Daily Archives: May 27, 2016

here comes the independant, self reliant women of India !!

Look NO further, here comes the independent, self reliant women of India !!

Legally, Indian men have to pay women through out their lives ….still women are called independent and Indian men called the “oppressors”, the chauvinist pigs” and what NOT !!


Just look at what the law mandates !

  • Till she’s married her father has to provide for her.
  • After marriage husband has to provide for her.
  • If husband is mentally unsound, or incapacitated, she can even claim money from husband’s ancestral property.
  • If she has a son, she can sue him and claim maintenance as well.
  • This is the LAW in india !!
  • Lifelong alimony is also the law, and the norm in India.
  • The law will NOT ask a woman to either educate herself, or work for herself.

  • However Indian women are called independent, self-sufficient, and Indian males are often called the oppressors !!

 

25000 to MCom BEd Wife based on husband’s earnings. NO debate about why pay ? where’s violence etc Sad state of matrimonial life in India !

Rs 25000 p.m. to a well qualified MCom BEd wife, purely based on DV case being filed and husband’s earnings. NO debate about why pay ? where’s violence proven etc …. Do discussion about woman’s own responsibility to maintain herself !! Sad state of matrimonial life in India !

most women get away with maintenance the moment they file a DV case or a sec 125 case !! Here, a honourable court’s orders 25000 p.m to a well qualified Mcom BEd wife

In this decision, every aspect of the husband’s salary and deductions are discussed. A huge sum of Rs 25 K month is awarded, which is easily equivalent to 50 lakhs deposit in a nationalised bank (7.5% interest, 5% net of tax )

This is granted to the woman though she was working as Government primary teacher under U.P. State Government. Though She is post graduate in Commerce (M.Com), B.Ed. From Delhi University and the husband arguing that she can easily maintain herself ….

Throughout the order, NOTHING, absolutely NOTHING is discussed about who is the erring party, why should the wife be paid maintenance, has she proven domestic violence, why should a well educated woman be paid etc etc ?

Now ppl may revert saying this must be at the interim stage…which is PRECISELY my point… IF the “interim” stage means Rs 3 lakhs per annum and drags on for three / four years, what happens to “justice” ? and “merits of the case” ???


Delhi District Court

In The Matter Of :­ vs Sumant Sahni on 24 May, 2016

Author: Naresh Kumar Malhotra

IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ­05 : WEST DISTRICT, TIS HAZARI COURTS, DELHI

C.A No. ­5/15.

Case ID No. 02401R0055272015

In the matter of :­
Aarti Jain,
W/o Sumant Sahni,
D/o Sh. D.K. Jain,
R/o 42, Arihant Nagar,
Punjabi Bagh West, New Delhi­ 110026. ………… Appellant.

VERSUS

Sumant Sahni,
S/o Late Kulbhushan Sahni,
R/o C­15, Radhey Puri,
Krishna Nagar, Delhi­51
Also at:
Colt Technology Service India Pvt. Ltd.
1st ­ 4th Floor, Building No. 4, Unitech Sez, Tikri,
Sector­ 48, Gurgaon­ 122002. …………. Respondent.

DATE OF INSTITUTION : 30.01.2015

DATE OF RESERVING THE JUDGMENT : 19.05.2016

DATE OF DECISION : 24.05.2016

AND

C.A No. ­ 45/15 & Old No. 1/4/15.

Case ID No. 02401R0001902015

In the matter of :­
Sumant Sahni,
S/o Late Kulbhushan Sahni,
R/o C­15, Radhey Puri,
Krishna Nagar, Delhi­ 110051. ………… Appellant.

VERSUS

Smt. Aarti Jain,
W/o Sh. Sumant Sahni,
D/o Sh. D.K. Jain,
At 42, G.F, Arihant Nagar,
Punjabi Bagh West, Delhi­ 110026. …………. Respondent.

DATE OF INSTITUTION : 03.01.2015

DATE OF RESERVING THE JUDGMENT : 19.05.2016

DATE OF DECISION : 24.05.2016

JUDGEMENT

  1. Vide this common judgment, I shall decide the appeal bearing No. 05/15 filed by appellant Aarti Jain against her husband Sumant Sahni against the order dated 24.11.2014, vide which the Ld. MM has directed the respondent Sumant Sahni to make the payment of Rs. 25,000/­ per month to the appellant upto 10th of each English Calender month from the date of filing of application i.e. 04.04.2014 till further orders. Ld. MM has also held that this amount includes the rental charges for the suitable accommodation as well. Respondent was also directed to clear the arrears of maintenance within five months from the date of this order. It was also ordered that amount paid or payable by the respondent to the complainant either in this case or in any other proceedings shall be adjusted accordingly.

The respondent Sumant Sahni has also challenged the order dated 24.11.2014 and filed CA No. 45/15. As both the appeals bearing No. 5/15 & 45/15 are arising out of order dated 24.11.2014, I am deciding both the appeals together.

