Delhi District Court
Smt. Sudha @ Vasudha vs Sh. Hitender Kumar Shokeen on 18 September, 2007
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL DISTRICT JUDGE: DELHI
(FAST TRACK COURT)
Suit No.249/06/96
Smt. Sudha @ Vasudha
D/o Sh. Raj Narain Dahiya,
R/o 1-A, Kamla Nagar, Delhi. .....Plaintiff.
Versus
1. Sh. Hitender Kumar Shokeen
S/o Sh. Bal Kishan Shokeen,
2. Sh. Bal Kishan Shokeen
R/o Sh. Rattan Singh,
3. Smt. Ratna Shokeen
W/o Sh. Bal Kishan Shokeen,
4. Kumari Vandana Shokeen
D/o Sh. Bal Kishan Shokeen,
(All residents of B-5/147, Paschim Vihar,
New Delhi-110063). .....Defendants.
SUIT FOR RECOVERY OF Rs.5,00,000/-.
JUDGMENT
1. This is a suit for recovery of a sum of Rs. 5,00,000/- filed by the plaintiff M.s Sudha @ Vasudha against the above named defendants claiming damages on account of torture, humiliation, sufferings, mal- treating, inhuman treatment and loss of virginity and also compensation for the stridhan of the plaintiff allegedly retained by the defendants. Initially the plaintiff had filed the present suit U/o 33 of Code of Civil Procedure as a pauper but subsequently the application was dismissed by my Ld. Predecessor vide his order dated 13.05.2003 whereby the plea of the petitioner to sue as a pauper was rejected. Plaintiff filed the court fee thereafter.
2. As per contents of the plaint, the plaintiff was married with defendant no.1 on 24.09.1993 in accordance of Hindu rites and ceremonies. The marriage was solemnized at Apsara Banquet Hall, G.T. Karnal Road, Delhi. At the time of marriage including engagement, the parents of the plaintiff incurred huge amount under different heads like Dowry in shape of cash, a Maruti Car and other valuable articles like jewellery, ladies & gents suits, cloths, crockery, furniture etc. given to the defendants as per their wishes according to their customary rites. At the time of marriage, parents and other relatives of the plaintiff gave jewellery, cash, valuable articles like cloths i.e. valuable sarees and suits to her which are shown in detail in Annexure ''A'' annexed with the plaint. The plaintiff also received cash, jewellery and other valuable articles as gift at the time of marriage and ''Mooh Dikahi Ceremony'' from defendants no.2 & 3 and their other near relatives, details of which are given in the list annexed with the plaint as Annexure ''B''. Soon after the marriage, all of the jewellery and other valuable articles including cloths etc. were taken by defendant no.2 & 3 to keep the jewellery in their locker in a Bank and other articles in their safe custody except Ear-Tops and some cloths of day-to-day use. Soon after marriage, all the defendants started mal-treating, torturing, harassing the plaintiff in a very cruel manner on the pretext of insufficient dowry. On 25.09.1993, the defendant no.3 told the plaintiff that her father should have given a 'Maruti 1000 Car' instead of ''Maruti 800''. Even they were not satisfied with the amount given by the plaintiff at the time of ''Pair Chuwai Ceremony''. Subsequently too, on various occasions the defendants had humiliated and harassed the plaintiff on the one pretext or other. At one occasion they raised the demand for a platinum set. At the occasion of Bhai Dooj in the year 1993, the defendant no.1 asked the plaintiff to persuade her parents to transfer his agricultural land at Hastinapur, District Meerut (U.P.) to the defendant so that it could be developed into a Farm House. Later on defendant no.3 asked the plaintiff to persuade her father to give second floor of his house at Kamla Nagar, Delhi or in the alternative to purchase some other house for them. In November, 1993 the brother of the plaintiff was blessed with a son and at this occasion too the defendants were unsatisfied with the present/amount given by the parents of the plaintiff. On the occasion of Karvachoth in the year 1993, the defendant no.3 & 4 raised the demand for gold and silver Karvas. It was also alleged that the defendant no.1 is a homosexual and used to force her for unnatural sexual intercourse. It is also alleged that the defendant no.1 was suffering from venereal deceased which was got transmitted to her, resulting to high fever off and on and she used to take treatment quite offen for the same. In the first week of December, 1993 the plaintiff fell ill, the defendant no.1 brought some medicine type powder without any prescription of a doctor and when she consumed the same her condition became deteriorating. The defendant no.1 refused his request to take her to the hospital. She also alleged that the defendant no.2 also tried to outrage her modesty and with the great difficulty she managed to get out of the clutches of defendant no.2. When she made the complaint and narrated the said ugly episode to defendant no.1, she was further stunned to hear from him that she should have surrendered herself to the wishes of defendant no.2 otherwise defendant no.2 would disowned and disinherit him from all of his estate and properties. In January, 1994 the plaintiff became pregnant but due to mal-treatment and harassment an abortion took place. Thereafter, the plaintiff was told by the defendant no.2 to bring a small gold brick as per Lal Kitab (Tantrik Book) to avoid abortion in future. On 17.10.1993 defendant no.2 brought two of his girl friends and humiliated the plaintiff in their presence. On June, 1994 the defendant no.1 tried to kill the plaintiff by giving an electric current but luckily the electric current went off. 15.10.1993 was also a black and shocking day for the plaintiff when the defendant no.1 came to house with a sikh person and introduced him as her business friend and then he went away leaving the Sikh person in the room and that Sikh person tried to molest the plaintiff but fortunately she managed to escape by running out side. On 15.06.1994, the plaintiff was dropped to her parental house in only wearing clothes while she was having high fever. In September, 1994 she lodged a criminal complaint against the defendant besides filing a petition U/s 125 Cr.P. C. for maintenance and also a petition for divorce U/s 13 of the Hindu Marriage Act, 1956 on the aforesaid grounds. The divorce petition was converted into a petition for divorce with mutual consent and accordingly vide judgment and decree dated 01.08.1996 passed by Sh. A.K. Pathak, Ld. Addl. District Judge, the marriage between the plaintiff and defendant no.1 was dissolved by decree of divorce with mutual consent. The plaintiff is entitled to get back all of her stridhan as detailed in annexure A & B or equivalent amount as per market rate which comes to about Rs. Four Lakhs. The plaintiff is also demanding damages and compensation on account of miseries, maltreatment, mental agony and humiliation to the tune of Rs.7,50,000/- including Rs. Five Lakhs towards the loss of virginity. The plaintiff is also claiming pendentelite and future interest. It is claimed that though the plaintiff is entitled to claim compensation of Rs.11,50,000/- but she has curtailed her claim to the sum of Rs. Five Lakhs only. The cause of action arose on 24.09.1993 when the marriage between defendant no.1 and plaintiff took place. It further arose on the occasion when the plaintiff was given maltreatment and harassment and her stridhan was taken over by the defendants. It finally arose on 01.08.1996 when the plaintiff obtained divorce with mutual consent with the defendant no.1. It is claimed that this court has territorial and pecuniary jurisdiction to try and entertain the present suit. The suit has been properly valued for the purposes of court fee and jurisdiction and appropriate court fees has already been paid.
