No relief under DV if marriage itself is not proven !!! No proofs beyond wife’s bald statement ! Delhi district court judgement 

A woman turns up with some photographs (not marriage photos !! ) and claims that her neighbour is her husband !! She happily files a DV case and claims reliefs only to loose the whole case !! 

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IN THE COURT OF MS. VIJETA SINGH RAWAT: MM-03: (MAHILA COURT): SOUTH EAST DISTRICT: SAKET COURTS : NEW DELHI
CC- 364/1/15

Case ID No. 02406R0063962012

Ms. Kajal, W/o Sh. Vivek Choudhary, D/o Sh. Inder Kumar Makhija, R/o I-52, Top Floor, Lajpat Nagar, Part-II, New Delhi……. Complainant                    

Versus

Vivek Choudhary S/o Sh. Yadhuraj Singh R/o 129, Krishna Colony, Bharatpur, Rajasthan …… Respondent

Date of institution of case : 22.03.2012
Date of Reserving order : 21.04.2016

Date of Order : 08.07.2016

JUDGMENT
  1. The present complaint u/s. 12 of The Protection of Women from Domestic Violence Act, 2005 (herein after referred to as ‘the Act’) has been instituted on 22.03.2012 by Kajal (hereinafter referred to as ‘the complainant’) against Vivek Choudhary (Husband) (hereinafter referred to as ‘the respondent) seeking CC No. 364/1/15 Kajal vs. Vivek Choudhary PS: Lajpat Nagar Page No. 1 of 6 following reliefs :- (a)Protection order under section 18(a), (b), (e) and (f) of the Act. (b)Residence order u/s. 19(a), (b), (d) and (f) of the Act or rent of Rs. 5000/- per month. (c)Monetary relief u/s. 20 of the Act as under:- i.Rs.25,000/- per month as medical expenses. ii.Rs. 15,00,000/- for loss or removal of property, iii.Rs. 50,000/- towards mental and physical torture, iv.Rs. 50,000/- per month for maintenance, v.Rs.10,000/- per month for household expense. (d)Compensation under section 22 of the Act. (e)Litigation expense.

AVERMENTS

  2. The brief facts of the present case are that the complainant was married to the respondent on 10.05.2006 as per Hindu rites and rituals at Banke Bihariji Mandir, Vrindavan thereafter, her father spent Rs. 20,00,000/- and she was residing at 129, Krishna Colony, Bharatpur, Rajasthan for a month and then at 306, Sant Nagar, East of Kailash, New Delhi at house of sister of respondent. It is alleged that mother-in-law and father-in-law of the complainant repeatedly harassed the complainant for being over weight and therefore, not suitable for the respondent. Sister of respondent, Smt. Sonali Chaudhary also taunted her for bringing insufficient dowry and was joined by the mother-in-law. It is further the case of the complainant that husband of Smt. Sonali Chaudhary, Sh. Dharmender Chaudhary had evil eye upon the complainant and had molested her on various occasions. Further, that on 31.12.2007, brother-in-law Sh. Prashant Chaudhary had also physically assaulted the complainant and subsequently, as well she was beaten by the respondent and the family member for protesting against Prashant. It is alleged that between 2007 till 07.12.2011, the complainant has been beaten by the respondent many times. Since, 07.12.2011 when the respondent was at her parental home the respondent took certain jewelery and Rs. 30,000/- (forcibly) and abandoned the complainant. Thereafter, she went to the Bharatpur home where she was denied entry and subsequently, she filed a police complaint at PS Lajpat Nagar on 03.01.2012. It is alleged that the respondent earns Rs. 1,00,000/- from his transport business and is also having property for more than Rs. One Crore.

  3. Notice of the complaint was issued to the respondent vide order dated 23.04.2012.

  4. The respondent entered appearance by 02.04.2014. He filed a reply alongwith an application u/s. 340 Cr.PC.

  5. In the reply, the respondent, denied the factum of marriage and has averred that the complainant and the respondent never had a domestic relationship. Various grounds have been raised for creating doubts on the alleged marriage having taken place. It is merely stated that the respondent is a taxi driver and he and the complainant were tenants in the same property in different rooms and were therefore, acquainted with each other. It is stated that they never had a physical relationship. The respondent has averred that the complainant is the legally wedded wife of one Pradeep Karmakar and their matrimonial disputes are pending. It is also denied that the complainant needs maintenance and on the contrary is a certain that the complainant works at a call center and earns Rs. 60,000/- per month. All allegations of domestic violence were denied.

  6. In the rejoinder filed by the complainant, it is again asserted that parties are married and that they have resided together at top floor, Lajpat Nagar Part-II in property No. I-52.

  7. The respondent was proceeded ex-parte vide order dated 12.02.2015. Application to set aside the ex-parte proceedings was dismissed vide order dated 14.09.2015.

EVIDENCE

  8. Matter was then listed for evidence. By way of complainant evidence, the complainant examined herself as CW1. She has tendered affidavit Ex.CW1/A alongwith following documents :- i. Mark-A is bank statement of respondent for the period 28.02.2010 to 30.06.2011, ii. Mark-B photographs iii. Mark-C (colly.) rejoinder.

  9. The witness was not cross-examined. Complainant evidence was closed on 23.02.2016.

   10. Final arguments have been heard. This Court has thoughtfully considered the material on record and arguments advanced by both the parties.

ISSUES

  11. The issues which are required to be proved to entitle a relief under the Act are as under :- (a)Whether the complainant was having a domestic relationship  with the respondents in a shared household? (b)Whether the complainant was subjected to domestic violence by the respondents so as to qualify her to be an aggrieved person under the Act? Further, since, we are dealing with a quasi criminal proceeding, the proof test required is of preponderance of probabilities.

ISSUE A

  12. As per sec. 2(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 a joint family;”

  13. The primary burden to prove issue (A) was upon the complainant. The complainant has testified before this Court that she was married on 10.05.2006 at Vrindavan. However, the factum of marriage is disputed. As proof of marriage, the complainant has beyond her bald statement not adduced any documents. The photographs tendered (also not proved as per law) are not of the marriage. No witness to marriage has also been produced by the complainant to substantiate her claim. The premise of domestic relationship is marriage between the parties. In the considered view of this Court, the complainant has failed to prove her marriage with the respondent and consequently, the existence of domestic relationship from such marriage.

  14. Further, in the application u/s. 12 of the Act, complainant stated that she was residing at Sant Nagar. When the marriage came to be disputed, the complainant relied upon the tenant verification form, locker operation report and bank account statement to show that parties resided together as a couple at I- 52, Lajpat Nagar. However, the documents have not been proved as per law. In the considered view of this Court, the complainant has also not passed the test laid down in Indra Sarma vs. V.K.V. Sarma, SLP (Crl.) No. 4895 of 2012 date of decision 26.11.2013 to even show that relationship with respondent as “relationship in the nature of marriage”. Hence, the issue is decided against the complainant as she has failed to discharge the burden upon her.

ISSUE B

  15. No finding on the issue is being given in view of finding on issue A.

RELIEFS

  16. Since complainant has failed to prove its case all reliefs sought are declined.

  17. Application is accordingly dismissed. Copy of the judgment be given Dasti to the parties.

File be consigned to Record Room after due compliance.

(VIJETA SINGH RAWAT)

Announced in the open  Court on 08th July 2016) MM-03: (MAHILA COURT) SED:SAKET COURTS:NEW DELHI

                                                      08.07.2016

 

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