Category Archives: fake tears and fake DV

Married woman can’t file S125, DV, 125 on second fella / lover boy !! Mumbai HC

A woman married to one Shamrao Bhopaji Ambhore files DV and CrPC 125 cases on another man by name Gautam Jairam Gawai claiming she was living together with the second fella and also begot two children. On appreciation of evidence, Family Court came to the conclusion that Ragini was not the legally wedded wife of Gautam Jairam Gawai (the second fella !!)  But the courts still award maintenance to that woman !!

The non-applicant (accused !!) fella goes on appeal to the Hon Bombay HC

The Hon Bombay HC appreciates the facts of the case and declares “…Needless to state that to attract the provisions of Domestic Violence Act, applicant must not only to show existence of live-in-relationship with the non-applicant which is akin to a marriage visible from the fact that applicant and non-applicant are living together as husband and wife but also should show that they are otherwise legally qualified to marry. A woman, who is married, cannot enter into a domestic relationship as contemplated under Section 2 (f) of the Domestic Violence Act, and even if, she is successful in establishing a long standing relationship with the man, she would not be entitled to protection under the provisions of the Domestic Violence Act. ….”

The maintenance ordered to the woman is completely dismissed !!

Since the parentage of the children is also NOT clear, the accused / second fella is fully absolved of liabilities

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

CRIMINAL APPLICATION [APL] NO.664 OF 2011

Gautam s/o Jairam Gavai,
Aged 47 years,
Occupation-Service,
R/o. Washim Bypass, Akola,
Tahsil and District-Akola. .. PETITIONER/
APPLICANT

.. Versus ..

1] Sau. Ragini alleged w/o Gautam,
Gavai, Aged – Major,
Occupation-Service,
R/o. Kamla Nagar, Washim
By pass Road, Akola,
Tahsil and District-Akola.

2] Vaibhav Gautam Gavai

3] Nipun Gautam Gavai
All resident of C/o. Raginin Gautam
Gavai, R/o. Kamla Nagar, Washim
By pass Road, Akola,
Tahsil and District-Akola. .. RESPONDENTS

……….
Shri Rahul Dhande, Advocate for petitioner/applicant,
Shri A. Malnas, Advocate for respondents.
……….

WITH
CRIMINAL APPLICATION [APL] NO.229 OF 2015

Gautam Jairam Gawai,
Aged about 46, Occupation-Service,
Resident at Shivar, Akola,
presently residing at Sidharth Wadi,
Bye-pass Road, Akola,
Old City, Akola. .. APPLICANT

.. Versus ..

1] Ragini Gautam Gawai w/o Shamrao
Ambhore, Aged about 34,
Occupation-Service,
Residing at Kamla Nagar,
Washim Bye Pass, Akola,
Tahsil and District-Akola,
Police Station Old City, Akola.

2] The State of Maharashtra, through
its District General Police, Akola. .. RESPONDENTS

ig ……….

Shri Rahul Dhande, Advocate for applicant,
Shri A. Malnas, Advocate holding for Shri A.J. Mirza, Advocate for respondent no.1,
Shri M.J. Khan, A.P.P. for respondent no.2.
……….

CORAM : KUM. INDIRA JAIN, J.

DATED : JANUARY 20, 2017.

ORAL JUDGMENT

1] By these applications under Section 482 of the Code of Criminal Procedure, applicant has assailed the judgment and order of the Family Court, Akola in Petition No.E-82/2010 passed on 21.10.2011, order dated 31.12.2014 passed by the Judicial Magistrate, First Class, Akola in Miscellaneous Criminal Case No.949/2010 and order dated 18.3.2015 passed by the Adhoc Additional Sessions Judge, Akola in Criminal Appeal No.11/2015.

2] Heard the learned counsel for the parties. Since common questions of facts and law arise in these two applications, they are disposed of by common judgment.

3] The facts giving rise to the applications may be stated, in brief, as under : Respondent no.1 claiming herself to be the wife of applicant, filed an application under Section 125 of the Code of Criminal Procedure before the Family Court, Akola. She pleaded that she was married to applicant Gautam Gawai on 11.5.1997. They have two sons Vaibhav and Nipun born out of the said wedlock. According to respondent Ragini, till Diwali 2009, they led happy married life. After Diwali-2009, quarrel between respondent and applicant started and applicant used to treat her as maid servant. He started harassing her and ultimately left the house, not to return forever. She made efforts to find out his whereabouts. She was not successful and so she informed about the same to the Superintendent of Police. According to respondent, both the children were studying in English Medium School. She was unable to maintain herself. She, therefore, claimed maintenance for herself and the children. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

4] Applicant appeared in the proceedings and contested the same. He denied marriage between him and respondent Ragini. According to applicant, he was married to Suvarna on 9.5.1990. The couple were blessed with three children. Marriage between applicant and Suvarna still subsists. Further submission is that respondent is a legally wedded wife of one Shamrao Bhopaji Ambhore and her marriage was solemnized on 01.03.1995 under the provisions of the Special Marriage Act. He contended that on false grounds, application for maintenance came to be filed and prayed to reject the same.

5] On appreciation of evidence, Family Court came to the conclusion that Ragini was not the legally wedded wife of Gautam Gawai. However, keeping in view the object of the provisions relating to maintenance, the learned Judge thought it appropriate to consider the prayer for maintenance under Section 26 of the Family Courts Act and awarded maintenance at the rate of Rs.1500/- per month to the applicant. It is this order which is the subject matter of Criminal Application No.664/2011.

6] In another proceeding, respondent presented an application under the provisions of the Protection of Women from Domestic Violence Act, 2005 (In short “Domestic Violence Act”) claiming relief of protection order, monetary relief and compensation. This application was presented almost on the same grounds on which an application under Section 125 of the Code of Criminal Procedure was filed by her. Considering the evidence, the learned Judicial Magistrate, First Class, partly allowed the application and granted maintenance at the rate of Rs.2000/- per month to the applicant under Section 20 of the Domestic Violence Act. The order was carried in appeal before the District Court, Akola. Applicant preferred an application seeking stay to the judgment and order passed in Misc. Criminal Case No.949/2010. Vide order dated 18.3.2015, the learned Adhoc Additional Sessions Judge, Akola allowed the application and stayed the impugned judgment, subject to condition of depositing 50% of the outstanding amount within one month from the date of order, with further condition that non-compliance of the same, would result into automatic end to the stay order. The order passed by the learned Judicial Magistrate, First Class and the order on Exh.5 passed by the learned Adhoc Additional Sessions Judge are the subject matter of Criminal Application No.229/2015.