3. The defendants have contested the suit by filing the joint Written Statement in which the following preliminary objections were taken:-
(i).The plaint of the suit does not disclose any cause of action and hence it is hit by the provisions of the Order 7 R 11 CPC.
(ii).The suit is bad for misjoinder of parties as defendant no.2 to 4 have been unnecessarily dragged into the present lis.
(iii).The plaintiff has concealed the material facts and particulars.
(iv).The suit for recovery of Rs. Five Lakh on account of loss of virginity and for alleged torture and humiliation meted out to the plaintiff does not give any rise to a valid legal claim for filing the suit for the reason that a Hindu marriage is a sacramental ceremony and its consummation makes the marriage complete which is an essential part of the marriage.
Therefore the claim on account of loss of virginity is totally misconceived and unsustainable. Further the very consent given by the plaintiff for the dissolution of the marriage dis- entitles her to file the present suit which is highly belated and is a ploy to blackmail the defendants.
(v).The plaintiff has already received back her ''Stridhan'' and the articles as set out in the annexures A & B to the plaint are the same articles which she had already received through the local police of the P. S. Roop Nagar, Delhi for which she also executed Superd-gi-nama dated April,1995. Hence she has no claim left qua the defendants. As regards to the gold ornaments/jewellery articles, it is claimed that the plaintiff has always retained the possession of the same with herself as it evident from her own admission of the affidavit filed by the defendant no.1 before the court and the police authorities. The same has been attached as annexure D1.
On merits side it has been claimed that the Maruti Car was given in the name of the plaintiff herself to which she had later on sold off and appropriated the sale proceeds for her own gains. Similarly the other articles including the jewellery were retained by the plaintiff herself which were never entrusted to the defendants at any point of time and all those articles now admittedly stand received back by the plaintiff by her own executed documents. Thus no claim in respect of the same survives against the defendants. The fact remains that the plaintiff has never stayed at her matrimonial home after 15.06.1994, therefore, how could the plaintiff have the occasion to handover the entire jewellery articles to defendant no.2 & 3 as alleged some times in the month of July, 1994 as per her own admitted documents being annexure D1. The Locker mentioned in para 4 was never operated by defendant no.2 No demand of dowry of any kind by any of the defendant was ever made. The truth is that the plaintiff had hardly stayed for a month at the matrimonial home with defendant no.1. In fact the root cause of the several rounds of litigation pending between plaintiff and defendant no.1 is that the plaintiff was interested in getting married to her boy friend Manu Nischal, who were class mates and who was introduced to the defendant no.1 by the plaintiff as her brother, who regularly visited the matrimonial house till it was discovered by the defendants. Further it is because of that reason the plaintiff got herself aborted twice so that she could get married to her bachelor boy friend whom she ultimately married in the year, 2000 after consenting to the dissolution of the marriage with defendant no.1. After the plaintiff's marriage with Manu Nischal, she has delivered one female child and is living with her so called brother who is now in United States of America. The plaintiff has got no claim qua the defendants. The defendants are not only praying for the dismissal of the suit with exemplary cost but also that the appropriate orders may be passed for taking cognizance and referring the same to the competent magistrate to take action in accordance with the law for commission of the offence of purgery.
4. The plaintiff filed the replication to the Written Statement of the defendants in which the averments made by the defendants were strongly denied and the contents of the plaint reaffirmed and reasserted. It was specifically stressed that the articles mentioned in the annexure A & B are still with the defendants. Gold Ornaments are also with the defendants. Plaintiff had never withdrawn the allegations made by her. It was specifically denied that the plaintiff was having any boy friend namely Manu Nischal and he had ever visited the plaintiff at her matrimonial house. The plaintiff has married to Manu Nischal after divorce and it was an arranged marriage. She did not know him at all before marriage. It was also added that the plaintiff was an indigent person though the court has held the otherwise.
5. From the pleadings of the parties following issues were settled:-
(i).Whether the suit is liable to be rejected in view of the provisions of Order 7 R 11 CPC? OPD.
(ii).Whether suit is bad for misjoinder of parties in view of preliminary para no.2 of Written Statement? OPD.
(iii).Whether petitioner took away jewellery articles constituting Stridhan? OPD.
(iv).Whether the plaintiff is entitled for the relief claimed? OPP.
(v).Relief.
6. In her support the plaintiff herself appeared in the witness box as PW-1 and got recorded her statement. Although the affidavit of evidence of one more witness namely Smt. Bimla was also filed on behalf of plaintiff but this witness never appeared in the witness box to tender her affidavit and for her cross examination and as such the evidence of this witness can not be read in evidence in support of the plaintiff. The defendants have also produced one witness namely Sh. Hitender Shokeen as DW-1 and after his examination the defendant evidence was closed.
