Tag Archives: Delhi sessions court

Mere photos of husband’s shop NOT enough 2 prove income or ownership. Wife gets just 1200 p.m. from DV case !

A wife who lies in her affidavit and hides her professional qualifications tries to say that husband is earning a huge amount of money by showing some photographs of his automobile repair shop. the court dismisses her claims and says a mere photo is not proof of ownership and where wife has not proven husband’s income, court has to go with the admitted income of the husband !

Specifically, the court orders “… At this initial stage, the quantum of interim maintenance can be decided only on the basis of some concrete material or the admission of the parties. Photograph of a work shop or a motor vehicle is not the relevant material to show ownership of the same. Ownership of the vehicle could have been shown by way of showing R/C of the same or by obtaining such information from RTO. Similarly, appellant could have shown income of respondent from Government Agencies, by placing relevant information after obtaining the same from such Government Department under RTI Act. On the basis of merely photographs, the court cannot make a presumption about ownership of such auto service center or the vehicle or the projected income of respondent. In absence of any concrete material to show actual/probable income of the respondent, the court is left with no other option but to be guided by admitted income of the respondent. Since this is the initial stage, therefore, the court is supposed to frame a prima facie opinion only, regarding the probable income of the respondent. In that situation the amount of Rs.1,200/- per month awarded by the trial court is in consonance with the admitted income of respondent….”

Criminal Appeal No.33/15

IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI

Criminal Appeal No. : 33/2015
Under Section : 12 of Protection of Women From Domestic Violence Act, 2005.
Police Station : M.S. Park
Case No. : V-128/14
Unique I.D. No. : 02402R0312462015

In the matter of :-

Smt. MANJU
D/o. Sh. Shiv Lal,
W/o. Sh. Gaurav,
R/o. H.No.D-198, Gali No.8, Jagatpuri,
Mandoli Road, Shahdara, Delhi-110032. …………..Appellant

VERSUS

Sh. GAURAV
S/o. Sh. Harpal Singh,
R/o. H.No.128, Shastri Nagar,
District Ghaziabad, U.P. …………..Respondent

Date of Institution : 03.09.2015
Date of receiving the case in this court : 04.09.2015
Date of reserving order : 22.09.2015
Date of pronouncement : 05.10.2015
Decision : Appeal is dismissed.

JUDGMENT

  1. This is an appeal preferred against the order dated 14.08.2015, passed by the trial court in a case titled as Smt. Manju v. Gaurav & Ors., bearing case no.V-128/14, filed under Section 12 of The Protection of Women from Domestic Violence Act, 2005. Vide impugned order respondent was directed to pay a sum of Rs. 1,200/- per month in favour of appellant from the date of filing of present petition till pendency of petition as interim maintenance and accordingly application under Section 23 of the Act was decided.
  2. Briefly stated, the relevant facts giving rise to this appeal are that Complainant/appellant herein filed an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) against her husband and her in- laws. The appellant made several allegations against her husband and in-laws regarding demand of dowry, coupled with threats, harassment and abusing at her matrimonial house. She also alleged that she had been illegally, unauthorizedly and unlawfully forced by her husband and in-laws to leave her shared household/matrimonial home i.e. H.No.128, Shastri Nagar, District Ghaziabad, U.P and she was thrown out of her house and was compelled to reside at her parental house. Appellant prayed for several reliefs including payment of monthly maintenance by her husband.

  3. Appellant filed application under Section 23 of the Act. Respondents contested the main application as well as the application under Section 23 of the Act. Both parties filed their affidavit in respect of their income and other particulars, as per directions given by High Court of Delhi in the case of Puneet Kaur v. Inderjit Singh Sawhney, MANU/DE/7166/2011. Trial court vide impugned order decided the application under Section 23 of the Act.

  4. Being aggrieved of the impugned order, appellant has preferred this appeal on the following grounds :- “…That the trial court did not appreciate that respondent had not filed the proper affidavit and he had concealed his income in his affidavit as well as written statement. That the respondent is running his own work shop in the name and style of M/s. Durga at ITI Shastri Nagar, Ghaziabad, U.P for repairing motorcycles of various companies and is also having four and five labours. Furthermore, respondent also repairs motorcycles on contract basis in various Government Department at Ghaziabad and he is earning Rs. 1,00,000/- per month. Respondent is also maintaining four wheeler vehicle bearing registration no.UP-14CD-2389. ..” That the trial court did not appreciate that the respondent did not disclose his place of work in his written statement and he simply mentioned that he was working as a tube repairing worker.

