Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) No.4023/2008
Judgment Reserved on: 14.11.2008
% Judgment Delivered on: 07.01.2009
DR. MEENA CHAUDHARY ..... Petitioner
Through: In person
versus
COMMISSIONER OF POLICE & ORS. ..... Respondents
Through: Ms. Zubeda Begum, Advocate for
respondent Nos.1 to 3
Mr. Atul Jha, Advocate for
respondent No.4
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
VIPIN SANGHI, J.
1. The petitioner preferred a petition under Article 32 of the
Constitution of India before the Supreme Court which was registered as
Writ Petition (Civil) No.228/2008. On 16.5.2008, the Supreme Court
held that the said petition was not maintainable in its present form.
However considering the stand taken by the petitioner, without
expressing any opinion on merits, the Supreme Court considered it
appropriate to send the petition to this Court to be treated as a petition
wpc 4023.08 Page 1 of 16
under Article 226 of the Constitution of India. That is how the present
writ petition came to be registered in and entertained by this Court.
2. The petitioner moved an application, being C.M.No.7884/08
under Order VI Rule 17 C.P.C to seek amendment of the writ petition
on the ground that the petition before the Supreme Court was filed in
urgency and consequently the petitioner desired to make further
averments in support of the prayers made in the petition. Notice was
issued on the said application as also in the writ petition as originally
filed. On 1.7.2008, this Court directed the petitioner to file the
amended writ petition. Eventually the amended writ petition was also
filed by the petitioner on 10.7.2008 and refiled on 25.7.2008. Though
no formal orders were passed allowing the application for amendment,
this Court on 22.8.2008 permitted the respondents to file their counter
affidavits to the amended writ petition. Thereafter arguments were
heard by the Court on 3.10.2008, 31.10.2008 and were concluded on
14.11.2008. The respondents sought time to place on record certain
documents. They were accordingly granted two weeks time.
Documents have been filed by respondent No.4 on 27.11.2008. The
petitioner desired to file her written submission for which three weeks
time was granted. Thereafter the matter was mentioned by the
petitioner in person seeking further time to file her written
submissions. However, no written submission of the petitioner have
come on record till date.
wpc 4023.08 Page 2 of 16
3. Since there was no opposition to the application for
amendment moved by the petitioner, I proceed to dispose of the
petition on the basis of the amended writ petition.
4. The petitioner, Dr. Meena Choudhary, has filed this writ
petition against respondents 1 to 3, 5 and 6 who are police officers,
respondent no.4, Mr. Basant Kumar Choudhary, who she states is her
husband and one Mr. Jaspal Singh who is said to be a resident of B-108,
Hill View Apartments, Vasant Vihar, Delhi. The present petition has
been filed by the petitioner, 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 seeks a writ of mandamus to direct the police
authorities from obstructing her from using the residential premises
bearing No.B-108, Hill View Apartments, Vasant Vihar, New Delhi
(referred to as appointment) and to direct the said respondents to
allow her to occupy and use the said premises.
5. The case of the petitioner is that she is the legally wedded
wife of respondent no.4, Mr. Basant Chowdhary. She states that she
was married to respondent no.4 on 7.2.1973 who was at that time a
pilot with the Indian Air force. The petitioner and respondent no.4
admittedly had two issues from their wedlock. The son was born on
28.5.1974 and a daughter was born on 14.10.1977. The petitioner
narrates in the petition various development which took place from
time to time with regard to her matrimonial life. According to her,
respondent no.4 treated her with cruelty, demanded dowry and
wpc 4023.08 Page 3 of 16
deserted her. However, it is not necessary to go into all those details
for the purpose of deciding the present petition.
6. According to the petitioner she filed a case against
respondent no.4 in the Crime Against Women Cell (CAW Cell)
complaining that she was not being allowed to reside in the aforesaid
apartment of her husband. This complaint, according to the petitioner,
was filed on 30.4.2008. She states that the CAW Cell informed her that
she could move to B-108, Hill View Apartment, Vasant Vihar, New Delhi
and that she should withdraw her case against respondent no.4. She
states that she immediately shifted to the aforesaid apartment but
refused to withdraw the case initiated by her. On 5.5.2008,
respondent no.7, Jaspal Singh is stated to have made a police
complaint alleging that the petitioner was not the wife of respondent
no.4 and that she was seen in the aforesaid apartment. The police
arrived at the said apartment and the petitioner on being questioned
produced documents to show her relationship with respondent no.4.
She states that she left the premises in the afternoon leaving her maid
servant and two labourers to clean the house. In her absence,
respondent no.4 and one Ms. Vidushi Ojha came to the apartment
along with goondas and local police and broke open the door and the
lock which the petitioner had put from outside. At about 8.30 p.m on
the same day, she was met by various police officers. According to her
she was kept waiting till about 12.30 a.m on 6.5.2008 by the Police and
was harassed. She states that she was forced to remain out of the
apartment by the police officers and the said officers instead of
wpc 4023.08 Page 4 of 16
protecting and safeguarding the rights of the petitioner, have
compelled her to wander in the wilderness contravening her rights
under Articles 14 and 21 of the Constitution.