  1. The appellant Arti Jain has filed the appeal bearing No. 5/15 on the ground that order dated 24.11.2014 has been passed by the Ld. MM without applying judicial mind and facts and circumstances of the case. Ld. MM has ignored the cogent evidences submitted by the appellant. Ld. MM has not considered the fact that amount of Rs. 25,000/­ per month is at lower side and same is liable to be enhanced according to the status and life style of the parties. The respondent has deliberately not filed complete information in the affidavit. Ld. MM has not taken adverse inference of the proved facts and the respondent has not disclosed his real income. The respondent has not disclosed about the bank statements, the bank accounts, income, investment and other assets. The respondent has not filed ITR of the previous year. The respondent is a CA and he has also done C.S from ICAI Delhi and ICSI, Delhi. The respondent is capable of doing multiple dimensional jobs and has multiple source of income other than the salary. He has intentionally concealed his income. The respondent is also visiting abroad and doing private practice. It is also mentioned that ITR of the respondent does not show his correct income. Ld. Trial Court has also mentioned in the order that respondent has not disclosed his correct income. It is also mentioned that respondent in his Jeevansathi profile has mentioned his yearly income as Rs. 15­20 lacs. It is prayed that order dated 24.11.2014 be set aside and the appellant be granted interim maintenance of Rs. 1,20,000/­ per month.
  2. The respondent Sumant Sahni has also filed appeal bearing No. 45/15 on the ground that the Ld. Trial Court has erred in law thereby directing the appellant to pay a sum of Rs. 25,000/­ per month to the respondent on account of interim maintenance and that too without any basis. The respondent in the present appeal Smt. Aarti Jain has failed to file complete bank statement. Ld. Trial Court has failed to consider that Aarti Jain is working as Government Primary Teacher under U.P. State Government and this fact is concealed by Aarti Jain deliberately. Ld. Trial Court has failed to take into consideration that the respondent i.e. Aarti Jain is a well educated lady, post graduate in Commerce (M.Com), B.Ed. From Delhi University and she has enough source of income. It is prayed that order dated 24.11.2014 be set aside.

  3. Reply to both the appeals filed by the respondent therein and they denied the contents of the appeal.

  4. I have heard Ld. Counsels for the parties in both the appeals and perused the records of both the appeals as well as Trial Court Record very carefully.

  5. Perusal of the file reveals that Aarti Jain has filed petition u/s. 12 r/w Section 18,19,20,22 & 23 of Protection of Women from Domestic Violence Act, 2005 with the averments that she was married with Sumant Sahni on 06.05.2011. After marriage the respondent i.e. Sumant Sahni started demanding flat, a Honda City Car, gold items (2­3 tolas), cash of Rs. 10 lacs. It is also mentioned that she was harassed and tortured for not bringing adequate dowry. She has also mentioned that respondent Sumant Sahni is a man of means, well settled and monthly income of the respondent is more than Rs. 2 lacs per month. He is also having income from shares/ debentures and from private practice. The total income of the respondent is more than Rs. 2.5 lacs per months. The respondent is having properties at Laxmi Nagar, Delhi, Noida and F­214, Unitec Vista, Sector 70A, Gurgaon.

7. In reply, the respondent Sumant Sahni has denied that appellant Aarti Jain was ever harassed or tortured on account of dowry. The complainant used to threaten him. She had taken all the jewellery articles and filed a false case against him. As per respondent his in hand salary is Rs. 95,000/­ pm out of which he is paying the installment of loan amount. It is also mentioned that complainant is a qualified lady and she was working as Government Primary Teacher under U.P. State Government. She is post graduate in Commerce (M.Com), B.Ed. From Delhi University and she can easily maintain herself.

  1. The Ld. MM vide order dated 24.11.2014 directed the respondent Sumant Sahni to make the payment of Rs. 25,000/­ per month to the appellant upto 10th of each English Calender month from the date of filing of application i.e. 04.04.2014 till further orders.

9. The respondent Sumant Sahni has filed affidavit before the Ld. Trial Court and in the affidavit he has mentioned his monthly income as Rs. 1,07,155/­. He has also placed on record the pay slip for the month of June, 2014 which shows that his monthly income is Rs. 1,91,786/­, Rs. 11,309/­ is being deducted on account of provident fund, a sum of Rs. 23,560/­ is being deducted on account voluntarily provident fund and a sum of Rs. 10,000/­ is being deducted on account of Matching Grant Scheme. Thus, after deduction monthly income of Sumant Sahni comes to Rs. 1,07,155/­.

During arguments, it is contended by Ld. Counsel for the respondent that a sum of Rs. 45,940/­ is being paid by the respondent as house loan. This fact is not denied any where by the appellant that respondent has not taken housing loan and he is not making payment of Rs. 45,940 as house loan. Perusal of the Trial Court Record shows that respondent Sumant Sahni has filed an application for change of home loan from HDFC bank to SBI and this application was allowed by the Ld. MM vide order dated 04.01.2014. Thus, it is not denied that respondent is paying housing loan of Rs. 45,940/­. If we deduct the amount of Rs. 45,940/­ from 1,07,155/­, the salay in hand of Sumant Sahni comes to Rs. 61,215/­. Thus, Ld. MM has rightly assessed the income of respondent to Rs. 75,000/­ to 80,000/­ per month and rightly granted maintenance of Rs. 25,000/­ per month to the complainant.

