Delhi District Court
Smt. Renuka @ Renu vs ) Sh. Devender on 16 May, 2020
IN THE COURT OF MS. HARSHITA MISHRA: MM: MAHILA
COURT: EAST: KARKARDOMA COURTS: DELHI
Renuka @ Renu v. Devender and Others
V-168/2013
New Case No.6797/2016
Smt. Renuka @ Renu,
W/o Sh. Devender,
D/o Late Sh. Prakash Singh,
R/o House No. 50A, Street No.1,
Sarojini Naidu Park,
Near Shastri Nagar, East Delhi-110031. ................... Petitioner
Versus
1) Sh. Devender, (husband of the petitioner)
S/o Sh. Dharambir;
2) Smt. Rani, (mother- in- law of the petitioner)
W/o Shri Dharambir;
3) Sh. Dharambir, (father- in- law of the petitioner) (expired during pendency
of judicial proceedings and hence, proceedings qua him stood abated)
S/o Not mentioned;
4) Sh. Suresh, (brother- in- law/ jeth of the petitioner)
S/o Sh. Dharambir;
5) Sh. Sombir, (brother- in- law/ jeth of the petitioner)
S/o Sh. Dharambir;
6) Smt. Anju, (sister- in- law/ jethani of the petitioner)
W/o Not mentioned;
7) Sh. Pravender, (brother- in- law/ dewar of the petitioner)
S/o Sh. Dharambir;
8) Smt. Guddi, (sister- in- law/ dewarani of the petitioner)
W/o Sh. Pravender;
All R/o H. No. 50A, S/F Kh. No. 39/4,
Gali No. 1, Sarojini Naidu Park,
Near Shastri Nagar, Delhi- 110031. ....................Respondents
New Case No.6797/16
Renuka @ Renu Vs. Devender and Others Page number 1 of 10
JUDGMENT
1. The present petition has been filed by the petitioner Ms. Renuka @ Renu under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "DV Act") against her husband Sh. Devender and in- laws namely Smt. Rani; Sh. Dharambir; Sh. Suresh; Sh. Sombir; Smt. Anju; Sh. Pravender; Smt. Guddi; and Asha. Respondent Asha, being the married sister- in- law (nanad) of the petitioner, was dropped from the list of respondents to be summoned, vide order dated 09.12.2013.
2. The factual matrix of the case is an under:
The petitioner was married with the respondent no.1 on 27. 07. 2008 according to Hindu rites and ceremonies. She averred that out of this wedlock, a son Mohan, who was aged 12 years at the time of filing of the complaint. She averred that in her marriage, her parents had spent beyond their capacity. The petitioner averred that the respondents were not happy with the dowry brought by her and would taunt her for the same. The petitioner alleged that the respondents hurled abuses on her and also gave her beatings. The petitioner alleged that the respondents also pressurized her to bring more dowry and that her mother- in- law Rani had also retained the petitioner's entire istridhan with herself. The petitioner has also cited instances when she was threatened with dire consequences in case she didn't bring dowry as demanded by the respondents. The petitioner has also averred that the respondent no.1 despite being a man of means, who was earning Rs. 20, 000/- per month by working as a cleaner in the parking lot of Karkardooma Courts and clerk of a counsel, he was not maintaining the petitioner and her son Mohan. Tired of the incessant cruelty meted out to her, the petitioner lodged a complaint at the CAW Cell and also filed the present complaint under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "DV Act"). The petitioner has sought multifarious reliefs in the present petition, which are enumerated herein under :-New Case No.6797/16
Renuka @ Renu Vs. Devender and Others Page number 2 of 10
i) Protection Order against the respondents, thereby proscribing them from
committing any act of domestic abuse against the petitioner; orders prohibiting the respondents from approaching/ communicating with the petitioner in any manner and at any place; prohibiting the respondents from trying to meet the petitioner's child in his school etc.; prohibit the respondents from approaching any of the relatives of the petitioner; prohibiting the respondent no.1 from operating the joint bank locker of the petitioner and the respondent no.1 and only permitting the petitioner to do the same;
ii) Residence orders directing the respondents not to dispossess the petitioner and her son Mohan from her matrimonial home at H. No. 50A, S/F Kh. No. 39/4, Gali No. 1, Sarojini Naidu Park, Near Shastri Nagar, Delhi- 110031 and prohibiting them from alienating/ disposing off the personal belongings of the petitioner; and
iii) Monetary relief in the form of medical offences @ Rs. 20, 000/-; damages to the tune of Rs. 1, 00, 000/- for the mental injury sustained by the petitioner;
monthly expenses to the tune of Rs. 30, 000/- per month; these amounts directed to be paid by the respondent no.1.