7] Learned counsel Shri Dhande submits that marriage between applicant and respondent is in dispute. Family Court has categorically held that there was no legal marriage between applicant and respondent. He submits that respondent could not establish dissolution of marriage in accordance with the law and in such circumstances, respondent was not entitled for maintenance under Section 125 of the Code of Criminal Procedure.

8] Regarding protection under the Domestic Violence Act, learned counsel submitted that domestic relationship between applicant and respondent is not established and in the absence of proof of domestic relationship, respondent was not entitled to any protection under the provisions of the Domestic Violence Act. In support of the submissions, learned counsel placed reliance on the decisions of the Hon’ble Supreme Court in D. Velusamy .vs. D. Patchaiammal (2010 (10) SCC 469 and of this Court in the case of Shri Ambadas Gangadhar Shetye .vs. Malabai Ambadas Shetye and another (2013 BCI 535). Reliance is also placed on the judgment dated 27.1.2015 passed by this Court in Criminal Writ Petition No.773/2014. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

9] Per contra, learned counsel for respondent strongly supports the order impugned in both the applications. It is submitted that strict proof of legal marriage is not required in the proceeding under Section 125 of the Code of Criminal Procedure and so far as the protection under the Domestic Violence Act is concerned, this is an admitted fact that for a long long years, applicant and respondent resided together and they have two children out of the said relationship. The learned counsel submits that in such a situation no interference is required in extra-ordinary jurisdiction and prays to reject the applications.

10] With the assistance of the learned counsel for the parties, this court has gone through the reasons recorded by the learned Judge of the Family Court, learned Judicial Magistrate, First Class and the learned Adhoc Additional Sessions Judge. Needless to state that to attract the provisions of Domestic Violence Act, applicant must not only to show existence of live-in-relationship with the non-applicant which is akin to a marriage visible from the fact that applicant and non-applicant are living together as husband and wife but also should show that they are otherwise legally qualified to marry. A woman, who is married, cannot enter into a domestic relationship as contemplated under Section 2 (f) of the Domestic Violence Act, and even if, she is successful in establishing a long standing relationship with the man, she would not be entitled to protection under the provisions of the Domestic Violence Act. The cases referred by the learned counsel for applicant reiterate the well settled propositions of law in this regard.

11] In the case on hand, so far as the domestic relationship between applicant and respondent is concerned, applicant could not establish the same as required under Section 2 (f) of the Domestic Violence Act. Though she states that her previous marriage with Shamrao Ambhore was dissolved by a deed of dissolution, she could not prove the said deed of dissolution in accordance with the law. Once respondent admits her marriage with Shamrao Ambhore in the year 1995, it was for her to prove that after dissolution of the said marriage, she married to non-applicant or enter into domestic relationship with non-applicant. In the absence of proof regarding dissolution of first marriage of respondent Ragini, the courts below committed serious error in holding that she entered into domestic relationship with the non-applicant whose first marriage with Suvarna was also in existence on 11.5.1997.

12] As stated above, Family Court has held that Ragini was not the legally wedded wife of Gautam Gawai and proceeded to consider the application under Section 125 of the Code of Criminal Procedure under Section 26 of the Family Courts Act and awarded maintenance to her. The provisions of Section 26 of the Protection of Women from Domestic Violence Act, 2005 read thus – 26. Relief in other suits and legal proceedings :- (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. From the careful reading of the above said provisions, it is apparent that the court would not be empowered to grant the relief unless sought. In the present case, it appears that at the time of delivering judgment, the court suo motu considered the application under section 26 of the Domestic Violence Act thereby clearly deniying an opportunity to non- applicant to meet with the same. It was obligatory on the part of the Family Court to hear the non-applicant before awarding maintenance under Section 26 of the Domestic Violence Act. Since the Family Court failed for the same and since the applicant/present non-applicant failed to establish that she entered into domestic relationship or she was legally married to non-applicant, she was not entitled to relief of maintenance either under Section 125 of the Code of Criminal Procedure or under the provisions of the Domestic Violence Act.

13] So far as maintenance to minors is concerned, it can be seen from the municipal record that name of father of Vaibhav was initially shown as Sanjay and later on tried to be rectified as Gautam. Regarding Nipun, there is no convincing evidence to show that he was born to respondent from applicant. Exh.28 is considered as a letter by applicant to S.D.P.O. and reliance is placed on the admissions therein. On cursory look at Exh.28, it can be seen that on 1.1.2010, S.D.P.O. recorded statement of applicant in the course of enquiry. Applicant has not admitted the statement. In the absence of unequivocal admission on the part of applicant Gautam and for want of legal proof, reliance could not have been placed on contents of Exh.28 to fasten paternity of children on him.

14] In the above circumstances, this court finds that the case of the respondent is completely out of purview of the provisions of Section 125 of the Code of Criminal Procedure and the provisions of Domestic Violence Act. As impugned orders suffer from material legal infirmities, interference in extra-ordinary jurisdiction is warranted. Hence, the following order. (1) Criminal Application (APL) No.664/2011 is allowed The impugned order dated 21.10.2011 in Petition No.E.82/2010 passed by the Family Court, Akola is quashed and set aside. Rule is made absolute in the aforesaid terms. (2) Criminal Application (APL) No.229/2015 is allowed. Rule is made absolute in terms of prayer clauses (a)-(i), (ii) and (iii). No order as to costs.

(Kum. Indira Jain, J.)

Gulande, PA


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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wife getting 7 K p.m. u/s 24 HMA, tries DV in addition & COMPLETELY LOOSES ! Delhi MM court

Wife who is getting Rs 7000 p.m. as maintenance under sec 24 of HMA files a fake DV case where she is unable to proove Physical abuse or emotional abuse or economic abuse and completely loosed here case !!

