Note : In this case one of the sons and the mother (jointly) fight against the other son / sons and a daughter in law to seek possession of an apartment in Delhi.
This DIL has won a DV case against the mother son Duo (this son is NOT her husband) and DIL is is seeking possession of property. This mother and son are refuting it.
During pendancy of cases the father in law or father of this son has died
There are claims and counter claims.
However in this case (as far as I see) the mother in law looses because (a) she has lost the DV case in the lower court (b) she is UNABLE to show clear rights property and (c) the son / male gets NO sympathy from the court !!
Most so called DV cacses stem from property matters and who gets what
Sick sad tale in India
IN THE COURT OF SH. DEEPAK GARG: ADDL. SESSIONS JUDGE
02 : NORTH WEST DISTRICT, ROHINI COURTS, DELHI
Criminal Appeal No. 97/18
1. Gautam Modi
S/o Sh. Parveen Chandra Modi
R/OA1/202B, LIG Flats
Lawrence Road, Keshavpuram
Delhi 110 035
2. Promila Modi
w/o Sh. Parveen Chandra Modi
R/OA1/202B, LIG Flats
Lawrence Road, Keshavpuram
Delhi 110 035
Ms. Ruhal Modi
w/o Sh. Harish Modi
R/OA1/202B, LIG Flats
Lawrence Road, Keshavpuram
Delhi 110 035 …. Respondent
Date of Institution in Sessions Court : 26/05/2018
Date when judgment reserved : 06/07/2018
Date when judgment pronounced : 16/07/2018
1. The present appeal u/s 29 of the Protection of Women from Domestic Violence Act has been filed on behalf of the appellants – Gautam Modi and his mother Ms. Promila Modi against the impugned order dated 27/04/2018 passed by the Ld. Trial Court in the case bearing Ex.No. 104/16, PS Keshav Puram titled as Ruhal Modi vs. Gautam Modi & Anr.
2. Brief facts necessary for the disposal of the present appeal are that complainant – Ms. Ruhal Modi (respondent herein) filed an application u/s 12 of the Protection of Women from Domestic Violence Act (Hereinafter referred as D.V. Act) before the Ld. Trial Court, wherein it has been stated that respondent no. 1 Gautam Modi (appellant herein) is her brother in law and respondent no. 2 Ms. Promila Modi is her mother in law and they have committed various acts of domestic violence against her. It is further stated that respondent no. 2 is having behavioural problems with extreme mood swings, which results in various problems in the family. It is stated that the respondent no. 1 was unemployed and became quarrelsome and he used to pick quarrels with family members and managed to get biased sympathy of his mother i.e. respondent no. 2 and he also used to extract money from the complainant and other family members. It is further stated that respondent no.1 has filed various complaints against his father, sister in law and brother in law in order to harass and pressurize them. It is stated that throughout this ordeal of the family members since the year 2009, the petitioner/complainant has been harassed, threatened and beaten by the respondent and when the petitioner/complainant protested, he threatened her with dire consequences and this resulted in filing of the petition u/s 12 of D.V. Act before the Ld. Trial Court, wherein the petitioner/complainant prayed for various reliefs as mentioned in the prayer clause therein.
3. The above said application was contested by the respondent. It was stated that it was the complainant who along with her other family members, was harassing and torturing the respondent and his mother. It was further stated that the said petition was a counterblast to the domestic violence case filed by the mother of the respondent i.e. respondent no. 2 against her husband i.e. the father of the respondent. The respondent denied that he was unemployed and quarrelsome or that he committed any act of domestic violence against the complainant. He stated that the property in question where all were living infact belonged to his mother and she wanted all, except the respondent, to vacate the property so that they could live peacefully.
4. After completion of pleadings the Ld. Trial court recorded evidence in the case. Complainant examined herself and did not examine any other witness. The respondent did not lead any evidence.
