Delhi District Court
Kavita Kumari vs . State & Another on 19 April, 2014
Kavita Kumari vs. State & another
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): THC, DELHI
Criminal Appeal No. 26 of 2013
ID No.:- 02401R0004022012
SMT. KAVITA KUMARI
W/o Sh. Rakesh Raman
R/o H. No. T-126, Nehru Nagar,
Delhi.
AND
House No. 52/64-A/5, Gali No. 19
Nai Basti Anand Parbat
New Delhi.
..............Appellant
Versus
1. State
2. RAKESH RAMAN
S/o Sh. Swaroop Singh,
R/o House No. T-514-B,
Near Budh Bhavan, Hill Road
Baljeet Nagar,
New Delhi-110008
...........Respondents
Date of Institution : 04.01.2012
Date of judgment reserved on : 28.03.2014
Date of judgment : 19.04.2014
Crl. Appeal No. 26/13 Page 1 of 13
Kavita Kumari vs. State & another
Present: Sh. S.K. Bhalla, Advocate, counsel for appellant
Sh. R. K. Tanwar, Advocate, counsel for respondent no.1
Sh. Mahavir Sharma, Advocate, counsel for respondent no. 2
O R D E R:
1. This criminal appeal has been filed against the impugned order dated December 15, 2011 passed by learned Mahilla Court, Central District, Delhi whereby learned Trial Court dismissed the application for interim relief moved by the appellant under Protection of Women From Domestic Violence Act (DV Act in short).
2. Necessary facts in brief leading to filing the present criminal appeal are that appellant and respondent No. 2 were married on April 16, 1994 in accordance with Hindu Rites & Customs and after marriage they started residing at T-514 B near Budh Bazar, Hill Road, Baljeet Nagar, New Delhi. However, they shifted in a rented accommodation at T-443, Baljeet Nagar, Delhi in the month of August 1998 and they resided there till November 1998. Since, the relations between both the parties were not cordial, various litigations were initiated against each other. The appellant had initiated certain criminal proceedings including an FIR No. 379/98 PS Anand Parbat under Section 406/498A/34 IPC. Respondent had also filed a divorce petition on September 20, 2002 and decree was granted vide judgment dated May 2, 2009. However, judgment and decree were set aside by the High Court of Delhi vide judgment dated April 8, 2011.
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3. It was alleged that since the appellant had resided with respondent No.2 at T-514 B, Hill Road, Budh Bazar, Baljeet Nagar, Delhi, it was her share hold house being the matrimonial house and respondent had got shifted the appellant in a rented accommodation under conspiracy, thus, appellant has a right to stay in her matrimonial house i.e. T-514 B.
3. After considering the submissions advanced by learned counsel for both the parties, learned Trial Court dismissed the application holding that T- 514 B is not a shared house hold of the appellant and there was no domestic violence on the date of filing of the present petition. Aggrieved by the impugned order, appellant has preferred this criminal appeal. .
5. Learned counsel appearing for the appellant assailed the impugned order on the ground that learned Trial Court failed to consider that after marriage appellant had joined her matrimonial house at T-514 B, thus the said house was matrimonial house of the appellant. Mere fact that for a short period, appellant was forced to shift in a rented accommodation under conspiracy can not change the status of her matrimonial house. It was submitted that for all purposes, the shared house hold of the appellant was T- 514 B and not T-443. It was further contended that the offence under the D.V. Act is continuing offence, thus the interim application is maintainable despite the fact that appellant was not residing with the respondent when the Domestic Violence Act was come into force. In support of his contention, learned counsel relied upon the judgments V. D. Bhanot V/s Savita Bhanot I (2012) SLT 83; Nishant Sharma v/s State of U.P., III 2012 DMC, 472; Smt. Taruna Batra v/s S. R. Batra, AIR 205, Delhi 270; Saraswathy v/s Crl. Appeal No. 26/13 Page 3 of 13 Kavita Kumari vs. State & another Babu 2013 (4) Crimes610 (SC) and Geeta Kapoor v/s State of Haryana 2014 (1) RCR (Cr.) 942.