7. It is pertinent to mention here that during the different stages of trial, the defendant had moved the following applications which are also pending for adjudication and they too are also to be decided together with the suit as per wishes of the parties:-
i). Application U/s 340/195 Cr. P. C. dated 06.07.1997.
ii).Application U/s 340 Cr.P.C., part B & C r.w. Sub. Sec. 3 Part-B and Sub-Section 4 filed on 06.12.1999.
iii).Application U/s 340/195 Cr. P. C. 1973 and application U/S 2 C of Contempt of Courts Act. filed on 21.12.2000.
iv).Application U/s 340/195 Cr. P. C. filed on 01.03.2006.
8. PW-1 Ms. Sudha @ Vasudha in her examination-in-chief by way of affidavit has reiterated and reaffirmed the contents of plaint and has exhibited the following documents:-
> Ex.PW1/1: List of Articles including jewellery, cash, valuable articles like clothes etc. given by the parents and other relatives of the plaintiff at the time of her marriage. (Annexure A) > Ex.PW1/2: List of articles i.e. cash, jewellery etc. and other valuable clothes and articles as gift received at the time of the marriage and Mooh Dikahi Ceremony from defendant no. 2 & 3 and their other near relatives. (Annexure B) > Ex.PW1/3: A hand written note by Sh. Hitender Shokeen in which he has declared that he has received all the ornaments of plaintiff which were given to her by the parents of the defendant no.1 as a gift at the time of their marriage.
> Ex.PW1/4: Affidavit dated 14.07.1994 of Sh. Hitender Shokeen thereby declaring that his wife has handed over the entire jewellery articles to his parents which were given to her by them at the time of the marriage of the Plaintiff and now no jewellery belonging to the parents of the defendant no.1 is with plaintiff. During her cross examination she conceded that she did not make any demand in writing regarding stridhan now claimed and mentioned in the plaint before filing the suit. There was no middleman to arrange marriage between her and defendant. She denied that one boy namely Sh. Manu Nishchal was her friend during her school days. Although she admitted that she married to one Sh. Manu Nishchal but she denied that he is the same boy who was in her school. She also denied that her marriage with Manu Nishchal was a love marriage. She further stated that no case was got registered U/s 498 A against Manu Nishchal at her instance, however, a case was registered at her instance against the step brother of Manu Nishchal. She admitted that FIR No.472/2003 was registered at PS Paschim Vihar at her instance. She could not tell the exact days spent by her with defendant after their marriage but she stated that she continuously visited her matrimonial house during that period. She could not tell whether any list of articles given at the time of marriage was exchanged between them. She also denied of having received all her Istridhan by way of superdarinama executed in the court of Metropolitan Magistrate. She further stated that she does not know if the list of articles claimed by her now was exchanged between them or not, perhaps her parents must be knowing about it. She denied that the gold ornaments which were exchanged during her second marriage were same which were exchanged in first marriage. She could not tell the exact time of handingover the ornaments to defendant no.2 &3 after her first marriage and also as to on what date these ornaments were kept by them in their locker. She admitted that she did not lodge any report against defendant no.1 before 30.09.1994. She claimed that the car was disposed off by her at the instance of defendant no.1. She denied the suggestion of Ld. Counsel for the defendant that she is not telling the date of disposal intentionally and it was disposed off on 01.08.1994. She further denied that the sale proceeds of the vehicle was kept by her. She further could not recollect the dates of demanding the amount of Rs. One Lakh by the defendants from her father, however, she stated that the demand was made during subsistence of marriage. She also could not recollect if the medical papers regarding beating given to her have been placed on record or not, rather she stated that she was having some medical papers as proof for the same but the same have been taken by her husband. She admitted that the mutual divorce petition was filed in the court which was accepted but she denied that everything was settled between them or no jewellery or any other articles were due to her from the defendants. She denied the suggestion that she has levelled false allegations against the defendants in respect of V.D., beating and demanding of dowry articles. She further denied that she had levelled false allegations knowingly as her marriage with defendant no.1 was against her wishes or she wanted herself got married with Manu Nishchal or that she was in love with Manu Nischal before her marriage with him. She stated that she could not mention all facts in FIR lodged before Police as she was sick at that time. She denied the suggestion that she had levelled same type of allegations against step brother of her husband Manu Nishchal in FIR lodged against them U/s 498 A IPC. She also stated that Ex.PW1/D1 is ultrasound report but she could not say whether it pertains to her or not. She further stated that she does not know if defendant no.1 wrote letter to her father expressing his views against abortion. She did not conceive for second time during her first marriage. She further stated that she does not know if defendant no.1 wrote letter to her father against second abortion. No second abortion took places. She denied that she lodged false report in Woman Cell on 30.09.1994 against defendant. It is correct that FIR was registered on the basis of that complaint. She denied that after 15.09.1994 she did not pay any visit to her matrimonial house. She further stated that one affidavit was given to her by defendant no.1 but she can not tell on what date it was given.
She further stated that she did not get any ornament from the locker of defendant no.2 & 3. She could not recollect as to how many cases were filed by her against defendant no.1. She also denied that she has roped the defendant and his parents in the false criminal cases to blackmail them or that she has got back all the ornaments/articles from defendants.
9. Defendant too himself appeared in the witness box as DW-1 and reaffirmed the contents of the Written Statement and has exhibited the following documents:-
Ex.DW1/1: Photocopy of the certified copy of the criminal complaint case no.50/98.
Ex.DW1/2: Certified copy of letter dated 24.09.1994 alongwith AD Card and speed post receipt.
Ex.DW1/3: Photocopy of retained stamp paper dated 11.7.1994 purchased by the father of the Plaintiff.
