Delhi District Court
Ca No. 180/2023 Bijender & Ors vs . Preeti on 8 May, 2023
CA No. 180/2023 Bijender & Ors Vs. Preeti
IN THE COURT OF SH. GAUTAM MANAN,
ADDITIONAL SESSIONS JUDGE-02
SOUTH-WEST, DWARKA COURTS, DELHI
CNR No. DLSW01-003372-2023
In the matter of:-
1. Bijender
S/o Sh. Mahinder Singh
R/o Plot No. 19-20-21,
Vipin Gardern Extn,
Uttam Nagar, New Delhi-59
2. Mahinder Singh
S/o Late Chotu Ram
3. Murti
W/o Sh. Mahinder Singh
Both R/o House no. 470,
Kakrola Housing Complex
Kakrola, New Delhi
4. Bala
W/o Sh. Dinesh
R/o Flat no. 1A G/F,
A5A Double Storey
Janakpuri New Delhi 110058
5.Rajni
W/o Sh. Sunil
R/o Village Nahari
District Sonepat, Haryana ... Appellants
Order on Appeal Page 1 of 19
CA No. 180/2023 Bijender & Ors Vs. Preeti
Versus
Preeti
W/o Sh. Bijender,
R/o Village Dhingpra
PO Dichaon Kalan,
New Delhi-110043 ... Respondent
Date of institution 06.04.2023
Judgment reserved on 01.05.2023
Judgment pronounced on 08.05.2023
ORDER
1. Criminal Appeal is preferred under Section 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as DV Act) challenging judgment dated 23.03.2023 passed by Ld. MM (Mahila Court-04), Dwarka, in case titled as "Preeti Vs Bijender & Ors." bearing Ct Case No. 6527/2017.
Order on Appeal Page 2 of 19
CA No. 180/2023 Bijender & Ors Vs. Preeti
Brief facts of the case
2. On 16.10.2014 respondent filed an application under Section 12 of DV Act on averments that she married appellant no. 1 on 28.11.2008. A female child Anshika was born out of the said wedlock on 27.11.2010. Father of respondent gave all necessary gifts including gold to the appellants and also gave a motorcycle to appellant no. 1 at the time of marriage but appellants were not satisfied. They used to harass and torture respondent in order to pressurize her to bring dowry from her parents.
3. Respondent averred that appellants (who are her husband and in-laws) stated to her that they were expecting at least a Santro car and a cash of Rs 4-5 lakhs. Respondent was beaten by the appellants who pressurized her to bring more Order on Appeal Page 3 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti dowry. Respondent alleged that she was not given proper food and treated like a slave. She further alleged that when she conceived, respondents gave her something that terminated the pregnancy. Respondent called parents who took her to Nangloi for treatment. However, fearing that the truth will be revealed, her sisters-in-law forcibly took her to Mahindru Hospital. Next day her in-laws brought her back to matrimonial house. Thereafter, respondent again conceived but in the similar manner appellants terminated her pregnancy.
4. It is alleged that on 16.04.2010 all appellants gave merciless beatings to the respondent due to which she was taken to a Hospital where a MLC was prepared. Thereafter, respondent was thrown out of the matrimonial house without any belongings. At that time respondent was on the family way. Finally on 27.11.2010 respondent was blessed with the Order on Appeal Page 4 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti child. Thereafter, appellant no.1 filed a false case for restitution of conjugal rights. Upon intervention of family and friends, matter was compromised on 19.11.2011 and respondent went back to her matrimonial house.
5. Respondent alleged that even thereafter her ill treatment continued. Respondent alleged that she was beaten by appellant no.2 for a demand of Rs 5 lakh. It is further alleged that on 05.05.2012 appellants beat the respondent and the minor child due to which they both became unconscious. Appellant no.1 took them to Kalawati Hospital and ran away. Respondent called her parents and on 10.05.2012 the child was discharged. Thereafter, respondent made several requests to appellant no.1 to take them back but he refused and demanded that the dowry demand be first satisfied. Since then respondent is living with her parents.
Order on Appeal Page 5 of 19
CA No. 180/2023 Bijender & Ors Vs. Preeti
6. Respondent alleged that she has no source of income while appellant no.1 has a transport business and is earning more than Rs 1 lakh per month but appellant no. 1 is not paying anything either to her for her child.
7. Vide judgment dated 31.11.2015 application filed of the respondent under Section 12 DV Act was allowed. However, vide order dated 11.01.2017 passed by Ld. Special Judge, (PC Act CBI) the said judgment was set aside. Opportunity was granted to the appellants to file reply and contest the application filed under Section 12 DV Act.
8. Appellants contested the application of the respondent by filing their reply. Appellants denied the allegations made against them by the respondent. Order on Appeal Page 6 of 19
CA No. 180/2023 Bijender & Ors Vs. Preeti
9. In order to prove her case respondent examined herself as CW1. She tendered her evidence by way of affidavit Ex. CW1/A and tendered her identity proof and copy of Aadhar Card as as Ex. CW1/1 & 2.
10. In her cross-examination respondent admitted that she filed a complaint before CAW Cell against the appellant and deposed that her husband (appellant no. 1) had filed a divorce case against her and the said case was dismissed due to non payment of maintenance and litigation expenses to her by the appellant No. 1. She denied that the present case was filed by her to extort money from the appellants and further denied that she never wanted to reside with her husband.
11. Respondent did not examine any other witness. Appellant's did not lead any evidence. After hearing rival contentions Ld. Trial Court passed the impugned judgment. Order on Appeal Page 7 of 19
CA No. 180/2023 Bijender & Ors Vs. Preeti
Impugned Order
12. Vide impugned order, Ld. Trial Court awarded maintenance to the tune of Rs. 2000/- per month in favor of respondent and Rs. 3000/- per month in favor of the child from date of filing of the petition. Ld. Trial Court also directed appellant no. 1 to pay respondent a sum of Rs. 20,000/- towards mental stress and agony and furthermore directed respondents to allow the entry of respondent and the child in share household that is House no. 470 Kakrola Housing Complex, Kakrola, New Delhi.
Grounds of Appeal
13. Impugned order is challenged by appellants on the ground that allegations of respondent that she was beaten up by appellants as she was unable to bring sufficient dowry remained un-substantiated. It is stated that there is not a single document on record to show that respondent received Order on Appeal Page 8 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti any medical treatment for the alleged injury inflicted upon her by assault of the appellants.
14. Appellants have submitted that Ld. Trial Court failed to appreciate that allegations of mental, emotional, economic and physical abuse meted out to the respondent by appellants are not proved in absence of any documentary evidence substantiating the allegation. It is stated that no independent witness was examined by respondent in support of the allegation leveled by her.
15. Appellants have submitted that they are still facing trial in other case bearing FIR No. 204/13, PS BHD Nagar, under Section 406/498A/34 IPC and as such the allegations have remained not proved against them. It is stated that appellants have rebutted the case of respondent successfully and the impugned order is passed in hurry due to huge Order on Appeal Page 9 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti pendency of similar cases. Appellants have further submitted that respondent is herself guilty of inflicting cruelty upon appellant as behavior of respondent has lowered the dignity of appellants in the society. It is prayed that the impugned judgment be set aside and quashed.
16. Respondent has contested appeal by stating that Ld Trial Court has rightly appreciated the matter in view of the evidence led on behalf of respondent. It is submitted that Ld Trial Court has rightly held that respondent is entitled to stay in shared household and has awarded compensation and maintenance to respondent. It is submitted that there is no merits in the appeal and same is liable to be dismissed.
17. I have heard rival contentions of the parties. I have also perused the TCR.
Order on Appeal Page 10 of 19
CA No. 180/2023 Bijender & Ors Vs. Preeti
Analysis
18. Main contention of the appellant is that Ld. Trial Court fell in error while believing the version of respondent in absence of any corroborative piece of evidence.
19. After going through Trial Court Record, it is evident that the respondent has lead her evidence by way of an affidavit. On the other hand appellants despite opportunity did not lead any evidence. Respondent was cross-examined at length by the Ld. Counsel for the appellants but respondent withstood the test of cross-examination and nothing has been brought on record to discredit her testimony.
20. Respondent in her deposition alleged that she was taunted by her in-laws. Respondent has narrated in detail that on 16.04.2010 she was beaten. On occasion of Holi festival she was again harassed, tortured and beaten by the appellant Order on Appeal Page 11 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti on the issue of dowry. On 05.05.2012 she was again beaten and ultimately she was thrown out of the matrimonial home. Respondent specifically deposed that after her marriage she was brought to her matrimonial home at 470 Kakrola Housing Complex, Kakrola, New Delhi where she resided with the appellant till she was thrown by the appellants.
21. As stated above allegations against appellants were specific and the facts brought before the Court regarding their behaviour towards respondent makes respondent an aggrieved person as defined under Section 2(a) DV Act. Testimony of respondent establishes that she was subjected to domestic violence.
22. Contention of the appellants that since no documentary evidence has been led in respect of injuries sustained by respondent cannot be a ground to discredit her Order on Appeal Page 12 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti testimony simply due to the reason that while appreciating the evidence led in matrimonial disputes it has to be kept in mind that most of the ill-treatment is given to an aggrieved person within four corners of the house. Thus, it is not easy for the person subjected to domestic violence to collect any documentary evidence for the harassment and taunts meted out to her.
23. As stated above appellants did not lead any evidence to rebut allegations leveled against them. In these facts the Ld. Trial Court has rightly observed that respondent is an aggrieved person under Section 2(a) of DV Act and she is entitled for the reliefs claimed by her under the Act.