5. After trial, the said petition u/s 12 of D.V. Act has been disposed of by the Ld. Trial Court vide order dated 18/4/2016, whereby the respondent (appellant herein) was restrained from committing any further act of physical violence or mental torture/harassment/domestic violence against the petitioner/ complainant (respondent herein),her husband, children, her father in law, brother in law and sister in law. The respondent (appellant herein) was also restrained from entering or using the property bearing no. A1/202B, LIG Flat, Lawrence Road, Delhi where the petitioner/complainant is residing with her other family members, being continuous threat and danger to the person and property of the petitioner/complainant and her children. In case, even if father in law of the petitioner/complainant allows the respondent (appellant herein) to reside in his property, as per his wishes if any, the respondent (appellant herein) was restrained from entering the bedroom of the petitioner/complainant (respondent herein). The respondent (appellant herein) was further directed to remove the lock, if any on the room situated at the top floor of the shared household as it is hampering the peaceful enjoyment of the property by the petitioner/complainant and her children. The respondents have also been restrained from causing interference in the peaceful enjoyment of the property of her father in law by the petitioner/ complainant i.e. the shared household in which the petitioner/complainant is residing with her other family members. Further, the respondents have been directed to compensate the petitioner/complainant in the sum of Rs.10,000/ towards the physical, mental, emotional, verbal and economic abuse within three months from the date of order. The respondents have also been directed to make payment of litigation expenses of Rs.10,000/ each to the petitioner complainant within three months from the date of order.
6. The appellants herein were aggrieved with the order passed by Ld. Trial Court and hence they filed appeal but the same was dismissed by Ld. Sessions Court vide order dated 2/6/2017.
7. In order to get the order dated 18/4/2016 executed, the complainant Ruhal Modi (respondent herein) filed execution petition wherein execution no. 104/2016 before Ld. Trial Court in which Gautam Modi i.e. the appellant herein filed his objections. After hearing both the sides, Ld. Trial Court vide order dated 27/4/2018, dismissed the objections of the appellant and he is aggrieved with the said order of Ld. MM and hence the present appeal u/s 29 of the D.V. Act.
8. It is argued by ld. Counsel for the appellant/ JD that the order of Ld. Trial Court dated 27/4/2018, dismissing the objections of the appellant is bad in law and the same is liable to be set aside on following grounds:
(i) It is argued that mother of the appellant/JD and decree holder was the real owner of the property in question and she had paid the consideration amount in respect of the sale agreement dated 17/3/1988 but the father of the parties fraudulently got the conveyance deed executed from the DDA dated 15/11/2010 on the basis of the aforementioned sale agreement dated 17/3/1988 and the appellant / JD had already filed a suit challenging the said conveyance deed and the same is stated to be pending in the court of Ms. Divya Malhotra, Ld. Civil Judge, Rohini Courts, Delhi and till the time the said suit is decided, appellant has a right to live in the property in question;
(ii) It is further argued that Sh. Praveen Chand Modi, father of the appellant/JD and DH expired on 10/3/2017 and after his death there is change in circumstance because now the appellant/JD has become cosharer/Coparcener/Coowner in the property in question and hence in that capacity, he cannot be restrained from entering/using the property where the DH is residing with other family members;
(iii) That the DH is guilty of concealment of material facts because she has not mentioned in her execution petition about the gift deed dated 22/8/2012 by the father of the parties in favour of the other brothers of the appellant/JD. It is further stated that the said gift Deed dated 22/8/2012 is forged and fabricated document and no such gift deed was executed by the father of the parties in favour of the other brothers of appellant/JD and DH.
(iv) That Ld. trial court wrongly came to the conclusion that the household where the parties are living is a "shared household" within the meaning of DV Act. It is further argued that the property in question was in the name of father in law of respondent/DH and hence she could not have claimed even right of residence in the said property.
9. Per contra, Ld. Counsel for the respondent/DH has vehemently controverted the contention of Ld. Counsel for the appellant/JD. It is argued that the order of Ld. MM dated 27/4/2018 dismissing the objections of appellant/JD is perfectly correct in the eyes of law and the Ld. MM has correctly appreciated the contentions of both the sides and came to the right conclusion.