In his cross examination, he has stated that he is not doing business of timber and plywood at present, rather he claimed that he is doing consultancy work relating to automobile and environment pollution. He further stated that his marriage with the Plaintiff lasted from 24.09.1994 till 01.07.1996 when divorce decree was passed on the petition of petitioner and it was by way of mutual consent. He admitted that during the pendency of the divorce petition a case U/s 498 A/406 IPC was pending against him. He denied the suggestion of Ld. Counsel for the plaintiff that his marriage with plaintiff broken down because of the cruelty committed against the Plaintiff and on account of non return of her Istridhan. He also stated that he did not lodge any report/complaint regarding forcible marriage of the Plaintiff with him nor he filed any civil suit regarding his allegation of having affair of Plaintiff with Mr. Manu Nischal as he learnt about the said affair only after divorce was granted. He further stated that Plaintiff and the said Mr. Manu Nischal used to study in Ludlo Castle No.1 in the same class. He denied the suggestion that his erstwhile wife conceived only once or that her pregnancy got terminated because of the assault/torture inflicted by him. He further stated that he filed a complaint against the Plaintiff for miscarriage and doctor Usha Arora was examined by him as a witness and her statement is Ex.DW1/1 and the said case was dismissed. He also denied the suggestion that the allegations levelled by him in letters dated 24.09.1994 and other letters were forged and baseless or that the dowry articles of the Plaintiff had not been returned by him or that he has not returned jewellery articles mentioned in annexure A appended with the plaint except pearl bit mentioned at item no.1 and one Moonga ring mentioned at item no.6. He further denied the suggestion that he has not returned jewellery articles and other articles mentioned in list annexure B appended with the plaint or that the articles mentioned in annexure B with him and they did not return after the demand of the Plaintiff. He further stated that he can not say that the market value of these articles mentioned in annexure A & B is about Rs.Four Lakh.
He further denied the suggestion that he is liable to pay damages of Rs.2.5 Lakhs on account of torture etc. given by him to the Plaintiff, whereas he has not given any torture to Plaintiff. He further denied the suggestion that he is liable to pay any amount much less the amount of Rs.10 Lakhs for the loss of virginity of the Plaintiff or that the suit of the Plaintiff is correct and is entitled to decree of the suit or that he or his father, mother and sister Vandana are liable to pay compensation for torture or to pay loss caused to the Plaintiff for retaining her Istridhan or that he and his parents and sister retained the actual dowry articles including the jewellery except jewellery mentioned in Sl. No.1 & 6 of annexure A. He also denied the suggestion that they deposited the used up articles of others and retained the actual dowry articles of the Plaintiff.
10. I have carefully heard the rival submissions of the counsels for the parties. I have also thoroughly perused the entire relevant material placed in the file.
My issue wise findings are as under:-
11. ISSUE No.1:-
Whether the suit is liable to be rejected in view of the provisions of Order 7 R 11 CPC? OPD.
The onus to prove this issue has been placed upon the defendant, who had taken the preliminary objection to the effect that the plaint of the suit as filed by the plaintiff does not disclose any cause of action in favour of the plaintiff for filing the suit against the defendant. In the corresponding para of the replication, the plaintiff has claimed otherwise.
As per contentions of Ld. Counsel for defendant, there has been no cause of action for plaintiff for filing the present suit and the suit is liable to be dismissed under order VII R 11 CPC and in any case the plaintiff cannot take the advantage of her own wrong. On the other hand according to Ld. Counsel for plaintiff, the objection of the defendant is vague and unsustainable as in this case, all the necessary requirements of Order VII of Code of Civil Procedure have been fully complied with.
The expression 'cause of action' for the purposes of rule 11 of Order VII means essential facts constituting the right and its infringement which entitles a person to sue the wrong doer or defaulter or any one liable for it. To establish that the plaint does not disclose the cause of action, the onus always lies upon the defendant.
To enable a court to reject a plaint on the ground that it does not disclose cause of action, it should look at the plaint and nothing else. Besides the plaint, the documents upon which the plaintiff has relied his claim can also be looked into. A careful scrutiny of plaint discloses that the plaint has fully disclosed the cause of action in favour of plaintiff and against the defendants and the relief claimed is not under valued.
The plaint is not barred by law. Further provisions of Rule 9 Order 7 of CPC have also duly complied with. The summons were served upon the defendant as per Rule 9 of Order 5 of CPC. Thus, the plaint has fully disclosed the cause of action in favour of plaintiff and against the defendants and therefore the issue stands decided in favour of plaintiff and against the defendant.
12. ISSUE No.2:-
Whether suit is bad for misjoinder of parties in view of preliminary para no.2 of Written Statement? OPD.
The onus to prove this issue too has been placed upon the defendant, who has claimed that defendant no.2 to 4, who are the father in law, mother in law and sister in law of the plaintiff, have been unnecessarily dragged in the present lis without setting out even a single averment of accusation against them, therefore, the suit is bad of mis joinder of parties.
According to Ld. Counsel for defendants, in the entire plaint no averments of accusation have been levelled against defendant no.2 to 4. Further no relief has also been claimed against them, so the suit is bad for mis joinder of the parties.
On the other hand, according to Ld. Counsel for plaintiff, the specific averments of accusation have been levelled against these defendants, so they are not the unnecessary parties.
In my considered opinion, the defendant no.2 to 4 are not the unnecessary parties.
In para no.5 of the plaint there are specific allegations of maltreatment or harassment of plaintiff by all the defendants on account of insufficiency of dowry. Even there is specific mention of the incident dated 25.09.1993 in connection of the allegations against defendant no.2 & 3. Further in para no.6 there is also specific allegations against defendant no.4 in respect of dowry demand raised by her on 01.10.1993. Para no.7 also talks about the dowry demands raised by defendant no.2 to 4. Para no.9 also contained the specific allegations against defendant no.2 to 4. Further in para no.12, the plaintiff has raised specific and serious allegations against defendant no.2. Para no.15 also talks about the attrocities committed by defendant no. 3 & 4 upon the plaintiff. In para no.29 and the prayer clause of the plaint, the damages/compensation have been claimed against all the defendants, thus the defendant no.2 to 4 are not the unnecessarily parties so the suit is not bad for mis joinder of necessary party. Issue stands decided accordingly.
13. Since issue no.3 & 4 are interconnected, so I shall decide both of them together.
ISSUE No.3:-
Whether petitioner took away jewellery articles constituting Stridhan?
OPD.
ISSUE No.4:-
Whether the plaintiff is entitled for the relief claimed? OPP.