7. The police authorities have filed their status reports. The first
short affidavit and status report on record filed by the police is of
6.6.2008. It is stated that on 5.5.2008, an information was received at
P.S. Vasant Vihar vide D.D. No.18A to the effect that the complainant
is abroad and one lady is selling her house-hold articles at B-108, Hill
View Apartment. The enquiry into the said complaint was entrusted to
ASI V.P.Singh, who reached the spot and found that the petitioner was
selling the household articles to a kabadi. When she was questioned,
the petitioner replied that she was the legally wedded wife of Mr.
B.K.Chowdhary, respondent no.4 and was selling the household
articles. On being asked not to do so, she got annoyed and stated that
her matter is pending in CAW Cell and that she had got registered one
FIR against her husband, who has got married a second time without
giving her divorce. It was further stated that the petitioner came to
the Police Station where she met the SHO and the ASI V.P.Singh. The
petitioner was advised to wait till Mr. Mr. B.K. Chowdhary, respondent
no.4 returned from abroad, but she became annoyed and threatened
that she would make a complaint against the SHO and other police
personnel to the senior officers. Thereafter she left for CAW Cell. It
was also verified by ASI V.P.Singh that the petitioner had given a
complaint against Mr. Mr. B.K. Chowdhary at the CAW Cell but no FIR
had been registered. On the same evening, another call was received
wpc 4023.08 Page 5 of 16
vide DD No.29A to the effect that some goondas had entered into
house no.B-108, Hill View Apartment, Vasant Vihar, New Delhi. This
DD entry was entrusted to SI Rajesh Shukla, who reached the spot.
The complainant, Mr. B.K.Chowdhary was met at the spot and he
stated that on 30.4.2008, he along with his wife Ms. Vidushi had gone
to U.K. On 5.5.2008 he received a telephone call from one of his
friends that one lady broke open the lock of his apartment and entered
and packed all his goods in plastic bags. On hearing this, he rushed to
India on 5.5.2008 and made a call to the local police to stop the lady
from doing so. On reaching Delhi, he found that his flat was locked
from inside. He then made a PCR call and on opening the door, he
found that his house-hold items were packed in gunny bags. One
female and two male, who claimed to be the maid servant and
labourers of the petitioner were found inside the apartment. The
police further states that both the petitioner and respondent no.4 gave
their respective versions to the police.
8. In her statement the petitioner stated, she was married to Mr.
B.K.Chowhary in 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. B.K.Chowdhary was living in Hill View
Apartments. She tried to contact Mr. B.K.Chowdhary but she was not
permitted to talk to him. She was left with no money, so 2-3 days
back, she came to B-108, Hill View Apartment. 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.
wpc 4023.08 Page 6 of 16
While she was doing so, she was stopped by the police. On the other
hand, Mr. B. K. Chowdhary stated that he had been living with his wife,
Vidhushi for the last 20 years in the aforesaid apartment. Prior to this
marriage, he was married to the petitioner but later the two had been
divorced by a Court in Bhutan in 1989. The police could not arrive at
any definite conclusion since both parties had set up contradictory
cases. Consequently, both parties were directed to maintain peace in
the area. It is further stated by the police that on enquiry being
conducted from the neighbours, the neighbours had stated that
respondent no.4 Mr. B.K. Chowdhary was living for the last 20 years
along with his wife, Ms. Vidushi. They had never seen or heard of the
petitioner at his place. Respondent no.7, Jaspal Singh stated that he
had seen one lady packing the goods of respondent no.4’s household
which was taken in a carriage autorickshaw. He informed respondent
no.4 on the same day, as respondent no.4 while leaving with his wife
Ms. Vidushi on 30.4.2008 had asked him to take care of the apartment.
It was further stated that on 14.5.2008, an application under Section
156(3) Cr.P.C had been received from the Court of Sh.Sameer
Vajpayee, Patiala House, New Delhi in which Mr. B.K.Chowdhary,
respondent no.4 herein had prayed for registration of a case against
the petitioner herein. An action taken report was called for by the
learned Magistrate on 16.5.2008. After perusing the same and hearing
the arguments of the counsel for Mr. B.K. Chowdhary, the learned
Magistrate had directed the registration of a case on 16.5.2008.
Accordingly, case FIR No.125/08 dated 17.5.2008 u/s 457/380/IPC had
wpc 4023.08 Page 7 of 16
been registered in the police station and the same is pending
investigation. It was further stated that the dispute between the
petitioner and Mr. B.K.Chowdhary was a civil dispute. Pertinently, the
police authorities also stated that no threat to the life of the petitioner
has been perceived, and in the facts and circumstances of the case no
police protection as at present is warranted. It is further stated that in
case the court directs police protection, the same would be provided to
the petitioner. It is 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 has been filed by the police on
15.10.2008. As per this status report, it is stated that enquiry was
conducted into the complaint made by the petitioner to the CAW Cell
by Inspector Jaibir Singh of CAW Cell, Nanakpura. During the course of
enquiry, no such evidence of harassment came to light. The petitioner
was requested to get her statement recorded in connection with the
document of divorce submitted by Mr. B.K. Chowdhary, but she refused
to give any statement to the police. It was also noticed that the
petitioner has not filed any complaint of harassment/torture caused by
Mr. B.K. Chowdhary during the last 19 years since they were
separated. The petitioner had been advised to utilize services of the
Protection Officer to get relief under the provisions of Domestic
Violence Act, if she so desired. The complaint filed by the petitioner at
the CAW Cell, Nanakpura had been closed on 25.9.20089 since the
wpc 4023.08 Page 8 of 16
matter was sub judice on the aspect whether the petitioner is the
legally wedded wife of respondent no.4 or not.