=============================================

IN THE COURT OF Ms. BHAVNA KALIA: METROPOLITAN
MAGISTRATE: MAHILA COURT­ 01: SOUTH DISTRICT:
SAKET COURT: NEW DELHI

CC No: 92/1/11, 61/16

Jurisdiction of Police Station : Lodhi Colony

Silky Gulati
W/o Sh. Sandeep Gulati
D/o Sh. Ram Prakash Khurana
R/o H. NO. D­49, B.K. Dutt Colony, New Delhi ………Aggrieved

Versus

(i) Sandeep Gulati
S/o Sh. Amrit Lal Gulati

(ii) Amrit Lal Gulati
S/o Late Sh. Sunder Dass Gulati

(iii) Jyotsa Gulati
S/o Sh. Amrit Lal Gulati

(iv) Shakshi Gulati
D/o Sh. Amrit Lal Gulati

All R/o C­50, Gali No. 10,
New Govindpuri ……..Respondents

Date of filing : 10.03.2011
Date of arguments : 04.11.2016
Date of judgment : 19.11.2016

JUDGMENT

COMPLAINT:

  1. The aggrieved has filed an application u/s 12 of Protection of Woman From Domestic Violence Act, 2005 (hereinafter referred to as the Act). The aggrieved has prayed for the following reliefs.
  2. Protection order u/s 18 of the Act.

  3. Residence order u/s 19 of the Act.

  4. Monetory relief in the sum of Rs.55,000/­ u/s 20 of the Act.

  5. Monetory relief in the sum of Rs.30,000/­ per month (wrongly mentioned as Rs.25,000/­ as the total comes to Rs.30,000/­) u/s 20 of the Act.

  6. Compensation in the sum of Rs.1,00,000/­ u/s 22 of the Act.

  7. The aggrieved has asked for the above stated reliefs on the ground that domestic violence was inflicted upon her by the respondents. On the basis of the complaint summons were issued to all the respondents. It is the case of the aggrieved that she got legally married to respondent no.1, namely, respondent no. 1 on 16.02.2008. They had one girl child, namely, Priyanshi from the marriage who is in her care and custody and they both are residing at the aggrieved’s parental house. It is stated that in the marriage, parents of the aggrieved gave dowry as per their status to the respondents. Besides this valuable gold and silver jewelery was also given by the parents of the aggrieved to the respondents. The relatives of the aggrieved and respondent also gave gold and silver jewelery to the aggrieved. aggrieved stated that respondents kept all her istridhan illegally in her matrimonial house. She stated that after marriage she was brought to her matrimonial home where she and respondent no. 1 stayed as husband and wife. The attitude of the respondents was indifferent from the inception of marriage. respondent no. 1 would fight with her and shout at her on petty matters without any valid reason. All respondents misbehaved with her and maltreated her. She was taunted for bringing less dowry and was asked to bring more dowry from her parents. In July 2008, respondent no. 1 asked her to bring Rs. 2 lakhs from her parents and when the aggrieved refused to do so, she was beaten mercilessly by him with fists and blows and he also gave her a kick on her private part because of which she sustained a lot of pain. She said that after 6 months respondent no. 1 again asked her to bring Rs. 2 lakhs from her parents and when she complained to her in­laws, they supported respondent no. 1 and abused the aggrieved. They told her that respondent no. 1 was their only son and they were expecting more dowry in his marriage. She said that she was beaten by respondent no. 1 at instigation of other respondents. She told her parents about the same and her parents expressed their inability to meet the demand. She told the respondents about the inability of her parents, but they remained adamant and continued to harass and beat her. They tortured her both physically and mentally. She stated that when she was in the advanced stage of pregnancy, respondent no. 1 gave merciless beatings to her by fists and blows and after her delivery, she was again beaten by respondent no. 1 for not giving birth to a male child. She further said that respondent no. 1 had no love and affection towards her and their minor child and hence, in connivance with and at instigation of other respondents, he wanted to get rid of the aggrieved and do second marriage. She said that for this reason, respondent no. 1 also filed a case for divorce. aggrieved also filed a case before CAW Cell, Nanakpura on 23.11.2010, where respondent no. 1 agreed to take her back but till date he did not do so and later flatly refused to keep her as his wife. She said that respondent no. 1 did not pay any maintenance to her, for herself and the child. She was made to work like a maid whole day when she stayed with him. She tried to make him understand that he should care about her and their child’s welfare, but to no avail. She hoped that he would amend his attitude, but he did not do so. She submitted that her sister­in­law stole most of her costly belongings, but when she complained about the same to respondent no. 1, she was beaten mercilessly. She tolerated their behaviour for the sake of her marriage. She said that respondent no. 1 was a habitual drunk and under the influence of alcohol he would quarrel with her and beat her. She said that he spent his earnings on his drinking. On 8.10.2010 she was thrown out of her matrimonial house with her child with threats that till she got Rs. 2,00,000/­ she would not be allowed to reside with respondent no.

  8. Since then she has been residing on rent and is totally dependent upon her parents and other relatives for her day to day needs. She stated that respondent no. 1 has failed to maintain them even though he is working in a private company and earning about Rs. 70,000/­ per month. She said that she is unemployed. She has prayed for protection orders, residence orders, monetary relief, custody orders and compensation.

