Delhi District Court
Priyanka @ Karishma Mishra vs Vikas Mishra And Ors. on 25 August, 2018
IN THE COURT OF ADDITIONAL SESSIONS JUDGE03
(NORTH EAST), KARKARDOOMA COURTS, DELHI.
PRESIDED BY: LALIT KUMAR, DHJS
CA No. 23/18
Smt.Priyanka @ Karishma Mishra
d/o Sh.Dinesh Tiwari,
w/o Sh.Vikas Mishra
r/o E63, First floor,
Gali no.6, Jagjeet Nagar,
Tisra Pusta, Usmanpur,
Delhi53.
Versus
1 Sh. Vikas Mishra
s/o Sh.Vinod Mishra
2 Sh.Vinod Mishra
s/o not known
3 Smt.Savri Devi
w/o Sh.Vinod Mishra
4 Sh.Ashutosh Mishra
s/o Sh.Vinod Mishra
Ghukna More, Meerut Road, Ghaziabad, U.P.
5 Ms.Neetu Mishra
d/o Sh.Vinod Mishra
6 Ms.Neha
d/o Sh.Vinod Mishra
CA no.23/18 1/9
Priyanka @ Karishma Mishra Vs Vikas Mishra and ors.
All r/o E63, Ground Floor,
Gali no.6, Jagjeet Nagar,
Tisra Pusta, Usmanpur,
Delhi53.
Date of assignment : 02.08.2018
Date of Arguments : 04.08.2018
Date of Pronouncement : 25.08.2018
JUDGMENT
1 Vide this judgment, I shall dispose off this appeal on behalf of appellant u/s 29 of Protection of Women from Domestic Violence Act 2005 on behalf of complainant/appellant to set aside the impugned order dt.28.07.2018 in CC no.V 238/14 thereby dismissing the applications of the appellant u/s 319 Cr.PC as well as u/s 23 of the Protection of Women from Domestic Violence Act, 2005.
2 Brief facts, which are relevant for deciding the present appeal are that the appellant/complainant was married to the respondent no.1 on 21.11.2009 at Delhi and stayed with respondent no.1 and his family members at the shared household. A female child was born out of this wedlock and the appellant/complainant alongwith her child started residing at the first floor of the shared household. The appellant was treated with cruelty by the respondents. The appellant despite having seen the photographs of the respondent no.1 in compromising condition with some other lady, tried to save her married life. The respondent no.1 deserted the appellant and her minor daughter and started residing with his parents on CA no.23/18 2/9 Priyanka @ Karishma Mishra Vs Vikas Mishra and ors.
the ground floor of the shared household. The appellant alongwith her minor daughter has been living alone on the first floor of the shared household and has been maintaining herself and her daughter with the help of the financial assistance given by her parents. The appellant also came to know that respondents no.2 and 3 had disinherited the appellant and the respondent no.1 by way of publication in the newspaper. The respondents no.2 and 3 has failed a suit for permanent injunction against the appellant and the respondent no.1 thereby restraining the appellant not to interfere in the peaceful possession of the respondents no.2 and 3 in respect of the shared household. Thereafter, Sh.Ram Nath Mishra, grandfather of the respondent no.1 has also filed a suit for mandatory injunction against the appellant and the respondent no.1 thereby seeking a direction to vacate the first floor of the shared household and hand over the vacant possession of the same to him. The appellant thereafter came to know that the respondents and Sh.Ram Nath Mishra in collusion with each other had thrown her out alongwith her minor daughter from the shared household. The appellant was compelled to make a complaint before Mahila Court under the provisions of Domestic Violence Act and since Sh.Ram Nath Mishra had not committed any act of physical violence against the appellant, she did not implead him as one of the respondents there. The appellant had also not filed any application u/s 23 of the Protection of Women from Domestic Violence Act, 2005. Thereafter, having decreed the suit for mandatory injunction on 01.03.2018 by the Ld.Civil Court in favour of Sh.Ram Nath Mishra and against the appellant. The appellant moved an application u/s 319 Cr.Pc before the Ld.Trial Court for summoning of Sh.Ram Nath Mishra as respondent no.7 (though he had not committed any physical violence). Vide an order dt.28.07.2018, application of the CA no.23/18 3/9 Priyanka @ Karishma Mishra Vs Vikas Mishra and ors.
appellant u/s 319 Cr.PC was dismissed by the Ld.Trial Court.
3 The appellant is aggrieved with the order dt.28.07.2018 of the Ld.Trial Court on the following points:
(i) The Ld. Trial Court has failed to appreciate the word "Domestic Violence" as defined in section 3 of the Act includes "Economic abuse"
also to constitute domestic violence.