3. In response to the summons of the petition, respondents filed a detailed joint reply wherein they have vehemently controverted all the allegations levelled against them in the petition. They have taken a series of preliminary objections to the maintainability of the present petition. They have denied committing any act of domestic violence against the petitioner and averred that the petitioner had unlawfully married the respondent no.1 without taking a formal divorce from her first husband. They have also averred that Mohan was not the son of the respondent no.1 and that he was the son of the petitioner from her first marriage. The respondents have averred that the marriage between the petitioner and the respondent no.1 was performed in a simple manner at Shiv Mandir, Arya Puri, Muzaffarnagar, without much fanfare. The respondents have denied that the respondent no.1 was earning Rs. 20, 000/- by working as a clerk of a lawyer. It is averred that the respondent no.1 was only earning Rs. 3, 000/- per month. The respondents have alleged that from this meager income of Rs. 3000/-, the respondent New Case No.6797/16 Renuka @ Renu Vs. Devender and Others Page number 3 of 10 no.1 was running the entire family. It is also alleged that the petitioner was also earning Rs. 3, 000/- per month doing the job of cleaning utensils in a few houses nearby. It is also alleged that the respondent nos. 2 to 8 were living separately and hence, they had no opportunity to harass or torture the petitioner as alleged. The respondents pressed for dismissal of the petition.
4. Replication has been filed by the petitioner to the written statement filed by respondents and the petitioner has made vehement refutation of all the counter- allegations leveled against her and she has reiterated all her allegations against the respondents in her original petition. The petitioner has stated that her son Mohan was sired by respondent no.1 himself and not by her first husband.
5. Respondents stopped appearing in court and hence, they were proceeded ex- parte vide order dated 18.02.2017.
6. It is pertinent to mention here that despite multiple opportunities being given to the parties to file their respective income and assets affidavit, the same was not filed.
7. In petitioner's evidence, the petitioner has examined herself as PW1 and tendered her evidence affidavit, ex- parte, wherein she has reiterated and reaffirmed the same facts as stated by her in the petition. The respondents didn't appear to cross- examine the petitioner and ex- parte PE was closed. Final arguments were then heard and the matter was listed for ex- parte judgment.
8. I have heard the submissions of Ld. LAC for the petitioner and pursued the record. I, now, proceed to appraise the evidence led and thereafter, dispose of the matter on merits.
9. The present proceedings are under Protection of Women from Domestic Violence Act and therefore, the first question that arises for determination is as to whether the petitioner is an "aggrieved person". "Aggrieved person" is defined in Section 2(a) of Protection of Women from Domestic Violence Act, which reads as under : -
"Aggrieved person means any woman who is, or has been, in a New Case No.6797/16 Renuka @ Renu Vs. Devender and Others Page number 4 of 10 domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondents."
10. A perusal of this section shows that two ingredients need to be satisfied before a person can be said to be an aggrieved person:
i) Aggrieved person must be in a domestic relationship with respondent; and
ii) Aggrieved person must have been subjected to domestic violence by the respondent.
11. Section 2(f) defines "domestic relationship" as under : -
"Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family."