Ld. Counsel for respondent Sumant Sahni had placed reliance on judgment (2010) 15 Supreme Court Cases 372 titled as “Bhushan Kumar Meen Vs. Mansi Meen alias Harpreet Kaur”.

On the other hand, Ld. Counsel for the appellant Aarti Jain has placed reliance on judgments 2014(I) TVT 461 (Del.) titled as “Navneet Arora Vs. Surender Kaur & Ors.”, Criminal appeal No. 5660/2010 titled as “Neeta Rakesh Jain Vs. Rakesh Jeetmal Jain”, Crl. M.C. No. 1859/2008 titled as “Rajeev Preenja Vs. Sarika & Ors.” and 181 (2011) Delhi Law Times 602 titled as “Jayant Bhargava Vs. Priya Bhargava”.

  1. During arguments, it is contended by Ld. Counsel for appellant Aarti Jain that respondent Sumant Sahni is also earning by doing private practice but no document has been placed on record to show that respondent Sumant Sahni is also doing private practice.

11. It is vehemently contended by Ld. Counsel for the respondent Sumant Sahni that appellant Aarti Jain is highly qualified and she was working at the time of marriage as Government Primary Teacher under U.P. State Government.

No document has been placed on record by the respondent Sumant Shani to show that Aarti Jain is still working as Government Primary Teacher under U.P. State Government. Thus, it cannot be said that Aarti Jain is working at present.

  1. In the appeal filed by appellant Aarti Jain, she has also prayed that residential order in matrimonial shared household be granted. The appellant Aarti Jain has placed reliance on judgments 2014(I) TVT 461 (Del.) titled as “Navneet Arora Vs. Surender Kaur & Ors.”, Criminal appeal No. 5660/2010 titled as “Neeta Rakesh Jain Vs. Rakesh Jeetmal Jain”, Crl. M.C. No. 1859/2008 titled as “Rajeev Preenja Vs. Sarika & Ors.” and 181 (2011) Delhi Law Times 602 titled as “Jayant Bhargava Vs. Priya Bhargava”. Perusal of the Trial Court Record shows that the Ld. MM in the order dated 24.11.2014 has mentioned that the amount of Rs. 25,000/­ per month includes the rental charges for the suitable accommodation as well.
  • In view of the above discussions, I am of the view that there is no illegality or infirmity in the order dated 24.11.2014 and the Ld. MM has rightly assessed the income of Sumant Sahni as Rs. 75,000/­ to Rs. 80,000/­ per month and rightly granted maintenance of Rs. 25,000/­ per month to Aarti Jain. Both the appeals filed by Aarti Jain & Sumant Sahni are without any merits are same are hereby dismissed.

  • Copy of this common judgment be sent alongwith the TCR.

    Appeal files be consigned to Record Room, after necessary compliance.

    Announced in the Open Court on 24.05.2016

    (Naresh Kumar Malhotra)
    ASJ­05 (West)/THC/Delhi

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    Woman unable to prove domestic violence looses  complete case at magistrate Court !! Husband and Co win, even though exparte !!

    A woman files domestic violence case against her husband and some of the in laws … She seeks right to residence, and lakhs and lakhs of money… She looses  the entire case as she is unable to prove domestic violence and shared household against many of the respondents. She loses the entire case even though the respondents go ex parte


    Smt. Sonika vs (1) Sh. Ritesh on 25 May, 2016

    Delhi District Court

    Smt. Sonika vs (1) Sh. Ritesh on 25 May, 2016

    Author: Pooja Aggarwal

    IN THE COURT OF MS.POOJA AGGARWAL: METROPOLITAN MAGISTRATE­02: MAHILA COURT:SOUTH DISTRICT: SAKET COURT: NEW DELHI 
    CC No: 616/1/14 (22.12.2014)

    Unique Case ID: 02406R0364882014

    Jurisdiction of Police Station: Saket
    Smt. Sonika, 

    W/o Sh. Ritesh,

    D/o Sh. Ajit Singh, 

    R/o 1822, Sector­3,

    Pushp Vihar, New Delhi. ……….Aggrieved 
                                        Versus 
    (1) Sh. Ritesh, (husband)

    S/o Sh.Ram Kishan,

    (2) Smt Kamlesh (Mother­in­law)

    W/o Sh.Ram Kishan,

    (3) Sh. Rinku, (Brother­in­law)

    S/o Sh.Ram Kishan,

    (4) Ms Versha, (Sister­in­law)

    D/o Sh.Ram Kishan.