(ii) The Ld.Trial Court has erred to hold that no residence order under the provisions of Domestic Violence Act can be passed in favour of the appellant in respect of the shared household and the contentions raised by the appellant are in the nature of objections which should be raised before the Civil Court of competent jurisdiction and still further the appellant can claim the right of residence from her husband only.
(iii) The Ld.Trial Court has wrongly relied upon S.R.Batra Vs Tarun Batra (2007) 3 SCC 169 while discussing the application of the appellant u/s 319 Cr.PC.
(iv) The Ld.Trial Court has not applied its judicious mind while delivering the impugned order and has passed in mechanical manner.
(v) The Impugned order is neither based upon facts nor law and based on surmises and conjectures and, therefore, same is not maintainable in the eyes of law.
It is, therefore, prayed by the appellant that applications of the appellant/complainant u/s 319 Cr.PC as well as u/s 23 of the Domestic Violence Act to summon Sh.Ram Nath Mishra as one of the respondents and retrain him from dispossessing the appellant from the shared household bearing no.E63, first floor, gali no.6, Jagjit Nagar, 3 rd pusta, New CA no.23/18 4/9 Priyanka @ Karishma Mishra Vs Vikas Mishra and ors.
Usmanpur, Delhi , be allowed.
4 Notice of the appeal was not issued to the respondents and the matter was fixed for maintainability of the appeal.
5 I have heard Sh.S.D.Dixit, Ld.Counsel for appellant on the maintainability of the appeal and have perused the Trial Court Record.
6 It has been argued by the appellant that grandfather of the respondent no.1 also comes within the definition of 'a relative of the husband' and can also be a respondent in the proceedings under the Act and the acts of Sh.Ram Nath Mishra to file a suit for mandatory injunction against the appellant is an act of economic abuse. Ld.Counsel for the appellant has relied upon judgments titled as (1) Eveneet Singh & Ors.Vs Prashant Chaudhary & ors.177 (2011) DLT 124 and (2) Preeti Satija vs Raj Kumari and Anr.207(2014) DLT 78.
7 At the outset, it is pertinent to mention here with regard to application u/s 319 Cr.PC that since the filing of the case, Sh.Ram Nath Mishra who is the grandfather of the respondent no.1 was never arrayed as respondent. The appellant/complainant has filed the present applications only when a civil suit for mandatory injunction filed by Sh.Ram Nath Mishra, grand father of respondent no.1 against the appellant/complainant and respondent no.1 to evict and handover actual and vacant possession of the first floor of the said shared household to the appellant was allowed by Ld.ASCJ, KKD Courts, Delhi.
CA no.23/18 5/9Priyanka @ Karishma Mishra Vs Vikas Mishra and ors.
8 It is also relevant to mention here that the appellant neither mentioned the name of proposed respondent Sh.Ram Nath Mishra in the complaint u/s 12 of the Protection of Women from Domestic Violence Act 2005 nor any specific averments have been alleged against him. Thus, by moving an application u/s 319 Cr.PC, it appears that the appellant under the garb of moving this application was trying to amend the complaint u/s 12 of the Protection of Women from Domestic Violence Act 2005 that too only when a decree of eviction has been passed against her by the Ld.Civil Court.
9 Moreover, complaint u/s 12 of the Protection of Women from Domestic Violence Act 2005 has been filed on 25.08.2014, whereas the application u/s 319 Cr.PC to summon Sh.Ram Nath Mishra as a respondent has been filed on 19.07.2018 i.e.after a lapse of about 4 years. Therefore, the submissions made by the appellant in her appeal appears to be an afterthought which is not permissible in the eyes of law.
10 It may be seen that section 319 operates only in a narrow field where a trial or inquiry into an offence has commenced. Cognizance is taken of an offence and not of the offender or offenders. Section 319 is designed to meet the specific situation of a Court discovering in the midst of a trial or inquiry into an offence of which cognizance has been taken, from the evidence already recorded, that some persons should also be tried as accused for the same offence in addition to those already before the Court as accused. In such a case, no question of a fresh cognizance will arise because cognizance of the offence has already taken place and what is being done is to identify the offenders.
CA no.23/18 6/9Priyanka @ Karishma Mishra Vs Vikas Mishra and ors.
11 In view of section 319 Cr.PC , no iota of evidence has come on record that the proposed respondent Sh.Ram Nath Mishra was involved in the offence. The appellant/complainant was only trying to amend the complaint u/s 12 of the Protection of Women from Domestic Violence Act 2005 which is not permissible in the eyes of law.