  5. On the other hand, respondent contested this appeal and filed his reply thereby supporting the order passed by the trial court. He denied the facts relating to allegations made by appellant against him as well as his other family members. Respondent further pleaded that appellant herself is running coaching center of stitching as well as fashion designing and she is earning Rs. 10-15,000/- per month. He further pleaded that appellant is well educated lady and has done diploma in cutting and tailoring as well as diploma in basic computer and diploma of fashion designing. Respondent pleaded that appellant is not entitled for maintenance because she is having sufficient source of income and is well qualified. Respondent filed photograph of diploma certificates in the name of appellant.

  6. During the course of argument, ld. counsel for appellant referred to the photographs placed by appellant in the trial court record, showing one Wagon-R car and photo of Durga Auto services. Ld. counsel further referred to the trial court record to submit that respondent had suppressed his income and thereafter, he was directed to file fresh affidavit, wherein he disclosed his income as Rs.3,000-4,000/- per month. Ld. counsel argued that the amount of Rs.1,200/- is not sufficient to meet the expenses of the appellant and therefore, the present appeal has been filed.

  7. On the other hand, ld. counsel for respondent argued on the lines of his reply and submitted that even appellant had suppressed her professional qualification in the first affidavit. He further submitted that though appellant herself is earning, but she concealed this fact. It was also argued that appellant had suppressed about her inability to conceive since the time of her marriage and in fact appellant had caused mental trauma for the respondent.

    8. In this appeal, this court is concerned about the legality of the impugned order, vide which the trial court has fixed an interim maintenance in favour of the appellant. The challenge is to the amount of interim maintenance. On perusal of the trial court record, I find that though appellant claimed that respondent had been earning Rs.1 lac per month apart from rental income of Rs.10,000/- per month, but except for placing photograph of Durga Auto Services and one motorcar, no supporting material was placed in support of such contentions. Respondent has pleaded that he is working as auto repair mechanic in the work shop of other person and he does not earn more than Rs.4,000-5,000/- per month. As far as concealing his income in his first affidavit is concerned, I do find that in the initial affidavit, respondent had shown his salary as nil. Thereafter, he filed amended/fresh affidavit wherein he disclosed monthly income of Rs.3,000-4,000/-. However, this tendency of concealing a fact is not limited to the respondent only. I find that even appellant had concealed her professional qualification in the first affidavit filed by her, wherein she mentioned professional qualification as nil. Later on, she also filed another affidavit thereby mentioning her professional qualifications as well. Thus, the tendency to conceal any fact is common for both these parties and I hope that the trial court shall take due care of such tendency of both the parties, during trial of the case.

  8. At this initial stage, the quantum of interim maintenance can be decided only on the basis of some concrete material or the admission of the parties. Photograph of a work shop or a motor vehicle is not the relevant material to show ownership of the same. Ownership of the vehicle could have been shown by way of showing R/C of the same or by obtaining such information from RTO. Similarly, appellant could have shown income of respondent from Government Agencies, by placing relevant information after obtaining the same from such Government Department under RTI Act. On the basis of merely photographs, the court cannot make a presumption about ownership of such auto service center or the vehicle or the projected income of respondent. In absence of any concrete material to show actual/probable income of the respondent, the court is left with no other option but to be guided by admitted income of the respondent. Since this is the initial stage, therefore, the court is supposed to frame a prima facie opinion only, regarding the probable income of the respondent. In that situation the amount of Rs.1,200/- per month awarded by the trial court is in consonance with the admitted income of respondent. Such amount of interim maintenance can be modified, after having sufficient evidence on the record regarding merits of the case as well as the income of the respondent. At this stage, I do not find any worth argument or material placed on the record to interfere with the finding arrived at by the trial court in respect of the quantum of interim maintenance. Therefore, appeal is dismissed.

  9. Copy of this judgment be sent to the trial court, to be placed in the file of case no.V-128/14.

File be consigned to record room, as per rules.

Announced in the open court today on 05.10.2015

(PULASTYA PRAMACHALA)

Additional Sessions Judge (Shahdara)

Karkardooma Courts, Delhi

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

Bail in 354, 376, 498A for NRI hubby. Court refuses to stop him traveling, says livelihood is fundamental right !

Bail granted in 354, 376, 498A case to a NRI hubby. Court refuses to stop him traveling, says right to livelihood is fundamental right ! Court refuses to take up maintenance claims as well, says that’s for appropriate court to handle !

