Adil & Ors. vs State & Anr. on 20 September, 2010
Delhi High Court
Adil & Ors. vs State & Anr. on 20 September, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: 2010 Date of Order: 20th September, 2010
+ CRL.M.C. 4159/2009, Crl. M.A. No. 14141/2009
ADIL & ORS. ….. Petitioner
Through: Mr. N.K. Handa, Adv.
STATE & ANR. ….. Respondent
Through Ms Rakhi Dubey, Adv. for R-2 along with
R-2 in person.
Mr Sunil Sharma, APP for the State
SI Beena Thakur, Investigating Officer
JUSTICE SHIV NARAYAN DHINGRA
- Whether reporters of local papers may be allowed to see the judgment? Yes.
To be referred to the reporter or not? Yes.
Whether judgment should be reported in Digest? Yes.
1. By this petition the petitioners have assailed orders dated 30th November, 2009, and 6th November, 2009, passed by learned Metropolitan Magistrate (MM).
- Brief facts relevant for the purpose of deciding this petition are that the respondent Kaushar Bano was married to Zahid Khan, brother of the three petitioners on 16th March, 1994. Zahid Khan died on 14th November, 2002, at Delhi. After his death, Kaushar Bano filed an FIR on 26th July, 2003 against the petitioners and her mother-in-law and other relatives making various allegations of cruelty, dowry demand etc. In this FIR, she gave her residence as House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, Delhi – 32.
After coming into force of The Protection of Women from Domestic Violence Act (in short Domestic Violence Act), she filed an application under Section 12 of Domestic Violence Act on 6th August, 2007, and also made an application for interim relief under Section 23 of Domestic Violence Act seeking right of residence in the property where petitioners were living i.e. District Bulandshahar, U.P.
The Court of MM passed an order dated 19 th April, 2008, observing that the property, in which right of residence was being sought by Kaushar Bano, was a property of her mother-in-law and cannot be termed as shared household. She, therefore, dismissed the application for interim relief and fixed the case for evidence giving an opportunity to prove the facts.
Against this order Kaushar Bano preferred an appeal before the learned Sessions Judge. Learned Additional Sessions Judge observed that the mother-in-law of Kaushar Bano i.e. mother of the present petitioners, expired on 4th June, 2008, and after her death, the question whether the property constituted shared house-hold would be required to be gone into by the MM again and the MM would determine if the appellant would be entitled to a relief in the changed circumstances since the property (matrimonial home) was indeed not in the name of any of the respondents i.e. the present petitioners, their mother having expired. She remanded back the matter to MM vide her order dated 27th November, 2008.
After the matter was remanded back, learned MM reconsidered the application under Section 23 of Domestic Violence Act and passed order dated 6th November, 2009 observing that respondent had a right to live in the property at Bulandshahar. It was brought to the notice of the MM that present petitioners have filed a civil suit in the Court of Civil Judge, S.D., Bulandshahar, U.P. in respect of same property, wherein wife Kaushar Bano was made as a respondent.
The learned MM allowed application of wife observing that vide order dated 19th April, 2008, the interim relief was refused to Kaushar Bano on the ground that house in Bulandshahar did not constitute a shared household as no document was on record to show that property was one in which the husband had a right or it was exclusive property of mother-in-law. She observed that, prima facie, the interim order was refused to Kaushar Bano on the ground that property belonged to mother-in-law, but the stand taken by the present petitioners was contrary to the reply filed by them later on where they had taken a stand that house in question belonged to their father and a settlement/Will was executed by him. She observed that since the earlier stand taken before the Court was that the property belonged to their mother and mother had expired intestate, deceased husband of Kaushar Bano being a son had a right in the property in question, hence the property can be termed as shared household. She, therefore, held that Kaushar Bano had a right of residence in the property in Town Gulaothi, District Bulandshahar, U.P.
Against this order, an appeal was preferred by the petitioners before the learned Additional Sessions Judge who observed that there was no infirmity in the order passed by the learned MM and the property could be termed as shared household within the definition as given in Section 2(s) Act. Vide order dated 30th November, 2009 the learned MM called upon the site plan of the property and she directed a portion of the property to be handed over to Kaushar Bano.
