Fathr-in-law dies aftr DVcase. Husband leaves case exparte. Ablaa gets RESIDENCE order after just 1 month stay @ inlaws place !!

Marriage in March 2013, case filed Nov 2013 and MM court residence order in Sep 2015 !! One can only wonder the speed at which young couple are landing in court. One is left feeling that Marriages are turning out to be a gamble In India ! It a marriage doesn’t work, there are a dozen ways men AND their families can be in mess

In this case, the Husband is supposed to have gone away after marriage. There are also accusations of violence. Other accused are the in laws, of whom the father in Law dies after the case is filed (which is seen from the order). Husband and his people seem to have left the case un contested / poorly contested and so Ablaa gets EXPARTE residence order to live in IN LAWS flat. In Laws are also stopped from selling / alienating flat ! The court takes the view that the property (flat @ Delhi) is a shared household even though wife lived there JUST FOR A MONTH or month and half (from March to April 2013)

In addition to leaving the case badly contested / not contested “…The marriage between the aggrieved and respondent no.1 as well as the averments qua her living in the matrimonial home/shared household subsequent to the marriage were not denied…..”

Also please note that most of the allegations / testimony of the wife have gone un rebutted
“…As the respondent no. 1 and 3 were proceeded ex­parte, they failed to defend their case and to lead any evidence in support of their defence. No rebuttal has come against the claims of the aggrieved. Rather the respondent no.3 in his written statement has not denied the factum of marriage of the aggrieved with the respondent no.1. …”
“…17. From her unrebutted testimony, the aggrieved has been able to prove that till April 2013 she was residing at matrimonial home/shared household at H. No. 267, Gali No. 11, DDA Flats, Madan Giri, New Delhi, and had to vacate the same only due to the domestic violence inflicted upon her. In his written statement the respondent no.3 has not denied the factum of the aggrieved living at the matrimonial home after her marriage. Thus, it is proved that unrebutted testimony of the aggrieved as well as admissions in the written statement that said property was the shared household of the aggrieved. That being so, the aggrieved is entitled to reside therein being the wife of the respondent no.1. ….”
“… Thus, the respondent is directed to allow the aggrieved to reside in the matrimonial home/shared household at H. No. 267, Gali No. 11, DDA Flats, Madan Giri, New Delhi, till further orders. The respondent no.1 is also restrained from alienating/ disposing/ encumbering the shared household and renouncing his rights in the shared household in any manner so as to defeat the residence order passed in favour of the aggrieved….”

However ablaa is unable to get any compensation as she is unable to prove the loss. It is also pertinent to note that the husband is NOT employed in any organised sector and his salary is just claimed in wife’s case (i.e.) isn’t proven conclusively
“….24. Compensation Under Section 22 of Protection of Women From Domestic Violence Act: Initially the aggrieved had sought compensation of Rs. 1 lakh for the emotional distress and physical violence due to the acts of respondent. However, during her evidence, she sought a compensation of expenditure incurred from the day she was thrown out from the matrimonial home as also of stridhan articles of approximately 4 lakhs that are allegedly lying with the respondent i.e. for a total of Rs. 5 lakhs. However, the aggrieved has neither proved the expenditure incurred from the date she was dispossessed from the shared household nor has she been able to prove that the value of the alleged stridhan lying with the respondents is worth Rs 4 lakhs. Hence, no compensation as claimed can be granted and the relief of compensation is declined……”

The ablaa also fails to stop the in laws from selling or alienating any other property, because SHE HAS NO PROOF of the same !!
“…14. It is duly noted that no assets of the respondents have been disclosed by the aggrieved and in the absence of the same, no blanket order prohibiting alienation of such assets can be passed. Hence, the relief for said protection order is declined…..”

Conclusion, marriage is a gamble. Men beware !!

PS : One good point that may come out of this case is that IF wife is unable to proove her monetary loss or cost of stridhan claimed to be with in laws, she does NOT get compensation !!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Delhi District Court

Court In Gaurav Sondhi vs . Divya Sondhi-120 Dlt(2005)426. … on 24 September, 2015

Author: Ms. Pooja Aggarwal

IN THE COURT OF MS. POOJA AGGARWAL: METROPOLITAN MAGISTRATE­02 (MAHILA COURT)
SOUTH DISTRICT: SAKET COURTS : NEW DELHI
CC No.109/1A
Unique Case ID No. 02406R0337632013
Jurisdiction of Police Station: Ambedkar Nagar

In the matter of:
Smt. Kajal @ Mahendri
W/o Sh. Sachin,
D/o Sh. Dharampal
R/o Village Govindpuri,
Police Station Parishitgarh,
District Meerut, UP                                                 ………………….Aggrieved