  • The Hon. court grants bail to a harassed NRI hubby in addition to accepting his right to live and work abroad for his livelihood is a fundamental right !
    * Attempt to stop the husband from traveling abroad is also REJECTED by the hon court !
    * The Hon court also clearly dismisses the claim that maintenance is NOT paid and says that’s for the appropriate court to decide !
    * A very useful order for NRI husbands harassed with fake and / or vague allegations
  • A redacted and annotated extract of this bail order is given below PURELY for information purposes only. This is NOT a copy of the bail order. This extract is shared to spread awareness among harassed husbands hit with false 498a, false DV cases


Hon. ___________________________
Additional Sessions Judge
  ___________ courts, New Delhi

Bail application     # _____ / __
___________ Vs     ____________
FIR No.         _______ / _____
Police Station         ______________, __________
Under Sections     354/376/511/498-A/406/34 Indian Penal code

Date of order : ____/__/____

Present :

__________________ IO / Inpsector
__________________ Counsel for the Applicant
__________________ PP for the state

Arguments heard

This is a matrimonial dispute. During the arguments, it is submitted by the IO that she has carried out the investigation and the applicant has joined the investigation. She has further informed that applicant has brought the stridhan articles four times but it is the case of the complainant that the entire goods have not been brought. IO further submits that she has completed the interrogation of the applicant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

It is submitted by the counsel for the complainant that applicant has appeared before the IO only when lookout notice was issued. However the fact remains that the applicant is doing job in _____ (foreign country) and thus earning his livelyhood in (foreign country). Earning livelyhood by a person is a fundamental right.

It is further infomed by the counsel for the complainant that she is M.Sc.

In application along with the bail application, there is an application dated ..____ filed by the complainant wherein complainant admits that few artilces were returned but it is the case of the complainant that few jewellery articles have not been returned.

FIR perused.

In the FIR there are vague allegations. It appears that the present FIR is our of frustration that the complainant could not accompany to (foreign country) ________ with the applicant. However it cannot be ground for dismissal of the bail application.

Counsel for the applicant submits that the applicant is not getting maintenance. However the matter of maintenance is to be adjudicated by the competent court. It is further submitted by counsel for applicant that applicant has also filed divorce petition. This dispute will be settled before the family court. Counsel for applicant further relied upon the judgement titled Arnesh Kumar v. State of Bihar & Anr. passed by Hon’ble Supreme Court in Crl. Appeal No, 1277 of 2014 on 02.07.2014 AIR (SC) 2756; and Chander Prakash Kayat v. State, Bail Application 1857/2014 (05/12/2014), 2015 (1) JCC 608 [Sunita Gupta J.]

As such the accused/applicant  ________ __________ is admitted on bail on his furnishing personal bond in the sum of rs. 50,000/- each with two sureties in the like amount to the satisfaction of the Ld. MM / Link MM / Duty MM concerned.

At this state an application is also moved on behalf of the complainant for direction to the applicant to receive the summons. Heard on the application.

This application is disposed off with the direction that the summons may be served on the applicant/accused through the procedure prescribed under the law.

Ld. counsel for the applicant / accused prayed that direction may be issued for not leaving India by the applicant. Opposed on the ground that the applicant is earning his livelyhood through the employment in _________ (foreign country)

It is Fundamental right of the applicant if a person makes his livelihood and one should not be deprived that right however the complainant may resolve her dispute in the Family Court. In view of the same, applicant is directed to supply his address including address of India and ________ (foreign country) and any change thereof to the IO alongwith his mobile phone number in closed envelop which can only be opened by the IO or by the court.

At this stage, IO submits that she is getting interference in the investigation on behalf of the complainant when the IO went to investigate the matter, she get hindrances on behalf of the complainant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

IO is fully competent and nobody including the applicant/accused or complainant can interfere in that process of investigation by the IO.

As prayed for a copy of this order be given dasti to ld. counsel for the applicant/accused and another copy of this order be given dasti to IO of the case.

Application be consigned to record room.


______ Judge (______) …. , 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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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


Marriage, 2 kids , love outside marriage and rape !! How India became a country of rapists !!

How a married woman, mother of two found a lover ( outside marriage ), filed a rape case on the lover / acquaintance / live-in and later conveniently claimed that there was no rape as the lover married her. What a colossal waste of official machinery and court time !!!

Court cases speak to us… Many of them tell bizarre tales of deceit of cheating and violence ….

Some like this case, tell us how a woman, motorway from my husband, found a second guy, and officially married him and also filed a fake rape case on him…

In addition to filing this week case she goes on to waste the time of all investigating agencies, and also the time of the court

Finally, for reasons best known to her, ( or probably after forcing the so-called rapist into her second husband ) she turns turtle at the courtroom says that they did not rape !!!

