Delhi District Court
Smt. Shanti vs Gopal Krishan on 22 April, 2015
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Appeal No. 10/15
ID No. 02406R0295052014
Smt. Shanti
R/o B42, Nirmalpuri,
Old Double Storey Quarters,
Lajpat NagarIV,
New Delhi110024 . . . . Appellant
Through: Ms. Disha Arora,
advocate.
versus
1. Gopal Krishan
S/o Late Shri Sham Lal
2. Smt. Reena
W/o Shri Gopal Krishan
3. Kunal
S/o Shri Gopal Krishan
4. Vattan
S/o Shri Gopal Krishan
All residents of :
R/o B42, Nirmalpuri,
Old Double Storey Quarters,
Lajpat Nagar - IV,
CA No. 10/15 1 of 9
New Delhi - 110024. . . . . . Respondents
Through: Shri Kartikey
Mathur, advocate for
R2 to R4.
__________________________________________________________
Date of Institution : 07.11.2014
Date of receipt of file by way of
transfer in this court : 23.02.2015
Date when arguments were heard : 06.04.2015
Date of Judgment : 22.04.2015
JUDGMENT :
The present appeal filed under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (in short "The Act.") is directed against order dated 28.06.2014 and 18.07.2014 passed by learned MM (Mahila Court), SouthEast District, Saket Courts, New Delhi, in the case titled as Smt. Shanti Vs. Gopal Krishan and Others, bearing CC No. 437/3/12.
2. Appellant filed complaint under section 12, 18, 19, 20, 22 & 23 of the Act against the respondents wherein she prayed for protection order, residence order and monetary relief etc. On 28.06.2014, learned Metropolitan Magistrate after hearing arguments of both the parties on maintainability of the case against respondent no. 2 Mrs. Reena (daughterinlaw), by relying upon the judgment of Hon'ble CA No. 10/15 2 of 9 High Court of Delhi in the case titled as Kusum Lata Sharma Vs State, Crl. M.C. No. 725/11 decided on 2 September, 2011 held that case filed by appellant against respondent no. 2 was not maintainable.
3. On 18.07.2014, argument on application of interim maintenance filed on behalf of appellant was heard. The interim application of appellant was dismissed with the following relevant observations:
"As per the report of SHO in the case regarding respondent no. 1, he is missing since 2013 and his whereabouts are not traceable hence, at this stage, I am not inclined to pass any orders against him till the time, he is traced.
As far as respondent no. 2 i.e. daughterinlaw is concerned, vide my order dated 28.06.2014, I have already held that the present case is not maintainable in view of the law laid down in Sandhaya Manoj Wankhade Vs Manoj Bhim Rao Wankhade and Others (2011) 3 Supreme Court Cases 650 and Varsha Kapoor Vs Union of India and Others (2010) 118 DRJ 83 (DB).
CA No. 10/15 3 of 9 Hence, in view of the pleadings on record, it cannot be said that respondent no. 3 and 4 had harassed the complainant to an extent that they should be ordered to be evicted from the house where they are residing from several years thereby rendering them shelter less.
I am not inclined to pass any order of eviction against respondent no. 3 and 4 at this stage without prima facie case of domestic violence, made out against respondent no. 3 and 4.
No case for order of maintenance or any other relief is made against respondent no. 3 and 4 as prima facie it is not proved that they have committed any act of violence on complainant."
4. Appellant feeling dissatisfied and aggrieved by impugned orders dated 28.06.2014 and 18.07.2014 has filed the present criminal appeal.
5. On notice, respondents no. 2 to 4 made appearance through counsel Shri Kartikey Mathur. No formal reply to the appeal of appellant has been filed on behalf of respondents.
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6. Respondent no. 1 did not appear despite service of notice of appeal at his given premises.
7. I have heard the submissions advanced by Ms. Disha Arora, learned counsel for appellant and Shri Kartikey Mathur, learned counsel for respondents no. 2 to 4. It was submitted by learned counsel for appellant that the impugned order dated 28.06.2014 suffers from absolute non application of judicial mind and same is liable to be set aside. It was further submitted that the order dated 18.07.2014 has been passed by learned Metropolitan Magistrate without evaluating the pleadings and documents on record.
