Delhi District Court
Cc No. 14/1/08 Subita Devi vs . Rampreet Mehto 1/13 on 20 June, 2013
1
IN THE COURT OF MS. PRIYA MAHENDRA: Ld.MM (MAHILA COURTS-2)
ROOM NO: 315: DWARKA COURTS: NEW DELHI
IN THE MATTER OF
CC No. 14/1/08
SUBITA DEVI
W/O SH. RAM PREET MEHTO
R/O HOUSE NO. 27, RANAJI ENCLAVE
PHASE-II, OPPOSITE SANATAN DHARMA
MANDIR, NAJAFGARH, NEW DELHI
....................... (AGGRIEVED PERSON/
COMPLAINANT)
VERSUS
1. RAM PREET MEHTO (HUSBAND)
S/O SH. SWEET MEHTO
2. RAM SWARATH MEHTO @ MAHESH
S/O SH. SWEET MEHTO (BROTHER IN LAW)
BOTH R/O HOUSE NO. 27, RANAJI ENCLAVE
PHASE-II, OPPOSITE SANATAN DHARMA
MANDIR, NAJAFGARH, NEW DELHI
..................... (RESPONDENTS)
PS: NAJAFGARH
APPLICATION U/s 12 OF PROTECTION OF WOMEN FROM DOMESTIC
VIOLENCE ACT, 2005
JUDGMENT
1. By this judgment I shall dispose of the petition filed by the aggrieved person under Section 12 of Protection of Women from Domestic Violence Act, 2005 (herein after referred to as an Act) filed against respondents.
2. The aggrieved person filed petition against two respondents and both were summoned. Respondent no. 1 is her husband and respondent no. 2 is her CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 1/13 2 brother in law. The aggrieved person has stated in her compliant that her marriage was solemnized with respondent no. 1 on 07.05.1994 according to Hindu rites and ceremonies. Three children namely Deepak, Jyoti and Manoj were born out of the said wedlock. The aggrieved person started residing alongwith her husband and other respondent. Both the respondents have been continuously harassing the aggrieved person since long on one pretext or another. On 19.01.2008, the respondent no. 1 mercilessly beaten the aggrieved person and virtually thrown her out of the house. Had there not been timely intervention of local police, she would have sustained serious injuries. The local police has arrested the respondent no. 1 U/s 107/151 Cr.P.C after receiving DD No. 64B dated 19.01.2008. The respondent no. 1 is interested in re-marrying another women. In order to achieve that motive, the respondent no. 1 levelled false, frivolous and baseless allegations of adultery against her. He alongwith respondent no. 2 are hell bent upon forcing the aggrieved person to vacate the house, so, that respondent no. 1 can remarry.
The aggrieved person also filed an application U/s 23 of DV Act alongwith an affidavit and stated that respondents used to pick up quarrel with her on petty issues. The respondent no. 1 had thrown out her from matrimonial house in three wearing clothes and also snatched her children. She is living with her parents. She is illiterate with no source of livelihood and having no movable or immovable property for survival. All her belongings, clothes, jewellery and other valuable are in possession of respondents. She is totally dependent on her parents and is at the stage of starvation. She has also stated that respondent no. 1 is having his own auto rickshaw and earning more than Rs. 25,000/- per month and he is also doing finance business.
CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 2/13 3
3. Joint Written Statement was filed by the respondents and in the WS respondents have contended that the aggrieved person is habitual of leaving the house for several days together and intermittently comes back for a few days and then leaves again. Whenever respondent no. 1 raised query as to where she has been, she flatly tells him that it is none of his business. Further she even neglects her children and they are being taken care of by respondent no. 1. Despite respondent no. 1's efforts to make her understand that she should take care of the house, the aggrieved person refused to live peaceful matrimonial life and aggrieved person has made several endeavours to spoil the life of the respondent no. 1 & 2 by arraigning them in false matters. The respondent no. 1 has denied physically abusing the aggrieved person on 19.01.2008 and stated that police personal of PS Najafgarh acted in a perfunctory manner on the basis of the complaint made by aggrieved person without bothering to properly investigate the matter. The aggrieved person has levelled false and baseless allegations which are totally general and unspecific in nature. It is further stated that the respondent no. 2 who is younger brother of respondent no. 1 is staying separately with his family consisting of his wife and children and never interfered in the life of respondent no. 1 but aggrieved person has also falsely implicated him.
4. The aggrieved person filed replication in which she denied the allegations made by respondents in the WS and reiterated and reaffirmed her submission.
5. My Ld. Predecessor awarded interim maintenance @ Rs. 3000/- per month to the aggrieved person. The said order was upheld by the Ld. Appellate Court in an appeal filed by the respondents.