9. The petition has been primarily contested by respondent no.4.
Respondent no.4 has filed his reply on record dated 28.6.2008.
Respondent no.4 states that the petitioner has not approached the
Court with clean hands. She has concealed important material facts,
apart from making misleading statements in the writ petition. It is
stated that the marriage between the petitioner and respondent no.4
took place in the year 1973. As aforesaid, one son and one daughter
were born out of the wedlock who are 33 years and 30 years old
respectively now. The marriage between the petitioner and respondent
no.4 was dissolved by mutual consent by a Bhutan court on 29.9.1988.
The decree passed by the Bhutan Court has been filed on record by the
petitioner herself as Annexure-5 to her application for seeking
amendment of the writ petition. He further states that the petitioner
again filed for divorce before the District Court, Joharat, vide
Matrimonial Suit No.10/91. It is stated that a divorce decree was
granted and this fact had been admitted by the petitioner 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 states
that in the year 1996, the petitioner had also approached the British
Court for seeking divorce from respondent no.4 by filing Case
No.860/96, although she was already divorced in 1989 itself. She
obtained an ex parte decree of divorce, which was made absolute on
22.4.1999. Respondent no.4 has placed on record the divorce decree
wpc 4023.08 Page 9 of 16
dated 22.4.1999 as Annexure R-4/1 with his reply. Respondent no.4,
therefore, submits that it does not lie in the mouth of the petitioner to
claim that she continues to be the legally wedded wife of respondent
no.4 and to seek any right to reside in the appointment, where he is
residing with his subsequently legally married wife Ms. Vidhushi Ojha
for the last nearly 20 years.
10. The petitioner contends that the divorce decree obtained from
the Court in Bhutan has no force, since the Court in Bhutan had no
jurisdiction to grant the said decree. She further states that it was
respondent no.4 who had initiated Suit No.7/2006 titled “ Basant
Chowdhary V. Meena Chowdhary ” in the Court of the District Judge,
Jorhat on 30.6.1996 to seek divorce against the petitioner. According
to her this divorce suit was filed by respondent no.4 since he realised
the futility of the “forged decree” obtained by respondent no.4 from
the Court in Bhutan. This petition was assigned to the Court of the
Additional District Judge, Jorhat on 31.7.1996 and renumbered as
Matrimonial Suit No.4/1996. The aforesaid suit was dismissed on
30.5.1998 for non prosecution. She therefore submits that there is no
valid decree of divorce between the petitioner and respondent no.4,
and therefore the marriage subsists.
11. I may, at this stage itself, deal with the submission of the
parties on the aforesaid aspect. The submission of respondent no.4
that the petitioner had filed a suit for divorce against respondent no.4
in the Court of District Judge, Jorhat and that she had obtained a
wpc 4023.08 Page 10 of 16
divorce decree from that Court does not appear to be substantiated.
Nothing has been placed on record by respondent no. 4 in support of
his submission. On the other hand, the petitioner has placed on record
a photocopy of the order passed by the Additional District Judge, Jorhat
on 30.5.1998 in case no. T.S(M) No.4/96 titled “ Vasant Kumar
Chowdhary V. Meena Choudhary” which states “plaintiff absent
without steps. No steps was taken for summoning the defendant. The
suit is therefore dismissed for default.” Therefore, the claim of
respondent no. 4 that the petitioner and respondent no. 4 are
divorced, on the basis of a divorce decree passed by the District Court,
Jorhat remains completely unsubstantiated.
12. So far as the divorce decree passed by the Bhutan Court is
concerned, it appears that respondent no.4 at the relevant time was
employed with the Bhutanese airways. i.e Druck Air and could, at the
relevant time, have been domiciled in Bhutan. Though the petitioner
contends that the said decree was secured fraudulently from a Court
which had no jurisdiction, she has not initiated any proceeding to have
the said decree annulled. The petitioner, however, does 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 dated
22.4.1999 between the petitioner and respondent no.4. Even to this
divorce decree, her reply is that the High Court of England did not have
the jurisdiction to dissolve the marriage between the petitioner and
respondent no.4 which had been solemnized in Patna, India. However,
wpc 4023.08 Page 11 of 16
from the documents filed on record, it appears that possibly, at the
relevant time, the parties were domiciled in England.
13. It is also not disputed by the petitioner that in a title suit filed
by her against her brothers in respect of certain properties, the stand
taken by the petitioner was that her marriage with respondent no.4
already stood dissolved. Reference may be made in this regard to the
pleadings made by the petitioner in title suit No.351/00 titled Dr.
