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
 

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