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6. The aggrieved person examined herself as CW-1 in order to prove her case. The respondents examined three witnesses to prove his defence. Their testimony shall be dealt with later.
7. It is argued by the Ld. Counsel for aggrieved person that aggrieved person has suffered domestic violence at the hands of the respondents. In view of harassment and tortured perpetrated on the aggrieved person by respondent no. 1, she is left to fend for herself and the interim maintenance @ Rs. 3000/- is very meager. Even today, the respondents harass the aggrieved person by visiting the place where she is residing. So, she may be granted Protection Order besides Monetary Relief.
8. On the other hand, Ld counsel for respondents has stated that no order is warranted against respondent no. 2 as he never shared any domestic relationship with aggrieved person. Moreover, the aggrieved person willfully deserted the respondent no. 1 and her three children without any justifiable cause and is not entitled to any relief even qua respondent no. 1.
9. I have carefully considered the arguments and perused the record.
Brief testimony of witnesses:
10. CW-1 reiterated the contents of her complaint in her evidence by way of affidavit Ex. CW1/A and relied upon the document i.e. Copy of kalandra U/s 107/151 Cr.P.C dated 18.01.2008 Mark-A. In her cross examination, she stated that after her marriage she came to her matrimonial home at Village Bela which is CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 4/13 5 in Bihar. She does not know in which year, she shifted to Delhi in the house purchased by her husband/respondent no. 1. She admitted that the respondent no. 2 resides in a separate portion of the house and there is a wall for partition of the house. She has named respondent no. 2 in the present complaint since both the respondents used to beat her. She denied the suggestion that she had not made any complaint to any lawful authority about that. She stated that she cannot call any person from the vicinity of a matrimonial house where she used to live with respondent no. 1 to affirm the allegations of beatings given to her by the respondents. She admitted that she also made a complaint to CAW Cell, Dwarka. She denied the suggestion that the said complaint was later on closed by the officials of CAW Cell on account of her absence and also because of the incorrect residential address furnished by her to CAW Cell.
She also stated that previously she was residing at the address mentioned in her evidence by way of affidavit Ex. CW1/A and was also working at the said address but later on she left the same as her landlady expired. She does not know the date on which her landlady expired. She denied the suggestion that she has not mentioned this fact in her affidavit Ex. CW1/A. She further stated that she is not ready to live with respondent no. 1 at his village. She cannot tell her present address because she is afraid of respondent no. 1 and has apprehension that he may kill her at any point of time.
She denied the suggestion that she is not disclosing her present address as she is living with one Ishwar Parshad. She also denied the suggestion that the present case has been filed by her at the behest of said Ishwar Parsad. She further denied the suggestion that incident of 19.01.2008 took place when the respondent no. 1 had seen her in compromising state with the said Ishwar Parshad. She admitted that vide kalandra dated 19.01.2008 Mark A only CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 5/13 6 respondent no. 1 was arrested and she was not arrested. She admitted that kalandra was made on the basis of the quarrel which took place between her and her husband inside her matrimonial home.
11. RW-1; Rampreet Mehato, respondent no. 1 examined himself as RW-1. He made starking improvements in his evidence by way of affidavit and introduced totally new facts which were never disclosed by him in his written statement. He admitted his marriage with the aggrieved person and also admitted the fact of three children being born out of his said wedlock. Thereafter, he took a new plea that his friend Ishwar Parsad residing in the neighbourhood used to come at his residence but later on he started coming to his house even in his absence. He established illicit relationship with his wife. One day he saw both of them in compromising condition. For the welfare of his children, he advised his wife to discontinue the said relations but she continued with the illicit relations. Making further improvements he stated that the petitioner booked him in false cases in association with the said Ishwar Parsad. One day she eloped with said Ishwar Parsad and he came to know the said facts from the neighbourhood. The aggrieved person also filed one false complaint against him at CAW Cell, Dwarka, New Delhi but thereafter she stopped appearing there and on enquiry even her address was found to be incorrect. He has further stated that he is sole bread earner for himself and his three grownup children. At present, he is working as a labourer and all three children are solely dependent on him.
In his cross examination, he stated that his children used to tell him about the affair of aggrieved person with Ishwar Parshad until he saw them in compromising position with his own eyes. He had seen them in compromising condition in August -September 2007. He cannot tell the date when he saw his CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 6/13 7 wife with Ishwar Parshad in compromising position but it was 06-07PM in the evening. He further stated that he had not contracted second marriage but he is living with one widow lady and is having two children from her.
He further stated that he is a labourer by profession. At the time of his marriage he was an auto rickshaw driver. He was the owner of that auto rickshaw. He denied the suggestion that even today he drives an auto rickshaw and is not a labourer.
