Delhi District Court
Esha Rani vs . Rajender Kumar & Ors. on 14 September, 2015
CC No. 76/1/2010
PS: Burari
U/s 12 of DV Act
Esha Rani Vs. Rajender Kumar & ors.
02.09.2015
Present: Complainant in person.
Respondent no.1 in person.
Other respondents are absent.
Matter is fixed for clarification/order.
No clarification is required, however, no time is left for orders. Put up for orders on 14.09.2015.
(MONA TARDI KERKETTA) MM02: Mahila Courts THC: Delhi: 02.09.2015 CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 1/15 IN THE COURT OF MS. MONA TARDI KERKETTA :MM: MAHILA COURT:
TIS HAZARI COURTS :DELHI CC No. 76/1/2010 PS: BURARI 02401R: 030287210 IN THE MATTER OF SMT. ESHA RANI W/O SH. RAJENDER KUMAR D/O LATE SH. NILANDU PANDEY R/O H. NO. A2, BLOCK NO. 11, HIMGIRI ENCLAVE, SANT NAGAR, BURARI, DELHI110084.
.............COMPLAINANT VERSUS
1. SH. RAJENDER KUMAR (HUSBAND) S/o SH. MITTAN LAL
2. SMT. MAMTA (SAAS) W/o SH. MITTAN LAL
3. SH. MITTAN LAL SHARMA (SASUR) (SINCE EXPIRED) S/o NOT KNOWN
4. SH. BANTY (DEWAR) S/o SH. MITTAN LAL SHARMA
5. SMT. SEEMA (NANAD) (SINCE DISCHARGED) W/o SH. MANOJ KUMAR
6. SH. MANOJ KUMAR (NANDOI) (SINCE DISCHARGED) S/o SH. BABU LAL CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 2/15 ALL R/O B39, SANJAY ENCLAVE, ARYA SAMAJ ROAD, BINDAPUR, BEHIND MATIALA ROAD, NEAR GURUDWARA ROAD, UTTAM NAGAR, DELHI.
................RESPONDENTS DATE OF INSTITUTION : 24.05.2010 DATE ON WHICH THE JUDGEMENT WAS RESERVED ON : 14.09.2015 DATE OF JUDGEMENT :14.09.2015 COUNSELS FOR THE PARTIES: FOR THE COMPLAINANT: SH. S.A. KHAN FOR THE RESPONDENT: SH. AMIT KUMAR BRIEF REASONS FOR THE JUST DECISION OF THE CASE :
1. The present complaint has been filed by the complainant U/s 12 of Domestic Violence Act, 2005 against her husband and inlaws. The respondent no. 1 is husband and other respondents are in laws of the complainant. The brief facts of the case as disclosed in the complaint are that the marriage between the complainant and respondent no. 1 was solemnized on 23.07.2007 at Laxmi Narayan Mandir, Bhajan Pura, Delhi according to Hindu Rites and Ceremonies. It is further stated that in the marriage, the parents and relatives of the complainant spent money a sum of Rs. 5,000/ out of their hard earned income and that by raising loans from family friends and relatives in which Rs. 2,25,000/ were given in cash to the respondents.
2. It is further stated that the marriage of the complainant was 2nd marriage and regarding the first marriage some litigations were pending in Karkardooma Courts and this fact was very well within the knowledge of the respondents, however, the complainant and her family members were forced to solemnize the 2nd marriage of the complainant with respondent no. 1 and respondents had also told that divorce of first marriage will taken later. Sh. Brij Mohan was the mediator between the CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 3/15 marriage of complainant and respondent no. 1, who is relative of the respondents and the said fact was given in writing and signatures were made thereupon. It was also mentioned that the respondents shall be responsible for her divorce from husband namely Sh. Sunil. It was also agreed by the respondents that the complainant shall have every right/share in her matrimonial. The respondent no. 2 also told that her daughter of the Dewar had also solemnized the 2 nd marriage of his daughter without taking divorce from first her marriage and she forced the complainant and her family members to solemnize her 2nd marriage with the respondent no. 1. Although, the complainant got the divorce from her 1st husband in the year 2009.
3. It is further stated that when the complainant used to attend the case at KKD Court regarding her first marriage, the respondent no. 1 also accompanied her and he also told the complainant that he used to talk with the first husband of the complainant and he also used to threaten the complainant on this pretext.