The onus to prove issue no.3 has been placed upon the defendants, whereas the plaintiff has been asked to prove issue no.4. The defendants in their joint Written Statement have claimed in preliminary objection no. 5 that the plaintiff has already received back her ''STRIDHAN'' and the articles as set out in the annexures A & B to the plaint are the same articles which the plaintiff has already received through Local Police of P.S. Roop Nagar, for which she also executed ''Superdaginama'' dated April, 1995. Hence she has no claim left qua the defendants.
In the corresponding para of her replication, plaintiff has denied the said allegations and reiterated that the articles mentioned in the annexure A & B are still with the defendants and the gold ornaments are also with the defendants.
In her examination in chief tendered by way of affidavit, the plaintiff has reiterated that the soon after the marriage, all the jewellery and valuable items including clothes etc. were taken away by the defendant no.2 &3 to keep them in their bank locker and other articles in their safe custody except ear tops and some clothes of the day today use. She also testified that only the articles mentioned in para no.4 of the affidavit were received by her in the police station and most of the articles were retained by the defendants. On the other hand, the defendant has stated in para 9 of his evidence by way of affidavit that the defendant was never interested in keeping any kind of belonging of plaintiff with him or in his custody without the consent and the physical presence of the plaintiff. He also testified that through two Legal Notices dated 22.11.1994 & 28.12.1994, he requested the plaintiff to take back her belonging but she did not come forward to take away the same. Further he deposited the 50 articles in the malkhana of Police station Roop Nagar in the presence of plaintiff but plaintiff deliberately rejected the 17 articles which were later on deposited by the defendant.
The plaintiff has claimed the recovery of Rs.5,00,000/- on account of the value of Istridhan which is detailed in the list A & B and it was exactly the same as that of with the complaint/FIR no. 278/1994. All the items as per the list A & B had already been in her possession which she has already been received by executing a supardaginama in police station Roop Nagar.
In the present suit, it is claimed that the plaintiff is entitled to the recovery of the amount of Rs.11,50,000/- i.e. Rs.4,00,000/- towards the recovery of Istridhan, Rs.2,50,000/- as damages on account of torture, humiliation and sufferings sustained by plaintiff and Rs.5,00,000/- as damages for the loss of virginity after marriage with defendant no.1 but she has restricted her claim to the extent of Rs. Five Lakhs only.
As per the submissions of Ld. Counsel for the plaintiff, the plaintiff is entitled to the recovery of amount claimed in the plaint as the plaintiff has successfully established her case against the defendants by establishing all the material facts alleged in the plaint. On the other hand according to Ld. Counsel for defendant, the plaintiff is not entitled to the recovery of any amount from the defendants as the entire istridhan has already been received by her in the Police Station Roop Nagar in the presence of police officials. Secondly, she has failed to prove the purchase and handing over of articles as per lists to the defendants. Thirdly, the claim of the plaintiff towards her Istridhan is vague as she has not disclosed the date on which she had handed over the jewellery and other valuable articles to the defendant and above all her claim towards the Istridhan is time barred. The plaintiff has also failed to establish her claim of damages on account of torture, humiliation etc. as she has failed to file any document regarding treatment of defendant no.1 or her own medical treatment on account of venereal decease. Similarly, there are no documents on record regarding her beatings and maltreatment at the hands of the defendants. On the other hand, defendant has in his evidence successfully established that the plaintiff was married to him by her parents against her wishes, as she was interested in getting marriage with one Mr. Manu Nishal with whom she in fact got married after her divorce with defendant no.1 and also the factum regarding voluntarily termination of two pregnancies by the plaintiff despite stiff resistance.
Lastly, the plaintiff is also not entitled for any damages for the loss of her virginity as the copulation is a natural consequence of marriage and no claim of damages arises for loss of virginity in a valid and legal marriage. There was no negligence of defendant no.1 in having sex with his wife and further it is not the case of the plaintiff that she had sex with the defendant no.1 against her wishes. Thus, the plaintiff has miserably failed to establish the damage, if any, suffered by her to the extent of relief claimed by her, rather, the defendant had suffered immensely at the hands of the plaintiff who has tarnished the image of the defendants.
14. I have carefully heard the detailed rivals submissions made by the Ld. counsels for the parties. I have also thoroughly perused the entire material placed in the record.
The plaintiff is claiming the recovery of Rs.5,00,000/- on three counts i.e. recovery of her Ishtridhan, damages for the torture, sufferings and maltreatment sustained by her from the defendants and damages for the loss of her virginity.
Damages are pecuniary compensation awarded for a wrong. It can be recovered when a wrong has been committed. Damages due to the legitimate exercise of a right is not actionable, even if the actor contemplates the damages. It is damnum alisque injuria or demnum sine injuria. The object of the award of damages is to redress the plaintiff for the loss or injury suffered by him. Damages are classified as general and special. General damage is actionable per se or it will be presumed to be the natural and probable consequences of the defendant's wrong, whether by work or conduct. The law presumes that damage flows from such a wrong like libel tress pass etc. Such wrong need not be proved by evidence.
Special damage means damage actually sustained and the plaintiff must establish not only that he has sustained that damage alleged, but also that it, in fact, resulted from the fact complained of. It must be specially claimed in the pleadings and proved by evidence.
Damages may be nominal, substantial, vindictive and contemptuous, special, and exemplary.
As regards 'measures of damages' no rule can be laid down for measuring the damages. Each case depends upon on its own particular facts. The expression 'measure of damages' is a technical phrase, which signifies the basis, the footing or the standard upon which the amount of damages in any given case, is calculated. There is no invariable and fixed rule to be followed in the determination of the question, as to what is the amount of compensation which the injured party is entitled to, and courts of law have often to speculate in a vague field, in their endeavor to place the plaintiff in the position he occupied, before he sustained the injury.
There are three fundamental principles upon which the law proceeds to determine the 'measure of damages'. The first 'Restituto in integrum', which means the damages should be such damages as flowing directly and in the usual course of things from the wrongful act. Second, the next principle in determining the damage, whether in contract, or tort, is that underlying the rule, as to 'remoteness of damages'. The third principle universally recognized, is that which underlies that rule as to 'mitigation of damages'. In all claims, for damages whether arising from contract or tort, a duty is cast upon the plaintiff to mitigate or minimize the damages, that, to take all reasonable precautions to reduce the amount of loss or damage arising from the wrongful act of the defendant.