  9. Reply to the application was filed by the respondents. It is stated in the reply that the type of relief asked for by the aggrieved has not been specifically mentioned. It is further submitted that in the divorce case filed by the respondent no.1, aggrieved has stated that she wished to stay with him and did not want her articles back. It is further submitted that the present application is filed only to put pressure on the respondents and hence, must be dismissed. It is further submitted that respondent no. 1 Gulati has been disowned by his father. Respondent no. 1 has admitted that he got married with the aggrieved on 16.02.2008 and both of them have one girl child, namely, Priyanshi. However, respondent has stated that it was the aggrieved who left her matrimonial house with her father and took the child with her alongwith all her istridhan. He has stated that because of cruelty suffered by him, he has already filed a divorce petition under HMA before the court of Ld. ADJ, Karkardooma Courts. He has denied demanding any dowry from the aggrieved. He has stated that the amount spent by the parents of the aggrieved on the marriage was as per their desire. He stated that even after the marriage, he did not demand for any dowry. He has stated that it was the aggrieved, who started misbehaving with him, which was proved before the CAW Cell and the concerned police officer advised him to file for divorce. Keeping in view all the circumstances, parents of respondent no. 1 disowned him by giving intimation to the concerned police authorities and also by way of publication. Respondent no. 1 stated that aggrieved used to quarrel with him and use filthy language and also used to shout at him. It is stated that her behaviour became intolerable for the respondents and also their neighbours to bear. He further stated that the word ‘brother­in­law’ used in para 5 is incorrect as respondent no. 1 does not have any brother. He stated that it is impossible to accept that on the first day of marriage, he and his parents quarreled with the aggrieved and passed wrong comments against her. He has denied that respondents demanded Rs. 2 lakhs from the aggrieved for which aggrieved has not filed any proof. It is submitted that nature of respondents is not such that they would demand any dowry and the allegations are made by the aggrieved only to defame them. Respondents have denied that they beat or tortured the aggrieved as it was not in their character to do so. It is further stated that there is no truth in the statement that respondents were unhappy on the birth of a female child. In fact, respondents stated that for them the birth of female child is considered as coming of Goddess Laxmi. He has stated that the allegations that he wanted to do a second marriage is false. Respondent no. 1 has stated that regular rudeness, habit of abusing the elders, raising hands on him and pushing his parents was the regular habit of the aggrieved for which she was asked to improve herself many times, but she did not improve. It is further submitted that complaint filed with CAW Cell reveals that no incident took place and the IO of the case had advised the aggrieved to improve. It is stated that Rs. 1500/­ to Rs. 2000/­ were being paid to the aggrieved as pocket money which has not been mentioned by the aggrieved. Respondent no. 1 has stated that from the very beginning aggrieved was not interested in marrying him. He stated that as soon as the parties came out of the CAW Cell, aggrieved abused respondents and hence, it was impossible for him to take her back to the matrimonial house. Respondent no. 1 had denied that the aggrieved was treated as a maid. Rather, he has stated, that she was given all the respect and honour which was beyond the expectations of her parents also. Respondent stated that aggrieved was never ready to amend her behaviour. It is denied that respondent Shakshi Gulati stole the articles of the aggrieved or that the aggrieved was beaten mercilessly. It is stated that no FIR was filed for the same. Respondent no. 1 has stated that brother of aggrieved also threatened him on the phone that he had the power to get him killed. Respondent stated that aggrieved and her brother used to visit his office often just to create an atmosphere so that he may be removed from service. Respondent no. 1 had stated that he has never consumed alcohol. It is further stated that one letter dated 08.10.2010 written by the aggrieved is self explanatory as to the fact that the aggrieved left her matrimonial home at her will. It is further stated that the aggrieved has mentioned in para no. (i) that she is residing with her parents, but in para XIX she has stated that she is residing on rent. No rent receipt has been filed. It is further stated that address provided by the aggrieved is of her parents which implies that she stays with her parents. Respondent no. 1 has stated that he loves his daughter a lot and has requested aggrieved to allow him to see her, but she has declined. Respondent denied that he draws salary in the sum of Rs. 70,000/­ per month. He has stated that aggrieved is also qualified and working in a private firm of her relative and earning good salary. It is stated that aggrieved is not entitled to any reliefs under the Act.

COMPLAINANT’S EVIDENCE

  1. In her affidavit Ex.CW1, aggrieved has reiterated the contents of the complaint. She has further filed list of dowry articles as Ex.CW1/A. She has filed one copy of complaint filed with CAW Cell, Nanak Pura as Ex.CW1/B. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

During her cross examination, she stated that she had not filed any bills with regard to the articles which were given by her father in the marriage. She has further stated that no jewelery bills have been filed. She has further stated that she has not mentioned the name of any person in whose presence she was beaten or the date on which she was beaten. She has further stated that she has not filed any proof of the same. She has stated that she did not know of any brother­in­law about whom she has mentioned in the affidavit. She stated that even though she is a graduate, she is weak in English language. She has denied the suggestion that because of this reason, name and date of persons who had beaten her up, were not mentioned in her affidavit. She has stated that it was her who had stated the contents of the affidavit to her counsel. She further could not tell as to who had beaten or harassed her for bringing insufficient dowry, on the first day of her marriage. She further said that on the very next day of her marriage, respondent no. 1, 2 and 3 started taunting her and harassing her by saying that her father had not given a Sofa in marriage. She said that the Sofa was given later in the marriage. She admitted that the said fact is not mentioned in her affidavit. She did not file any complaint with regard to the items allegedly stolen by her sister­in­law (respondent no. 4) nor has she filed any list with the court. She said that the items stolen by respondent no. 4 in the month of January/February 2009, were lying in the locker of her Almira the keys of which used to be with her husband. She said that the entire jewelery received by her in the wedding was in that locker. She denied the suggestion that she was not treated like a maid or that she did not do the entire household work. She admitted that she had never seen her husband drink alcohol, but she had seen him several times in drunk condition when he returned home. She could not remember any date when he had done so. She said that she had never complained to her in laws regarding the same. She admitted that she had not mentioned in her complaint given at PS Lodhi Road and PS Jagatpuri that her husband used to drink. She has further admitted that she did not write in these complaints about the beatings given to her for demand of Sofa by respondents. She said that the respondent no. 1 used to spend his entire income on alcohol as he used to say that himself. She was given Rs. 1500/­ per month for running the house. She said that she used the amount for taking care of herself and her daughter. Other expenses were borne by father of respondent as it was a joint family. She admitted that her father­in­law retired much before her marriage. She said that she was told by her husband that the expenses were borne by his father, but she did not verify the same. She said that she did not know whether these facts are mentioned in her affidavit or not. She said that her husband and father­in­law demanded Rs. 2 lakhs from her in July 2008, but she did not remember the exact date. She further had no proof that she was thrown out of the matrimonial house on 08.10.2010. She again said that complaint had been filed at PS Jagatpuri, but the said fact was not mentioned in it. She said that she did not file any rent receipt or gave address of premises on which she was residing as tenant. She said that she had not filed any receipt of the play school in which her daughter is going. She did not remember the exact salary of respondent no. 1. She said that she did not take her daughter to any doctor after the incident of throwing of her daughter as mentioned in Ex.CW1/B. She did not know of any girl whom her husband wished to marry. She said that she was not working prior to her marriage, but she had got one FD on 07.08.2013 amounting to Rs. 1.5 lakhs in her name. She denied the suggestion that she used to assist her father in his business and got income for herself. She denied the suggestion that she is working even today. She said that it is mentioned in her complaint that she was going to her parent’s house on her own with her father. She admitted that she returned to her parental home on 08.10.2010 with her father. She said that by sexual violence, she meant that her husband used to force sexual activities upon her. She did not remember the date when motorcycle was demanded from her. She said that Rs. 2 lakhs were again demanded, but she did not remember the date, time or the year. She admitted that on 0810.2010, she called the police and on the same day went to her parent’s house with her father. She admitted that she had not filed any bills with regard to Ex.CW1/A. She admitted that when she was pregnant, she was beaten by respondents, but she did not file any complaint. She admitted that respondents had agreed before CAW Cell that they would take her back to the matrimonial home, but she denied the suggestion that she objected to the same. She said that her husband used to drink often, but not regularly. She denied the suggestion that she herself was non­ cooperating, both at Delhi and Lucknow. She denied the suggestion that at Lucknow her neighbor met her for keeping good behaviour with respondent. She denied the suggestion that she left her Lucknow matrimonial home and returned to Delhi without informing anyone. She said that she came with her husband. She admitted that she had told her husband that she wished to stay in Delhi and not Lucknow. She admitted that she came to Delhi from Lucknow 2­3 days before 08.10.2010.