4. It is further stated that respondent no. 3 used to reside whole day in the house and used to abuse and threatened the complainant in filthy language by saying that "ghar se bhag ja hamne Rajender ko bhi kah diya hai ise kisi haal mai ghar main nahi rakhna hai aur ise nikal de". It is further stated that respondent no. 4 also used to abuse her in filthy language and also used to outrage the modesty of the complainant in the presence of the respondent no. 1 and respondent no 4 and also used to gave beatings to complainant and none of the respondents obstructed him. It is further stated that the respondents had not given any party or reception regarding marriage of the complainant and when the complainant questioned from the respondents, the respondent no.2 told that they will give handsome reception party when the complainant will give birth to a son. It is further stated that since the second month of marriage, the attitude of the respondents was not good with her and respondent no. 2 and 5 used to tell the complainant that "tu kangli hai dahej main kuch bhi nahin lai hai" and also used to taunt the complainant on the pretext of dowry.
5. It is further stated that after 23 months of marriage, the complainant CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 4/15 conceived pregnancy and the sex of child was got checked and when it was found that there is a female child in womb and abortion was done. It is further stated that after 45 months, complainant again conceived and again the sex of child was got checked and when it was found that again there is a female child, she was forced for abortion and due to illegal force of the respondents, the second abortion was got done.
6. It is further stated that respondents used to force the complainant on the demand of 1,50,000/ cash and a constructed house of 50 sq. yds. and only in that case, the complainant will will reside happily at her matrimonial home otherwise, she will be faced dire consequences. It is further stated that the respondents no. 5 and 6 used to taunt and torture the complainant by saying that they will told the 2 nd marriage of the complainant to her first in laws and both further used to told that they will force the respondent no. 1 to give divorce the complainant. It is further stated that the complainant narrated all these talks to her mother in this regard, the mother of the complainant talked with respondent no. 2 but the respondents were adamant in their evil designs.
7. It is further stated that on 25072009, when it was came into the knowledge of respondents that the complainant had again conceived then they again forced to check the sex of the child and they further told that if this time the child would female then she shall be aborted and they further told that if complainant want to keep the child, then she had to take Rs.1.50 lac from her mother, otherwise, they burn the complainant alive and also finish her life. Thereafter, the complainant narrated all these cruelties to her family members and on that the her mother visited her matrimonial home and tried to understand the respondents by saying that they had spent huge amount at the time of marriage which was beyond their capacity and she was unable to give anything more but the respondents had not paid any heed towards the requests of her mother and were adamant in their evil designs.
8. It is further stated that respondent no. 1 used to taunt and torture the complainant by saying that he had solemnized his marriage with already married CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 5/15 girl in the hope that more dowry will be given but his all hope had gone in vain and he used to threaten the complainant that he would solemnize his second marriage with another girl of rich family and due to all these quarrel, the neighbours also came to know the fact of first marriage of the complainant. It is further stated that on 26.07.2009, all the respondents brutally beaten the complainant and thrown her out of the matrimonial home in wearing clothes and since then the complainant is residing at her parental house on their mercy. It is further stated that all the jewelery and stridhan articles are in the illegal custody of the respondents, which they have not returned despite of repeated requests and demands. It is further stated that the respondents are not only guilty of subjecting the complainant to physical and mental cruelties but have also misappropriated her istridhan items which are lying in their custody, despite demands, they have refused to return the same.
9. It is further stated that the respondent no. 1 being husband of complainant has willfully neglected and failed to maintain her, although he is legally and morally bound to maintain her. It is further stated that the complainant has been thrown out of the matrimonial home without any justified cause or reason and presently she is surviving on the charity of the family members of her. It is further stated that the complainant is a housewife and having no source of income and she has no movable or immovable property in her name. On the other hand, respondent no. 1 is a man of means since he is working in TVB Company situated at Dwarka as a Senior Salesman and is getting Rs.48,000/ per month and besides that he is having number of bank accounts, FDRs, Kisan Vikas Patra in his name and has lacs of rupees in the form of savings and he is fully capable of maintaining the complainant as he has no other liability except the complainant.