Versus
1. Sh. Sachin (Husband)
S/o Sh. Mahender
2. Sh.Mahender (Father­ in law)                (dropped)
S/o Sh. Rishal
3. Sh. Rahul (brother in law)
S/o Sh. Mahender
4. Ms. Sapna (sister in law)                 (not summoned)
D/o Sh. Mahender
5. Sh. Pappu (Maternal Uncle of Respondent no.1)      (not summoned)
6. Sh. Pawan (Maternal Uncle of Respondent no.1) (not summoned)
All R/o: H.No. 267, Gali no.11, DDA Flats, Madan Giri, New Delhi. …………………..Respondents

Date of Institution : 03.12.2013
Date of Arguments : 21.09.2015
Date of Judgment : 24.09.2015

EX­PARTE JUDGMENT

1. By way of the present application filed by Smt. Kajal (hereinafter referred to as “the aggrieved”) under Section 12 of Protection of Women from Domestic Violence Act, 2005 against her husband and other in laws (hereinafter referred as “the respondents”), the aggrieved has sought protection order under Section 18; Residence orders under Section 19; Monetary Relief under Section 20 and compensation/ damages under Section 22 of the Act.

2. Briefly stated it is the grievance of the aggrieved that after her marriage to respondent no. 1 as per Hindu rites at Meerut, U.P. on 13.03.2013 she came to her matrimonial home/shared household at H. No. 267, Gali No. 11, DDA Flats, Madan Giri, New Delhi, but on the very next day the respondent no. 1 came home in drunken state, started beating the aggrieved and started taunted her for less dowry and that respondent no. 2 to 6 also provoked the respondent no. 1. It is further alleged after a few days, the aggrieved also came to know about illicit relations of the respondent no.1 with his maternal aunt (Mammi) and that upon objecting to the same, she was beaten by all the respondents.

3. It is further alleged that the respondent no. 1 has left the house with the mammi for unknown place within one month of her marriage and that when she complained about the same to the respondent no. 2 to 6, they beat the aggrieved mercilessly and threw her out from the matrimonial home in April 2013 without her belongings due to which she went to her parental house at Meerut U. P. It is further alleged that on 24.11.2013 respondent no. 2 to 6 visited the parental home of the aggrieved and beat her as well as her father and a complaint was made to S.S.P Crime Meerut U.P on 28.11.2013. It has also been alleged that on many occasion the aggrieved tried to enter her matrimonial home but was thrown out by the respondent no. 3 who is regularly threatening her with dire consequences if she came again at her matrimonial house.

4. Further it has been alleged that despite the respondent no.1 earning approximately Rs. 25,000/­ per month being property dealer by profession, he is not maintaining the aggrieved since her marriage and the aggrieved is dependent on her aged father and brother who are the earning members of the family for her daily upkeep. Being aggrieved with the atrocities of the respondent, the aggrieved has filed the present case.

5. Upon filing of the complaint, summons were issued to the respondent no. 1 to 3 while summoning qua the respondent no.4 to 6 was declined vide order dated 13.12.2013. As respondent no.2 expired on 14.02.2014, he was dropped from the array of parties. Domestic Incident Report was called for by the Ld Predecessor of this Court which was duly filed by the Protection Officer. Appearance was entered on behalf of the respondent no.3 on whose behalf vakalatnama was also filed. Respondent no.1 however could not be served by way of ordinary process and was served by way of publication in the newspaper “Veer Arjun” dated 10.09.2014 but as he did not enter appearance, he was proceeded ex­parte by the Ld Predecessor of this Court on 15.10.2014.

6. Written Statement was filed by the respondent no.3 as per which it was alleged that the complaint was misuse of law and was liable to be dismissed being false and frivolous. It was also alleged therein that it was the aggrieved herself who was guilty of matrimonial wrongs and she could not be permitted to take advantage of her own wrongs. The marriage between the aggrieved and respondent no.1 as well as the averments qua her living in the matrimonial home/shared household subsequent to the marriage were not denied. It was asserted therein that due to conduct of the aggrieved herself, she as well as the respondent no.1 were disowned by the parents of the respondent no.3. Rest of the averments have been denied on merits.

7. To prove her case, the aggrieved led ex­parte complainant evidence and examined only herself as CW1 and tendered her evidence by way of affidavit (Ex. CW1/A) on similar lines as her application and also proved the documents ie Marriage card (Ex.CW1/P1), Photograph of marriage (Ex.CW1/P2) and copy of complaint dated 28.11.2013 (Ex. CW1/P3).

