In this classic case a woman makes all sorts of allegations ON HER husband and seeks ONLY Rs. 10 Lakhs as compensation !! In the end she gets 5 thousands … yes F I V E Thousands !!
Typical case in which women claims that husband is consuming liquor and is having illicit relations with his own boss / owner of shop and beating her mercilessly
In addition to monthly maintenance she claims relief of 10 lakh … Yes 10 lakhs !!
But this guy is working In the UN-organised sector and so wife is not able to prove what he is earning !!!
she finally gets just Rs.5000 yes repeat Rs. 5000 As compensation !!
This husband is enjoying the complete bliss of being poor and working in the unorganised sector where there is no income tax returns or ANY proof of the salary and the woman can’t make the one thing they want …. Money !!!
The husband lets the case go exparte and doesn’t even bother to attend it once !!
IN THE COURT OF MS.POOJA AGGARWAL:
MAHILA COURT:SOUTH DISTRICT:
SAKET COURT: NEW DELHI
CC No: 21/1 (12.01.2015)
Unique Case ID: 02406R0009892015
Jurisdiction of Police Station: Malviya Nagar
W/o Sh. Ram Kumar
D/o Late Sh. Ram Dhani,
R/o H.No. 8/107, Balmiki Camp,
Begampur, New Delhi110017
Also at: H.No. 8/82, Balmiki, Begampur,
Also at: H.No. 726, Sadik Nagar, Type two,
Also at: H.No. C120, Khanpur Colony, Dr. Ambedkar Nagar,
Sh. Ram Kumar,
S/o Late Sh. Rajai Ram
R/o H.No. 124 KH, Village Bada Gaon, Tehsil Sadipur,
Distt. Ghazipur, U.P.
Also at: C/o Ms. Bhawna Kyra showroom
R/o 5 E, Jungi House, Shahpur Jat,
New Delhi …….Respondent
Date of Institution : 07.01.2015
Date of Arguments : 19.02.2016
Date of Judgment : 01.03.2016
EX PARTE JUDGMENT
- By way of the present application under Section 12 of the Protection of Women From Domestic Violence Act, 2005, Smt. Seema (hereinafter referred to as “the aggrieved”) has sought various reliefs against her husband (hereinafter referred as “the respondent”) including Protection order under Section 18, Residence Order under Section 19, Monetary relief under Section 20, Custody order under Section 21 and Compensation order under section 22 of the Act.
- Briefly stated it is the case of the aggrieved that she got married to the respondent on 23.11.2007 and out of the wedlock two children, namely baby Roshini aged about 6 years and Master Rohan aged about 3 years were born. She has stated that the respondent was working as a courier boy in Kyra Showroom and they were living on the terrace of the showroom till August 2014. She has made allegations of extra marital affair of the respondent with the owner of the said showroom Ms Bhawna alleging that he used to go with her and not return even after 45 days. She has further stated that when she used to inquire about the reason when he came late, he would beat her mercilessly and say “yeh tera kaam nahi hai chup chaap yahin padi reh nahi tu jaan se maar doonga”.
- She has further alleged that the respondent used to frequently consume liquor with his friends in the presence of the aggrieved as well as the minor children and when she objected to the same, he used to beat, abuse and torture her in front of his friends. She has further stated that on 05.07.2014 she had called the women helpline and the matter was got compromised by the two officials who had visited her house.
- The aggrieved has further stated that when on 07.07.2014 her husband did not return from his job she inquired from Ms Bhawna who shouted on her and dispossessed her with her children from the house on the very next day in respect of which FIR no. 882/14 PS Hauz Khas was lodged. She has also alleged that the respondent is repeatedly threatening to divorce her and marry someone else for handsome dowry.
- The aggrieved has further stated that she is suffering from depression due to the conduct of the respondent but is unable to consult a doctor due to financial constraints. She has further stated that her daughter is patient of seizure disorder while her son is handicapped due to which she is unable to look after them and relies on her parents for financial support as the respondent is not paying any maintenance to them. She has asserted herself to be totally dependent on her relatives for her expenses.
- She has asserted that the respondent earns about Rs.18,000/ working a courier boy in the Kyra Showroom with Rs 5000/ as overtime but over the past few years he has not given a single penny to the aggrieved who has had to work for livelihood to meet household expenses and expenses of the children. She has asserted that the respondent has income from salary and also has a house in Banaras and also gets handsome income from the agricultural land at home and used to threaten the aggrieved that he would sell off the properties. She has asserted that the respondent has no other responsibility except her and the minor children.
- Domestic Incident Report was duly called for and was filed by the Protection Officer on 03.07.2015. After service of the notice of the application under Section 12 of Protection of Women From Domestic Violence Act, 2005, respondent entered appearance on 03.07.2015 and parties were referred for mediation on 02.09.2015 but matter could not be settled there. Despite repeated opportunities the respondent did not file any reply nor income affidavit and hence the respondent was proceeded exparte vide order dated 20.01.2016.