No other witness was examined in CE.

RESPONDENT’S EVIDENCE

  1. One witness i.e respondent himself was examined in RE. He tendered his evidence by way of affidavit Ex.RW1/A and relied on copy of letter dated 23.11.2010 (Mark A), copy of istridhan articles of aggrieved (Mark B), Copy of letter dated 08.10.2010 written by aggrieved (Mark C).
  • RW 1 has reiterated the contents of his WS in his affidavit Ex.RW1/A. In addition, he has stated that aggrieved left the matrimonial home with their daughter. It is stated that she went with her father on her own and took all her articles with her. It is further submitted that because of her cruelty, respondent no. 1 had filed divorce petition. It is further submitted that no demand for dowry was ever raised from the aggrieved or her parents as the same was against law. The amount spent on the marriage was as per the desires of aggrieved and her parents. He stated that the aggrieved regularly quarreled with him and used filthy language. He stated that she shouted on him and his parents and this behaviour was regular on part of the aggrieved. Respondent no. 1 stated that the present case has been filed only to defame him and his family. He has stated that there was no reason for him to demand Rs.2 lakhs from the aggrieved. Aggrieved has not filed any proof for the said demand. He stated that the allegations on him that he beat the aggrieved with fists and blows and also gave her a kick are false. Rather, he stated that it was the aggrieved who used to behave like this. He has stated that no proof has been filed by the aggrieved for the same. He stated that he never intended to go for a second marriage and because of the continued misbehaviour of the aggrieved he was forced to file a divorce petition. Certain documents are filed by respondent no. 1, but the same are photocopies and cannot be read in evidence. He said that from the very beginning aggrieved was not interested in marrying him and thus, not interested in living with him.

  • During his cross examination, he stated that since aggrieved left the matrimonial house in October 2010, she had been staying with her parents. He said that he had never beaten or harassed the aggrieved after marriage and he never demanded Rs. 2 lakhs from her. He said that it was not his family’s habit. He said that aggrieved left the matrimonial home on her own by giving in writing to police authorities that she was leaving her matrimonial home with her father. He said that there was only one complaint filed with CAW Cell, which was withdrawn by the aggrieved subsequently. He said that the complaint filed at PS Lodhi Colony was sent back after reconciliation. He further stated that he had filed a divorce petition in Karkardooma Courts on the ground of cruelty and misbehaviour. He denied the suggestion that because he wanted to remarry, he had filed the divorce petition. He denied the suggestion that because he wanted to remarry, he had harassed and beaten the aggrieved.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    LEGAL PROVISIONS TO BE SEEN:

    1. In order to claim any Relief under the Act, it is imperative for the aggrieved person to show that she shared a domestic relationship with the respondent and she was subjected to domestic violence during the said period.
  • As per the Act, domestic relationship which is defined in section 2(f) 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.

  • As per section 2(s) of the said Act, shared household means a household where the person aggrieved lives or has at any time lived in a domestic relationship with the respondents. Shared household means a house belonging to or taken on rent by the husband or the house which belongs to joint family of which husband is a member 1.

  • In the definition of domestic violence u/s 3 of the Act, it is stated that there must be an act, omission or commission or conduct of respondents 1 Neha Jain & anr. v. Gunmala Devi & Anr. RSA 282/2015 decided on 30.7.2015 which amounts to domestic violence. To constitute Domestic Violence, the conduct of the respondents should be such as to imply that the aggrieved was harassed or tortured by the said act. It is stated u/s 3 (a) of the Act, that there must be harm or injury or endangering the health, safety, life, limb or well being, whether mental or physical of the aggrieved, to cause physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. Section 3 (b) provides that domestic violence shall also be committed if the respondent harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for dowry. Section 3 (c) of the Act provides that conduct mentioned in clause (a) and clause (b), if, has the effect of threatening to the aggrieved or any person related to her, may amount to domestic violence. Section 3 (d) of the Act, provides that to constitute domestic violence, there may be physical or mental injury or harm caused to the aggrieved person. In the explanation to Section 3 physical abuse, sexual abuse, verbal and emotional abuse and economic abuse have been defined.

  • Domestic violence is defined in section 3 of the Act as any act or omission on part of the respondent which causes physical, sexual, verbal, emotional and economic abuse to the aggrieved or an act or omission which harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security or an act which threatens or which causes physical or mental harm to the aggrieved.

