Wife who can neither prove husband’s income Nor his assets, gets just Rs.3500 per month after all the DV case, dance and drama. This husband is not even appeared for the DVcase
What is the guarantee he will turn up and pay the maintenance???? If the husband has no assets how will the wife clearthe areas of maintenance???
IN THE COURT OF MS.POOJA AGGARWAL: METROPOLITAN MAGISTRATE02: MAHILA COURT:SOUTH DISTRICT: SAKET COURT: NEW DELHI
CC No: 133/14 (03.07.2014)
Unique Case ID: 02406R0178692013
Jurisdiction of Police Station: Ambedkar Nagar
W/o Sh. Hari Kishan Gopal Dass,
D/o Sh. Balashwer Parchey,
R/o 2/385, Dakhachin Puri,
New Delhi. ………..Aggrieved
1. Sh. Hari Kishan Gopal Dass (Husband),
S/o Late Sh. Charan Das Azad,
R/o Jagpal, H.no.BS71, Sector 19,
Bara Mohalla, Palval, Haryana,
Also at: H.no. 3/377, Trilok Puri,
- Smt. Sakuntala Devi (Mother in law),
W/o Late Sh. Charan Dass Azad,
R/o 1/302, Trilok Puri,
- Smt. Chander Devi (Sister in law), (Not summoned)
W/o Sh. Rajender,
R/o Palikawas, Sarojni Nagar,
- Smt. Sagar (Sister in law), (Not summoned)
W/o Sh. Jas Pal,
PS Ambedkar Nagar Rekha v Hari Kishan Gopal Dass & Ors. Page 1 of 12
R/o Balmiki Bodar Mauhalla,
Kameti Nagar Parisad Ward No. 19,
- Smt. Sukuntala Devi (Sister in law), (Not summoned)
W/o Sh. Nanak,
R/o 1/302, Trilok Puri,
New Delhi110091. …………..Respondents
Date of Institution : 11.07.2013
Date of Arguments : 30.06.2016
Date of Judgment : 30.06.2016
EX PARTE JUDGMENT
1. By way of the present application under Section 12 of the Protection of Women From Domestic Violence Act, 2005, Smt. Rekha (hereinafter referred to as “the aggrieved”) has sought various reliefs against her husband, mother in law and sisters in law (hereinafter referred as “the respondents”) including a) Protection order under Section 18 of the Act seeking directions for prohibiting acts of domestic violence by granting an injunction against the respondents from repeating any of the acts mentioned in terms of column 4(a)/(b)/(c)/(d)/(e)and (f) of the application; Prohibiting any form of communication by the respondents with complainant; Prohibiting alienation of assets by the respondents and directing the respondents to stay away from the defendants/relatives any other persons of the aggrieved to prohibit violence against them. b) Residence Order under Section 19 of the Act seeking an order directing the respondent to pay the rent of the premises where the complainant is residing according to the status of the respondent; an order CC No: 133/1/14 restraining respondents from dispossessing or throwing the aggrieved from the shared household and entering that portion of the shared household in which she resides. c) Monetary reliefs under Section 20 of the Act: Rs.15,000/ towards food, clothes, medication and other basic necessities; Rs. 10,000/ towards medical expenses and Rs. 20,000/ towards any other loss or physical or mental injury as specified in clause 10(d) for the total amount of Rs. 45000/. d) Compensation Order under Section 22 of the Act
2. Vide order dated 15.07.2013 the summoning qua respondent no.3 to 5 was declined by the Ld Predecessor of this court and hence the present judgment shall be qua the respondent no.1 and 2 only.
3. As per the application of the aggrieved she got married to respondent no.1 on 04.11.2003 at 287/40, Pandara Park, NDMC, Quarters, New Delhi according to Hindu rites and ceremonies where she resided till 2010 but no child was born out of the wedlock for which she was taunted by the respondent no.2 ie the mother in law. The respondents started harassing and torturing her both physically and mentally after 5 months with respondent no.1 and 2 as well as their relatives taunting her and quarreling with her on petty issues. After retirement of mother in law, the aggrieved with respondent no.1 and 2 shifted from the government accommodation to the rented premises at Dakshin Puri, New Delhi where they resided for 2 years and thereafter the respondent alongwith the aggrieved went to H. No. 3/377, Trilokpuri, New Delhi.