- To prove her case, the aggrieved led exparte complainant evidence and examined only herself to prove her case. As CW1, the aggrieved Smt. Sangeeta tendered her evidence by way of affidavit (Ex. CW1/1) on similar lines as her application and also relied upon the following documents i.e. Election ICard (Ex.CW1/A), photocopy of birth certificate of baby Roshni (Mark CW1/C), copy of birth certificate of master Rohan (Ex. CW1/D), photocopy of complaint made before PS Hauz Khas bearing FIR No.882/14 dated 08.08.2014 (Mark CW1/E Colly 2 pages), copies of medical documents of both minor children (Mark CW1/F Colly page no. 33 to 39), marriage photograph mentioned as Ex.CW 1/B was deexhibited as the same was not filed in the court.
- I have given my thoughtful consideration to the submissions made on behalf of the aggrieved during the course of final arguments and have carefully perused the entire evidence on record.
- 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.
- From the unrebutted testimony of CW1 in respect of her marrying respondent on 23.11.2007 as per Hindu Rites and ceremonies and that thereafter she was residing at Delhi with the respondent, the aggrieved has proved that she was living with the respondent as his wife and was living together with him in shared household / matrimonial home. Further, even in her Election I Card Ex.CW1/A the name of the husband is reflected as Ram Kumar i.e the respondent herein. As the respondent was proceeded exparte, he failed to defend his case and to lead any evidence in support of his defence. No rebuttal has come against the claims of the aggrieved. The oral testimony of CW1 and has not been traversed and the testimony of CW1 goes 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 has been proved. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
- In respect of the infliction of the domestic violence, the oral testimony of the aggrieved as CW1 has gone unrebutted as despite opportunities the respondent for reasons best known to him 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 in respect of infliction of physical and economic abuse are deemed to be admitted by the respondent as they have 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 respondent has committed certain acts of physical as well as economic violence and as the aggrieved person has been able to prove the domestic violence committed upon her by the respondent, she is entitled to claim reliefs under the Protection of Women From Domestic Violence Act, 2005 against the respondent.
Protection Order Under Section 18 of Protection of Women From Domestic Violence Act: Aggrieved has sought protection order seeking prohibition of acts of domestic violence by an injunction against the respondent from repeating any of the acts mentioned in the application; to prohibit any form of communication by the respondent with the aggrieved, seeking prohibition of alienation of assets by the respondent and directions against the respondent to stay away from the dependents/relatives/any other person of the aggrieved person to prohibit violence against them.
- From the unrebutted testimony of the aggrieved as CW1 it stands duly proved that she is residing separately from the respondent since 7.07.2014. In view of the same, the respondent is restrained from repeating any of the acts of domestic violence as deposed to by the aggrieved and he is also restrained from communicating with the aggrieved in any form of communication. SHO PS Malviya Nagar is directed to ensure compliance of the same.
- Any default in compliance of this order shall entail a liability under Section 31 of Protection of Women From Domestic Violence Act.
- It is pertinent to note that despite seeking a protection order to prohibit the alienation of assets, the aggrieved has not specified any particular assets and in the absence of disclosure of any details, no protection order as sought by the aggrieved can be passed. Hence, this relief for protection order as sought is declined being vague. Further it is duly noted that the entire testimony of the aggrieved is silent as to any violence having been caused to her dependents/relatives/any other person of the aggrieved and hence the said relief for protection order is also declined.
- 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 respondent be restrained from dispossessing or throwing her out from the shared household; from alienating/disposing/ encumbering the shared household; from entering that portion of the household in which she is/was residing and to secure same level of alternate accommodation or pay rent for the same.
- It is duly noted that the aggrieved has not been residing in the shared household since 08.07.2014 and hence there does not arise any question of the respondent dispossessing or throwing her out from the shared household and the need to restrain them from entering that portion of the household in which she was residing does not arise.
- The aggrieved has also sought orders seeking to restrain the respondents from alienating / disposing / encumbering the shared household. However, her entire testimony is silent as to the interest of her husband i.e. the respondent in the shared household. Even in her testimony as CW1 she has not categorically deposed as to which property she is referring to be her shared household. Hence the relief as prayed is declined as being not proved.
- The aggrieved has also sought alternate accommodation or rent for the same. This relief shall however be decided alongwith the monetary relief.
- Monetary Relief Under Section 20 of Protection of Women From Domestic Violence Act: The aggrieved has sought Rs 5,000/ towards Food, Clothes, Medication and other basis necessities, Rs.2000/ towards other expenses including educational expenses of children and Rs 8000/ per month towards other household expenses for the total of Rs.15,000/ per month.