  • ANALYSIS OF SUBMISSIONS IN VIEW OF THE LEGAL PROVISIONS:

    1. PWDV Act contemplates Domestic violence in the nature of harassment for dowry demand or physical abuse or verbal or emotional abuse or sexual abuse or economic abuse or all of these including threatening.
  • In order to see whether domestic violence was inflicted upon the aggrieved, it is important to see whether she was abused in any way as stated in the Act, and the same would be clear from her complaint and evidence of parties. The abuses are dealt with separately as under:

  • (i) Harassment for dowry demand: In the complaint aggrieved has stated that she was harassed again and again to get Rs. 2 lakhs from her parents. During her cross examination, she stated that she could not file any bills with regard to any articles given by her father in marriage. She stated that she had mentioned the name of the person and the date on which the dowry was demanded from her. On perusal of her affidavit, she had stated that she was harassed by her in laws for bringing less dowry. Then she had stated that respondents fought with her and shouted on her on petty matters without any reason. She had stated that in July 2008, respondent no. 1 asked her to bring 2 lakh from her parents, but when she objected, she was beaten. Then after six months respondent no. 1 again demanded Rs. 2 lakhs. When she again refused, she stated that she was abused by all the respondents saying that respondent no. 1 was their only son and they were expecting much more dowry. When she told her parents about the same, they expressed their inability to fulfill the demand. She has further stated that respondent no. 1 was a habitual drunk and neglected to maintain her and respondent no. 2 and 3 used to exert pressure upon her to bring Rs. 2 lakhs cash. During her cross examination, she has stated that on her next day of marriage, she was taunted by respondent no. 2 and 3 for not bringing a Sofa in the wedding. No demand of Sofa is mentioned in the complaint and the same appears to be an after thought. She admitted that she had not seen her husband drinking alcohol, but she said that she had seen him in drunk condition. She said that dowry was demanded in July 2008, but she could not remember the exact date. She said that when the second time Rs. 2 lakh were demanded, she could not remember the date, time and year. However, respondent in his affidavit has stated that no dowry was demanded from the aggrieved as it was not in his nature to do so. He has further stated that no explanation has been given by the aggrieved as to why the dowry was demanded. He has further stated that the allegations are vague. Respondent in his cross examination has stated that he never demanded Rs. 2 lakhs from the aggrieved. There has been no further cross examination of the respondent on this point. Thus, this fact stands admitted that there was no demand for dowry and hence, proved. Further considering that the allegations with regard to beatings and harassment are also vague,it cannot be said that the aggrieved was ever harassed for dowry. Allegations of dowry demand are serious in nature and without proper proof, it cannot be said that respondent no. 1 demanded dowry from aggrieved. The allegations od dowry demand and harassment are vague. Aggrieved could not state as to who demanded dowry from her, when the same was demanded and why wasit demanded. Two demands of Rs. 2 lakhs have been stated, but they are six months apart. It cannot be said that she was harassed or tortured for dowry.

    (ii) Physical abuse: It means any act or conduct which is of such a nature as to cause bodily harm to the aggrieved person and includes assault, criminal intimidation and criminal force. In the present case, even though the aggrieved has stated that she was beaten by the respondent, but the bodily harm that might have been caused to her has not been proved. It was on the aggrieved to prove that she received physical injuries because of conduct of respondent but she has not been able to prove even one injury. She could not tell the names of persons in whose presence she was beaten nor when she was beaten. She herself admitted in her cross examination that she had not filed any proof of the same. She could not tell as to who had beaten or harassed her for bringing insufficient dowry, on the first day of her marriage. It is hard to believe that if a person was beaten on the first day of marriage, she would not remember who did it, unless it was someone she did not know. Thus, aggrieved has not been able to prove physical abuse.

    (iii) Verbal and Emotional abuse: It includes insults, ridicule, humiliation, name calling or insults or ridicule specially with regard to not having a child or a male child. In her complaint, aggrieved has stated that after the delivery of her child, she was beaten by respondent no. 1 mercilessly for not bearing a male child. It is further stated that respondent no. 1 had no love and affection towards the minor child as he was unhappy as the child was a girl and not a boy. She has stated the same in her affidavit. It is further submitted by the aggrieved that respondent did not give any maintenance for the child. It is submitted by the respondent in his reply that birth of a female child for him, was like coming of Goddess Laxmi. He has further submitted in his evidence that he used to give Rs.1500/­ to Rs. 2000/­ for maintenance of his wife and daughter, which has been admitted by the aggrieved in her cross examination. Further the aggrieved had not stated as to when after the delivery of her child was she beaten by respondent no. 1 and if she was beaten mercilessly why did she not get herself medically examined. Also she had stated that she was beaten by respondent no. 1 for not bearing a male child, but it is not stated that respondent told her so that he did not want a made child. However, since she has not been cross examined on this point, it appears that the respondent admitted the same. However, respondent has stated in his affidavit that he considered the birth of a daughter as coming of Goddess Laxmi and he also used to give maintenance for maintaining his wife and daughter. He has not been cross examined on this point and thus, this fact stands admitted. Considering that there are two contradictory facts which stand admitted, other evidence has to be seen to examine whether the respondent no. 1 actually harassed the aggrieved for not bearing a male child. The aggrieved and respondent both have admitted that respondent no. 1 gave maintenance for the girl child, hence, it cannot be said that he was against the birth of the girl child. On preponderance of probabilities, this fact weighs in favour of respondent no. 1.

    (iv) Sexual abuse: It includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman. In the present case, there are no such allegations. In her complaint, aggrieved has not made any allegations with regard to sexual abuse. No complaint has been made in her affidavit with regard to sexual abuse. Only in para 28 of her affidavit, she has written that respondent no. 1 may be directed not to repeat violence (physical, mental and sexual). Aggrieved has stated in her cross examination that by sexual violence, she meant that her husband used to force sexual activities upon her. Considering that there are no allegations whatsoever of sexual abuse, one statement of the aggrieved in her cross examination that her husband used to force sexual activities upon her is not relevant.