Meena B.N. Singh, daughter of late Sh. P.L. Singh V. Avinash Kumar
Singh & Ors. In paragraphs 2, the petitioner, who was the plaintiff
stated that “ her marriage ended in divorce in march 1991 ”. This
pleading of the petitioner was taken note of by the Special Judge-I,
Patna while passing the order dated 17.8.2000. Photocopy of the title
suit and the order passed by the Special Judge-I dated 17.8.00 have
been placed on record by the petitioner herself. Though, the mere
averment by the petitioner that her marriage had ended in divorce in
March 1991 would not by itself lead to the conclusion that the
petitioner stood divorced from respondent no.4, it does certainly lend
credence to the case of respondent no.4 that, as a matter of fact, the
marriage between respondent no.4 did stand dissolved by divorce. It
also throws doubt on the case now sought to be made by the petitioner
that she continues to be the legally wedded wife of respondent no.4.
14. The issue whether the petitioner is the legally wedded wife of
respondent no.4 or not is, therefore, a highly contested issue and
involves the determination of disputed questions of fact as the
wpc 4023.08 Page 12 of 16
petitioner, who is confronted with the mutual divorce decree passed by
the Bhutan Court and the divorce obtained by her from the British
Court, contends that these were forged and fraudulent decrees passed
by courts without jurisdiction. These issues, in my view, cannot be
decided in the present writ proceedings. No doubt 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, the
provisions of Section 13 CPC, and the Hague Convention of 1968 on
the Recognition of Divorce and Legal Separation as applied by the
Supreme Court in “ Y. Narsimha Rao Vs. Y. Venkata Lakshmi ”
(1991) 3SCC 451. However, the determination of the disputed facts
would require a trial.
15. Ld. Counsel for respondent no.4 further submits that the
aforesaid apartment was not the property of respondent no.4 till
09.06.2008. The apartment was held by the mother of respondent
no.4 Smt. Veer Bala Chaudhary, and was mutated in the name of
respondent no. 4 only on 09.06.2008. He relies on a communication
dated 09.06.2008 issued by the DDA conveying the mutation of the
apartment in the name of respondent no. 4. He submits that the
petitioner in any event, assuming that she continued to be the wife of
respondent no. 4 had no right to claim the right to live in or occupy the
said apartment. He seeks to place reliance on “ S.K. Batra & Anr. Vs.
Taruna Batra ” (2007) 3 SCC 169 in support of this submission. He
further submits that the said apartment already stands transferred by
him in favour of one Smt. Sarita Khanna W/o. Sh. D.K. Khanna vide
wpc 4023.08 Page 13 of 16
registered sale deed dated 18.08.2008, registered before the Sub-
Registrar on the same day.
16. There is merit in the submission of respondent no. 4 that the
petitioner 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 the respondent
was recognized as the owner of the said apartment, such a right could
be claimed by the petitioner, provided she had succeeded in
establishing her status as the wife of respondent no.4. Merely by
disposing off the said apartment, the respondent no.4 could not have
avoided his liability (if such a liability exists). Therefore, even if it is
accepted that the said apartment has been disposed off by respondent
no. 4 in August, 2008, if the petitioner is able to establish her status as
the wife of respondent no.4, she could lay a claim to live in any
premises 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.
17. Lastly, it is argued by respondent no.4 that the petitioner has
already initiated proceedings under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 in the Court of ACMM,
Patiala House, New Delhi in Suit No.51/2008 which is being contested
by respondent no.4. Relief sought in those proceedings by the
petitioner is for a direction to respondent no.4 herein to secure the
wpc 4023.08 Page 14 of 16
same level of alternative accommodation for the petitioner 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 said complaint was initiated by the petitioner
some time in July 2008. The petitioner having invoked an alternative
efficacious remedy, she should pursue the same.
18. In my view, the learned Magistrate would be much better
equipped to deal with all the issues, including the issue as to whether
the marriage between the petitioner and respondent no.4 herein
subsists or not, since the fundamental premise on which the relief
sought by the petitioner is rested, is that she continues to be the
legally wedded wife of respondent no. 4. For all the aforesaid reasons,
I am not inclined to entertain this writ petition so far as reliefs (b) and
(ba) are concerned.
19. Now coming to the first relief i.e. (a), since the police
authorities have stated that they do not perceive any threat to the life
of the petitioner, I am not inclined to issue any direction to the
respondent police authorities in this regard at this stage. However it is
the right of every citizen, in case of any threat to his/her life and
liberty, to get adequate protection from the police. In case any threat
is received by the petitioner to her life, liberty or property, it shall be
open to the petitioner to approach the police and after looking into the
complaint that may be made by the petitioner, the police would take
timely and appropriate measures upon assessment of any further
wpc 4023.08 Page 15 of 16
threat perception in respect of the petitioner. Accordingly, I dispose off
this writ petition leaving the petitioner free to pursue her rights &
remedies under the law including the Suit No.51/2008 pending before
the Ld. ACMM, Patiala House, New Delhi. No observation made in this
order shall be taken as an expression of a view of this Court on the
merits of the case of either party.