    All R/o 18/352, Trilok Puri,

    Delhi­110091 …………..Respondents

    Date of Institution : 19.12.2014
    Date of Arguments : 02.05.2016
    Date of Judgment : 25.05.2016

    CC No. 616/1/14

    PS Saket Sonika v Ritesh & Ors Page 1 of 12

                                           JUDGMENT 

    1. By way of the present application under Section 12 of the Protection of Women From Domestic Violence Act, 2005, Smt. Sonika (hereinafter referred to as “the aggrieved”) has sought various reliefs against her Husband, Mother in Law, Brother in law and Sister in Law (hereinafter referred as “the respondents”) including Residence Order under Section 17 and 19, Monetary relief under Section 20 and Compensation order under section 22 of the Act.
      FACTS AS PER THE AGGRIEVED
    2. Aggrieved Sonika got married to respondent no.1 on 19.02.2007 according to Hindu rites and rituals and out of the wedlock a son was born on 24.02.2008. From the first day of marriage the respondents taunted her for not bringing sufficient dowry, used to abuse and beat her and pressurized her to bring cash from her parents. They also taunted and tortured her for motorcycle which her father had not given as per the dowry demand. When on the first rakhi, her brother gave Rs 2100/­ to her, the respondents taunted her “Shadi ke baad pehli rakhi hai, kam se kam saare ghar walon ke liye shagun aur kapde bhejne chaiye the’.
    3. Most of the times the respondent no.2 did not allow her to go into the kitchen and did not provide her sufficient food. The aggrieved was also thrown out of the matrimonial home by the respondents many times. The respondent no.3 and 4 also beat her and taunted her for insufficient dowry saying “sarkari naukri wala to raja hota hai, use biwi bhi dhang ki CC No. 616/1/14 milni chahiye thi par humare palle to bhukon ki ladki pad gayi”.
    4. The respondents also did not take care of her during her pregnancy threatening her “agar ladki paida hui toh use maar denge” and that when on the namkaran ceremony of her son, her parents came with gifts and cash of Rs 11,000/­ the respondent no.3 and 4 threw the gifts on the floor and respondent no.2 taunted ‘yeh kya tuche se kapde le kar aa gaye ho, pehla bacha hai, voh bhi ladka kam se kam sab ke liye gold ke gifts laaane chaiye the’.
    5. The respondent no.1 threatened to divorce her and remarry but she tolerated all cruelties and atrocities for the sake of her matrimonial home and child. All her stridhan, jewellery and dowry articles are in the custody of the respondents no.1 and 2 which they have not handed over despite requests.
    6. Due to continuous mental and physical and lack of proper food, she contracted TB in April 2014 and was sent by the respondents to her parental home without them taking care of her or getting proper treatment for her saying “tujh achoot ka ilaj ab tere ma baap karayenge, Agar zabardasti yahan rahi toh jaan se jayegi” and after some days respondent no.1 also left her son at her parental house saying “Main ab doobara sadi karnga aur yeh bacha meri dusri shaadi main rukawat dalega’. Now she resides at her parental house. Hence the present case seeking :
      Residence Order under Section 17 and 19: directing the respondents to allow the aggrieved to reside peacefully in her matrimonial home CC No. 616/1/14 without causing any act of domestic violence in the form of putting wrong words, gestures and manhandling with her in the future; restraining respondents from entering into the room which would be handed over to her after passing of the order and causing any hindrance or interference in her peaceful living; or directing the respondent no.1 to arrange for rented accommodation as per his status and persons on their behalf be restrained from entering into the rented accommodation which would be provided to her; restraining the respondents from transferring, alienating or parting with the possession of the matrimonial home. Monetary relief under Section 20: Rs. 5,00,000/­ towards loss due to destruction/damage or removal of property from her control; Rs. 2,00,000/­ towards any other loss or physical or mental injury as specified in clause 10(d); Rs. 12,000/­ per month towards food, clothes, medication and other basic necessities; damages. Compensation order under section 22 : Directing the respondents to pay Rs 2,00,000/­ towards emotional distress caused due to the domestic violence committed.
    7. On the basis of the pleadings of the aggrieved, the DIR was called for and all the four respondents were duly summoned who entered appearance and were directed to file their reply and the respondent no1 was also directed to file his income affidavit. However, the respondents stopped appearing and were proceeded ex­parte vide order dated 17.11.2015 and an application to set aside the said order was also dismissed on 07.01.2016.
    8. To prove her case the aggrieved examined herself as CW1 tendering her evidence by way of affidavit (Ex.CW1/1) and her father Sh Ajit Singh as CW2 who tendered his evidence by way of affidavit (Ex.CW2/1) with both being on similar lines as the application of the aggrieved and neither witnesses relying on any documents. Both the witnesses were CC No. 616/1/14 duly cross­examined by the respondents.
    9. Final arguments advanced as also the entire evidence on record has been duly considered.
    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 respondents and was subjected to domestic violence by them.
      a) Domestic Relationship
    11. With the respondent no.1 ie Husband: In the present case, the aggrieved Smt Sonika has claimed herself to be the legally wedded wife of the respondent no.1 Ritesh having married him on 19.02.2007. As CW1 she has testified to the same fact as has the CW2 ie her father. During their cross­examination no questions were put to the witnesses denying the factum of marriage of the aggrieved with the respondent no. 1 and hence the factum of the aggrieved residing with the respondent no. 1 in a domestic relationship of marriage is deemed to have been admitted by the respondents.
    12. With the respondent no.2,3 and 4 ie Mother in Law, Brother in law and Sister in Law: The testimony of the aggrieved in her evidence by way of affidavit Ex. CW1/1 is conspicuously silent as to Smt Kamlesh being her Mother­in­law; Sh. Rinku to be her Brother­in­law or Ms Versha to be her Sister­in­law. No evidence has been led by the aggrieved to prove that she is related to the respondent no.2 to 4 by CC No. 616/1/14 marriage. In view of the same the relationship of the aggrieved with the respondents no.2 to 4 remains unproved.
      b) Shared Household
    13. The entire testimony of CW1 and CW2 is silent as to the place where the aggrieved Sonika resided in a domestic relationship with the respondents or even singly within the meaning of Section 2(s) of the Act. No address has been testified to by either CW1 or CW2 as being the shared household nor have the complainant witnesses testified as to any interest of the respondents or the aggrieved as to ownership or tenancy either jointly or by either of the aggrieved or the respondents or as to any right, title, interest or equity in any property where they resided together. The aggrieved has also not led any evidence to prove whether there is any joint family property of which respondent is a member. In the absence of any evidence either oral or documentary in respect of existence of shared household, no presumption or inference as to its existence can be drawn and hence the factum of shared household of the aggrieved with the respondents remains unproved. Also as during the cross examination of CW1 she has testified that respondent no.4 Varsha has got married prior to her marriage and is living in Narela at her matrimonial home and hence qua the respondent Varsha the existence of shared household has been disproved.
