Delhi District Court
Smt. Poonam vs Sh. Ramesh Kumar Varma @ Bantey on 10 September, 2013
IN THE COURT OF MS. SAVITRI, METROPOLITAN MAGISTRATE
(MAHILA COURT-1), SHAHDARA, KKD, DELHI
Case No. : 456/05
Unique ID No. : 02402R0717122005
Date of institution : 29.11.2005
Date of final arguments : 06.09.2013
Date of Judgment : 10.09.2013
Smt. Poonam
w/o Sh. Ramesh Kumar Varma @ Bantey
d/o late Sh. Radhey Shyam Soni
r/o H. No. 99, Gali No. 2, Saboli Bagh,
Delhi-110093.
..... Petitioner
Versus
Sh. Ramesh Kumar Varma @ Bantey
s/o late Sh. Munna Lal Varma
r/o H. No. 99, Gali No. 2, Saboli Bagh,
Delhi-110093.
..... Respondent
JUDGMENT:
1 Present is a petition u/s 125 CrPC preferred by the petitioner wife against the respondent husband, seeking Case No. 456/05 Poonam Vs. Ramesh Kumar Page 1 of 13 maintenance. Marriage between the parties which took place on 20.02.1991 is admitted by respondent husband.
2 The case of the petitioner is that she is a person without any means, whereas, the respondent being her husband is legally, socially and morally bound to maintain her and he has neglected and refused to maintain her without any lawful and just excuse. As regards the means of respondent, she stated that he owns an auto- rickshaw (three wheeler) bearing registration No. DL-1R-G-0273 and is an auto driver by profession and earning Rs.500-600/- per day. Admittedly, both the sons of the couple namely Master Sunny and Master Shubham are in the custody of the respondent. As per the complainant, respondent has no other dependent than the petitioner and the children of the couple. As regards the child Sunny, he is stated to have attained the age of majority as on date. She has prayed for a maintenance @ Rs.7,000/- per month and additionally litigation expenses @ Rs.11,000/-.
3 In the written statement, the allegations of petition have been denied and a stand has been taken that the complainant has herself left the matrimonial home on 19.09.2005 after she gave beatings and stabbed the respondent husband on 19.09.2005 at about 8.15 pm near Mandoli, Sharab Theka, Delhi and a case FIR No. 709/2005, u/s 341/323/324/34 IPC has been registered in this regard. On one occasion, complainant through her friend Mamta on Case No. 456/05 Poonam Vs. Ramesh Kumar Page 2 of 13 14.02.2006 tried to implicate the respondent husband in a false case of rape which was published in various newspapers and books etc also.
4 Further a stand has been taken in the written statement that complainant is living in adultery with one Govind and had stabbed respondent husband along with Govind on 19.09.2005. Apart from that, a stand has been taken that she is gainfully employed and is earning by making artificial flowers at her home. She is earning Rs.3,000/- per month by doing this work and she has concealed the material facts and hence petition is liable to be dismissed.
5 In the rejoinder, the complainant has affirmed the averments of the petition and denied the contents of the written statement.
6 To prove her case the complainant has examined herself as the only witness i.e. PW-1. Her evidence is on the lines of her petition.
7 She has been cross-examined by ld. counsel for respondent. In her cross-examination, she denied the suggestion that she conspired with Mamta for implicating the respondent in a false rape case. She denied the suggestion that Mamta and her Case No. 456/05 Poonam Vs. Ramesh Kumar Page 3 of 13 lover Naveen Kumar were arrested u/s 107/151 CrPC Kalandra registered vide DD No.14A dated 14.02.2006. She admitted that a mediation settlement was reached between her and the respondent and she went to live in the matrimonial house for some time but denied that she poured kerosene oil upon her son Sunny Verma. She admitted that she was summoned by court as her son Sunny had filed a complaint case before the court of Sh. Amitabh Rawat, Ld. MM, KK, Delhi against her and that he was taken to GTB Hospital for MLC by the police official of PS Harsh Vihar. She admitted that she had not filed any proof regarding the income of the respondent as Rs.15,000 to 18,000/- per month. She denied the suggestion that respondent was suffering from various ailments and taking treatment from GTB Hospital for the last two years (this part of evidence was recorded on 06.01.2011). In her cross-examination, she stated that she is paying Rs.700/- per month as rent of the house at village Gamdi, Near Ration Office, Bhajan Pura, Delhi-110054 where she was living. She stated that this amount was being paid after getting the same from her parental home through her brothers. She admitted that her parents' home is about 400 km way from Delhi and about Rs.400/- are spent for to and fro travel to her parental home. She denied that her brothers are not providing her money for her expenses. She denied the suggestion that she handles an STD booth at Khushal Chowk, opposite Negi Medical Store, Sant Nagar, Burari. She denied the suggestion that she was doing the work of making artificial flowers at the time of filing of Case No. 456/05 Poonam Vs. Ramesh Kumar Page 4 of 13 present petition or that she was earning Rs.3,000/- per month. She denied the suggestion that Govind used to visit her matrimonial house. She denied the suggestion that she along with Govind threatened to kill the respondent on 25.02.2006. She denied the suggestion that she left the matrimonial house out of her own free will and started living with Govind since 19.09.2005 midnight. She further denied the suggestion that she and Govind beat the respondent on 19.09.2005. She denied the suggestion that she was deposing falsely.