- As per the income affidavit of the aggrieved she is aged about 26 years, is 8th class pass without any professional qualification with monthly expenditure of Rs 13000/ with both her minor children dependent on her. Since legal aid has been provided to the aggrieved she has not disclosed any litigation charges. For the first time in her income affidavit she has disclosed the agricultural property of respondent to be about 21 bigha, H.No. 124 KH, Village Bada Gaon, Tehsil Shadipur, District Ghazipur, UP. She has disclosed education expenses of about Rs.2000/ on her children. She has not disclosed any income but has claimed Rs.10000/ per month towards household groceries/food etc., Rs.1000/ per month towards public transport, of Rs 2,000/ per month towards medical expenditure without any liabilities. She has disclosed cash in hand to be Rs.200/ with one local mobile phone. She has disclosed that she is presently residing in the house of her parents and has not disclosed any other assets or liabilities. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
- 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. In her application as well as testimony Ex CW1/1, the aggrieved has alleged that the respondent earns about Rs.18,000/ working a courier boy in the Kyra Showroom with Rs 5000/ as overtime and also has a house in Benaras and also gets handsome income from the agricultural land at home. She has deposed that the respondent has no other responsibility except her and the minor children. However, no documentary evidence has been proved by her even in the form of a visiting card to prove her assertions as to the job of the respondent, income from overtime, ownership of the house in Banaras, existence of agricultural land in the name of the respondent or any agricultural income therefrom. For the reasons best known to her, she has only disclosed in her income affidavit regarding the property at Ghazipur. Her testimony regarding the immovable properties owned by the respondent are not supported by any documentary evidence.
- It has been duly noted that in para no.10 of her application Under Section 12 of Protection of Women From Domestic Violence Act she had mentioned that she ekes out her livelihood by working and on her earninings the household expenses are met and the upbringing of minor children is done whereas in the income affidavit, she had not disclosed any previous occupation due to which clarifications were sought from the aggrieved who submitted on an affidavit that she had worked as a maid from 29.12.2014 till 09.01.2015 for which she got paid Rs.300/ but left the job as her children were not well. She further stated that presently she is working as a maid w.e.f. 14.02.2016 and has been promised to be paid Rs.1,500/ per month.
- In these circumstances, as the respondent is not alleged to be differently abled he is assumed to be able bodied man, he is assumed to be unskilled labourer. As the aggrieved is the wife of the respondent without any means of sustaining herself from the date of the filing of present application till 14.02.2016 except for the period from 29.12.2014 till 09.01.2015 as also keeping in view that it is the legal duty of the respondent being the husband to maintain her as well as the minor children born out of the wedlock, assuming the income of the respondent as per the Minimum Wages Act, to be Rs.9,000/ Rs 10,000/ per month. Therefore, on the scale of balance of convenience, and in the absence of the respondent having brought on record that number of family members dependent upon him, it is presumed that only the aggrieved and the two minor children are dependent upon the respondent and thus I deem it fit to award a sum of Rs.2000/ each per month to the minor children by the respondent as their maintenance from the date of the application till the children attain majority. A sum of Rs.2000/ per month is also awarded to the aggrieved from the date of the filing of the application till 14.02.2016 and Rs.500/ from the date of this order till further directions of this court. Needless to mention that this includes rent towards alternative accommodation because aggrieved despite having a right to reside in the shared household is residing separately therefrom as also all other ancillary and miscellaneous expenses.
- Respondent shall pay the awarded amount directly into the account of the aggrieved upon supplying the details of the bank account within three weeks from today to the respondents 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.
- 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.
- Custody Order Under Section 21 of Protection of Women From Domestic Violence Act: The aggrieved had sought custody of both the minor children namely Baby Roshni and Master Rohan. However, admittedly both the children are already in the custody of the aggrieved and there is nothing on record to indicate that the respondent has tried to take the children from her custody either prior to filing the present application or during the pendency of these proceedings. In these circumstances, no ground is made out for grant of temporary custody of the children namely Baby Roshni and Master Rohan to the aggrieved. Hence the said prayer is declined.
- Compensation Under Section 22 of Protection of Women From Domestic Violence Act: The aggrieved has sought Rs.10,00,000/ as compensation but has not produced any material on record to prove her entitlement to the amount as claimed. However, as it has gone unrebutted that she has been subjected to domestic violence she is awarded compensation for mental trauma a sum of Rs. 5000/ to be paid by the respondent to the aggrieved.
- No grounds exist for granting any other relief in favour of the aggrieved.
- 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.
- Copy of this order be given dasti to the aggrieved and be also sent to the local service provider if any. As the respondent is exparte, a copy of this order be served upon him through the Protection Officer.
- File be consigned to the record room after necessary compliance
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.
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting