Wife says husband divorced her, was violent. Court ask “where is DV if U R divorced & apart”! DELHI MM

A smart Wife files a DV case on her husband. claims that the husband is cruel, has divorced her, and there was Domestic violence. The Hon Court sees thru her game and asks "where is DV if YOU ARE divorced & apart"! DELHI MMcourt case !!

So, this husband who appears party in person, wins the case !!

"…10. It is pertinent to mention that the respondent chose to pursue his case himself without any advocate from the stage of respondent’s evidence and had addressed final arguments himself…"

The husband places the following counter arguments "…Respondent No.1 filed his reply wherein he stated that complainant has not disclosed the true facts. He further stated that respondent No.2 and 3 were residing separately and complainant has no right to file this application against them. It is further stated that respondent has never committed any kind of domestic violence upon the complainant. He has denied all the allegations made by her. He has provided all kinds of facilities to the complainant and children. It is further stated that the behaviour of complainant is rough and cruel towards him and his family members. She lodged the complaint dated 27.07.2007 at PS New Friends Colony and left her matrimonial home with children in his absence and also took Rs. 12,000/- with her. It is further stated that she is in illicit relationship with her brother in law namely Najim …."

The Hon court notices that ".. The act of violence committed by respondent upon complainant has not been proved. Simultaneously respondent has also failed to prove that she is in illicit relationship with her brother in law Najim. He has not filed any document in this respect.
…."

The hon court notices that the couple are divorced, also living apart and so dismisses DV "…..Since, the relationship between the parties have come to an end, no relief can be granted to the complainant for herself under this Act. The present application is dismissed qua the complainant….."

however children get maintenance

**************************************

IN THE COURT OF MS. VANDANA JAIN: MM-03:
MAHILA COURT: SED: SAKET COURTS : NEW DELHI

CC- 08/01/15

Smt. Ruheen
W/o Saib Arfi
R/o J-4, Batla House,
near Khaleel Nagar, Okhla,
New Delhi …….Complainant

Versus

1. Saib Arfi (Husband)
R/o 10-A, near Alnoor Masjid
Jamia Nagar, Okhla,
New Delhi.
2. Saquib Arfi (Jeth)
R/o H.No. ___ Satti Mohalla,
Roorkee, Uttranchal.
3. Khalid Arfi (Jeth)
R/o H. No. ____ Bekan Ganj,
Kanpur, U.P. ….. Respondents

Date of institution of case : 04.04.2008
Date of Reserving order : 17.12.2015
Date of Order : 22.12.2015
Final Order : Partly allowed

JUDGMENT

1. The brief facts of the present case are that complainant was married to respondent no. 1 on 12.05.1996 as per Muslim rites and ceremonies and four children namely (1) Subuhi Arfi, aged 11 years, (2) Hiba Arfi, aged 9 years, (3). Owais Arfi aged 7 years and (4) Alishba Arfi aged 3 months (at the time of filing of application) were born out of CC No. 08/1/15 Ruheen Vs. Saib Arfi this wedlock.

2. It is further stated that since the birth of children, respondent had not taken any liability for their livelihood, education, medical treatment or any other expense of children. It is further stated that after marriage respondent No. 1 started committing cruelty upon the complainant by beating her physically and making her starve and demanding dowry.

3. It is further stated that seeing all this, the old mother of complainant who is widow decided to purchase a house in the name of complainant bearing R-10-A, 2nd floor, Nafis Road, near Alnoor Masjid, Batla House, New Delhi and had handed over the same to her and complainant alongwith her children and respondent started residing at the aforesaid address as he was not having shelter to keep the complainant either on tenancy or in some other accommodation owned by the respondent.

4. It is further stated that the respondent did not stop beating her and forced her to transfer the said house in his name which was denied by her. He threatened to forged the documents and sell the house. Complainant moved a complaint before CAW Cell and an FIR U/sec. 498-A/406 IPC was registered against him. It is further stated that on one occasion respondent tried to strangulate her due to which she sustained visible swelling on her face and she was medically examined in this regard. Even after moving a CC No. 08/1/15 Ruheen Vs. Saib Arfi complaint, no action was taken by the police.

5. Respondent is doing a business and earning Rs.25,000/- to 30,000/- per month. She has sought maintenance for herself and her children.