8 In respondent evidence, respondent has examined himself as RW-1 and has led his evidence by way of affidavit on the lines of his written statement.
9 Respondent has placed on record various complaints made by him against the petitioner wife and Govind. He has mentioned many instances when he has seen the complainant and Govind in compromising position with each other. He has also placed on record some newspaper reports to show that complainant with the help of her friend Mamta had tried to implicate the respondent in a false rape case. He has placed on record his medical records to prove illness.
10 In his cross-examination, respondent has denied the suggestion that the petitioner is not earning anything and her Case No. 456/05 Poonam Vs. Ramesh Kumar Page 5 of 13 expenses are borne by her brothers. He admitted that he never filed any divorce petition against the petitioner after being agitated by her adulterous relationship with Govind. He denied the suggestion that petitioner was having good moral character and because of this he did not file any divorce petition against her. Regarding Govind he stated that he met Govind for the first time in the year 1998. He is also an auto driver and he is also having a kerosene oil shop. He denied the suggestion that he had taken a loan from Govind and for this reason he provoked the petitioner to implicate the respondent in a false case. He denied the suggestion that he planted a false story of illicit relationship between the petitioner and Govind. He denied the suggestion that he had thrown out the petitioner from home and she herself had not left the matrimonial home. In the cross- examination, he stated that petitioner had resided with him for about 10 years. During this time, he filed no complaint against her and no case was pending at that time and further that he was bearing all her expenses. He admitted that after the disputes between the two, he had not paid any maintenance to the petitioner. He volunteered to say that Govind will pay the maintenance.
11 In his chief-examination, he has also relied upon the story published on his and petitioner's adulterous life in a magazine titled 'Madhur Kathaain'. I have been through the same. That is not much reliable document to prove the adultery of the complainant as the respondent has himself admitted in his cross-examination that Case No. 456/05 Poonam Vs. Ramesh Kumar Page 6 of 13 he had supplied the documents to the magazine and the matter was published in the magazine at his instance and he had given all the details to the correspondent and he did not know whether whether correspondent had contacted the petitioner. He admitted that after the publication in the magazine complainant had sent him a legal notice of defamation.
12 It is important to note that the complainant has not filed any civil or criminal case for defamation against the respondent. He denied the suggestion that there was no substance in the matter published in the magazine titled 'Madhur Kathaain' and it was a false and concocted story narrated by the respondent.
13 Respondent admitted that petitioner was not doing any work when she was residing with respondent but he denied the suggestion that she was not working anywhere thereafter. He volunteered to say that she is working in an STD. He denied the suggestion that petitioner is residing alone without any aid or help. He volunteered to say that she is residing with Govind. Regarding his financial status,he admitted that he is an auto driver and he is earning his livelihood. He denied the suggestion that he was earning Rs.15,000-20,000/- per month. He denied the suggestion that Govind was his friend being an auto driver. He further denied that Govind was running a committee and respondent (RW1) had not paid the share of the committee because of the dispute between Case No. 456/05 Poonam Vs. Ramesh Kumar Page 7 of 13 him and Govind. He denied the suggestion that he had intentionally raised a dispute just to escape the liability. He denied the suggestion that he has filed many complaints/cases against the petitioner just to escape the liability to pay maintenance. He admitted that he owned auto rickshaw. He denied that it was not financed. He admitted that petitioner was doing work when she was residing with him. He denied the suggestion that he has filed forged and fabricated documents on record. He denied the suggestion that he is deposing falsely.
14 RW-2 is the son of the couple namely Sunny. He has led his evidence on the lines of the written statement and has stated that he has personally seen his mother cohabiting with the respondent on many occasions and that she is living in adultery with one Govind.
15 During his cross-examination, he also admitted that his father is driving an auto. In his cross-examination, he stated that the petitioner used to make artificial flowers and earning Rs. 2,000-3,000/- when she was residing with the respondent. He volunteered to say that as on date she is earning Rs. 10,000-15,000/-. He stated that he could not tell the name of any person with whom his mother was having business of artificial flowers and the person who handed over the raw material for making the flowers. He denied the suggestion that he is deposing with respect to income of his mother at the instance of his father. He Case No. 456/05 Poonam Vs. Ramesh Kumar Page 8 of 13 further stated in his cross-examination that he can depose regarding the present income of his mother because he has personal knowledge that advocate Mr. Rambir Chauhan has arranged for a PCO and photostat shop for the complainant. This cross- examination of RW-2 was recorded on 13.08.2013. At that time, he was being cross-examined by advocate Rambir Chauhan only. He denied the suggestion that advocate Rambir Chauhan had not arranged any shop for his mother or that any shop exist. He further stated in cross-examination that his mother is running the shop at Burari wherein the name of advocate is written in capital letters on the sign board.