      c) Infliction of Domestic violence
    14. As per testimony of CW­1 Sonika and CW­2 Ajeet Singh from the first CC No. 616/1/14 day of her marriage on 19.02.2007, the respondents taunted her for not bringing sufficient dowry, used to abuse and beat her and pressurized her to bring cash from her parents and that they also taunted and tortured her for motorcycle which her father had not given as per the dowry demand. These allegations/ testimonies have gone unrebutted during the cross examination of the witnesses. Be that as it may, it is a settled proposition of law that the case of the aggrieved / complainant is required to stand on its own legs. From the entire testimony on record, it is evident that the testimony of CW­1 as to her being abused, beaten and pressurized by the respondents to bring cash is vague as is the testimony as to taunts as well as dowry demands. CW­1 and CW­2 have not testified as to the exact amount which was being demanded from the aggrieved nor have they mentioned any date, time or period when such demands were made. Hence their testimony being vague does not inspire confidence in the absence of any corroborative evidence except self serving oral testimony.
    15. CW­1 has also testified that when on the first rakhi, her brother gave Rs 2100/­ to her, the respondents taunted her “Shadi ke baad pehli rakhi hai, kam se kam saare ghar walon ke liye shagun aur kapde bhejne chaiye the’. The same even if accepted to be true does not fall under any of the criteria of domestic violence as prescribed under Sec. 3 of the PWDV Act as there is nothing to indicate that the same endangered either her physical or mental health or otherwise caused any injury or harm to her. CC No. 616/1/14 It is duly noted that though CW­2 has testified as to similar facts, his testimony being hearsay cannot be looked into to prove this allegation of the aggrieved.
    16. The testimony of CW­1 as to the respondent no.2 not allowing her to go into the kitchen and not providing her sufficient food is also vague and beyond the purview of Sec. 3 of PWDV Act as it does not fall in any of the heads of domestic violence enumerated therein in the absence of sufficient material particulars being testified to by CW­1. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
    17. The aggrieved as CW­1 has also testified that she was thrown out of the matrimonial home by the respondents many times but the said testimony is vague without any date or period being testified to by her. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
    18. The testimony of CW­1 as to respondent no.3 and 4 beating her and taunting her for insufficient dowry saying “sarkari naukri wala to raja hota hai, use biwi bhi dhang ki milni chahiye thi par humare palle to bhukon ki ladki pad gayi” is also vague, does not inspire confidence in the absence of any corroborative evidence in the form of any earlier complaint. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
    19. The testimony of CW­1 as to respondents not taking care of her during her pregnancy as also threatening her “agar ladki paida hui toh use maar denge” also does not fall within the purview of Sec. 3 of PWDV Act as she has not made any specific allegations against any respondent nor has she mentioned any specific date, time and place. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
    20. Her testimony as to the Devar and Nanad throwing the gifts brought by her parents on the Namkaran Ceremony of her son as also taunts by the mother­in­law does not fall within the purview of Sec. 3 of PWDV Act as the same cannot be said to be either physical, sexual, verbal, emotional or economic abuse.
    21. CW­1 has further testified as to her husband threatening to divorce her and remarry. However, the testimony is vague and in the absence of any corroborative evidence in the form of any previous complaint as also the lack of material particulars as to the date and time, it does not inspire confidence. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved to prove this allegation of the aggrieved.
    22. While CW­1 has testified that all her stridhan, jewellery and dowry articles are in the custody of the respondents no.1 and 2 which they have not handed over despite requests, she has not led any evidence to prove the nature of her stridhan, jewellery and dowry articles or the date or CC No. 616/1/14 occasions when the request to return the same were made and in the absence of the same, merely on the basis of her self serving oral testimony, economic abuse by the respondent no.1 and 2 remains unproved. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
    23. CW­1 has further testified that due to continuous mental and physical and lack of proper food, she contracted TB in April 2014 and was sent by the respondents to her parental home without them taking care of her or getting proper treatment for her saying “tujh achoot ka ilaj ab tere ma baap karayenge, Agar zabardasti yahan rahi toh jaan se jayegi” and after some days respondent no.1 also left her son at her parental house saying “Main ab doobara sadi karnga aur yeh bacha meri dusri shaadi main rukawat dalega‘. She has however not relied upon any documents to prove the same and except oral testimony no other evidence regarding the same has come on record.
    24. The oral testimony of complainant witnesses also does not inspire confidence as during her cross examination CW­1 has admitted that for the first time she had been detected with tuberculosis in April 2013 when she was staying at her matrimonial home but denied that she has purposefully not mentioned about the same in her affidavit. Hence the aggrieved has not been forthcoming with all the facts pertaining to the case. Her uncorroborated oral testimony also does not inspire confidence CC No. 616/1/14 as during cross examination while she testified that she did not make any complaint to Women Cell Saket, improved upon it saying that she went to Women Cell Saket for registration of her complaint but they did not register the same and as no action was taken by the police she did not file the same in the court, her father as CW­2 testified as to her lodging a complaint with CAW Cell and the same being withdrawn as they were not satisfied with the same. The same assumes significance as neither of the witnesses has placed on record the copy of the complaint to CAW Cell which might have corroborated the testimonies of the witnesses.
    25. In the totality of facts and circumstances of the present case, with the testimony of both CW­1 and CW­2 being vague, without material particulars and remaining uncorroborated as CW­2 has merely deposed as to hearsay evidence, the domestic violence by the respondents against the aggrieved within the meaning of Sec. 3 of PWDV Act remains unproved.
      DECISION
    26. With the domestic relationship and shared household remaining unproved qua the respondent no.2 to 4 as also with the shared household and the domestic violence remaining unproved qua all the four respondents, the aggrieved has failed to prove herself to be an aggrieved within the meaning of section 2(a) of the Act.
    27. Hence in the totality of facts and circumstances of the case, with the aggrieved being unable to discharge the burden cast upon her, her CC No. 616/1/14 application under Section 12 of the Protection of Women From Domestic Violence Act, 2005 is dismissed.
    28. File be consigned to the Record Room after necessary compliance.