12 With regard to application u/s 23 of Domestic Violence Act, it is submitted by the appellant that the wife has a right to claim alternate residence against the household owned by her father in law or mother in law or other relative of her husband. Admittedly, the house bearing no. E 63, Gali no.6, Jagjeet Nagar, Third Pusta, New Usmanpur which is stated to be the shared household is belonging to Sh.Ram Nath Mishra who has obtained decree in his favour thereby directing the appellant/complainant to vacate and handover the actual and physical possession of the said property to Sh.Ram Nath Mishra.
13 It is also pertinent to mention here that the appellant/complainant in her appeal u/s 29 of the Protection of Women from Domestic Violence Act has made two folds prayer (i) to set aside the impugned order dt.28.07.2018 passed by the Ld.Trial Court and (2) to allow the application u/s 23 of the Domestic Violence Act thereby restraining the proposed respondent Sh.Ram Nath Mishra from dispossessing the appellant from the shared household bearing no.E63, First Floor, Gali no.6, Jagjit Nagar, 3 rd pusta, New Usmanpur, Delhi. However , perusal of the order of the Ld.Trial Court dt.28.07.2018 shows that the Ld.Trial Court has dismissed the application u/s 319 Cr.PC for summoning Sh.Ram Nath Mishra as CA no.23/18 7/9 Priyanka @ Karishma Mishra Vs Vikas Mishra and ors.
respondent no.7, but there is no whisper about passing of any order with regard to restraining the proposed respondent Sh.Ram Nath Mishra from dispossessing the appellant from the shared household bearing no.E63, First Floor, Gali no.6, Jagjit Nagar, 3rd pusta, N.Usmanpur, Delhi53. The Ld.Trial Court in its order has only directed the respondent no.1 to provide alternative accommodation for petitioner/appellant.
14 It is pertinent to note that the first application u/s 23 of Domestic Violence Act seeking interim relief was filed alongwith main application u/s 12 r/w section 18, 19, 20 and 22 of the Protection of women from Domestic Violence Act by the appellant/complainant wherein she did not seek any interim relief of right of residence in the shared household qua Sh.Ram Nath Mishra, proposed respondent. However, in the said application, only monetary relief was claimed by the appellant/complainant which was allowed by the Ld.Trial Court vide an order dt.17.02.2017 qua the named respondents.
15 It is further to mention that the subsequent second application u/s 23 of Domestic Violence Act dt.22.08.17 moved on behalf of appellant/complainant only under the apprehension that the civil suit for mandatory injunction filed by Sh.Ram Nath Mishra was going to be decided, but no explanation tendered by the appellant for not impleading the proposed respondent when application u/s 12 of the Domestic Violence Act filed by her.
16 Moreover, in view of provisions of section 23 of Domestic Violence Act, the interim order can only be passed against the respondent CA no.23/18 8/9 Priyanka @ Karishma Mishra Vs Vikas Mishra and ors.
only when prima facie respondent is the party of the case and discloses that the respondent has committed an act of Domestic Violence or there is likelihood that respondent may commit an act of Domestic Violence, but this is not a case at hand . Neither the respondent has been impleaded as a party nor any act of Domestic Violence has been alleged in the complaint u/s 12 of the Protection of Women from Domestic Violence Act, 2005. Therefore, second application u/s 23 of the Domestic Violence Act perse is not maintainable qua Sh.Ram Nath Mishra in the eyes of law.
17 So far as the judgments as relied upon by the appellant are concerned, though the aforesaid case laws hold the correct proposition of law , but distinguished from the facts and circumstances of the case and, therefore these judgments do not help the appellant.
18 Keeping in view the above discussions , I find no reason to interfere in the impugned order dt.28.07.2018. Accordingly, the order of the Ld.Trial Court dt.28.07.18 is upheld and the appeal of the appellant is dismissed. Copy of judgment be supplied to appellant free of cost. TCR be sent back to the concerned court alongwith copy of judgment.
Appeal file is consigned to record room.
Digitally
signed by
LALIT
LALIT KUMAR
KUMAR Date:
2018.08.25
04:36:20
+0530
ANNOUNCED IN OPEN COURT (LALIT KUMAR)
TODAY ON 25th AUGUST,2018 ADDL. SESSIONS JUDGE-03
NE/KKD COURTS/DELHI.
CA no.23/18 9/9
Priyanka @ Karishma Mishra Vs Vikas Mishra and ors.