16 After the cross-examination of RW-2 was recorded on 13.08.2013, Mr. Rambir Chauhan, advocate sought discharge of his vakalatnama in the present matter and he was accordingly discharged.
17 RW-2 could not recollect the date when he visited the alleged STD shop being allegedly run by his mother. He denied the suggestion that he never visited the shop and the petitioner is not working there. He gave the description of shop as being situauted at Khushal Chowk, in front of Negi Medical Store, Sant Nagar, Burari and stated that the gate of the shop was situated in West side. He denied the suggestion that he attempted to implicate his mother in a false criminal case. He further denied the suggestion that his father Case No. 456/05 Poonam Vs. Ramesh Kumar Page 9 of 13 was running a committee business. He volunteered to say that his mother used to run the same despite his father's opposition. He denied the suggestion that his father had filed false case against his mother because she is claiming maintenance from him. He denied the suggestion that Govind and Rambabu were having dealing with his father with respect to committees. He further denied the suggestion that he is deposing falsely at the instance of his father because he is living with him.
18 I have heard final arguments by ld. counsel for parties and have been through the record carefully.
19 Interestingly, though RW-2 specifically mentioned in his evidence that he has personally seen his mother i.e. petitioner in a compromising position and cohabiting with Govind on many occasions, despite that, not even a single question has been put to RW-2 to confront on this aspect during his entire cross-examination by the ld. counsel for petitioner.
20 Complainant has taken the ground that the respondent was carrying on committee business wherein he owed some money to Govind and dispute arose between Govind and him and he asked her to implicate Govind in a false case which she refused. Resultantly, respondent levelled allegations of an adulterous relationship between her and Govind. She has been promptly Case No. 456/05 Poonam Vs. Ramesh Kumar Page 10 of 13 cross-examined and confronted with respect to her case that respondent asked her to implicate Govind in a false case and that she denied and because of that he (respondent) filed a false and frivolous complaint against her. I hold that she has not been able to prove the carrying on of committee business by the respondent and dispute with respect to the same between respondent and Govind as she has led no positive evidence to prove this aspect, other than her own testimony.
21 It is not in dispute that an FIR has already been registered against the complainant and Govind with respect to assault/stabbing of respondent. Complainant has also admitted that complaint case has been filed by RW-2 i.e. her son before the concerned Ilaaka MM with respect to pouring of kerosene oil on him by the complainant. Complainant has also admitted that she was summoned in case CC No. 73/09 titled as 'Sunny Verma @ Shalu Vs. Poonam' pending trial before the MM having jurisdiction over PS Nand Nagari.
22 The newspaper reports, the original of which have been placed on record, also substantiate the contention of the respondent that it was published in newspapers that complainant had tried to implicate the respondent in a false rape case through one of her friend. The evidence with respect to adultery can rarely be direct. Adultery has to be inferred from the circumstances but in the present Case No. 456/05 Poonam Vs. Ramesh Kumar Page 11 of 13 case direct evidence regarding the adultery has been given by RW-2 and the averment made by him through his evidence affidavit with respect to adulterous conduct of the complainant has remained unchallenged, uncontroverted and unrebutted. Considering this, I hold it as proved that complainant is living in adultery with one Govind.
23 Her contention is that she is being maintained by her brothers who are admittedly living in a village at Madhya Pradesh at a distance of about 400 kms from Delhi. There is not an iota of truth in this submission. In modern days circumstances and sky-rocketing cost of life, it cannot be expected and is not probable that the brothers living in a remote area who are not well to do themselves and have their own families to support, will maintain their sister at a rented accommodation at Delhi from a distance of about 400 kms. Complainant has not examined any of her brothers to show as to how they were maintaining her and her assertion about she being maintained by her brothers has been countered by the respondent side.
24 Complainant had personally appeared before the court during the stage of final arguments and I had an occasion to have a glance upon her. It did not appear, while looking at her, that she is a destitute woman who is not having any means to maintain her since the year 2005 when her husband did not live with her. Under these Case No. 456/05 Poonam Vs. Ramesh Kumar Page 12 of 13 circumstances, it is quite probable that either complainant is maintaining herself by doing some work or someone else is supporting her financially and which person might well be Govind. It is the tendency of privately employed persons, even females, not to disclose their income before the court, even if they are gainfully employed and present is one such case.
25 Therefore, in view of above discussion, I hold that complainant is not entitled to any maintenance as she is living in adultery with Govind. In this view, the petition of complainant for maintenance is dismissed.
File be consigned to record room.
ANNOUNCED IN THE OPEN (SAVITRI)
COURT ON 10-09-2013 MM/Mahila Court-1
Shahdara/KKD/Delhi
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