(VIPIN SANGHI)
JUDGE
JANUARY 07, 2009
dp
wpc 4023.08 Page 16 of 16
+ W.P. (C) No.4023/2008
Judgment Reserved on: 14.11.2008
% Judgment Delivered on: 07.01.2009
DR. MEENA CHAUDHARY ..... Petitioner
Through: In person
versus
COMMISSIONER OF POLICE & ORS. ..... Respondents
Through: Ms. Zubeda Begum, Advocate for
respondent Nos.1 to 3
Mr. Atul Jha, Advocate for
respondent No.4
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
VIPIN SANGHI, J.
1. The petitioner preferred a petition under Article 32 of the
Constitution of India before the Supreme Court which was registered as
Writ Petition (Civil) No.228/2008. On 16.5.2008, the Supreme Court
held that the said petition was not maintainable in its present form.
However considering the stand taken by the petitioner, without
expressing any opinion on merits, the Supreme Court considered it
appropriate to send the petition to this Court to be treated as a petition
wpc 4023.08 Page 1 of 16
under Article 226 of the Constitution of India. That is how the present
writ petition came to be registered in and entertained by this Court.
2. The petitioner moved an application, being C.M.No.7884/08
under Order VI Rule 17 C.P.C to seek amendment of the writ petition
on the ground that the petition before the Supreme Court was filed in
urgency and consequently the petitioner desired to make further
averments in support of the prayers made in the petition. Notice was
issued on the said application as also in the writ petition as originally
filed. On 1.7.2008, this Court directed the petitioner to file the
amended writ petition. Eventually the amended writ petition was also
filed by the petitioner on 10.7.2008 and refiled on 25.7.2008. Though
no formal orders were passed allowing the application for amendment,
this Court on 22.8.2008 permitted the respondents to file their counter
affidavits to the amended writ petition. Thereafter arguments were
heard by the Court on 3.10.2008, 31.10.2008 and were concluded on
14.11.2008. The respondents sought time to place on record certain
documents. They were accordingly granted two weeks time.
Documents have been filed by respondent No.4 on 27.11.2008. The
petitioner desired to file her written submission for which three weeks
time was granted. Thereafter the matter was mentioned by the
petitioner in person seeking further time to file her written
submissions. However, no written submission of the petitioner have
come on record till date.
wpc 4023.08 Page 2 of 16
3. Since there was no opposition to the application for
amendment moved by the petitioner, I proceed to dispose of the
petition on the basis of the amended writ petition.
4. The petitioner, Dr. Meena Choudhary, has filed this writ
petition against respondents 1 to 3, 5 and 6 who are police officers,
respondent no.4, Mr. Basant Kumar Choudhary, who she states is her
husband and one Mr. Jaspal Singh who is said to be a resident of B-108,
Hill View Apartments, Vasant Vihar, Delhi. The present petition has
been filed by the petitioner, 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 seeks a writ of mandamus to direct the police
authorities from obstructing her from using the residential premises
bearing No.B-108, Hill View Apartments, Vasant Vihar, New Delhi
(referred to as appointment) and to direct the said respondents to
allow her to occupy and use the said premises.
5. The case of the petitioner is that she is the legally wedded
wife of respondent no.4, Mr. Basant Chowdhary. She states that she
was married to respondent no.4 on 7.2.1973 who was at that time a
pilot with the Indian Air force. The petitioner and respondent no.4
admittedly had two issues from their wedlock. The son was born on
28.5.1974 and a daughter was born on 14.10.1977. The petitioner
narrates in the petition various development which took place from
time to time with regard to her matrimonial life. According to her,
respondent no.4 treated her with cruelty, demanded dowry and
wpc 4023.08 Page 3 of 16
deserted her. However, it is not necessary to go into all those details
for the purpose of deciding the present petition.
6. According to the petitioner she filed a case against
respondent no.4 in the Crime Against Women Cell (CAW Cell)
complaining that she was not being allowed to reside in the aforesaid
apartment of her husband. This complaint, according to the petitioner,
was filed on 30.4.2008. She states that the CAW Cell informed her that
she could move to B-108, Hill View Apartment, Vasant Vihar, New Delhi
and that she should withdraw her case against respondent no.4. She
states that she immediately shifted to the aforesaid apartment but
refused to withdraw the case initiated by her. On 5.5.2008,
respondent no.7, Jaspal Singh is stated to have made a police
complaint alleging that the petitioner was not the wife of respondent
no.4 and that she was seen in the aforesaid apartment. The police
arrived at the said apartment and the petitioner on being questioned
produced documents to show her relationship with respondent no.4.
She states that she left the premises in the afternoon leaving her maid
servant and two labourers to clean the house. In her absence,
respondent no.4 and one Ms. Vidushi Ojha came to the apartment
along with goondas and local police and broke open the door and the
lock which the petitioner had put from outside. At about 8.30 p.m on
the same day, she was met by various police officers. According to her
she was kept waiting till about 12.30 a.m on 6.5.2008 by the Police and
was harassed. She states that she was forced to remain out of the
apartment by the police officers and the said officers instead of
wpc 4023.08 Page 4 of 16
protecting and safeguarding the rights of the petitioner, have
compelled her to wander in the wilderness contravening her rights
under Articles 14 and 21 of the Constitution.