8. Final arguments were advanced by Sh. V.K.Gupta, Ld Counsel for the aggrieved on behalf of the aggrieved.

9. I have given my thoughtful consideration to the submissions made by Ld Counsel for the aggrieved during the course of final arguments and have carefully perused the entire evidence on record.

10. By virtue of Section 2(a), the reliefs under the Protection of Women From Domestic Violence Act, 2005 can be availed by a woman only if she is in a domestic relationship with the respondent and was subjected to domestic violence by the respondent.

11. From the marriage card, Ex. CW1/P1 as well as from the testimony of CW1 in respect of the aggrieved being married to respondent no.1 on 13.03.2013 as per Vedic Hindu Rites and that thereafter she was residing at her matrimonial home at Madangir, the aggrieved has proved that she was living with the respondent as legally wedded wife of the respondent no.1 and was living together with him in shared household / matrimonial home. From her testimony, the aggrieved has also proved that she has last resided together with her husband at New Delhi. As the respondent no. 1 and 3 were proceeded ex­parte, they failed to defend their case and to lead any evidence in support of their defence. No rebuttal has come against the claims of the aggrieved. Rather the respondent no.3 in his written statement has not denied the factum of marriage of the aggrieved with the respondent no.1. It is also not the case of the respondent no.3 that he was not living in shared household with the aggrieved or that he was not in a domestic relationship with the aggrieved being a family member living together as joint family. The oral testimony of CW1 and the document Ex.CW1/P1 and Ex. CW1/P2 have not been traversed and the testimony of the witness has gone un­rebutted and unchallenged. No reason has been brought on record to disbelieve the unrebutted and un­controverted evidence led by the aggrieved. Hence the factum of domestic relationship between the aggrieved and the respondent no.1 as well as respondent no.3 has been duly proved.

12. In respect of the infliction of the domestic violence, the testimony of the aggrieved and the document relied upon by her as CW1 have gone unrebutted. The complaint dated 28.11.2013 to SS P Crime Meerut Ex. CW1/P3 is deemed to be proved by its author i.e. aggrieved person as despite opportunities the respondent no.1 and 3 for reasons best known to them chose not to join the present proceedings nor to controvert any evidence led by the aggrieved. Thus the averments of the aggrieved as also her testimony in her evidence by way of affidavit are deemed to be admitted by the respondent no.1 and 3 as it has remained unchallenged and unrebutted. Further, no reason has been brought on record to disbelieve the un­controverted evidence led by the aggrieved. Accordingly, by unrebutted testimony, the aggrieved has been able to prove that the respondents have committed certain acts of physical and economic violence as is also narrated in the complaint dated 28.11.2013. From oral unrebutted testimonies, as the aggrieved person has been able to prove the domestic violence committed upon her qua the respondents, she is entitled to claim reliefs under the Protection of Women From Domestic Violence Act, 2005 against the respondent no.1 and 3.

Reliefs

13. Protection Order Under Section 18 of Protection of Women From Domestic Violence Act: Aggrieved has prayed for protection order seeking an injunction against respondents from repeating any acts of domestic violence. She has also claimed prohibition against respondent from alienating the assets of the respondents. Aggrieved has also prayed for a protection order directing the respondents to stay away from her and other relatives of the aggrieved to prohibit violence against them.

14. It is duly noted that no assets of the respondents have been disclosed by the aggrieved and in the absence of the same, no blanket order prohibiting alienation of such assets can be passed. Hence, the relief for said protection order is declined.

15. However, as the testimony of the aggrieved in respect of the incident dated 24.11.2013 have gone unrebutted regarding the respondent no.3 beating up the father of the aggrieved at parental house of the aggrieved, thus, to ensure safety and security of the aggrieved and her family members, I deem it fit to pass a protection order in favour of the aggrieved whereby the respondent no. 1 and 3 are directed to stay away from aggrieved and her other relatives to prohibit violence against them until further orders. Any default in compliance of this order shall entail a liability under Section 31 of Protection of Women From Domestic Violence Act.

16. Residence Order Under Section 19 of Protection of Women From Domestic Violence Act: The aggrieved has prayed for residence orders to the effect that the respondents be restrained from dispossessing or throwing her from the shared household; from entering the portion of the aggrieved in the shared household where the aggrieved was residing and from alienating/disposing/encumbering the shared household as also from renouncing his rights in the assets/estate in the name of the respondent and also in the properties falling in his share by way of inheritance.