RW-2 Surender Mandal in his evidence by way of affidavit stated that he was residing in the neighbourhood of the parties and know them from near about 10 years. The respondent no. 1 is a soft spoken person having clean antecedents. He has further stated that the behaviour of aggrieved person was very rude towards respondents and her children. He had seen her quarreling with her husband on many times on petty matters. The aggrieved person developed illicit relationship with one Ishwar Parshad residing in her neighbourhood and thereafter she eloped with him leaving behind respondent no.1 and three children. Respondent no. 1 is looking after three children. RW-4(should be read as RW-3) Rehana deposed on the same lines as RW-2.
RW-2 and RW-3 both deposed in their cross examination that they know Rampreet Mehato very well. RW-2 also stated in his cross examination that the distance between his house and the house of respondent no. 1 is about 400 yards. He goes to his duty between 9 to 10AM and comes back at around 8PM. He did not go to the spot when there were quarrels between aggrieved person and respondent no. 1. RW-3 during cross examination stated that she knows respondent no. 1 as she is from same village as respondent no. 1. The distance between her house and house of respondent no. 1 is about 100 yards. She did not go to the spot when there were quarrels between aggrieved person and CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 7/13 8 respondent no. 1. Both RW-2 and RW-3 deposed that they have friendly relations with respondent no. 1 even today. They can do everything which is possible for them for welfare for respondent no. 1. They neither visited the house of respondent no. 1 nor they called them on any occasion to settle the issues between them. However, they know what was the issue of their dispute. They do not remember exact time, date, month and year of any quarrel.
Brief Reasons for decision:
12. In order to be entitled to claim relief against any person arraigned as respondent, it is essential for the aggrieved person to show that she shared domestic relationship with the said respondent.
The term domestic relationship has been defined in section 2 (f) which reads as under:
"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;
The term respondent has been defined in section 2 (q) which reads as under:
"respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act;
CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 8/13 9
13. The aggrieved person admitted in her cross-examination that respondent no. 2 was residing in a separate portion of the house when the aggrieved person was living with respondent no. 1 and there was a wall for partition of the house. Thus, respondent no. 2 was not living with the aggrieved person and the respondent no. 1, and therefore, the domestic relationship between the aggrieved person and respondent no. 2 is not established. So, she is not entitled to any relief against respondent no. 2 in the present case.
As far as the respondent no. 1 is concerned, the marriage between the aggrieved person and respondent no. 1 is not disputed and they lived with each other for sufficient long time and three children were also born out of their wedlock. So, domestic relationship between the respondent no. 1 and aggrieved person as envisaged U/s 2 (f) of Act stands established.
14. Next, it is mandatory for the aggrieved person to show that she was subjected to domestic violence by the respondent no. 1 with whom she shared domestic relationship. The aggrieved person has stated in her complaint that respondent no. 1 used to harass her on one pretext or another. He used to pick up quarrel with her on petty issues. On 19.01.2008, he mercilessly beaten her and tried to throw her out of the matrimonial house. She called up the police vide DD No. 64B dated 19.01.2008 and respondent no. 1 was arrested U/s 107/151 Cr.P.C. She has also filed on record the copy of kalandra proceedings as Mark-A in support of her case. The contents of mark-A clearly reflect that the police on reaching the spot found the respondent no. 1 forcefully ousting the aggrieved person from her matrimonial/shared household. He was totally uncontrollable and was very aggressive. Despite the intervention of police, he continued with his aggressive behavior. It is further manifested from reading of Mark-A that had CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 9/13 10 respondent no. 1 not been arrested, he could have committed very serious offence on account of his violent behavior. It is note worthy that in the WS, the respondent no. 1 offered no explanation for the incident dated 19.01.2008. It is only contended that he was implicated in kalandara proceedings without proper enquiry. In the entire WS, there was no whisper of any illicit relationship of the aggrieved person with any person much less Ishwar Prasad. Only during the evidence of the aggrieved person, the respondent no. 1 took a plea of illicit relationship between the aggrieved person and one Ishwar Prasad, as a cause of dispute between the couple and also the suggestion that the violent behavior of the respondent no. 1 was triggered as he had seen the aggrieved person in a compromising position with the Ishwar Prasad. Further the respondent no. 1 in his cross-examination on a pointed question by Ld. Counsel for aggrieved person stated that he saw his wife and Ishwar Prasad in a compromising position sometime in August, 2007 and stated that he cannot tell the date of the said incident. This clearly shows that the defence of illicit affair was taken as after thought and for this reason the respondent fumbled when asked about the exact date when he saw his wife in compromising position with said Ishwar Prasad and stated it to be somewhere in August, 2007 and not 19.01.2008, the date of kalandra proceedings. The respondent no. 1 again tried to cover up the falsehood by making improvement in his evidence by way of affidavit that one day when he saw his wife in a compromising position with the said Ishwar Prasad, he said nothing to his wife and only advised his wife to discontinue the said relationship. The respondent no. 1 has not taken any plea of seeing the aggrieved person in compromising condition with the said Ishwar Prasad before 19.01.2008 either in his WS or during the cross-examination of the aggrieved person. Thus, the evidence of the respondent no. 1 is full of improvements and he has set up a CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 10/13 11 totally new case during the evidence. The respondent no. 1 never contended any illicit relationship of aggrieved person in the WS and his evidence has lost credibility due to the improvements made by him. The improvements made by him in his evidence cannot be considered as the same are not part of pleadings and he has miserably failed to account for his violent and aggressive behaviour towards the aggrieved person on 19.01.2008.