A perusal of the FIR dated 23rd July, 2003 lodged by Kaushar Bano against her in laws would show that her husband was a Doctor and had started practicing in Delhi, though the date of shifting to Delhi has been kept vague in the complaint. Her complaint also shows that birth of her first child, a female, had taken place at Bulandshahar on 23 rd June, 1997, whereas male child Shahid was born on 22nd December, 1998 at House No. 5, Gali Masjidwali No. 1, Babarpur, Shahadara, Delhi-32. The complaint also gives an impression that her husband had separated from his other brothers sometime in 1998-1999, when she alleged that her dowry articles and Istridhan were misappropriated and she started residing at Delhi with her husband. Her husband died on 14th November, 2002 at Delhi. A perusal of directory of community of the petitioners, released by Delhi Government, shows that it contained the names of entire family members of Kaushar Bano, her husband and three children. The address given in the directory is A-5, Main Gali Masjid Wali, Babar Pur, Shahdara, Delhi-32. Her husband Zahid Khan has been shown as a Doctor and three children of couple namely Shahrukh, Heena and Sahil find mention in director. A perusal of Voters‟ List of Babarpur of year 2003 would also show that names of Kaushar Bano and her husband appear in Voters‟ List of Babarpur. It appears couple had separated from rest of the family about 8 years before filing of application under the Protection of Women from Domestic Violence Act, 2005.
It is apparent from the perusal of the order of Trial Court and Appellate Court that both, the Trial Court and the Appellate Court mis-directed themselves and did not consider the relevant provision of the Domestic Violence Act. 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:
“(f) „domestic relationship‟ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”
6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or „at any point of time‟. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and 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. Only a compelled or temporarily going out by aggrieved person shall fall in phrase „at any point of time‟, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. 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 survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end.”
11. In this case it could not have been decided by the Court of MM without recording evidence as to whether any domestic relationship existed between the parties on the date of filing application or soon before that in accordance with law laid down by this Court. 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 parties and the applicant was an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act. In the present case, the order of learned MM and learned ASJ is absolutely silent as to how respondent was an aggrieved person and how a domestic relationship existed between her and petitioners.
12. I, therefore, set aside the orders dated 6th November, 2009 and 30th November, 2009 of learned MM. Learned MM shall record evidence first and decide whether a domestic relationship existed between the parties and whether the applicant fell within the scope of „aggrieved person‟ as defined in Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 and then pass appropriate order.
September 20, 2010 SHIV NARAYAN DHINGRA, J.
Adil & Ors. vs State & Anr. on 20 September, 2010
In reality, Most Indian matrimonial cases are NOT worth 10 to 15 days of evidence, cross examination, arguments & final order. At worst cases could be over in few months. Most should involve only husband and wife. Most are due to adultery or temperamental differences or false expectations and NOT cruelty. Most of these cases are for money 💰and not for justice. These cases could be easily decided in a matter of months ( say six months ) by an efficient and dedicated system IF such a system existed.
However in the current justice system and police interference that exists, these matri cases run years, drag so many relatives in, involve huge costs to the lawyers and third parties, middlemen make max benefit and the end results hardly benefits either spouse. Decades are wasted sometimes. Children suffer enormously😓😓. Elders are abused 😪😪 and Middlemen benefit 💰💰the most.
Even the last indo-Pak war was not this costly for India 🇮🇳 , Indian men and indian 🇮🇳 society in terms of human misery, lives lost, mothers and elders harassed, money 💰💰and time lost ….
This is a Himalayan tragedy of our times and we are living it 😞😞😞
City court has granted divorce in a rare case to a couple following a nearly 20-year legal battle between the husband and wife who were together for just 20 days.
While delivering the order, principal judge of family court Dharmesh Sharma observed that the slow pace of the justice delivery system “casts a very sickening feeling in my mind” but added that the parties and their counsel too were perhaps responsible for the delay.
Millions of cases are pending in India’s courts, draining litigants of resources and pointing towards an urgent need for more judges and judicial reforms. Courts too are encouraging such couples to first try mediation instead of getting into lengthy legal fights.
DECISION AFTER 19 YEARS
“Unfortunate as it may look, this case is coming up for final decision after nineteen years of its institution initially before the family court. Most unfortunate aspect of this case is that the parties cohabited hardly for about 20 days before calamity struck the newly married bride, having pernicious repercussions on the mindset of her husband,” said the judge.
“The marriage has irretrievably broken down despite the fact the parties are quite educated and hail from an affluent class of the society, and I only wish they should have settled their differences in an amicable manner instead of suffering the agony of a protracted matrimonial litigation.”
Thirumoorthy Ramakrishnan, 53, and Subhashini Bala Subramanian, 49, got married in 1998 after meeting through a matrimonial advertisement in a newspaper.
WIFE ARRESTED IN CASE OF MISAPPROPRIATION OF FUNDS
However, cops arrested the wife in Ooty when the newlyweds were on their way to visit South Indian temples as part of a custom that says a couple can’t consummate their marriage unless they have taken their blessings at these shrines. She was allegedly involved in a case of misappropriation of funds.
The woman, who was then 29, was brought to Delhi for trial. On the last day of the remand, she told her husband that she was carrying his child. The man moved court, seeking dissolution of marriage on the grounds that following the arrest of his wife, he was interrogated by the police on a number of occasions.