10. It is further stated that the complainant needs at least a sum of Rs.15,000/ per month for her boarding, lodging daytoday expenses towards her maintenance and the respondent no. 1 is fully capable of paying the same but till date he has refused and neglected to maintain the complainant without any justified cause and reason. It is further stated that the complainant has been continuously subjected to cruelty CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 6/15 and harassment and forced to live with her mother at her mercy alongwith minor son. The complainant is left with no other option but to seek the relief and legal remedy from this Hon'ble Court hence this petition.
11. The following orders have been requested to be passed :
(i) Protection Order Under Section 18 of the Act:
(a) prohibiting the acts of domestic violence by granting an injunction against the respondents from repeating any of the act,
(b) prohibiting the respondents from any form of communication by the respondents with the complainant or the relative/ any other person of the complainant.
(ii) Monetary Relief Under Section 20 of the Act:
(a) directing the respondent to pay maintenance @ Rs. 15,000/ per month,
(iii) Compensation Order Under Section 22 of the Act :
(a) @ Rs. 2,00,000/ for degrading and abandoning the complainant in the society.
12. Vide order dated 24.05.2010, Ld. Predecessor directed to issue summons to the respondents. Vide order dated 05.10.2010, proceedings qua respondent no. 3 were dropped as he unfortunately expired. On receiving notice, the remaining respondents appeared before the court and expressed their willingness to contest the petition. On completion of pleadings, Ld. Predecessor fixed the matter for arguments on the point of interim application, which were heard on 27.05.2011. Thereafter, vide order dated 06.06.2011, Ld. Predecessor disposed off the Interim Application. Vide said order, respondent no. 5 & 6 were discharged for the want of domestic relationship and respondent no. 1 was directed to pay a sum of Rs. 2500/ per month to the complainant as interim maintenance from the date of filing of the present petition till its disposal. Subsequent thereto matter was fixed for complainant evidence (CE).
13. In support of her case, the complainant has examined herself as CW1 and tendered her evidence by way of affidavit, which is Ex.CW1/A, bearing her signatures at point A & B. In rebuttal, respondents have examined respondent no.1 as RW1, CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 7/15 who tendered his evidence by way of affidavit, which is Ex RW1/A, bearing his signatures at point A &B.
14. Subsequent thereto, matter was fixed for final arguments. During the course of final arguments, Ld. Counsel for complainant submitted that the factum of previous marriage of complainant was disclosed to the respondents, which is reflected from cross examination. It was further submitted that admittedly, the respondents have not filed any complaint against complainant to police for concealment of previous marriage. It was also submitted that the complainant and her child have no source of income and respondent no. 1 is legally and morally bound to make provisions for their maintenance.
15. On the other hand, Ld. Counsel for respondents submitted that there is delay in reporting the matter to the various authorities concerned after allegedly being thrown out of the house. It was further submitted that the complainant has not proved the fact of disclosure of previous marriage through mediator concerned. The complainant has also not proved on record the alleged writing containing the facts of disclosure of previous marriage. It was further submitted that the allegations levelled by the complainant are general in nature without any basis. It was further submitted that the complainant should have examined her parents to corroborate her version. It was further submitted that the complainant has mentioned many contradictory facts in her testimony so no reliance can be placed . Since the complainant has failed to prove her case, she is not entitled to receive any relief .
16. I have heard the Ld. Counsel for the parties and perused the entire record with their assistance.
17. At the very outset, it is pertinent to mention that complainant in order to be entitled to the relief under the Domestic Violence Act, 2005 is required to establish, that firstly there is a domestic relationship as defined u/s 2(f) of the abovesaid Act between complainant and respondents and thereafter it is also required to be established that she has been a victim of domestic violence as defined u/s 3 of the said Act.
CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 8/15 Domestic relationship has been defined under the Act in Section 2(f) as under :
(f)"domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
18. It be observed that the respondents have not disputed the factum of domestic relationship with the complainant at any point of time. It is an admitted case of the parties that the marriage was solemnized on 23.07.2007 at Laxmi Narayan Mandir, Bhajanpura, Delhi . Accordingly, domestic relationship between them stands proved.
19. It is also incumbent upon the complainant to establish that she has been a victim of domestic violence. CW 1 / complainant has mentioned at para no. 04 to 20 of the affidavit Ex CW1/A about commission of acts of domestic violence committed upon her by the respondents. She has reiterated the facts mentioned in the petition. On the other hand, the respondents have denied all the claims of complainant and maintained the fact of concealment of first marriage.