6. Notice of the application was issued upon respondents No. 1, 2 and 3. Respondent No.1 filed his reply wherein he stated that complainant has not disclosed the true facts. He further stated that respondent No.2 and 3 were residing separately and complainant has no right to file this application against them. It is further stated that respondent has never committed any kind of domestic violence upon the complainant. He has denied all the allegations made by her. He has provided all kinds of facilities to the complainant and children. It is further stated that the behaviour of complainant is rough and cruel towards him and his family members. She lodged the complaint dated 27.07.2007 at PS New Friends Colony and left her matrimonial home with children in his absence and also took Rs. 12,000/- with her. It is further stated that she is in illicit relationship with her brother in law namely Najim who was residing in front of Karkhana/ factory of respondent and whenever he raised objection, she used to pick up quarrel with the respondent. He kept on condoning the cruelty of complainant for the sake of future of his children but she in order to humiliate him and to grab his property threatened him for false implication in a case. It is further stated that H. No. R-10-A, 2nd floor, Nafis Road, near CC No. 08/1/15 Ruheen Vs. Saib Arfi Alnoor Masjid, Batla House, New Delhi was purchased by the respondent by his own money in the name of complainant for satisfying her whims. It is further stated that all the house hold articles like fridge, T.V. Washing machine etc. were purchased by him. It is further stated that CAW Cell Official refused to register FIR against him as no offence was made out. It is further stated that due to act of complainant and his brother in law Najim, he became workless and jobless and is running here and there to meet day to day expenses. It is further stated that application is false and frivolous once and is liable to be dismissed.

7. During the interim stage respondent was directed to pay the monthly fee of the children as per the prior school of the children on 21.04.2010. Thereafter matter was listed for complainant’s evidence.

8. Complainant filed her affidavit and examined herself as CW1. Thereafter she closed her evidence. Respondent also filed his affidavit and further filed an additional affidavit and got himself examined as RW1. Thereafter, respondent’s evidence was closed.

9. I have heard the final arguments on behalf of both the parties and have perused the records carefully.

10. It is pertinent to mention that the respondent chose to pursue his case himself without any advocate from the stage of respondent’s evidence and had addressed final arguments himself.

11. I have perused the records carefully.

12. In order to seek relief under this act, complainant has to prove that she is an aggrieved person. In order to prove that she is an aggrieved person, she should be subjected to acts of domestic violence. Domestic violence has been defined under Section 3 of this Act provided here as under:

For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-

(a) harms or injuries or endangers the health, safety, life, limp or well-being, whether mental or physical, or the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injuries or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

13. Complainant has stated that she was beaten by the respondent and respondent used to demand dowry from her in the form of money etc. but she has not filed any complaint on record to show that any kind was of violence was committed upon her. She has stated in her application that respondent tried to strangulate her and she was medically examined but no MLC or medical document has been placed on record by her. In the affidavit, she had stated that she was beaten with a glass bottle but in her cross-examination she has stated that she was beaten by a plastic bottle. The act of violence committed by respondent upon complainant has not been proved. Simultaneously respondent has also failed to prove that she is in illicit relationship with her brother in law Najim. He has not filed any document in this respect.

14. Apart from above said discussions, she has also stated in her cross-examination that after divorce she had never lived with her husband. It is case where the complainant is admitting that she has been divorced by the husband whereas respondent has put a suggestion in the cross-examination of complainant to her that she had never obtained any divorce which was denied by the complainant. That means, complainant has been divorced by respondent. It is settled proposition of law that in order to invoke the provision of this Act, there should be a relationship between two persons who live or have, at any point of time, lived together in the shared household meaning thereby the relationship between two persons should be existing at the time of filing of application under Domestic Violence Act. Since, the relationship between the parties have come to an end, no relief can be granted to the complainant for herself under this Act. The present application is dismissed qua the complainant.

15. As far as children are concerned, it is an admitted fact that four children were born out of the wedlock and they are studying. Both the parents are duty bound to bring them up and to make provision for their personal and educational expenses. It is also not disputed that all the four children are in the custody of complainant and she is bearing their expenses despite the fact that she is not doing anything. Respondent, being a father, is under an obligation to provide their maintenance. It is stated by the respondent that he is plying a rickshaw. In the own reply filed by the respondent, he has stated that he was running a factory, though he has not mentioned as to what he was earning from the business carried on by him. Complainant has stated in her application that respondent is doing the business and is earning Rs. 25,000/- to 30,000/- per month. No document has been filed by both the parties to prove the income of respondent. At the same time, respondent had not alleged any disability or infirmity of any kind in order to show that he is not capable of earning. Keeping in view the fact he is an able bodied man and nature of business he was carrying on earlier, his income is assessed to be Rs. 20,000/- per month which is divided in 6 portions, two portions to be retained by the respondent No.1, being the earning member and one portion CC No. 08/1/15 Ruheen Vs. Saib Arfi each for the four children. Amount of Rs. 2200/- per month to each child is granted as maintenance from the date of filing of this application till the time they are legally entitled to receive the same. Payment made by the respondent No. 1 during the pendency of the case shall stand adjusted. Arrears be cleared by respondent within three months from today.

16. File be consigned to record room.

(Announced in the open (VANDANA JAIN)
Court 22th December, 2015) MM-03: MAHILA COURT,
SOUTH EAST DISTRICT:
SAKET COURTS, NEW DELHI
22.12.2015

*****************

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

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