There are thousands of cases like this, where the so-called victim, or the prosecutrix, finally says there is no rape !! After having conveniently married the so-called rapist or after having conveniently taken some other form of satisfaction

Still in India is considered a country of rapists !!

****** case from Indian kanoon website ******

IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT)-01, WEST, TIS HAZARI COURTS, DELHI

Sessions Case Number : 52/2014
Unique Case ID Number : 02401R0100992014.

State
versus
Ashok Kumar
Son of Sh. Harlal Singh
Resident of L2 Block, Shop No. 64-A, 40 foota road,
M/Garden, Uttam Nagar, New Delhi.
Permanent address: Village Dhaka ki Dhani, Post Bhoj Nagar,
Distt. Jhujhnu Rajasthan.

First Information Report Number : 240/13
Police Station: Uttam Nagar
Under sections: 376/120-B of the Indian Penal Code.
Date of filing of the charge sheet before : 26.02.2014 the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 25.04.2014
Arguments concluded on : 22.04.2016.
Date of judgment : 22.04.2016.

Appearances: Ms. Madhu Arora, Additional Public Prosecutor for the State.
Accused on bail.
Ms. Nupur Sachdeva, Ld. Counsel for the accused. ***********************************************************************

JUDGMENT

 

  1. Accused Ashok Kumar has been charge sheeted by the Police Station Uttam Nagar , Delhi for the offence under sections 376/120B of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that accused grew closeness with her taking benefit of the fact that she was having differences with her husband and was living separately from him. She has levelled specific allegations of rape of one date after intoxicating her when she went to his shop for taking medicines. There are allegations of marriage under pressure and blackmailing as well.
  2. After completion of the investigation, the charge sheet against accused was filed before the Court of the learned Metropolitan Magistrate on 26.02.2014 and after its committal, the case was assigned to this Court on 25.04.2014.
  3. After hearing arguments, vide order dated 17.10.2014, charge for offences under section 376/328/506/363/366/496/120-B of the IPC was framed against the accused to which he pleaded not guilty and claimed trial.
  4. In order to prove its case, the prosecution has examined the prosecutrix as PW1 and her mother as PW2.
  5. All the safeguards as per the directions of the Hon’ble Delhi High Court and Hon’ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the “Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses” have been followed.
  6. The prosecutrix, as PW1, has deposed that she was married with one Pankaj Vaid and out of wedlock, two children were born. After some time, her husband started beating her after taking liquor and abused her. She filed a complaint under domestic violence against her husband and also for maintenance. She deposed that she has been residing at her matrimonial house with her children till date. She further deposed that accused was having the chemist shop in the same locality from where she used to take medicine of her kids. She says that while the divorce case with her husband was still pending, she married the accused on 12.11.2013. There were quarrels between them on small issues due to temperamental differences. She deposed that the complaint filed by her was typed by a typist of which the contents were not read over to her. She identified her signatures in the complaint. She denied that she was taken for medical examination. She admitted her photographs with the accused and stated categorically that she did not want to say anything against the accused.
  7.  As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.
  8.  In her cross examination by the Additional Public Prosecutor for State, she has denied the suggestion that Ex. PW-1/A her typed complaint had been read over to her before being filed. She denied that on 02.07.2014, the accused had administered some intoxicating substance to her with intent to commit rape and had raped her thereafter. She denied that after the commission of rape, the accused had shown her an obscene video of her prepared by him and had threatened to kill her and her children, if she disclosed the incident to anyone. She denied that after 02.07.14, the accused raped her several times after threatening her that he would upload her video on the Internet. She denied that on 15.11.12, the accused threatened to kidnap her children and to show the video to his family members, if she did not agree to marry her. She denied that she was forced to marry the accused or that her signatures were obtained forcibly or that she was taken to Sikar, Rajasthan. She denied that on 17.11.12, her children were kidnapped by accused or that she was forced to marry the accused on 18.11.12 and to sign the affidavit dated 20.11.2012. She denied that on 11.05.13, she had called her parents and had asked them to follow the directions of accused, they followed the directions as her children were with the accused who had promised to return them afterwards. She denied that accused had given the photographs of her marriage with him to her first husband and was blackmailing her. She admitted that a petition had been filed by the accused for declaration of her marriage with accused as null and void.
