paragraph 2 of its order dated 10.08.2009 while passing
final orders in Suit No.51/2008. Since the said Suit came to be
dismissed on 21.09.2011 and the interim maintenance directed
to be paid by the Division Bench as per the impugned order, was
pending disposal of an order for interim maintenance to be
passed in Suit No.51/2008 and by an order dated 10.08.2009,
the payment of interim maintenance was fixed in a sum of
Rs.25,000/- and the Suit having been dismissed on 21.09.2011,
the Appellant was not entitled for any interim maintenance
beyond the month of September, 2009. Therefore, the sum of
Rs.9,00,000/- already paid by the Respondent No.4 will be in full
settlement of the interim maintenance payable for the period up
to 21.09.2011 when the Suit came to be dismissed.
16. Since we have now granted an opportunity to the Appellant
to seek for restoration of the Suit in order to be decided on
merits, if and when the Appellant files necessary application
within four weeks as directed in this order, the direction for
interim maintenance as per order dated 10.08.2009 shall get
PAGE NO. 15 OF 16
revived on filing of such application and shall be continued to be
paid by Respondent No.4 at the same rate of Rs.25,000/- per
month till Suit No.51/2008 is disposed of on merits. We also
direct the learned Chief Metropolitan Magistrate, Patiala House
Courts, New Delhi to decide Suit No.51/2008 after its restoration
expeditiously and preferably within four months from the date of
such restoration and till final orders are passed in the said Suit
No.51/2008, the payment of interim maintenance at the rate of
Rs.25,000/- shall be continued to be paid by Respondent No.4 to
the appellant. With the above directions, the appeals stand
disposed of. Accordingly, the applications for impleadment are
also dismissed. No costs.
…...…..……….…………………………...J.
[Fakkir Mohamed Ibrahim Kalifulla]
……………….………………………………J.
[Shiva Kirti Singh]
New Delhi;
September 18, 2014.
PAGE NO. 16 OF 16