4. In January, 2011, the respondent no.1 in collusion with respondent no. 2 and relatives took the entire jewellery of the aggrieved on the pretext of buying a house and in March 2013 when respondent came home late at night, upon enquiry by the aggrieved, he got angry, beat her and on 04.04.2013 also he beat her.
5. Respondent no.1, at the instance respondent no.2 and his sisters, picked up a quarrel with her, beat her, left the house and did not return and despite efforts for reconciliation, she was compelled to leave him. She lived alone in the matrimonial home for two years and the respondent no.1 paid rent for some time but did not return home and also did not provide for any expenses of the complainant nor performed his duties as a husband and she was financially supported by her parents. She was threatened to be killed by respondent no.1 if she dared to leave him.
6. The respondent no.1 earns at least Rs.15,000/ per month working as a driver but despite being bound to maintain the aggrieved as his legally wedded wife he is not giving any money to her forcing her to live at the mercy of his parents and brothers. She has no financial support without any source of income and has been deserted by respondent no.1 for the past 4 ½ years. Hence the present case.
7. Domestic Incident Report was duly called for and was filed by the Protection Officer on 05.03.2014. The respondent no.1 and 2 were served by way of publication on 24.2.2015 and 24.07.2015 but neither the respondents entered appearance nor filed any reply and hence were proceeded exparte vide order dated 26.02.2016.
8. To prove her case, the aggrieved led exparte complainant evidence and examined only herself to prove her case. As CW1, the aggrieved Smt. Rekha 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. copy of Adhar Card showing her present address (Ex.CW1/2), copy of her Election ID Card showing previous address (Ex.CW1/3), marriage photograph (Ex.CW1/4), copy of marriage card (Mark A), copy of complaint dt. 4.04.2013 given to PS Kalyan Puri (Mark B), copy of complaint before CAW Cell dt. 11.4.2013 (Mark C), copy of the FIR registered u/s. 498A at PS Ambedkar Nagar (Mark D).
9. 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.
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 respondent and was subjected to domestic violence by the respondents.
11. From the unrebutted testimony of CW1 in respect of her marrying respondent no.1 on 4.11.2003 as per Hindu Rites and ceremonies and that thereafter she was residing at 287/40, Pandara Prk, NDMC, Quarters, New Delhi with the respondents till 2010, shifted to Dakshinpuri and thereafter went with the respondent at Trilokpuri, the aggrieved has proved that she was living with the respondent no.1 as his wife and was living together with him in shared household / matrimonial home. Further, even in her Election I Card Ex.CW1/B the name of the husband is reflected as Hari Kishan i.e the respondent no.1 herein. The copy of the marriage card Mark A and the marriage photograph Ex.CW1/4 have gone unrebutted thereby proving existence of domestic relationship of the aggrieved with respondent no.1
12. As the respondent no.1 and 2 were proceeded exparte, they failed to defend their case and to lead any evidence in support of their defence. No rebuttal has come against the claims of the aggrieved. The oral testimony of CW1 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 no.1 and existence of shared household has been proved.
13. In respect of the infliction of the domestic violence, the oral testimony of the aggrieved as CW1 has gone unrebutted as despite opportunities the respondents for reasons best known to them 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 by the respondent no.1 are deemed to be admitted by the respondent no.1 as they have remained unchallenged and unrebutted. Further, no reason has been CC No: 133/1/14 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 no.1 has committed certain acts of physical as well as economic violence and thus she is entitled to claim reliefs under the Protection of Women From Domestic Violence Act, 2005 against the respondent no.1.
14. However, qua the respondent no.2 the aggrieved has testified that she used to taunt the aggrieved as baanjh as no child was born out of the wedlock. However this assertion has come for the first time during the evidence of the aggrieved and being an improvement does not inspire confidence. There is no other specific allegation against the respondent no.2 and in the absence of same, the aggrieved has not been able to prove infliction of domestic violence by the respondent no.2 and hence she is not entitled to any relief against the respondent no.2 under the PWDV Act.
15. Protection Order Under Section 18 of Protection of Women From Domestic Violence Act: From the unrebutted testimony of the aggrieved as CW1 it stands duly proved that she is residing separately from the respondent for the past 4 ½ years. 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 by any form of communication. SHO PS Ambedkar Nagar is directed to ensure compliance of the same.