6. Per contra, learned counsel appearing for respondent No.2 refuted the said contentions by arguing that at the time of marriage, respondent was residing at Q-8, East Patel Nagar and after marriage, appellant started living there along with the respondent. However, thereafter the couple shifted to T- 541 B, Hill Road, Baljeet Nagar which is self acquired property of father of respondent No.2. It was further contended that on February 18, 1998, appellant had filed a criminal complaint before CWC and consequently, an FIR for the offence punishable under Section 406/498A IPC was registered. On May 14, 1998 matter was settled between the parties and appellant lodged a DD No. 6A with Police station Anand Parbat stating that she had shifted in a rented accommodation at T-510/E-A5 and also shifted all her belongings at the said address. Thereafter, the couple shifted at H. No. T-
443. It was submitted that at the time of arrest and recovery of dowry articles, respondent was residing at the said address. It was thus argued that T-514 B was not the shared house hold of the appellant at the time when she filed the present petition before the learned Trial Court. In support of his contention, he relied upon the judgment Umesh Sharma v/s State, 2010 (115) DRJ 88, Vijay Verma v/s State of NCT 2010(5) CRJ 338 (Delhi), Sardar Malkiat Singh v/s Kanwaljit Kaur & Ors. 2010 (116) DRJ 295 and S. R. Batra & Another v/s Smt. Tarun Batra, 136 (2007) DLT 1 (SC). It was further contended that the petition is also barred by time as it was filed in the year 2008 whereas parties are living separately since 1998. It was submitted that even the Domestic Violence Act was not in existence when parties started Crl. Appeal No. 26/13 Page 4 of 13 Kavita Kumari vs. State & another living separately in the year 1998.
7. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
8. From the submissions advanced by counsel for both the parties, two vital questions arise for adjudication. Firstly, as to whether the petition filed by the appellant is not barred by the period of limitation as contended by counsel for the appellant. Secondly, whether T-514 B, Hill Road, Baljeet Nagar is shared house hold of appellant or not? If the answer of both the questions be in affirmative, criminal appeal will be allowed otherwise it will liable to be dismissed.
Whether Petition is barred by the period of limitation:
9. This question was dealt by the Apex Court in V. D. Bhanot V/s Savita Bhanot (supra) wherein Apex Court approved the findings of High Court of Delhi by holding:
"We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so Crl. Appeal No. 26/13 Page 5 of 13 Kavita Kumari vs. State & another when the Act came into force, would still be entitled to the protection of the PWD Act, 2005."
(emphasis supplied) Findings of the High Court of Delhi was as under :
"Before the Delhi High Court, the only question which came up for determination was whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006. After considering the constitutional safeguards under Article 21 of the Constitution, vis--vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the statement of objects and reasons for the enactment of the PWD Act, 2005, the learned Judge held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the Constitution that the Parliament enacted the PWD Act, 2005, in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. The learned Judge accordingly held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. The learned Judge, accordingly, set aside the order passed by the Additional Sessions Judge and directed him to consider the appeal filed by the Crl. Appeal No. 26/13 Page 6 of 13 Kavita Kumari vs. State & another Respondent wife on merits."
(emphasis supplied)
10. The above said view was also followed by the Apex Court in its subsequent judgment Saraswathy (supra).
11. From the above said case law, it becomes abundantly clear that wife is entitled to claim relief under Domestic Violence Act, even for the domestic violences which were committed prior to enforcement of the Domestic Violence Act. Admittedly, in the instant case, the parties started living separately since 1998 and the appellant had filed the petition under D.V. Act in July 2008. Admittedly, till then the relationship of husband and wife was in existence as the divorce was granted by the learned Court only in May 2009. Thus, I do not find any substance in the contention of respondent that petition is not maintainable being barred by the period of limitation. .
12. Now coming to the second pivotal question as to whether T-514 B, Hill Road, Baljeet Nagar is the shared house hold of the appellant or not?