10. After hearing both the sides, at the outset, it may be said that the present appeal has no merit.
11. The first argument of Ld. Counsel for the appellant/JD about a suit being filed by him in civil court, Rohini, Delhi challenging the conveyance deed dated 15/11/2010 and during the pendencey of the said case, he has a right to reside in the property in question, has no merit. While deciding the case of domestic violence between the parties, Ld. Trial court had clearly came to the conclusion that DH had suffered physical , mental, emotional, verbal and economical abuse at the hands of the JD and Ld. Trial court rightly held that the relief granted to the DH against the JD was on account of the domestic abuse that she had suffered at his hands and this relief was independent of the title of the said property. It further rightly held that it was not within the jurisdiction of the said court hearing the petititon u/s 12 of the DV Act to decide the competing claims of the parties as to right and title to the shared household and the jurisdiction of the said court was limited to determining whether the petitioner who was living in a shared household in domestic relationship with the respondent had suffered domestic abuse at his /her hand and to grant relief to the petitioner accordingly. Hence, filing of the civil suit by the appellant/JD in the civil court challenging the conveyance deed dated 15/11/2010 would not come in the way of the trial court adjudicating the application of the decree holder claiming relief under DV Act.
12. On the same logic, the argument of Ld. Counsel for the appellant/JD that after the death of the father of the parties, there is change of circumstance and the appellant/JD being the coparcener /coowner cannot be restrained from enjoying the possession of the property, holds no water. It is contended by Ld. Counsel for the respondent/DH that the father of the parties during his life time gifted the said property to the other brothers vide gift deed dated 22/8/2012 and hence the appellant/JD has no right, title or interest in the property in question. This aspect is not to be decided by the trial court or by this court hearing the present appeal. There is merit in the contention of Ld. Counsel for the respondent/DH that if the appellant/JD claims ownership /Coparcenery rights/coownership /partition in the property in question, he has to file separate suit, if at all he is entitled to the same as per law. He has to take appropriate step for the redressal of his grievances but on this ground, the execution petition of the DH cannot be dismissed.
13. The argument of the Ld. Counsel for the appellant/JD about concealment of material fact on the part of respondent/DH has also no merit. The appellant/JD is denying the execution of gift deed dated 22/8/2012 by his father in favour of his other brothers in respect of property in question and in the circumstance, he cannot be heard saying that the respondent/DH had concealed material facts from the trial court by not disclosing about the said gift deed in the execution petition. The appellant/JD is blowing hot and cold at the same time which he cannot be allowed in the circumstance of the case. Moreover, the respondent DH had filed execution petition for seeking execution of the order dated 18/4/2016 and the appellant /JD has failed to show that in the circumstances of the case, it was necessary for her to mention about the gift deed in question in the execution petition.
14. By arguing that the daughter in law cannot claim any right of residence in the property of his father in law under the DV Act, Ld. counsel for appellant/JD is probably referring to an authority of Hon’ble Supreme Court titled as S.R. Batra and Anr. vs. Tarun Batra, Appeal (Civil) 5837 of 2006. In my view, this argument has also no merit. The said case of Batra (supra) is clearly distinguishable because in the said case daughter in law was claiming right of residence from his father in law in the property which was in the name of father in law but in the present case, respondent/DH has not filed application under DV Act and is not claiming any relief against her father in law but she claimed relief against the appellant/JD who is her brother in law. Hence the authority of Batra (Supra) has no applicability in the present case.
15. In view of the above, I am of the considered opinion that there is no illegality or infirmity in the impugned order dated 27/04/2018 passed by Ld. Trial court.
16. Accordingly, present appeal filed by the appellant has no merit and same is dismissed.
17. Copy of this order be sent to the Ld. MM for information and compliance. TCR be returned back.
File of this revision be consigned to Record Room.
Announced in the open court (Deepak Garg)
on dated 16th July, 2018 ASJII, NorthWest,
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist