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
S/o Late Sh Ramjeedas Tuli
R/o B40, Shanti Kunj
Church Road, New Delhi110070 ………….Appellant
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
- 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.
- 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”).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.”
- 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:
- 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”.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- TCR, if any, be sent back to the Ld. Trial Court with a copy of this judgment.
- 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