Inquiries were conducted at his workplace and his accounts were checked, causing deep mental and physical cruelty, making him subject of ridicule among his friends, colleagues and relatives, he argued.
The husband also told the court that he learnt later that his wife had hidden her professional qualifications and other important details. He said the incident left him in constant tension, apprehending that he may be called by the police at any time for further investigation and sought divorce on the grounds of “cruelty”.
WOMAN DENIES ALLEGATIONS
The wife though claimed that all the allegations against her were false. She also said the couple had consummated before the completing the religious ritual. The wife did not deny the criminal proceedings initiated against her but said she was being falsely implicated in the case by her employer.
She also said that her husband not only abandoned her at a time when she needed him the most but also abandoned the child born in wedlock and left them to fend for themselves.
The court granted divorce, saying that the arrest, detention and criminal prosecution of the wife, whether innocent or not of the charges, so early into their marriage caused the husband exceptional hardship and was inflicted with intolerable mental cruelty. “Protracted legal battles in our system end up spoiling a person’s life,” Saurabh Chauhan, counsel for the husband, told Mail Today. “A marriage going bad is an accident. It can happen to anyone.
THE STATE OF THE COUPLE NOW
Had the divorce been granted in a year or two, my client could have remarried and have had a family now and led a normal life. He is an old man now and not in a state to marry. Instead of getting relief, the long battles themselves become the problem.”
Mail Today has learnt that the husband has moved abroad and works in a bank while the wife is working as an accountant. Their daughter passed class 12 this year and scored 94 per cent in the board examinations.
Anil Sharma, counsel for the wife, told that they have moved the high court in appeal. “The charges levelled by the husband on my client also amount to cruelty. The husband abandoned the wife and daughter when they required him the most. He also never took care of the daughter’s expenses. The woman has brought up the girl singlehandedly,” he said.
May 25 was meant to be a memorable day for Julie, a 19-year-old girl in Bihar’s Muzaffarpur district, 70 km north of the state capital Patna. A beautician had visited her for makeup and Julie was sparkling in her bridal attire.
Her house was all decked up, the pandit (priest) was there to chant sacred mantra and Abhinay Kumar, a 22-year-old youth she was to tie the nuptial knot, was ready, though under duress. But, just when the marriage mantras were over, the police arrived; searching for the kidnapped groom after his parents registered a case to this effect. But as usual, the cops arrived late, and by the time the marriage was already over.
They still wanted to rescue the groom but the bride and her family – backed with relatives and villagers – put up a tough fight, forcing the cops to beat a hasty retreat. The cops returned an hour later, angrier than before; and in greater number. They swung their batons with such ferocity that it left nearly two dozen men and women, including Julie injured.
Now, a week later, with injuries all over her body, Julie is still struggling to walk straight. The Muzaffarpur senior superintendent of police Vivek Kumar has suspended Gayghat police station in-charge Rajesh Choudhary, holding him responsible for excesses. The only positive outcome for Julie in the entire drama was that her husband who was reluctant to marry her initially began to empathise, seeing her writhing in pain.
“I have accepted her as my better half. Whatever difference there is between our families, it will get over shortly. Time will heal everything,” he says.
AROUND 3,075 KIDNAPPINGS FOR MARRIAGE IN 2016
Sounds like an unusual way to get married? In Julie and Abhinay’s Bihar what is bizarre is not the manner in which the couple walked down the aisle, but the police action that followed. Surprisingly, this is nothing unusual in Bihar as the state witnesses around 3,000 couples getting hitched in the same style, almost every year. Statistics boils down to nine such marriages a day.
Known as Pakadwa Vivah (marriage by abduction), the tradition is simple: zero-in on a prospective groom, kidnap him and make him tie the nuptial knot at gunpoint. And the numbers are in fact growing. Bihar witnessed 3,075 kidnapping for marriage in 2016. It was 3,001 in 2015 and 2,533 in 2014. And a majority of these marriages survive.
Abduction for marriage appears to have remained unabated in 2017 too. According to figures available with the police, Bihar already has reported 830 kidnappings for marriage by March this year. On the other hand, only eight cases of kidnappings for ransom – which Bihar was once infamous for – have been registered during this period.
Clearly, abduction for marriage is almost like an established, acceptable trend in Bihar. The NCRB Crime in India Report, 2015 report – which is the most recent official figure available at present – also confirms that while Bihar is far below other States when it comes to abduction of boys below 18 years of age, it stands at the top in the country when it comes to abductions of above 18-year-old males. In fact, the number of abducted males from Bihar in the 18 to 30 age-group category was 1,096 in 2015. The state alone accounted for nearly 17 per cent of the national figure in the category.