7. Per contra, it was submitted by learned counsel for respondents that the impugned orders have been passed by learned Metropolitan Magistrate after full appreciation of material on record and same does not call for any interference by this Court. It was further argued that the appeal lacks merits and same may kindly be dismissed.
8. I have considered the rival submissions of both the parties and perused the material on record.
9. Trial court record shows that while dismissing the CA No. 10/15 5 of 9 complaint case against respondent no. 2, being not maintainable, learned Metropolitan Magistrate has relied upon the judgment of Hon'ble High Court of Delhi passed in Kusum Lata Sharma's case (Supra). I have gone through the said judgment relied upon by learned Metropolitan Magistrate and find that the learned Magistrate has not read the full judgment. It rather appears that the learned Metropolitan Magistrate has misread the judgment while giving findings that a motherinlaw cannot file a case against daughterinlaw. In para no. 9 and 10 of the judgment in Kusum Lata Sharma's case (Supra), the Hon'ble High Court of Delhi held that:
"As a matter of fact, para '4 (i), clarifies that even those women who are sisters, widows, mothers, single woman or living with the abuser are entitled to legal protection under the proposed legislation. A mother who is being maltreated and harassed by her son would be an "aggrieved person". If the said harassment is caused through the female relative of the son i.e. his wife, the said female relative will fall within the ambit of the 'respondent'. This phenomenon of the daughtersinlaw harassing their mothersinlaw especially who are dependent is not uncommon in CA No. 10/15 6 of 9 the Indian society.
In view of the authoritative pronouncement of the Hon'ble Supreme Court, para '4' of the Statement of Objects and Reasons cannot be stated to have excluded a female relative of the male partner or a respondent and thus, a motherin law being an "aggrieved person" can file a complaint against the daughterinlaw as a respondent."
10. A bare reading of the aforesaid observations of Hon'ble High Court shows that a motherinlaw can file a complaint against daughterinlaw. The findings given by learned Metropolitan Magistrate that motherinlaw cannot file complaint against the daughterinlaw is illegal and contrary to the law laid down by Hon'ble High Court in Kusum Lata Sharma's case (Supra). The impugned order dated 28.06.2014 deserves to be set aside. It is ordered accordingly.
11. So far as the impugned order dated 18.07.2014 is concerned, record shows that as per report submitted by SHO of police station concerned, respondent no. 1 is missing since 2013 and his whereabouts are not traceable. Learned MM restrained herself from CA No. 10/15 7 of 9 passing any orders against respondent no. 1 till he is traced. Trial court record shows that respondent no. 1 has been duly served. He appeared in the court of learned MM, filed written statement and reply to the application under section 23 (2) of the Act. He also filed his income affidavit alongwith supporting documents and thereafter has stopped appearing in the court. The respondent is intentionally and deliberately not participating in the proceedings. In my view, learned MM was not justified in not passing any interim order against respondent no. 1. The proceedings under The Protection of Women from Domestic Violence Act, 2005 are quasi judicial in nature. In case of non appearance of respondent at any stage of the proceedings, he may be proceeded ex parte. The order passed by the court may also be got executed in appropriate proceedings. In the given facts and circumstances of the case, the impugned order dated 18.07.2014 to the aforesaid extent is set aside. Learned MM is directed to pass appropriate order after hearing submissions of both the parties on merits.
12. As observed, in para no. 10 of judgment that motherinlaw can file complaint against the daughterinlaw, the learned MM shall consider of passing fresh order against respondent no. 2, if required after hearing submissions of both the parties.
CA No. 10/15 8 of 9
13. As far as rest of the impugned order dated 18.07.2014 is concerned, same is hereby affirmed and upheld. I am in full agreement with the findings of learned MM that at this stage, it would not be appropriate to pass an order of eviction from the house against respondent no. 3 and 4 as they have been living in the house for a pretty long time and the alleged cruelty, violence, beatings and harassment are not to such an extent which warrants their immediate eviction from the house.
14. For the foregoing reasons, the impugned order dated 28.06.2014 is set aside and the order dated 18.07.2014 is set aside to the extent as pointed out in para no. 11 and 12 of the judgment. Rest of the order dated 18.07.2014 is hereby upheld. Appeal is disposed of accordingly.
15. A true copy of the judgment alongwith TCR be sent to court concerned. Appeal file be consigned to Record Room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e 22nd April, 2015 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
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