Torts are divisible into two kinds when considered from the stand point of the proof of damage required in the action :- (i) torts in which no action lies, without proof of special damage. (ii) torts in which general damages in addition to special damages, in any case, alleged and proved, are recoverable. In such cases damages are said to be at large. Where damages are at large, as in actions for libel, trespass, seduction, false imprisonment, assault, etc. damage is not the gist of the action, that is, the wrongful act and not the actual damage, constitutes the cause of action, and the plaintiff may be, awarded general damages, though sometimes they may be merely nominal, and even though the special damages alleged, may not be proved.
While dealing with the question of assessment of damages, Lord Reid in Cassel & Co. Ltd. Vs. Broome (1972) AC 1027 referred to the wide bracket, within which damages in a defamation action can fall:-
''Damages for any tort are, or ought to be, fixed at a sum, which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained, it is generally possible to assess damages with some precision. But that is not so, where it has been caused mental distress, or when his reputation has been attacked-
where, to use the traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain, how far other peoples mind had been affected, it is almost impossible to equate the damage to a sum of money. Any one person, trying to fix a sum as compensation will probably find in his mind a wide bracket, within which any sum could be regarded by him as not unreasonable, and different people will come to different conclusions.
So in the end, there will probably be a wide gap, between the sum which on an objective view, could be regarded as the least; and the sum which could be regarded as the most; to which the plaintiff is entitled as compensation.'' After giving my thoughtful consideration to the rival submissions of the Ld. counsels for the parties and perusing the entire material placed in the file, I have come to the considered opinion that the plaintiff has been failed to prove her case for grant of any damages on any count.
The suit filed by the plaintiff is claim of damages under Tort. The compensation claimed by the plaintiff is neither contractual nor statutory. The relief claimed is a general compensatory damage which the plaintiff claims to have suffered. The plaintiff is required not only to establish that these damages were actually sustained by the plaintiff but also that they were sustained due to the reasons complained of against the defendants, but in this case the plaintiff has been failed to prove her case by leading the sufficient evidence.
As regards to her claim in respect of the recovery of dowry articles, it is not in dispute that the plaintiff has received her dowry articles as per her claim made in the criminal proceedings launched at her instance and the divorce between the parties was obtained by the mutual consent. She has not explained as to why she agreed for divorce by way of mutual consent when her claim in respect of the recovery of dowry articles was not satisfied. Hence, the possibility can not be denied that despite of receipt and recovery of the articles as per her satisfaction, she has preferred to re-agitate her claim in respect of her dowry articles for some ulterior motive. Further, the plaintiff has been failed to prove the purchase and handing over of the articles as per list to the defendants. The plaintiff is not even sure, as per her cross examination, whether any list of articles was given by her father to the defendants at the time of marriage. The plaintiff has not filed any receipt on record regarding purchase of the aforesaid articles. Further the claim of the plaintiff towards her Istridhan against the defendants is vague as the plaintiff has failed to disclose the date on which she had handed over the ''jewellery and other valuable articles'' to the defendants. In her cross examination, the plaintiff has clearly admitted that she cannot tell the exact time of taking the ornaments by defendants nos. 2 & 3 after her marriage. I am also agreed with Ld. counsel for the defendant that the claim of the plaintiff towards her Istridhan is time barred also. As per Article 91 (a), the period of limitation for filing the suit on misappropriation of specific movable property is three years from the day when person having right to possession of the property first learns in whose possession it is. As per Section 13 of the said Act, the period of limitation of three years is computed by deducting the period during which the plaintiff's application to sue as pauper was made and rejected. The suit of the plaintiff can be deemed to have been instituted only from the date when court fees is paid on rejection of application of sue as pauper. In the instant case the court fees has been paid more than three years after the plaintiff first learns in whose possession the property is. Further, the plaintiff has filed along with her affidavit in evidence, two documents. One affidavit purportedly executed by defendant no.1 on stamp paper and the other a purportedly hand written note of the defendant no.1. However, these documents can not be read and considered by the court as the two documents were not filed along with the suit and the plaintiff has never sought any permission of court, either orally or on application, to place the two documents on record. It is a settled law that the documents not filed along with the suit by the plaintiff can not be filed without the permission of the court. The counsel for the defendants had duly objected to placing of the documents on record when the plaintiff's affidavit was tendered in evidence and the said objection is to be decided by the court at the time of final disposal of the case. Moreover, the affidavit purportedly executed by the defendant no.1 is not notarized properly. It does not reveal the name and other particulars of the Notary before whom it was executed. Also, the affidavit is not verified in accordance with law. Verification does not bear the signatures of the executant but of someone else.
It is pertinent to note that when, as per averments in the plaint, soon after the marriage all the jewellery and other valuable articles including clothes, etc. were taken by the defendants no.2 & 3 and kept in a bank locker by them and the defendant no.1 had deserted the plaintiff on 15.06.1994, how come plaintiff gave the jewellery back to the parents of the defendant no.1, i.e. defendant nos. 2 & 3, on 05.07.1994. This can only imply that the plaintiff was in possession of all her jewellery at all material times and even when she left the matrimonial home. So far as hand written note is concerned, it does not disclose the date when it was written and the plaintiff has also not come forward with any date when it was executed and the circumstances under which the same could have been, if at all, written. The disposal of the car and realization of the sale proceeds thereof by the plaintiff has already been believed by the court in order dated 13.05.2003 and significantly, the defendants have also been acquitted of the charge U/s 406 of Indian Penal Code i.e. in respect of the allegation of misappropriation of Istridhan and criminal breach of trust, by the court of Ld. Metropolitan Delhi. Thus, the plaintiff is not entitled for any damages on the ground of recovery of Ishtridhan.