“The abduction of boys for marriage is a direct consequence of social evils like dowry. It is a rearguard action from the bride’s family, which finds itself under great material load while arranging the marriage. In a traditionally patriarchal society like Bihar, marriages have become a money-minting enterprise for the boy’s parents. So, families without wherewithal to arrange a decent dowry resort to desperate measures like abducting a suitable bridegroom for their daughter’s marriage,” says Ashok Priyadarshi, a teacher in Nawada, a district infamous for such marriages.
DIRECT CONSEQUENCE OF SOCIAL EVILS LIKE DOWRY
Though illegal, dowry is an inevitable traditional marriage practice by which the groom’s family demands enormous sums of money and goods from the bride’s family as a condition for letting their son marry her.
Families resort to snatch men – often young boys- because it is easier than approaching boy’s families and cheaper than paying the standard “dowry,” which is in lakhs plus a vehicle.
Kamta Singh, Chairman of a Primary Agriculture Credit Society in Rampur, Navada claimed that almost 90 per cent marriages in the village have been solemnised by kidnapping a bridegroom. A good number of boys are kidnapped and married off during matriculation and intermediate examinations when they visit the examination centres. In March, a 17-year-old boy was kidnapped from Patna and married off to a 15-year-old girl shortly after he reached the city with a cousin who was appearing for matriculation examination. The boy, a class XII student, was whisked away by four men on two bikes after smothering him unconscious with a chloroformed cloth. By the time the boy regained his senses, he was inside a house with lots of people around, who told him that he was now married. His clothes too were changed into bridal attire.
Families often use friends and relatives, and sometimes even hire professional criminals, to carryout abductions for marriages. In May 2009, criminals assigned to kidnap 16-year-old Lalbabu for marriage, opened fire in Gaya to terrorise a group of students, who were with the victim as he came out from a coaching Centre.
Lalbabu’s friend Praveen received a gunshot and succumbed to his injuries. A shocked Lalbabu was abducted by the criminals to a temple in Jehanabad district where he was forced to marry a 13-year-old girl Babita under the shadow of a gun. The marriage, however, fell apart with the police registering murder cases against the bride’s father and brother.
SECURITY PERSONNEL TOO GET KIDNAPPED
Even security personnel themselves can be kidnapped by the criminals. Once, the bodyguard of a Bihar Cadre IPS officer Shivdeep W Lande, now on deputation to Maharashtra, was kidnapped when he was posted in Jamalpur. But the kidnappers set him free after realising that they could invite a police backlash.
Once a boy is kidnapped and taken to a bride’s home, his future in-laws try to calm him down by placing a wedding headgear onto his head. The embroidered headgear, called a Mauri, is a symbol of his submissive acceptance. Many fight fiercely, but every kidnapped boy eventually relents under duress. In almost all such cases, the villagers extend support to the girl’s family. The ceremony is videographed so that the tapes can be used as evidence later.
In fact, even priests of village temples – where marriages are solemnised, like in the case of Lalbabu – cooperate with the girl’s family and issue a certificate of marriage. Clearly, the approval from society to such marriages has emboldened the families to take the law into their hands.
The practice has technically been illegal for years, but the law rarely has been enforced. Brutal as the custom is, it is widely perceived as practical.
TALE OF THREE BROTHERS KIDNAPPED FOR MARRIAGE
“Most people don’t care it’s illegal because there is a very high possibility of reconciliation. The boy’s family frets and fumes after the marriage but only to raise a dowry demand. Assured that the boy is now theirs, the girl’s parent are also willing to settle things by offering one-fourth of the usual dowry which they would have had to offer had the boy not been married,” said Hetukar Jha a retired sociology professor at Patna University.
Rajiv Narayan of Nawada in Bihar is one of the numerous such men who has put the past behind and accepted his wife, with whom he was forcefully married in 1976. Rajiv was tricked to visit Badhaiya in Lakhisarai district where he was married under duress when he was just 14.
He was married to Madhuri Devi, who was only 12. Their families allowed the two to complete their studies before the two were formally made to live together. Today Rajiv is employed as a meter reader with Bihar Electricity Board while Madhuri is school teacher at Nawada.
Rajiv’s younger brother Ashok (40 year), a lawyer, was married at the age of 13 in a similar fashion with Annu of Pakribaswan village. The youngest brother Dhannjay was also abducted and married to Sunita of Bighawa village in 2002. Dhananjay, 25, now runs a Computer hardware shop.
All the three brothers are now happily settled with their wives. As the saying goes, “Every good marriage begins in tears.”
ALSO READ| Revolver Rani: Woman kidnaps groom from his wedding venue, was furious over betrayal
ALSO READ| Bihar: Jail superintendents exchange vows over 21 cups of tea