           Pronounced in open court                         

           on 25.05.2016 (Pooja Aggarwal)

                                   Metropolitan Magistrate­02 (Mahila Court), 

                                          South, Saket Courts, New Delhi.

    CC No. 616/1/14
     

    Woman looses Fake DV filed 18 years after separation targetting Delhi house ! Delhi Sessions !

    In this case wife and husband have parted ways approx 18 years before filing of the DV case. Husband alleges that she had an affair etc (not proven here), however its accepted that the parties have parted ways 18 years ago and have NOT lived together ever since. Further, there have been NO legal efforts for restitution

    The woman happily files a DV case 18 years later ! & seeks possession of property where she has NEVER lived with the husband, claiming that to be shared household !! Since the learned MM does not seem to appreciate the facts, husband runs to the Sessions court. Hon Sessions court sees the woman’s game and dismisses her case !!

    Marriage in 1995… DV case and mess at sessions court level 21 years later. If the wife goes on appeal this will drag on another decade. time and money wasted because women can file such cases !!


    IN THE COURT OF SH. LOKESH KUMAR SHARMA

    ADDITIONAL SESSIONS JUDGE­04

    & SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI

    Criminal Appeal No. 199 of 2015

    ID No. 02406R0230612015

    Neville Tuli
    S/o Late Sh Ramjeedas Tuli
    R/o B­40, Shanti Kunj
    Church Road, New Delhi­110070 ………….Appellant

    Vs.

    Ms. Zothanpari Hrahsel
    R/o A­53, Second Floor
    Defence Colony, New Delhi­110024 ………..Respondent

    Instituted on : 22.07.2015
    Argued on : 16.05.2015
    Decided on : 20.05.2016