The plaintiff has also claimed damages on account of torture, humiliation, sufferings, brutal beating, inhuman treatment, allegedly meted out to her by the defendants, however, the evidence produced by the plaintiff remains insufficient to prove the aforesaid allegations. First of all, she has failed to file any document regarding treatment of defendant no.1 or her medical treatment on account of venereal disease. Further, there is also no documents on record regarding her beatings or mal-treatment at the hands of the defendants. On the other hand, the claim of defendant no.1 that the plaintiff was married to him by her parents against her wishes as she was interested in getting married with one Mr. Manu Nischal, has been substantiated by the factum that it was conceded by the plaintiff that Sh. Manu Nishchal was her class mates in his school, who also used to visit her matrimonial house and he was introduced to defendant no.1 as her cousin, with whom she got married after obtaining the divorce from defendant no.1. Thus she is also not entitled for any damages on this score too.
15. The plaintiff has lastly claimed damages for loss of her virginity. In this regard it is submitted that damages can only be claimed if there is corresponding duty of care and there is any negligence in that duty of care. Hindu marriage is a sacramental ceremony and its consummation makes the marriage complete which is an essential part of marriage, therefore, the claim on account of loss of virginity is unsustainable. It is natural course to loose virginity on copulation between husband and wife during subsistence of marriage. There was no duty of care of defendant no.1 to prevent loss of virginity of plaintiff during subsistence of marriage. There was no negligence of defendant no.1 in having sex with his wife. It is not the case of the plaintiff that she had sex with the defendant no.1 against her wishes. Copulation is a natural consequence of marriage and no claim of damages arises for ''loss of virginity'' in a valid and legal marriage. As such, the claim of the plaintiff fails on this count too.
Resultantly, the claim of the plaintiff fails and therefore, she is not entitled for any damages. Accordingly, both the issues are decided against the plaintiff and in favour of the defendants.
16. RELIEF:-
In view of my findings on the forgoing issues, the suit of the plaintiff is dismissed by leaving the parties to bear their own costs. As regards to the applications U/s 340 Cr. P. C., the same are being disposed off separately.
17. Decree Sheet be prepared accordingly.
18. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 18.09.2007) ADDL. DISTRICT JUDGE
DELHI
CS No.249/06/96
18.09.2007
Present: As before.
Vide a judgment dictated separately, suit of the plaintiff has been dismissed.
During the course of proceedings of the suit as many as four applications were filed by the defendants at different stages and all those applications were also to be decided at the time of final disposal of the suit as per the consent and joint request of the counsels for the parties. The details of the applications are as under:-
i). Application U/s 340/195 Cr. P. C. dated 06.07.1997.
ii).Application U/s 340 Cr.P.C., part B & C r.w. Sub. Sec. 3 Part-B and Sub-Section 4 filed on 06.12.1999.
iii).Application U/s 340/195 Cr. P. C. 1973 and application U/S 2 C of Contempt of Courts Act. filed on 21.12.2000.
iv).Application U/s 340/195 Cr. P. C. filed on 01.03.2006.
In the first application, the applicant has prayed for initiation of the appropriate legal action against the plaintiff on account of the fact that she has filed the present suit on the false story and filed false affidavit to mislead the court. The plaintiff has filed the suit as a indigent person and she has made false verification of the plaint and also filed the false affidavit in support of the contents of the plaint. Since the plaintiff has admittedly a property which is in her possession since the day the plaintiff has taken 57 articles through superdaginama in addition to that she was having a Maruti 800 car which has sold by the plaintiff as per knowledge and information of the applicant. Thus the plaintiff was not an indigent person.
In the second application dated 06.12.1999 the applicant/ defendant has made a prayer to act as a criminal court while adjudicating the application U/s 340 Cr. P. C. and to sent the same to the concerned court after making the complaint on the basis of the documents and court record.
In the third application filed on 21.12.2000, the applicant has made a similar prayer for sending the application U/s 340 Cr. P. C. for trial before the competent court after making complaint and also to send the application U/s 2 C of Contempt of Courts Act to the competent court for trial and for further proceedings on the ground that the petitioner had started delaying the case due to one reason or the other as she was exposed and when in tight corner, decided not to contest the case and got her false and frivolous suit dismissed in default on 08.11.2000.
In the fourth application, the defendant made the similar prayer on the plea that vide the order dated 13.05.2003, the court gave the verdict in favour of defendant while rejecting the claim of the plaintiff of filing the suit as indigent person and she was directed to file the requisite court fee.
It was also claimed that during the recording of her statement on oath the plaintiff has again given the false statement and therefore, she is liable for punishment for committing purgery.
It is claimed that:-
In her cross examination on 17.08.2004, the plaintiff denied the suggestion that one boy namely Sh. Manu Nishchal was her friend during her school days. She also denied that Sh. Manu Nishchal is the same boy who was in her school but she admitted that she got married with Sh. Manu Nishchal. Vide document Ex.DW4/A, it was certified that the plaintiff and Sh. Manu Nishchal were the students of SAB Rajkiya Sarvodaya Vidhyalaya, Ludlocastle and both were the students of class XI C. Thus from the aforesaid it is established that Sh. Manu Nishchal and plaintiff were in the same school and same class and this fact was intentionally and knowingly denied by the plaintiff during the proceedings.
It is further claimed that during her cross examination on 17.08.2004, the plaintiff has again made false statement that the case was registered at her instance against step brother of Sh. Manu Nishchal vide FIR no.472/03 at P.S. Paschim Vihar. Whereas Sh. Om Prakash Nischal the said step brother of said Sh. Manu Nishchal testified before the court of Ms. Savita Rao, Ld. M.M./Delhi in the aforesaid proceeding that he was born to Mrs. Sumitra Devi Nishchal the second wife of his father and out of that wed lock six children were born including himself and Manu Nishchal. As such Sh. Manu Nishchal is not the step brother of Om Prakash Nishchal, rather they are the real brothers.