    (v) Economic abuse: Economic abuse means deprivation of economic or financial resources to which aggrieved is entitled. It is admitted fact that respondent no. 1 used to pay maintenance to her and their daughter and he did not deprive her of any financial resources. Further it is admitted fact that she left her matrimonial home on her own, thus it cannot be said she was deprived by the respondents of the financial resources. Further from the order of this court dated 21.05.2012, it is clear that u/s 24 HMA, aggrieved is already getting maintenance @ Rs. 7000/­ per month from the respondent no. 1 and she does not have any right to claim additional maintenance under the Act. However, in her affidavit, she has stated that respondent no. 1 did not care about her and neglected to pay any amount towards her and her child’s maintenance. This statement is false considering that u/s 24 HMA, aggrieved has already been granted maintenance. Also while the parties were in domestic relationship, admittedly respondent no.1 was giving Rs. 1500/­ to Rs. 2000/­ to her as pocket money and other respondents were maintaining the household expenses. Thus, there appears to be no economic abuse.

    (vi) Threatening the aggrieved with regard to above stated abuses: There are no allegations with regard to any threats.

    (vii) Physical or mental harm: It means any injury or harm, whether mental or physical, caused to the aggrieved person. No medical has been filed by the aggrieved to show any physical harm suffered by her. As far as mental harm/injury is concerned, it appears that she was mentally disturbed by the fact that respondents allegedly were demanding dowry and that she got the impression that respondent no. 1 wanted to remarry. Respondent no. 1 has categorically stated that he never wanted to remarry and he had filed for divorce only because he was tired of the misbehaviour of the aggrieved. Considering that there was no dowry demand, no harassment and no physical abuse suffered by the aggrieved, it cannot be said that she suffered any mental harm or injury. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    1. From the entire evidence on record, allegations of the aggrieved have not been proved. They are vague in nature and sufficient proof has not been brought on record. On the other hand, respondent no. 1 has filed his affidavit completely denying the allegations of the aggrieved and he has not been cross examined on those points. It is clear from the evidence that the aggrieved left her matrimonial home with her father at her own will and she was not thrown out. She has herself stated that she came from Lucknow and after 2­3 days let her matrimonial home. No explanation is given by her. It appears that when she came from Lucknow, she had made up her mind that she would leave her matrimonial home. Further respondent in his cross examination stated that she left the matrimonial house and gave in writing to the police authorities that she was leaving her matrimonial home with her father. Respondent has not been cross examined on this point. Aggrieved has stated at one place that she was living on rent, but at other place, she has stated that she is living with her parents. Contradictory statements make her testimony unreliable. Respondent no. 1 has further stated that there was only one complaint in CAW Cell which was withdrawn by the aggrieved, but aggrieved has stated in her affidavit that he had agreed to take her back, but later flatly refused to do so. Respondent in reply stated that it was the aggrieved, who started misbehaving with him, which was proved before the CAW Cell and the concerned police officer advised him to file for divorce. He further stated in his cross examination that one complaint was also filed at PS Lodhi Colony, but he same was not lodged and aggrieved was sent back after conciliation. Aggrieved has also stated that her sister­in­law stole her articles from her Almirah, but she has stated that keys of the Almirah were with her husband. It appears that she has made unncessary/baseless allegations against her sister­in­law just to drag her in the present matter. No FIR/complaint was filed for loss of articles. No reason is given as to why she suspencted her sister in law. It is evident that aggrieved has made false allegations against her sister in law.
  • In view of the above analysis of submissions, on preponderance of probabilities, it cannot be said that respondents committed domestic violence upon the aggrieved. Hence, her complaint u/s 12 PWDV Act is dismissed. No relief as contemplated under the Act is allowed to the aggrieved.

  • In view of the above observations the present application u/s 12 PWDV Act is disposed of.

  • Pronounced in open court
    (BHAVNA KALIA) on 19.11.2016
    M.M./(Mahila Court)­01/South District New Delhi

    How a DV case on husband & SEVEN more is sent back by Allah.HC ! No DV against females & ppl NOT in dom. relation

    Section 2(q) of DV Act : “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person..” .

    “…Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. ..”

    “It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court……”

    #DV_case #DVCase_on_eight_ppl !! #WhyNotOneDozen !! ?? #FakeDV #fakeDVisMoolah

    ======================================

    HIGH COURT OF JUDICATURE AT ALLAHABAD

    Court No. – 48

    Case :- APPLICATION U/S 482 No. – 19953 of 2016

    Applicant :- Mohd. Alam @ Raja And 7 Ors

    Opposite Party :- State Of U.P. And Another

    Counsel for Applicant :- Ved Prakash Pandey

    Counsel for Opposite Party :- G.A.

    Hon’ble Pramod Kumar Srivastava,J.

    Heard learned counsel for the applicants, learned AGA and perused the records.

    The proceedings of Complaint Case No. 339/2014, Sections 18/12, 20, 21, 23 and 31 of Protection of Women from Domestic Violence Act? has been challenged.

    Under these provisions, aggrieved person may be women or child under the age of 18 years. Applicants of said complaint case is wife and his three years’ son. The proceeding under said Act can be carried out against the ‘respondent’. The definition of ‘respondent’ is given in Section 2 (q) of said Act is as under:- “Section 2(q)-, “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    Thus respondent, against whom proceeding should proceed, must be adult male person, who is or has been in domestic relationship with aggrieved person. In present matter, applicants 3, 4, 5, 6 and 7 (who are opposite parties no. 2 to 7 of original case) are ladies. It is directed that trial court shall consider this point before proceeding before these ladies-applicants/accused. It was pointed out that applicant no. 8/OP No.- 8 Zahid resides in different district Moradabad and has never been in domestic relationship with applicants of the case. Before proceeding against him and other accused, the propriety of carrying out proceedings in light of above mentioned provisions will be considered by trial court.

    With these observations, this application is disposed of.

    Order Date :- 11.7.2016

    SR


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    Woman looses Fake DV filed 18 years after separation targetting Delhi house ! Delhi Sessions !

    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

    Neville Tuli
    S/o Late Sh Ramjeedas Tuli
    R/o B­40, Shanti Kunj
    Church Road, New Delhi­110070 ………….Appellant

    Vs.