7. The police authorities have filed their status reports. The first
short affidavit and status report on record filed by the police is of
6.6.2008. It is stated that on 5.5.2008, an information was received at
P.S. Vasant Vihar vide D.D. No.18A to the effect that the complainant
is abroad and one lady is selling her house-hold articles at B-108, Hill
View Apartment. The enquiry into the said complaint was entrusted to
ASI V.P.Singh, who reached the spot and found that the petitioner was
selling the household articles to a kabadi. When she was questioned,
the petitioner replied that she was the legally wedded wife of Mr.
B.K.Chowdhary, respondent no.4 and was selling the household
articles. On being asked not to do so, she got annoyed and stated that
her matter is pending in CAW Cell and that she had got registered one
FIR against her husband, who has got married a second time without
giving her divorce. It was further stated that the petitioner came to
the Police Station where she met the SHO and the ASI V.P.Singh. The
petitioner was advised to wait till Mr. Mr. B.K. Chowdhary, respondent
no.4 returned from abroad, but she became annoyed and threatened
that she would make a complaint against the SHO and other police
personnel to the senior officers. Thereafter she left for CAW Cell. It
was also verified by ASI V.P.Singh that the petitioner had given a
complaint against Mr. Mr. B.K. Chowdhary at the CAW Cell but no FIR
had been registered. On the same evening, another call was received
wpc 4023.08 Page 5 of 16
vide DD No.29A to the effect that some goondas had entered into
house no.B-108, Hill View Apartment, Vasant Vihar, New Delhi. This
DD entry was entrusted to SI Rajesh Shukla, who reached the spot.
The complainant, Mr. B.K.Chowdhary was met at the spot and he
stated that on 30.4.2008, he along with his wife Ms. Vidushi had gone
to U.K. On 5.5.2008 he received a telephone call from one of his
friends that one lady broke open the lock of his apartment and entered
and packed all his goods in plastic bags. On hearing this, he rushed to
India on 5.5.2008 and made a call to the local police to stop the lady
from doing so. On reaching Delhi, he found that his flat was locked
from inside. He then made a PCR call and on opening the door, he
found that his house-hold items were packed in gunny bags. One
female and two male, who claimed to be the maid servant and
labourers of the petitioner were found inside the apartment. The
police further states that both the petitioner and respondent no.4 gave
their respective versions to the police.
8. In her statement the petitioner stated, she was married to Mr.
B.K.Chowhary in 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. B.K.Chowdhary was living in Hill View
Apartments. She tried to contact Mr. B.K.Chowdhary but she was not
permitted to talk to him. She was left with no money, so 2-3 days
back, she came to B-108, Hill View Apartment. 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.
wpc 4023.08 Page 6 of 16
While she was doing so, she was stopped by the police. On the other
hand, Mr. B. K. Chowdhary stated that he had been living with his wife,
Vidhushi for the last 20 years in the aforesaid apartment. Prior to this
marriage, he was married to the petitioner but later the two had been
divorced by a Court in Bhutan in 1989. The police could not arrive at
any definite conclusion since both parties had set up contradictory
cases. Consequently, both parties were directed to maintain peace in
the area. It is further stated by the police that on enquiry being
conducted from the neighbours, the neighbours had stated that
respondent no.4 Mr. B.K. Chowdhary was living for the last 20 years
along with his wife, Ms. Vidushi. They had never seen or heard of the
petitioner at his place. Respondent no.7, Jaspal Singh stated that he
had seen one lady packing the goods of respondent no.4’s household
which was taken in a carriage autorickshaw. He informed respondent
no.4 on the same day, as respondent no.4 while leaving with his wife
Ms. Vidushi on 30.4.2008 had asked him to take care of the apartment.
It was further stated that on 14.5.2008, an application under Section
156(3) Cr.P.C had been received from the Court of Sh.Sameer
Vajpayee, Patiala House, New Delhi in which Mr. B.K.Chowdhary,
respondent no.4 herein had prayed for registration of a case against
the petitioner herein. An action taken report was called for by the
learned Magistrate on 16.5.2008. After perusing the same and hearing
the arguments of the counsel for Mr. B.K. Chowdhary, the learned
Magistrate had directed the registration of a case on 16.5.2008.
Accordingly, case FIR No.125/08 dated 17.5.2008 u/s 457/380/IPC had
wpc 4023.08 Page 7 of 16
been registered in the police station and the same is pending
investigation. It was further stated that the dispute between the
petitioner and Mr. B.K.Chowdhary was a civil dispute. Pertinently, the
police authorities also stated that no threat to the life of the petitioner
has been perceived, and in the facts and circumstances of the case no
police protection as at present is warranted. It is further stated that in
case the court directs police protection, the same would be provided to
the petitioner. It is 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 has been filed by the police on
15.10.2008. As per this status report, it is stated that enquiry was
conducted into the complaint made by the petitioner to the CAW Cell
by Inspector Jaibir Singh of CAW Cell, Nanakpura. During the course of
enquiry, no such evidence of harassment came to light. The petitioner
was requested to get her statement recorded in connection with the
document of divorce submitted by Mr. B.K. Chowdhary, but she refused
to give any statement to the police. It was also noticed that the
petitioner has not filed any complaint of harassment/torture caused by
Mr. B.K. Chowdhary during the last 19 years since they were
separated. The petitioner had been advised to utilize services of the
Protection Officer to get relief under the provisions of Domestic
Violence Act, if she so desired. The complaint filed by the petitioner at
the CAW Cell, Nanakpura had been closed on 25.9.20089 since the
wpc 4023.08 Page 8 of 16
matter was sub judice on the aspect whether the petitioner is the
legally wedded wife of respondent no.4 or not.