The respondent no. 1 has also produced RW-2 and RW-3 in order to prove that it was the aggrieved person who was quarreling with the respondent no. 1 on petty matters. She develop illicit relationship with one Ishwar Prashad and thereafter eloped with him leaving behind her children. However, their testimony is not very credit worthy as they are interested witnesses. Both of them clearly stated that they share such close relationship with respondent no. 1 that they can do every possible thing to ensure his welfare. They also deposed that they never went to mediate between aggrieved person and respondent no. 1 on hearing their quarrel. Thus, their testimony is merely hearsay and not admissible. The DIR filed by the Protection Officer also support the evidence of aggrieved person. So, it is prima facie established that the respondent no. 1 subjected the aggrieved person to domestic violence.
15. Now I shall proceed to decide the reliefs to which the aggrieved person is entitled.
(i) Protection order under Section 18:- The aggrieved person has stated in her evidence that she does not want to tell her present address because she is afraid of respondent no. 1 and has the apprehension that he can go to the extent of killing her on knowing her address. This clearly suggests that CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 11/13 12 aggrieved person apprehends domestic violence at the hand of respondent no. 1 even today and needs to be protected. So, the respondent no. 1 is restrained from communicating with the aggrieved person in any form including personal, oral, written or electoral or telephonic contact.
(ii) Monetary reliefs under Section 20:- The respondent no. 1 during the trial took a plea that he is an Auto rickshaw driver and is having an auto rickshaw which he purchased after funding it on obtaining a loan. On the basis of the same, the aggrieved person was awarded maintenance @ Rs. 3,000/- per month and the said order was later upheld by the appellate court. Now, the respondent no. 1 has taken a plea in his evidence that he is only a laborer and all his three children are dependent on him. However, the respondent no. 1 has not explained any circumstances which compelled him to become a laborer and why he stopped his work of plying an auto rickshaw. The respondent no. 1 has also stated that he was owner of the auto rickshaw that he was plying and also took a loan on the same. He has not explained that where that auto rickshaw has gone now. In these circumstances, his bald submission that he is now only a laborer cannot be believed. He has not disclosed in his entire evidence his earnings and also not filed any document regarding the same. So, adverse inference is drawn against him for withholding the information regrading his income and financial status. Being an auto rickshaw driver his monthly income is assessed as Rs.
15,000/- per month. The respondent no. 1 is also having liability of three children born out of his marriage with the aggrieved person and two children from the another widow women. Keeping in view the entire gamut of the circumstances, I am of the opinion that justice would be met if the respondent no.1 pays an amount of Rs. 3,000/- per month to the aggrieved person towards her maintenance from CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 12/13 13 the date of filing of petition i.e. 13.02.2008 till she is entitled to receive the same. Considering the rising inflation, the aggrieved person shall be entitled to 10% yearly increase in the awarded maintenance.
16. Respondent no. 1 is directed to clear the arrears of maintenance within 6 months from today in equal installments and to furnish the monthly maintenance after the date of order, by way of money order or by deposit in the bank account of the petitioner on furnishing of account number of the same, by or before 15th day of each English calender month. The default shall be viewed in terms of the judgment of Hon'ble High Court in Gaurav Sodhi Vs. Divya Sodhi - 120 DLT (2005) 426.
17. Aggrieved person is at liberty to recover the maintenance amount by filing execution if no other recovery proceedings are pending before any court of law, for the same period. Interim maintenance paid, if any, shall stand adjusted.
18. No other relief is being granted to the applicant as there is no sufficient evidence on record to prove the same. Ordered accordingly.
19. Complaint stands disposed of accordingly. File be consigned to record room.
ANNOUNCED IN OPEN COURT (PRIYA MAHINDRA)
ON 20th JUNE 2013 METROPOLITAN MAGISTRARTE
MAHILACOURT-02/DWARKA
NEW DELHI
CC No. 14/1/08 Subita Devi Vs. Rampreet Mehto 13/13