    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

    1. 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.
    2. 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”).
    3. 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
    8. 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.”
    9. 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:
    10. 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”.
    11. 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.
    12. 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.
    13. 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.
    14. 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.
    15. 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.
    16. 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.
    17. 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.
    18. 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.
    19. 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.
    20. TCR, if any, be sent back to the Ld. Trial Court with a copy of this judgment.
    21. 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

    DV filing wife gets just Rs 5000 for 3 kids in spite of appeal @ sessions !!

    Many women think DV act means money, means moolah and they will get what they ask for. The reality is far from that. There are umpteen cases where the woman get next to nothing, especially when the husband is working in the un-organised sector !! Ultimately such women end up paying more lawyer’s fee than anything else !

    It is also possible that some of these women have come up with exaggerated claims and so are unable to prove things in court !

    Here is a case where a woman files DV and gets just 5000 p.m. for 3 kids. Husband seems to be in the unorganised sector and wife has NO proof of what she claims as his income !!


    IN THE COURT OF MS. SHAIL JAIN
    ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02
    (CENTRAL) DELHI

    Crl. A NO. 47/15

    Smt Kusum Kataria
    w/o Sh Manish Kataria
    r/o 3517/B, Block ­93­B
    First Floor, Sant Nagar,
    Burari, Delhi. ……..APPELLANT

    versus

    1. Mr Manish Kataria
      s/o Sh Khem Chand Kataria
    2. Sh Khem Chand Kataria

    3. Smt Krishna Kataria
      w/o Sh Khem Chand Kataria

    4. Kapil Kataria
      s/o Sh Khem Chand Kataria

    all resident of 3517/B, Block 93­B
    Sant Nagar, Burari
    Delhi.  …….RESPONDENT

    DATE OF INSTITUTION :04/07/2015
    DATE OF JUDGMENT :16/05/2016

    J U D G M E N T

    1. The present criminal appeal u/s 29 of D V Act has been filed by the present appellant against the order dated 05/05/15 passed by Ms Mona T. Kerketta, Ld MM, Central District, Delhi whereby the Ld Trial Court has directed the respondent no. 1 to pay a composite sum of Rs.5,000/­ per month as interim maintenance to the children of the parties from the date of filing of the petition. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
    2. Brief facts leading to the present appeal as stated by appellant are that marriage between appellant & respondent no. 1 was solemnized on 21/02/2002 according to Hindu rites and ceremonies. Three children were born out of this wed lock. It is stated by the appellant that after few days of marriage, respondent no, 1 along with his family members started treating the appellant with cruelty. The appellant filed a petition u/s 12 of Domestic Violence Act along with an application u/s 23 of D V Act. Vide order dated 05/05/15, Ld Trial Court has directed the respondent no. 1 to pay a composite sum of Rs.5,000/­ per month as interim maintenance to the children from the date of filing of the petition.
    3. Being aggrieved with the order of Ld Trial Court, appellant has filed the present appeal on the following grounds:
      • a) That Ld Trial Court has not correctly appreciated the facts and circumstances of the case.
      • b) That Ld Trial Court failed to appreciate the documents of the property no. 3517/B, Block ­93­B, First Floor, Sant Nagar, Burari, Delhi in favour of respondent no. 1. That Ld Trial Court has not appreciated the fact that respondent no 1 is also paying the home loan as per affidavit given by respondent no. 1 in the court.
      • c) That the Ld Trial Court has failed to consider that the PAN card mentioned by the respondent no. 1 in his affidavit, is not in the name of respondent no. 1 but the same is in the name of Sh Chet Ram.
      • d) That Ld Trial Court has not considered the fact that respondent no 1 is the owner of of two properties, one is shared household, which is in the name of respondent no 1 and there is another property, which is owned by respondent no 1 under the home loan, and respondent no 3 who is claiming to be the owner of the shared household did not place on record any document in this regard.
      • e) That Ld Trial Court has completely ignored the fact that respondent no 1 in his income affidavit has mentioned that statements of all bank is annexed herewith , but respondent no 1 has not filed any bank statement.
    4.  With these and similar grounds, appellant has prayed for setting aside the impugned order .
    5. I have heard arguments from Ms Alka Singh, Ld counsel for the appellant as well as from Sh A. K. Singh, Ld counsel for respondents.
    6. I have considered the arguments advanced by Ld counsel for parties and gone through the trial court record.
    7. Present appeal has been filed by the appellant against the order of Ld Trial Court dated 05/057/15, whereby Ld Trial Court has granted composite interim maintenance of Rs.5,000/­ to the appellant and her children.
    8. It is admitted facts of parties that marriage of petitioner was solemnized with respondent no. 1 and three children were born out of this wed lock. From the trial court record, it is clear that appellant/complainant is earning Rs.15,000/­ per month, whereas Respondent no. 1 has claimed to be earning Rs.6,000/­ per month. From the documents placed on record, it is clear that respondent no. 1 is IIT electrical diploma holder, hence the Ld Trial Court has rightly not accepted the version of the respondent no. 1 of earning Rs.6,000/­ per month. Ld Trial Court has taken the monthly income of respondent no. 1 as per Minimum Wages Act of skilled person at Rs.11,000/­ per month, which in my opinion is the correct procedure. Thus, same does not suffer from any infirmity. On the other hand, appellant has Cr. A NO. 47/15 Page 4 of 5 pages stated that respondent no. 1 owns two properties but she has not filed on record any document to substantiate her claim. Hence, I am of the opinion that Ld Trial Court has rightly granted interim maintenance of Rs.5,000/­ to the children after considering the monthly income of respondent no. 1/husband as Rs.11,000/­ per month. Even otherwise, this is an interim maintenance order and final order of maintenance is yet to be passed after evidence will be led by the parties.
    9. In view of above observations, the appeal as filed by the appellant is dismissed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
    10. Trial court record be sent back with the copy of the order.
    11. File of appeal be consigned to record room.

    ANNOUNCED IN THE OPEN COURT ON 16th of May, 2016.

    ( SHAIL JAIN )

    ADDL. SESSIONS JUDGE (CENTRAL)

    DELHI
     

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