20. So far as establishment of factum of being victim of domestic violence is concerned, it is seen that the claims and counter claims on first marriage of complainant is the bone of contention. In order to prove her claims, the complainant has testified that the fact of her first marriage was disclosed through mediator of the marriage Sh. Brij Mohan in writing and under signatures. It was also mentioned that the respondents shall be responsible for divorce from first husband. It was also mentioned that the complainant shall have all rights or share in the matrimonial house. The complainant has also testified that respondent no.2 told her about solemnization of other marriage in similar manner in the family. She has further testified that the disclosure of first marriage is also proved from the fact that respondent no. 1 used to accompany her for court hearings pertaining to cases of first marriage. She has also testified that he told her of meeting with her first husband.
CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 9/15
21. In this regard, it be observed that the complainant has not brought any other independent witness to corroborate this fact. The mediator of the marriage Sh. Brij Lal, one of the most material witnesses, to prove the fact of disclosure or concealment of first marriage. The complainant was required to bring him in the witness box in support of her claims. The complainant has also not examined either her family members or any other common relative or friend acquainted with this fact. In cross examination, she has denied not disclosing the fact of first marriage to the respondents. It further be observed that the complainant has also not produced and proved the written document executed under signatures of the parties containing the factum of disclosure of previous marriage. During cross examination, she has denied not executing any document for disclosure of first marriage but has not proved the same. She was required to produce and prove the said document on record in order to establish her claim in respect to disclosure of fact of first marriage.
22. It further be observed that in cross examination, she has denied not disclosing the fact of pending litigation by her and family members to the respondents but she has not been able to prove the fact of accompaniment of respondent no.1 for hearings in cases related to first marriage through corroborative evidence.
23. On the other hand, the respondent no.1 has testified that he came to know of first marriage of complainant only on 10.07.2009 and of registration of case FIR No. 561/06 PS: Gokulpuri under section 498A/406/34 IPC & section 3&4 DP Act against her first husband and his family members. He has further testified that when he enquired from the complainant as to why she concealed the fact of previous marriage then she did not give any answer and left the matrimonial house on her own. The respondent no.1 has further testified that divorce petition is pending adjudication before the concerned court. It be observed that the stand of respondents on these aspects has remained uncontroverted as no relevant cross examination has been done to negate them. In cross examination he has maintained his stand on non disclosure of previous marriage. He has deposed that no intimation in respect to first marriage was given and he came to know in the year CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 10/15 2009 about cases pending adjudication relating to first marriage of the complainant. He has categorically deposed that he never appeared along with the complainant before the court on any date of hearing. He has further specifically deposed that he came to know about first marriage of the complainant in JuneJuly 2009 through her father, who learned about the same through some relatives. He has further deposed that he came to know of first marriage of complainant only after solemnization of his marriage with the complainant. He has further deposed that he filed divorce case at Tis Hazari Court after learning of first marriage of complainant. The claims of complainant about pressurization of early marriage and assurance of divorce with first husband at later stage by the respondents appear to be false and incorrect on its face itself as no person of ordinary prudence would advice so. Accordingly, from the above mentioned discussions, it is transpired that the fact of first marriage of the complainant was not disclosed to the respondents prior to solemnization of marriage between complainant & respondent no.1.
24. The falsity of complainant's claims of being victim of domestic violence is established through further evidence led by the parties. The respondent no.1 has testified that divorce petition is pending adjudication before the concerned court. He has further testified that since beginning of the marriage, the complainant was pressurizing him to get separated from his parents and other family members. when but he did not oblige her ,she started ill treating the respondent and his family members. He has further testified that she was in habit in going to her parental house without informing the respondent and used to stay there for months. Whenever he used to visit there, he was pressurized to arrange a separate accommodation so that her mother could also live with them and other relatives could visit her frequently. He has further testified that he came to through neighbours that presently the complainant is living with some other man without any fear. He has further testified that the after discovery of first marriage, the complainant created such scenario so that she could easily attend the court proceedings pertaining to her first marriage. He has further testified that the CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 11/15 complainant used to threat to implicate him and his family members in false cases. It be observed that the testimony of R1 on these aspects has remained uncontroverted and unchallenged. No cross examination has been conducted on behalf of complainant on these aspect to discredit the version of the respondents.