16. Any default in compliance of this order shall entail a liability under Section 31 of Protection of Women From Domestic Violence Act.
17. 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.
18. Residence Order Under Section 19 of Protection of Women From Domestic Violence Act: The aggrieved has not led any evidence to prove the quantum of rent of the premises where she is residing as per the status of the respondent despite seeking directions against him for payment of the rent. She has also sought an order restraining the respondent from throwing her out from the shared household and from entering that portion of the household in which she is residing. She has not led any evidence to prove the portion of the shared household in which she is residing nor has she led any evidence to prove that the respondent no.1 had ever attempted or is likely to attempt to dispossess or throw her out from the shared household. Hence, no occasion arises to pass the residence orders as sought by the aggrieved.
19. The aggrieved has also sought alternate accommodation or rent for the same. This relief shall however be decided alongwith the monetary relief.
20. Monetary Relief Under Section 20 of Protection of Women From Domestic Violence Act: As per the income affidavit of the aggrieved she is aged about 38 years, without any educational or professional qualification, without any monthly income and with monthly expenditure of Rs 12,500/. She has not disclosed any person to be dependent upon her. Since legal aid has been provided to the aggrieved she has not disclosed any litigation charges. She has also disclosed one savings bank account with a balance of Rs 46614/ as on 10.08.2015. She has stated respondent no.1 to be a driver earning minimum Rs 15000/ per month but has denied any knowledge as to the assets and liabilities of the respondent no.1.
21. She has not disclosed any income but has claimed Rs.3500/ per month as expense towards household groceries/food etc., Rs.1000/ per month towards public transport, of Rs 5,000/ per month towards medical expenditure without any liabilities. She has disclosed cash in hand to be Rs. 500/ 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 except jewellery stated to be in the custody of the respondents. She has described the status of the family as lower middle class.
22. 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 CC No: 133/1/14 to which the aggrieved person is accustomed. In her application as well as testimony Ex CW1/1, the aggrieved has alleged that the respondent no.1 works as a driver for a private car. In her evidence Ex CW1/1, she has testified that he earns minimum Rs.15,000/ per month therefrom. However, no documentary evidence has been proved by her to prove the same. However, as the testimony has remained unrebutted, and no reason has been brought on record, to disbelieve the uncontroverted testimony of the aggrieved, thus, in the facts and circumstances of the case, as the respondent no.1 is not alleged to be differently abled he is assumed to be able bodied man, he is assumed to be skilled worker. As the aggrieved is the wife of the respondent without any means of sustaining herself, as also keeping in view that it is the legal duty of the respondent being the husband to maintain her, assuming the income of the respondent as per the Minimum Wages Act, to be not less than Rs.11,000/per month. Therefore, on the scale of balance of convenience, and in the absence of the respondent no.1 having brought on record that number of family members dependent upon him, it is presumed that only the aggrieved is dependent upon the respondent no.1 and thus I deem it fit to award a sum of Rs.3500/ per month to the aggrieved by the respondent no.1 towards her maintenance. 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 and it also includes all other ancillary and miscellaneous expenses. The amount shall be payable to the aggrieved from the date of filing of the petition till the aggrieved becomes disentitled for the same as per law.
23. Respondent no.1 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.
24. 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.
25. Compensation Under Section 22 of Protection of Women From Domestic Violence Act: The aggrieved has sought compensation but has not specified any quantum thereof nor has she produced any material on record to prove her entitlement to any amount under this head. 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. 3000/ to be paid by the respondent no.1 to the aggrieved.
26. No grounds exist for granting any other relief in favour of the aggrieved.
27. Application of the aggrieved under Section 12 of the Protection of CC No: 133/1/14 Women From Domestic Violence Act, 2005 is accordingly disposed off in the said terms.
28. Copy of this order be given dasti to the aggrieved and be also sent to the local service provider if any. As the respondent no.1 and 2 are exparte, a copy of this order be served upon them through the Protection Officer.
29. File be consigned to the record room after necessary compliance.
Pronounced in the open Court on 30.06.2016
Metropolitan Magistrate02(Mahila Court) Saket/New Delhi