  9. The mother of the prosecutrix was examined as PW-2 who stated that the marriage of her daughter with her first husband was not going well. She deposed that her daughter had married the accused out of free will in her presence and presence of her husband at Sikar, Rajasthan. After marriage, the prosecutrix and accused had resided at Uttam Nagar. She deposed that she did not want to depose anything against the accused. She was cross- examined by ld. Add. Prosecutor. In her cross examination, she stated that her statement was not recorded by the police as told by her. She stated that she did not tell the police that her daughter had married the accused in Arya Samaj Mandir on 18.11.12. She deposed that she did not say to the police that she had told the accused that her daughter could not marry him as she had not obtained divorce from her earlier husband. She denied having asked her daughter about her children at the time of solemnization of marriage and accused having told her not to worry about her children. She denied that children of her daughter were kidnapped by the accused or the accused had married her after kidnapping her children on 17.11.2012. She denied giving the statement in the court after being won over by the accused.
  10. The prosecutrix, has not deposed an iota of evidence of her being raped by the accused. She has deposed that accused has not committed any offence against her and nor deposed anything incriminating against the accused. She has deposed that she had married with the accused out of her free consent. Her mother also did not speak anything against the accused. In fact, the mother stated that marriage between the prosecutrix and accused was voluntary and was attended by her and her husband.
  11. In these circumstances, as both prosecution witnesses the prosecutrix and her mother, who are the main witnesses have turned hostile and have not supported the prosecution case and more importantly have not assigned any criminal role to the accused not deposing anything incriminating against the accused, the precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself, the most material witness, as well as the complainant has not supported the prosecution case and is hostile.
  12. Statement under section 313 of the Cr.P.C of the accused is dispensed with as there is nothing incriminating against him when the prosecutrix is hostile and nothing material has come forth in her cross examination by the prosecution.
  13. In the light of the aforesaid nature of deposition of the prosecutrix, PW1 & PW-2 her mother, who happen to be the material witnesses, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:“Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness.”
  14. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
  15. Crucially, the materials and evident on the record do not bridge the gap between “may be true” and must be true” so essential for a Court to cross, while finding the guilt of an accused, particularly in cases where the prosecutrix has herself claimed that the accused is innocent and has not committed any offence.
  16. Consequently, no inference can be drawn that accused is guilty of the charged offences. There is no material on record to show that pros- ecutrix had gone to the shop of the accused on 02.07.12 as she had high fever or that the accused had asked her to stay there and had given her some medicines. There is no evidence to suggest that the accused had stopped her under pretext that she may fall down on way. There is nothing in the evidence to show that prosecutrix had fallen unconscious and on regaining consciousness had found the accused committed rape upon her. There is nothing to suggest that at that time, the accused had told her to marry her and to keep her children and to threaten her that in case she made a complaint to the police, he would highlight her video which he had made in the phone. There is nothing in the evidence to show that she was living away from her husband and that accused threatened her that he would tell everything to her husband. The prosecutrix has not uttered that the accused had threatened her that his brother in law was head constable in Delhi Police and that he would manage everything and make her life hell. The prosecutrix has not deposed that accused called her several times thereafter and made physical relations with her after threatening her that he would put her video on the Internet. She has not deposed that being a helpless woman, she for the sake of honour and safety of her minor children agreed to the demands of the accused. There is nothing in the evidence to suggest that on 15.01.12, the accused went to the house of prosecutrix and told her that he wanted to marry her and that if she didn’t agree, he would get her children kidnapped. She has also not deposed that accused threatened that he will upload her video because of which she would commit suicide or that he asked her to prepare her parents for the marriage without telling them anything. She has not stated that the accused had kidnapped her son on 17.11.12 and had taken her to the temple where he married her against her will on 18.11.12 or that later, he got prepared an affidavit from the court on 20.11.12 and obtained her forcible signature. She has denied having been taken to Sikar for marriage and her parents being called there. She has not deposed that the accused gave the documents to her husband or that her husband and accused were in conspiracy with each other and had talked with each other.
  17. From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offence of rape, kidnapping, intoxication, threatening, forcible obtaining of signatures. There is no evidence of conspiracy between Pankaj and the accused absolutely. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place. She has categorically deposed that she had married the accused out of her free will in presence of her parents.
  18. Consequently, accused is hereby acquitted of all the charges framed against him
  19. Compliance of section 437-A Cr.P.C. is made in the order sheet.
  20. Case property be destroyed after expiry of period of limitation of appeal.
  21. One copy of the judgment be given to the Additional Public Prosecutor, as requested.
  22. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to the record room.

Announced in the open Court on this 22nd day of April, 2016.

(ANURADHA SHUKLA BHARDWAJ)

Additional Sessions Judge, (Special Fast Track Court)­01, West, Tis Hazari Courts, Delhi.