9. The petition has been primarily contested by respondent no.4.
Respondent no.4 has filed his reply on record dated 28.6.2008.
Respondent no.4 states that the petitioner has not approached the
Court with clean hands. She has concealed important material facts,
apart from making misleading statements in the writ petition. It is
stated that the marriage between the petitioner and respondent no.4
took place in the year 1973. As aforesaid, one son and one daughter
were born out of the wedlock who are 33 years and 30 years old
respectively now. The marriage between the petitioner and respondent
no.4 was dissolved by mutual consent by a Bhutan court on 29.9.1988.
The decree passed by the Bhutan Court has been filed on record by the
petitioner herself as Annexure-5 to her application for seeking
amendment of the writ petition. He further states that the petitioner
again filed for divorce before the District Court, Joharat, vide
Matrimonial Suit No.10/91. It is stated that a divorce decree was
granted and this fact had been admitted by the petitioner 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 states
that in the year 1996, the petitioner had also approached the British
Court for seeking divorce from respondent no.4 by filing Case
No.860/96, although she was already divorced in 1989 itself. She
obtained an ex parte decree of divorce, which was made absolute on
22.4.1999. Respondent no.4 has placed on record the divorce decree
wpc 4023.08 Page 9 of 16
dated 22.4.1999 as Annexure R-4/1 with his reply. Respondent no.4,
therefore, submits that it does not lie in the mouth of the petitioner to
claim that she continues to be the legally wedded wife of respondent
no.4 and to seek any right to reside in the appointment, where he is
residing with his subsequently legally married wife Ms. Vidhushi Ojha
for the last nearly 20 years.
10. The petitioner contends that the divorce decree obtained from
the Court in Bhutan has no force, since the Court in Bhutan had no
jurisdiction to grant the said decree. She further states that it was
respondent no.4 who had initiated Suit No.7/2006 titled “ Basant
Chowdhary V. Meena Chowdhary ” in the Court of the District Judge,
Jorhat on 30.6.1996 to seek divorce against the petitioner. According
to her this divorce suit was filed by respondent no.4 since he realised
the futility of the “forged decree” obtained by respondent no.4 from
the Court in Bhutan. This petition was assigned to the Court of the
Additional District Judge, Jorhat on 31.7.1996 and renumbered as
Matrimonial Suit No.4/1996. The aforesaid suit was dismissed on
30.5.1998 for non prosecution. She therefore submits that there is no
valid decree of divorce between the petitioner and respondent no.4,
and therefore the marriage subsists.
11. I may, at this stage itself, deal with the submission of the
parties on the aforesaid aspect. The submission of respondent no.4
that the petitioner had filed a suit for divorce against respondent no.4
in the Court of District Judge, Jorhat and that she had obtained a
wpc 4023.08 Page 10 of 16
divorce decree from that Court does not appear to be substantiated.
Nothing has been placed on record by respondent no. 4 in support of
his submission. On the other hand, the petitioner has placed on record
a photocopy of the order passed by the Additional District Judge, Jorhat
on 30.5.1998 in case no. T.S(M) No.4/96 titled “ Vasant Kumar
Chowdhary V. Meena Choudhary” which states “plaintiff absent
without steps. No steps was taken for summoning the defendant. The
suit is therefore dismissed for default.” Therefore, the claim of
respondent no. 4 that the petitioner and respondent no. 4 are
divorced, on the basis of a divorce decree passed by the District Court,
Jorhat remains completely unsubstantiated.
12. So far as the divorce decree passed by the Bhutan Court is
concerned, it appears that respondent no.4 at the relevant time was
employed with the Bhutanese airways. i.e Druck Air and could, at the
relevant time, have been domiciled in Bhutan. Though the petitioner
contends that the said decree was secured fraudulently from a Court
which had no jurisdiction, she has not initiated any proceeding to have
the said decree annulled. The petitioner, however, does 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 dated
22.4.1999 between the petitioner and respondent no.4. Even to this
divorce decree, her reply is that the High Court of England did not have
the jurisdiction to dissolve the marriage between the petitioner and
respondent no.4 which had been solemnized in Patna, India. However,
wpc 4023.08 Page 11 of 16
from the documents filed on record, it appears that possibly, at the
relevant time, the parties were domiciled in England.
13. It is also not disputed by the petitioner that in a title suit filed
by her against her brothers in respect of certain properties, the stand
taken by the petitioner was that her marriage with respondent no.4
already stood dissolved. Reference may be made in this regard to the
pleadings made by the petitioner in title suit No.351/00 titled Dr.