25. The version of complainant gets falsified through further evidence. The complainant has further testified that on conceiving, she was forced to undergo abortion twice on learning of female child in the womb. She has further testified that respondents used to demand Rs.1,50,000/ cash for construction of the house and tell that she would be allowed to live in the house only if the demand is fulfilled. She has further testified that when she got pregnant for the third time, she was told either to abort the pregnancy in case of girl child or to deliver only if demand of Rs. 1,50,000/ was fulfilled. When the complainant expressed inability to fulfill the demand , the respondents did not pay any heed to her incapacity. She has further testified that the respondents used to taunt that R1 got married with already married lady in the hope of getting good dowry but the same did not happen and he used to threaten to perform marriage with some other girl. Due to continuous quarrel, the neighbours also came to know of the fact of her previous marriage. She has further testified that the respondents threw her out of the house on 26.07.2009 after beating mercilessly in wearing clothes. She has further testified that all the delivery expenses were borne by her parents. She has further testified that the respondent no1. has neglected and failed to maintain her and as well their child , who is in her care and custody without any justified cause. He has no other liability except to maintain them. Whereas, the complainant and child are surviving at the mercy of complainant's family members in the absence of any independent source of income. She has also testified that all the jewelleries and Stridhan articles have been retained by the respondents, which have not been returned despite repeated request.
26. In this regard, it be observed that the allegations of complainant are general in nature without there being specific details and are not corroborated by independent CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 12/15 witnesses. The complainant has filed any medical treatment papers or document related to forced abortions. She has also not examined any doctor to prove the fact of forced abortions for carrying female babies. No corroborative evidence has been led to prove that delivery expenses of the child were borne by her family members. Admittedly, the complainant did not file any complaint to police or any other authority in respect to cruelties and atrocities allegedly committed upon her. She filed her first complaint against the respondents before CAW cell much later. The present petition was also filed after much delay of 10 months of alleged incident of throwing out of the matrimonial house. No explanation has come on record as to why such delay occurred in filing the case.
27. So far as allegation regarding retention of stridhan articles is concerned, the complainant has not been able to prove the same by leading evidence. The complainant has not filed any list of articles prepared and signed by both the sides at the time of marriage. She has also not filed and proved any bill, invoice of dowry articles, details of conveyance or transport through which articles were allegedly sent at the matrimonial house. The fact of misappropriation or conversion of articles for self use is also not proved. The complainant has also failed to prove the source of dowry articles allegedly given at the time of marriage.
28. So far as economic abuse is concerned, the court feels that the complainant is not entitled to monetary relief or maintenance for having failed to prove on record the factum of being victim of domestic violence. Rather, it is on record that she is guilty of suppressing the fact of existence of first marriage prior to solemnization of marriage with the respondent no.1. So far as provision for maintenance for the child is concerned, admittedly, a petition under section 125 Cr.PC. is pending adjudication. An application seeking DNA Test of the child is pending hearing in the said petition, therefore, the court is not inclined to pass any order in favour of the child. The complainant is at liberty to press for maintenance order for the child in the petition filed U/s 125 Cr. P.C., which also provides provision for maintenance of wives, children and parents.
CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 13/15
29. In view of foregoing reasons, the court has come to the conclusion that the complainant has miserably failed to prove on record that she has been a victim of domestic violence. Accordingly, the present petition is dismissed. The respondents are discharged.
30. File be consigned to record room after completion of necessary formalities.
31. Copy of this order be given dasti to the parties, if requested.
ANNOUNCED IN OPEN COURT (MONA TARDI KERKETTA)
ON 14.09.2015 MM02:MAHILACOURTS
THC: DELHI:14.09.2015
CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 14/15
CC No. 76/1/2010
PS: Burari
U/s 12 of DV Act
Esha Rani Vs. Rajender Kumar & ors.
14.09.2015
Present: None for complainant.
Sh. Amit Kumar, Ld. Counsel for respondents.
Matter is fixed for orders.
Vide separate detailed order announced in the open court, the present petition is dismissed. The respondents are discharged.
File be consigned to Record Room after completion of necessary formalities.
Copy of this order be given dasti, if requested.
(MONA TARDI KERKETTA) MM02: Mahila Courts THC: Delhi: 14.09.2015 CC No. 76/1/10 PS: Burari Esha Rani Vs. Rajender Kumar & ors. 15/15