24. Now, let us consider reliefs granted to respondent by Ld Trial Court.
Order on Appeal Page 13 of 19
CA No. 180/2023 Bijender & Ors Vs. Preeti
Reliefs:
i. Under Section 18 DV Act: Ld. Trial Court has
prohibited appellants from committing any acts of domestic violence against respondent. In view of the finding that respondent was subjected to domestic violence as such Ld. Trial Court has rightly passed an order to restrain appellants from committing any act of domestic violence on respondent. ii. Share household: Ld. Trial Court directed appellant to allow entry of respondent and her child in share household bearing House No. 417, Kakrola Housing Complex, Kakrola, New Delhi a share household. There can be no denial that respondent has a right to seek residence from the appellant no.1.
In Satish Chandra Ahuja v. Sneha Ahuja, (2020) 11 Scale 476, Hon'ble Apex in para 83 held as under: Order on Appeal Page 14 of 19
CA No. 180/2023 Bijender & Ors Vs. Preeti
83. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in- law is pitted against aged father-in-law and mother- in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in- law. While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties.
In "Vinay Varma Versus Kanika Pasricha & Anr"
2019 SCC OnLine Del 11530, Hon'ble Delhi High Court while determining the right of aggrieved person in shared household passed following directions:
61. Under these circumstances, I am of the opinion that a mechanism would have to be devised to ensure that both the in-laws and the daughter-in-law live peacefully while the matrimonial disputes are resolved. The property in which the daughter-in-law has been residing is located in a posh South Delhi Colony of Safdarjung Enclave. She is occupying the property and she has no children. The relationship between the parties is not congenial. Considering this factual background, the following directions are issued;' Order on Appeal Page 15 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti
1. The Plaintiff - Mr. Vinay Varma/his son Mr. U.K. Varma shall jointly or severally pay a total sum of Rs.
50,000/- per month to the daughter-in-law in order to enable her to identify a commensurate residence for herself.
2. The said sum shall be paid to the daughter-in-law on a monthly basis on or before the tenth of every month directly into her bank account.
3. Upon the said payment being commenced, the daughter-in-law - Defendant would vacate the suit property within a period of three months.
Facts of the case indicate that the respondent is residing separately from the appellants since 16.10.2012 (that is for more than 10 years). It is also appearing in evidence that relationship between appellants and respondent is not cordial. In these circumstances, it would be really difficult for appellants and respondent to co-habitat and reside in same premises.
As such, taking clue from aforesaid authoritative judgments and in order to avoid confrontational environment and disharmony, it would be appropriate to direct appellant Order on Appeal Page 16 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti no.1 to provide separate residence to the respondent similar to shared household. Accordingly, to do the needful appellant no.1 is directed pay a sum of Rs. 5,000/- per month to the respondent towards her right of residence and of the minor child. The said sum shall be paid to respondent on a monthly basis on or before the 10th of every month directly into her bank account.
iii. Maintenance: Law of maintenance is founded on four broad principles. Financial capacity / income of the parties, status and standard of living of the parties, reasonable need of the claimant and liability of the non-claimant.
Appellant no. 1 has been directed to pay maintenance to the tune of Rs. 2,000/- per month in favor of respondent and Rs. 3,000/- per month in favor of the child.
Appellant no. 1 has stated that he is working as driver and his income is Rs. 7500/- per month. Since, Order on Appeal Page 17 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti appellant no.1 is working as driver his income can be safely assumed to be at-least equal to minimum wages of a skilled worker that is around Rs 20,000/-
On the other hand, respondent has deposed that she has no source of income. Respondent is also taking care of her daughter born out of wedlock. Respondent would require some amount to spend on educational and medical needs of the child as well.
After scrutinizing material before it, Ld Trial Court has fixed the maintenance to the tune of Rs. 2,000/- per month to respondent and Rs. 3,000/- per month to minor child from date of filing of her application under Section 12 DV Act i.e. 16.10.2014 which is just and reasonable and it is neither insufficient nor excessive.
iv. Compensation: Ld Trial Court, in view of the evidence led has arrived at the conclusion that respondent is Order on Appeal Page 18 of 19 CA No. 180/2023 Bijender & Ors Vs. Preeti to be compensated for the mental trauma and stress suffered by her at the hands of appellants. In facts of the case, amount of Rs. 20,000/- awarded to the respondent towards mental stress and agony seems justified and does not require any interference.
Conclusion:
25. In terms of modified directions given above in respect of shared household, appeal stands partly allowed.
During the proceedings on present appeal appellant no.1 has furnished a bank draft of sum of Rs. 2,00,000/- in favor of respondent. Bank Draft is directed to be released to the respondent and the amount shall be adjusted towards the amount of maintenance due to respondent. Trial Court record be sent back with copy of the order. File be consigned to Record Room.
Announced in the open Court on 8th May, 2023 Digitally signed by GAUTAM GAUTAM MANAN MANAN 12:28:00 Date: 2023.05.09 +0530 (GAUTAM MANAN) ASJ-02/DWARKA COURTS NEW DELHI Order on Appeal Page 19 of 19