Meena B.N. Singh, daughter of late Sh. P.L. Singh V. Avinash Kumar
Singh & Ors. In paragraphs 2, the petitioner, who was the plaintiff
stated that “ her marriage ended in divorce in march 1991 ”. This
pleading of the petitioner was taken note of by the Special Judge-I,
Patna while passing the order dated 17.8.2000. Photocopy of the title
suit and the order passed by the Special Judge-I dated 17.8.00 have
been placed on record by the petitioner herself. Though, the mere
averment by the petitioner that her marriage had ended in divorce in
March 1991 would not by itself lead to the conclusion that the
petitioner stood divorced from respondent no.4, it does certainly lend
credence to the case of respondent no.4 that, as a matter of fact, the
marriage between respondent no.4 did stand dissolved by divorce. It
also throws doubt on the case now sought to be made by the petitioner
that she continues to be the legally wedded wife of respondent no.4.
14. The issue whether the petitioner is the legally wedded wife of
respondent no.4 or not is, therefore, a highly contested issue and
involves the determination of disputed questions of fact as the
wpc 4023.08 Page 12 of 16
petitioner, who is confronted with the mutual divorce decree passed by
the Bhutan Court and the divorce obtained by her from the British
Court, contends that these were forged and fraudulent decrees passed
by courts without jurisdiction. These issues, in my view, cannot be
decided in the present writ proceedings. No doubt 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, the
provisions of Section 13 CPC, and the Hague Convention of 1968 on
the Recognition of Divorce and Legal Separation as applied by the
Supreme Court in “ Y. Narsimha Rao Vs. Y. Venkata Lakshmi ”
(1991) 3SCC 451. However, the determination of the disputed facts
would require a trial.
15. Ld. Counsel for respondent no.4 further submits that the
aforesaid apartment was not the property of respondent no.4 till
09.06.2008. The apartment was held by the mother of respondent
no.4 Smt. Veer Bala Chaudhary, and was mutated in the name of
respondent no. 4 only on 09.06.2008. He relies on a communication
dated 09.06.2008 issued by the DDA conveying the mutation of the
apartment in the name of respondent no. 4. He submits that the
petitioner in any event, assuming that she continued to be the wife of
respondent no. 4 had no right to claim the right to live in or occupy the
said apartment. He seeks to place reliance on “ S.K. Batra & Anr. Vs.
Taruna Batra ” (2007) 3 SCC 169 in support of this submission. He
further submits that the said apartment already stands transferred by
him in favour of one Smt. Sarita Khanna W/o. Sh. D.K. Khanna vide
wpc 4023.08 Page 13 of 16
registered sale deed dated 18.08.2008, registered before the Sub-
Registrar on the same day.
16. There is merit in the submission of respondent no. 4 that the
petitioner 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 the respondent
was recognized as the owner of the said apartment, such a right could
be claimed by the petitioner, provided she had succeeded in
establishing her status as the wife of respondent no.4. Merely by
disposing off the said apartment, the respondent no.4 could not have
avoided his liability (if such a liability exists). Therefore, even if it is
accepted that the said apartment has been disposed off by respondent
no. 4 in August, 2008, if the petitioner is able to establish her status as
the wife of respondent no.4, she could lay a claim to live in any
premises 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.
17. Lastly, it is argued by respondent no.4 that the petitioner has
already initiated proceedings under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 in the Court of ACMM,
Patiala House, New Delhi in Suit No.51/2008 which is being contested
by respondent no.4. Relief sought in those proceedings by the
petitioner is for a direction to respondent no.4 herein to secure the
wpc 4023.08 Page 14 of 16
same level of alternative accommodation for the petitioner 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 said complaint was initiated by the petitioner
some time in July 2008. The petitioner having invoked an alternative
efficacious remedy, she should pursue the same.
18. In my view, the learned Magistrate would be much better
equipped to deal with all the issues, including the issue as to whether
the marriage between the petitioner and respondent no.4 herein
subsists or not, since the fundamental premise on which the relief
sought by the petitioner is rested, is that she continues to be the
legally wedded wife of respondent no. 4. For all the aforesaid reasons,
I am not inclined to entertain this writ petition so far as reliefs (b) and
(ba) are concerned.
19. Now coming to the first relief i.e. (a), since the police
authorities have stated that they do not perceive any threat to the life
of the petitioner, I am not inclined to issue any direction to the
respondent police authorities in this regard at this stage. However it is
the right of every citizen, in case of any threat to his/her life and
liberty, to get adequate protection from the police. In case any threat
is received by the petitioner to her life, liberty or property, it shall be
open to the petitioner to approach the police and after looking into the
complaint that may be made by the petitioner, the police would take
timely and appropriate measures upon assessment of any further
wpc 4023.08 Page 15 of 16
threat perception in respect of the petitioner. Accordingly, I dispose off
this writ petition leaving the petitioner free to pursue her rights &
remedies under the law including the Suit No.51/2008 pending before
the Ld. ACMM, Patiala House, New Delhi. No observation made in this
order shall be taken as an expression of a view of this Court on the
merits of the case of either party.
(VIPIN SANGHI)
JUDGE
JANUARY 07, 2009
dp
wpc 4023.08 Page 16 of 16