Thirdly, the plaintiff during her cross examination on 17.08.2004 claimed that she did not conceive for second time during her first marriage whereas Dr. Usha while making her deposition before the court of Ms. Savit Rao, Ld. M.M.//Delhi in the said proceedings as DW-7 confirmed that Smt. Vasudha had come to her on 03.07.1994 at Arora Nursing Home, J-75, Rajouri Garden, New Delhi. She examined her and she did not abort her when had already aborted prior to coming to her on 03.07.1994 she again came to her with her six weeks pregnancy detected on her. Thus it is evident that the plaintiff had deliberately and intentionally denied the factum of second pregnancy.
Fourthly, it is further claimed that during cross examination on 17.08.2004, the plaintiff stated before the court that she does not remember if medical papers regarding beating given to her have been placed on record or not. Voluntarily she stated that she was having some paper as proof of beatings given to her which were taken by her husband. Whereas during her cross examination before the court of Ms. Savita Rao, Ld. M.M./Delhi she on 06.08.2005 testified that she did not get herself medically examined after giving her sever beatings by her husband. Thus it is evident that the plaintiff has given a false statement on oath with a view to get this suit decreed in her favour and for the wrongful gains. The plaintiff is liable to face proceedings for committing the offence of purgery. In support of his contention, the applicant has placed reliance upon a judgment reported as AIR 1959 SC 843 titled as Ranjit Singh Vs. State of Punjab. The aforesaid statement on oath are deliberately made by the plaintiff Ms. Sudha Dahiya, knowingly the same to be false, which is receivable as evidence in this case so the plaintiff has committed the offence and therefore, the cognizance of the matter may be taken for taking an appropriate action against the plaintiff Smt. Sudha Dahiya U/s 340/195 Cr. P. C. I have carefully heard the rival submissions of the counsels for the parties. I have also thoroughly perused the entire relevant material placed in the file.
As regards to the application mentioned at serial no. (1) & (ii) i.e. application U/s 340/195 Cr. P. C. dated 06.07.1997 and application U/s 340 Cr.P.C., part B & C r.w. Sub. Sec. 3 Part-B and Sub-Section 4 filed on 06.12.1999, in my considered view they do not disclose sufficient ground for initiation of action as prayed for as although the plaintiff was not allowed to pursue the suit as indigent person but she was having every right to claim herself as indigent person. Merely that she could not succeed in establishing herself as indigent person, it does not mean that by claiming herself an indigent person, she deliberately made false statement and is liable to face the proceedings as asked for by the applicant. Hence applications are devoid of merits and accordingly they are dismissed.
As regards to the application mentioned at serial no. (iii), I also do not find any substance in it for initiating the proceeding as sought by the applicant because once the court allowed the suit of the plaintiff to be restored, it means that there were sufficient reasons with the plaintiff for the restoration of the suit and the court on finding the same fit for restoration, restored the suit. Thus, there is no force in the allegations made in the application and as such this application also does not disclose any material for initiation of the proceedings asked by the applicant and as scuh it also liable for dismissal and same is dismissed accordingly.
Now let us come to the application mentioned at serial no. (iv). In this application it is claimed that while holding by the court that the plaintiff is not an indigent person and she has deposited the court fee too, it is established that the plaintiff had taken the false stand knowingly and therefore she is liable for facing the action for the same. It is also claimed that the plaintiff has made false statement before the court on several points and therefore she is liable for taking action for the offence of purgery.
As regards to the plea regarding indigent person, I have already dealt with this plea while deciding the earlier application and find it not convincing.
Now come to the plea that the plaintiff has falsely denied that Sh. Manu Nishchal was her class fellow with whom she was having an affair and subsequently she got married with him after getting the divorce from the applicant. In my considered view, the applicant has been failed to establish that Sh. Manu Nishchal, who was the class mate of the plaintiff in the school and Sh. Manu Nishchal to whom she got married subsequently were the same person and she was having an affair with Sh. Manu Nishchal and as such this claim also does not hold much water.
As regards to another contention that the plaintiff has falsely stated in this court that she had initiated criminal proceedings against the step brother of Sh. Manu Nishchal whereas the said alleged step brother i.e. Sh. Om Prakash Nischal has testified in the criminal proceeding before the court of Ld. M.M./Delhi that Sh. Manu Nishchal is his real brother, I am also not convinced because the applicant has not established that the factum that Sh. Om Prakash Nishchal and Sh. Manu Nishchal are real brothers is very well in the knowledge of plaintiff and she deliberately told the court that they are the step brothers. Further, the applicant has also not established that the plaintiff has stated so to obtain some wrongful gain for herself.
As regards to the plea that the plaintiff has falsely denied before this court during her cross examination that she did not get pregnant twice, whereas this claim has been falsified by a medical expert produced in the aforesaid criminal case namely Dr. Usha, who in her testimony while appearing in the witness box proved a document dated 03.07.1994 Ex.CW1/A duly signed and issued by her and as per said document the plaintiff disclosed on 03.07.1994 that she has inducedlabour 14 weeks (meaning thereby she has deliberately got herself aborted for 14 weeks) earlier to this pregnancy i.e. first pregnancy and thus it is evident that the plaintiff had deliberately and intentionally denied the factum of second pregnancy in this court, in my opinion here too the applicant has been failed as it has not been established in the present proceedings that Smt. Vasudha got pregnant twice because neither the said Dr. Usha has been produced and examine in this case nor the said document dated 03.07.1994 allegedly signed and issued by Dr. Usha pertaining to the pregnancy has been duly proved in this case. Thus at this point too the applicant has been failed.
Lastly, as regards to the contradiction in the statements of the plaintiff in this case and her statement in the aforesaid criminal case on the point of availability of the medical records with her regarding beatings given the defendant is of minor nature and it can not be become the basis of initiation of the proceedings asked for.
Thus, this application too does not contain sufficient material in it to initiate the criminal proceedings against the plaintiff as prayed for by the applicant. Moreover, it is also well settled that the power provided U/s 340 Cr. P. C. should be exercised sparingly and for the advancement of the interest of justice. It can not be utilized to satisfy the personal vendetta of the parties. As such this application is also liable for dismissal and the same stands dismissed accordingly.
With this all the four applications are disposed off. Now file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ/DELHI/18.09.2007