17. From her unrebutted testimony, the aggrieved has been able to prove that till April 2013 she was residing at matrimonial home/shared household at H. No. 267, Gali No. 11, DDA Flats, Madan Giri, New Delhi, and had to vacate the same only due to the domestic violence inflicted upon her. In his written statement the respondent no.3 has not denied the factum of the aggrieved living at the matrimonial home after her marriage. Thus, it is proved that unrebutted testimony of the aggrieved as well as admissions in the written statement that said property was the shared household of the aggrieved. That being so, the aggrieved is entitled to reside therein being the wife of the respondent no.1. Thus, the respondent is directed to allow the aggrieved to reside in the matrimonial home/shared household at H. No. 267, Gali No. 11, DDA Flats, Madan Giri, New Delhi, till further orders. The respondent no.1 is also restrained from alienating/ disposing/ encumbering the shared household and renouncing his rights in the shared household in any manner so as to defeat the residence order passed in favour of the aggrieved.

18. In view of the residence order as passed in favour of the aggrieved and to protect the aggrieved from further acts of domestic violence, protection order is also passed in favour of the aggrieved against the respondents by way of an injunction restraining them from repeating any acts of domestic violence qua the aggrieved.

19. Any default in compliance of this order shall entail a liability under Section 31 of Protection of Women From Domestic Violence Act.

20. Maintenance Order Under Section 20 of Protection of Women From Domestic Violence Act: The aggrieved has prayed for a sum of Rs. 10,000/­ per month as monetary relief including maintenance, medical and household expenses etc. As per the settled law, the aggrieved is entitled to get monetary relief which is adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

21. In her evidence the aggrieved has deposed that the respondent no.1 earns about Rs. 25,000/­ per month being a property dealer while in her income affidavit, the aggrieved has stated that the respondent no.1 is the co­owner in shared household she has neither deposed to the same during her evidence nor has she led any documentary or other evidence to prove the said income or assets in the name of the respondent no.1. Even in her income affidavit she has not disclosed better particulars of the business of the respondent. In these circumstances, as the respondent no.1 is not alleged to be differently abled he is assumed to be able bodied man and in the absence of disclosure of educational qualification of the respondent no.1, he is assumed to be unskilled labourer. As the aggrieved is the wife of the respondent no.1 without any means of sustaining herself, as also keeping in view that it is the legal duty of the respondent no.1 being the husband to maintain her, assuming the income of the respondent no.1 as per the Minimum Wages Act, to be Rs.9,000/­ per month. Therefore, on the scale of balance of convenience, and in the absence of the respondent no.1 having brought on record that number of family members dependent upon him, it is presumed that only the aggrieved is dependent upon the respondent no.1 and thus I deem it fit to award a sum of Rs.4000/­ per month to the aggrieved by the respondent no.1 as maintenance for herself. The amount shall be payable from the date of filing of the petition till further orders.

22. Respondent no.1 shall pay the said amount directly into the account of the aggrieved upon supplying the details of the bank account within one week from today to the respondent and filing a copy on record. The amount shall be payable by 10th day of every English calendar month starting from the next month. The arrears be cleared within the period of six months.

23. The default shall be viewed in terms of the judgment of Hon’ble High Court in Gaurav Sondhi Vs. Divya Sondhi-120 DLT(2005)426. Any maintenance that may have already been paid or has been awarded by any other forum, shall be accordingly adjusted.

24. Compensation Under Section 22 of Protection of Women From Domestic Violence Act: Initially the aggrieved had sought compensation of Rs. 1 lakh for the emotional distress and physical violence due to the acts of respondent. However, during her evidence, she sought a compensation of expenditure incurred from the day she was thrown out from the matrimonial home as also of stridhan articles of approximately 4 lakhs that are allegedly lying with the respondent i.e. for a total of Rs. 5 lakhs. However, the aggrieved has neither proved the expenditure incurred from the date she was dispossessed from the shared household nor has she been able to prove that the value of the alleged stridhan lying with the respondents is worth Rs 4 lakhs. Hence, no compensation as claimed can be granted and the relief of compensation is declined.

25. No grounds exist for granting any other relief in favour of the aggrieved.

26. Application of the aggrieved under Section 12 of the Protection of Women From Domestic Violence Act, 2005 is accordingly disposed off in the said terms.

27. Copy of this order be given dasti to the aggrieved and be also sent to the local service provider if any. As the respondent no.1 and 3 are ex­parte, a copy of this order be served upon them through the Protection Officer.

28. File be consigned to the record room after necessary compliance.

Pronounced in the open Court on 24.09.2015
(POOJA AGGARWAL)
Metropolitan Magistrate­02(Mahila Court)
New Delhi/24.09.2015

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