13. The Shared hold house was discussed by the Apex Court in detail in case S. R. Batra(supra). Para 24 to 27 are relevant for the purpose of our discussion and the same are reproduced as under:-
Learned counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a Crl. Appeal No. 26/13 Page 7 of 13 Kavita Kumari vs. State & another domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.
We cannot agree with this submission.
If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.
It is well settled that any interpretation which leads to absurdity should not be accepted.
(emphasis supplied)
14. High Court of Delhi also dealt with shared house hold in detail in case Vijay Verma v/s. State of NCT of Delhi (supra). Relevant paras are 6 & 7 and same are reproduced as under:-
6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had Crl. Appeal No. 26/13 Page 8 of 13 Kavita Kumari vs. State & another lived together with the respondent in a shared household. This living together can be either soon before filing of petition or 'at any point of time'.
The problem arises with the meaning of phrase "at any point of time". Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that "at any point of time" under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, "at any point of time" cannot be defined as "at any point of time in the past"
whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, Crl. Appeal No. 26/13 Page 9 of 13 Kavita Kumari vs. State & another daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase 'at any point of time', say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive and comes to an end.
7. This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only Crl. Appeal No. 26/13 Page 10 of 13 Kavita Kumari vs. State & another when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living miles away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under Penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence.
(emphasis supplied)
15. Same view was taken by the High Court of Delhi in subsequent Crl. Appeal No. 26/13 Page 11 of 13 Kavita Kumari vs. State & another judgment Umesh Sharma V/s State and S Malkiat v/s. Kawal (supra).
16. Learned counsel for the appellant strongly relied upon the judgment Nishant Sharma and Tarun Batra v/s. S.R. Batra. The first judgment is distinguishable on facts whereas the second judgment i.e. Tarun Batra v/s. S. R. Batra was set aside by the Apex Court in S. R. Batra v/s Tarun Batra's case. In Nishant Singh's case facts were totally different case as in the said case parties never changed their matrimonial house as they had done in the instant case, thus, to my mind, Nishant's case (supra) is not helpful to the appellant in any manner .
17. Applying the above said settled proposition of law in the facts of present case, it will be clear that T-514 B was not a shared house hold of the appellant at the time when she had filed the petition under Domestic Violence Act before the learned Trial Court. It is admitted case of the appellant that she had shifted in a rented accommodation at T-443, Baljeet Nagar, Delhi. It is also undisputed fact that appellant had lodged an FIR No. 379/98 at Police station Anand Parbat under Section 406/498A/34. It is also undisputed fact that Istri-dhan was recovered from the tenanted premises i.e. T-443, Punjabi Basti. As per the recovery memo, the said dowry articles were got recovered by appellant herself in the presence of respondent. Admittedly the dowry articles were recovered on January 3,1999. It means that till then the matrimonial house of appellant was T-443, Punjabi Basti, Baljeet Nagar and not T-514 B. Once she shifted her matrimonial house from T-514 B to T-443 Punjabi Basti, former house i.e. T-514 B ceased to be her matrimonial house. Mere fact that at one point of time, appellant had resided with respondent at Crl. Appeal No. 26/13 Page 12 of 13 Kavita Kumari vs. State & another T-514 B does not mean that the said house continued to be her matrimonial house for ever. Once she shifted from the said house with an intention to set up her new matrimonial house, former house shall be ceased to be her matrimonial house. Similarly, once appellant moved out from her shared hold house i.e. T-514B with an intention to set up her own matrimonial house at T- 443, Punjabi Basti, former house i.e. T-514B also ceased to be shared house hold of the appellant. Since. H. No. T-514 B ceased to be shared house hold in the year 1998 itself, appellant cannot claim her right to stay in the said house under Protection of Women from Domestic Violence Act. .
18. In view of the aforesaid discussion, I am of the considered opinion that there is no merit in the present criminal appeal, hence same stands dismissed.
19. Copy of order be sent to the learned Trial Court immediately.
20. However, observations made here-in-above shall have no bearing on the merit of the case.
21. TCR be sent back.
22. Present criminal appeal file be consigned to record room.
Announced in the open Court (PAWAN KUMAR JAIN) on this 19th day of April, 2014 ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
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