    J U D G M E N T

    1. Present appeal u/s 29 of DV Act has been preferred by the appellant against the impugned order dated 28.5.2015 passed by the court of Ms. Monica Saroha, Ld. MM­02 (Mahila Court), South­East District, New Delhi, in CC No. 227/3/13, case titled as “Zothan Pari Hrashel v. Neville Tuli.”, whereby the application of the appellant herein, seeking dismissal of the complaint moved by him, was dismissed by the Ld. MM. Feeling aggrieved from the aforesaid order, the appellant has preferred the present appeal on the following amongst other grounds : That the impugned order passed by Ld. MM was erroneous and bad in law as the Ld. MM had erred in not appreciating the facts and circumstances of the present case and the Ld. MM had also failed to consider the case law referred by him in support of his contentions and the Ld. MM had passed the impugned order on the basis of her own surmises and conjectures and hence the same deserved to be set aside in appeal. It was stated further that the complaint of the respondent herein was not maintainable as she was not falling within the definition of an “aggrieved person” as the parties were admittedly not residing together since last more than 12 years and were residing separately in different cities.
    2. It was pleaded further that the respondent herein had given wrong information related to her rendering all possible assistances and sacrifices made by her for the appellant to raise his career socially, financially and economic status to help out the appellant and also about his personal and professional life and also that at the fag end, the appellant herein had deprived her of even means for subsistence and thereby committed an emotional and economic abuse upon her due to which she was constrained to file a petition under section 12 of the Protection of Women from Domestic Violence Act, 2005 ( in short “PWDV Act”).
    3. Appellant herein had also filed his detailed reply to the said petition wherein he had cited himself to be the victim at the hands of respondent herein and had claimed that the respondent was having an extra­marital relationship with a Dutch Diplomat and had continued the same even after her marriage which had caused great mental torture, shock and agony to him and the parties had thus mutually decided to live separately from each other. On merits all factual assertions except those essentially forming the part of record had been denied as wrong and incorrect and an application for dismissing the said complaint was also filed by him before the court of Ld. MM on the ground that the respondent herein did not qualify to be an “aggrieved person” as defined under the PWDV Act. The said application of the appellant herein was dismissed by the Ld. MM vide impugned order, which is the subject matter of challenge before this court in this appeal.
    4. Respondent had also appeared and filed her detailed reply to the appeal wherein she had denied all the allegations and had stated that there was no illegality or infirmity in the order passed by the Ld. MM, as she was categorically qualifying to be an “aggrieved person” as provided under the Act.
    5. Brief facts that had given rise to filing of the present revision petition are succinctly given as under:­
      • Marriage between the appellant and the respondent herein was solemnized on 22.3.1995 at Hotel Leela Kempensky, Mumbai, Maharashtra as per Hindu Rights and Customs and the marriage was duly got registered.
      • No child was born out of this wedlock and the parties by mutual consent had agreed to end their relationship as husband and wife in June, 1997 and since then, they were living separately in Delhi.
      • It is also the admitted case of the respondent in her complaint filed before the Ld. MM that in the last 10 ­12 years, whenever she used to contact the respondent/appellant herein, or otherwise confronted him in order to revive the relation and reconcile the marriage, the respondent/appellant herein had never made any attempt to visit her or to know about her well being.
    6. I have heard Sh. Dharmender Arya, Ld. Counsel appearing for the appellant and Sh. Mehmood Pracha, Ld. Counsel for the respondent, who had appeared to address arguments on 11.01.2016. However, he had not appeared for the last two dates of hearing, i.e. 09.03.2016 and 16.05.2016.
    7. For the reasons as given in the accompanying application filed u/s 5 of Limitation Act, duly supported by the affidavit of Ld. Counsel, the delay, if any, committed in filing of present appeal stands condoned as it has been held by time and again by the superior courts that endeavour of the courts should be on disposal of a case on its merits rather than disposing it on technical grounds and lacunas.
    8. In order to appreciate the contentions of the parties in a better manner, it shall be worth examining the definitions of terms “aggrieved person” , “domestic violence” as well as “shared household”, as appearing in the Act, which have been defined in Section 2(a), (f) and (s) of the PWDV Act, which are reproduced here as under:
      • “Section 2. Definitions.­­ …(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
      • …(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as joint family.
      • …(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”
    9. The main thrust of arguments of the appellant in the present appeal is non­qualification of the respondent herein to be an “aggrieved person” living in a “shared household”, as defined under the PWDV Act. In this regard, reliance has also been placed on the following citations:
    10. The law laid down by our own Hon’ble High Court in the matter of Vijay Verma (supra) and also followed in the matter of Adil (supra) is being reproduced here as under:
      • “10­­­­­­­­ Under Domestic Violence Act, the first pre­ condition is that the applicant must be an aggrieved person. Aggrieved person is a person defined in Section 2 (a) of the Act. The domestic relationship must be there between the aggrieved person and respondent to invoke Domestic Violence Act. This Court had clarified the legal position in respect of domestic relationship in Vijay Verma Vs. State NCT of Delhi & Anr, criminal Misc. No.3878 of 2009 and observed as under : ­ 5 Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(F) as under: ………an application under protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. …………However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survive.
      • 11………..It must be kept in mind that resort of Domestic Violence Act cannot be done to enforce property rights. For enforcement of property rights, the parties are supposed to approach civil court. Resort to Domestic Violence Act can be done only where there is urgent requirement of wife to be maintained and provided residence when because of domestic violence, she had been rendered homeless and she had lost source of maintenance. Domestic Violence Act is not meant to enforce the legal rights of property, neither an interim order can be passed without first prima facie coming to conclusion that a domestic relationship existed between the party and the applicant was an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act.
      • Further, in the matter of “Hima Chugh Vs Pritam Ashok Sapadhule &Ors” Crl.M.C.3273/2011 dated 10.04.2013, in para 11(7), it was held by the Hon’ble High Court of Delhi as follows:­
      • This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only when one is living in shared house hold with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of UK, or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living miles away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence.
        Further, in the matter of “Harbans Lal Malik Vs Payal Malik, Crl. Rev. P, No.253/2010 dated 29.07.2010, it was held by the Hon’ble High Court of Delhi in para 12 as follows:­ ’12 The definition speaks of living together at any point of time, however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person can not be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship can not be said to be there”.
    11. In the light of the aforesaid observations made by the Hon’ble High Court in its pronouncements, it has been submitted by Ld. Counsel for the appellant that Ld. MM had gone factually wrong while holding that for the purpose of calculating the period for which the couple had stayed together or in a city in which they had stayed was an important and crucial issue which could have been determined only after adducing evidence on record by both the parties and unless and until such evidence was produced on record, it could not have been stated by the Ld. MM in the impugned order that the complainant was qualified to be an “aggrieved person” as defined under the PWDV Act.
    12. It was argued further that since respondent had not stayed jointly with the appellant for since last more than 18 years, therefore, question of committing any kind of domestic violence upon her did not even arise. The act of appellant in not providing her residence, might have amounted to a financial deprivation for which respondent could have sought enforcement of her property rights by approaching the civil court. However, the same was not covered under the definition of “Domestic Violence” as provided in the PWDV Act.
    13. Further the Ld. MM had gone wrong in holding that in none of the citations relied upon by the parties, it was held that merely because the spouses were living in different cities, they did not have the “domestic relationship” and further that as per the law laid down in the aforesaid judgments, when a person had moved out of the “shared household” to set up a separate house, then, said person could not be said to be the member of a shared household any longer.
    14. I find myself in agreement with the contentions and submissions of the Ld. Counsel appearing for the appellant that as per the admitted case of the parties, since the year 1997, they were not residing together. It is not even the case of the respondent herein that she had never moved out of her matrimonial home to permanently settle at a different place or that she had left any of her belongings at the house of the appellant herein so as to enable her to visit the appellant or to reside with him, for whatever duration of time, which was available to her, which categorically goes to show that actual and real intention of the respondent herein was to permanently move out of the house of the appellant herein and to settle separately.
    15. Further more, from the date of their separation in the year 1997, till date, neither of the parties had made any efforts for restitution of their conjugal rights or had demanded any of the articles/properties left out by either of them at the other’s places, which fact further categorically demonstrates that both of them had the intention to permanently settle down at separately places with no future plans to live together. Hence, once the respondent herein had been living separately from the appellant since the year 1997, the question of commission of any domestic violence upon her does not arise at all and once no domestic violence had been committed upon her by the appellant since the date of their separation, then, I am afraid to hold if she would ever qualify for being an “aggrieved person” , having a “shared household”, entitling to the reliefs sought by her in her complaint filed under section 12 PWDV Act before the court of Ld. MM.
    16. There cannot be any denial to the fact that the parties still continued to be legally wedded husband and wife and the appellant herein is legally duty bound to maintain his wife, if she is incapable to maintain herself. However, in any such situation, the remedy available to the respondent herein lies in some other civil or matrimonial court under the respective laws governing the parties. Therefore, I have no hesitation in holding that the respondent herein cannot claim such reliefs in this present proceedings under section 12 of PWDV Act.
    17. Although, the respondent herein had claimed before the Ld. Trial Court for issuance of directions to the appellant herein to hand over her the peaceful and vacant possession of the appropriate portion of the “shared house hold” which is H. No. B­40, Shanti Kunj, Church Road, near Hanuman Mandir, Delhi­110070. However, in her entire petition filed before the Ld. Trial Court, there is not even a single averment about her having ever lived at the aforesaid premises with the appellant herein at any point of time whatsoever and it is her own case that since after her marriage with the appellant, she had shifted from Mumbai to Delhi and they had lived together in a rented accommodation at Jor Bagh and then she had shifted to premises No. A­57, Defence Colony, New Delhi.
    18. In the light of my aforesaid observations and discussion, I am of the considered opinion that the Ld. MM had gone factually wrong in holding that despite there being an admitted case of the parties living separately, since the year 1997 still the evidence was required to arrive at the conclusion about their respective allegations and contentions. Therefore, the impugned order, as passed by the Ld. MM is not only factually erroneous but the same is also not in accordance with the settled legal propositions and principles, as churned out from the ratios of the citations of our Hon’ble High Court.
    19. As a net result of the above observations, the appeal stands allowed and the impugned order is set aside and the complaint filed u/s 12 of the PWDV Act by the respondent herein before the Ld. MM is held to be not maintainable in its present form and thus stands dismissed being not maintainable as filed.
    20. TCR, if any, be sent back to the Ld. Trial Court with a copy of this judgment.
    21. Appeal file be consigned to record room after compliance of all other necessary formalities, in this regard.

    announced in the
    open court on                                                    (LOKESH KUMAR SHARMA)
    20th May, 2016                                                 Additional Sessions Judge­04 & Spl. Judge (NDPS)
    South East, New Delhi