12. It is clear from the perusal of section 2(f) of the Protection of Women from Domestic Violence Act that the aggrieved person must establish that she was in relationship with the respondent by way of blood, adoption or marriage and was residing with the respondent in a shared household. The marriage between applicant and respondent no.1 is an admitted fact and so is the fact that both of them have resided together. In view of the same domestic relationship is proved between petitioner and respondent no.1. The respondent no.1 has sought to challenge the validity of his marriage with the petitioner by alleging that since the petitioner hadn't taken a formal divorce from her first husband, the petitioner's second marriage with the respondent no.1 was unlawful and had no recognition in law. The respondent no.1 has by taking this plea tried to wriggle out of his obligation towards the petitioner and the minor child Mohan. I find the said contention of the respondent no.1 to be totally bereft of any merit and credibility as the respondent no.1 has not challenged the declaration/ agreement dated 04.08.2008 executed at Muzzafarnagar. The respondents have not even made a whisper of allegation against the contents of New Case No.6797/16 Renuka @ Renu Vs. Devender and Others Page number 5 of 10 the said document. This document has been filed by the petitioner alongwith her petition and on page 2 of the said document, it is specifically mentioned that the petitioner was marrying the respondent no.1, as her first husband had not been traceable for the last 8 years. The studied silence of the respondents regarding the authenticity of this document creates a presumption in favour of its genuineness. Even otherwise, the petitioner's relationship and factum of prolonged cohabitation with the respondent no.1 can be taken as "relationship in the nature of marriage", thereby bringing the petitioner under the protective ambit of the DV Act, qua the respondent no.1. Further, the meek submission of the respondents that the respondent nos. 2 to 8 were not residing with the petitioner also fails to inspire confidence as the respondents have themselves admitted that respondent no.1 was living in the house of respondent no.2 and 3. It is quite apparent that the petitioner, her minor son and all the respondents were living under the same roof and had a domestic relationship with one another.
13. Now the point of consideration is whether any domestic violence has been committed upon the petitioner by the respondents or not?
14. In order to prove domestic violence, petitioner has examined herself as PW1. She has tendered her evidence by her affidavit wherein she has reiterated all allegations against the respondent which were incorporated in her petition under Section 12 of the DV Act. Neither the respondents nor their counsel have appeared to cross examine the petitioner and thus, they have totally failed to failed to cull out any contradiction/ inconsistency in her statement which would have taken away the credibility of her version. The DIR filed by the Protection Officer also corroborated the averments/ allegations of the petitioner, which otherwise remained absolutely unassailed.
15. From the totality of material available on record and the evidence recorded, it can be said that the petitioner has successfully proved that she was subjected to domestic violence at the hands of the respondents. Once this is taken to be proved, the petitioner becomes entitled to the reliefs provided under the Protection New Case No.6797/16 Renuka @ Renu Vs. Devender and Others Page number 6 of 10 of Women from Domestic Violence Act.
16. The petitioner is thus entitled to the right of residence in the shared household and is also entitled to protection from acts of domestic violence in future. Accordingly, the respondents are hereby proscribed from committing any act of domestic abuse against the petitioner; they are prohibited from approaching/ communicating with the petitioner in any manner and at any place; they are further prohibited from trying to meet the petitioner's child in his school and from approaching any of the relatives of the petitioner.
17. Since the petitioner has not provided details of any joint account/ locker held in the joint names of the petitioner and the respondent no.1, I am refraining from passing any order prohibiting the respondent no.1 from operating the same and only permitting the petitioner to operate the same.
18. I also deem it fit to direct the respondents not to dispossess the petitioner and her son Mohan from her matrimonial home at H. No. 50A, S/F Kh. No. 39/4, Gali No. 1, Sarojini Naidu Park, Near Shastri Nagar, Delhi- 110031 and also prohibit them from alienating/ disposing off the personal belongings of the petitioner.
19. I now advert to the relief of maintenance claimed by the petitioner. At the very outset, I would like to mention that the petitioner seems to have deliberately concealed the true paternity of her son Mohan. As per petitioner's own pleading, her son Mohan was 12 years old when the present case was filed. It is rather incongruous as to how the petitioner's child, who is avowedly born out of her wedlock with respondent no.1, could be twelve years old, when the petitioner admittedly got married to the respondent no.1 in 2008 only. Further, the declaration/ agreement dated 04.08.2008, which is lying on record, also expressly mentions that child Mohan is the son of the petitioner from her first marriage. The petitioner has, thus tried to mislead the court regarding the paternity of child Mohan. However, since the respondent no.1 seems to have married the petitioner despite knowing about the paternity of child Mohan and had also agreed to take care of his needs, the New Case No.6797/16 Renuka @ Renu Vs. Devender and Others Page number 7 of 10 respondent no.1 is bound to maintain him.
20. It is also important to note that the petitioner has also failed to furnish any documentary evidence regarding the employment status and monthly earnings of the respondent no.1. Hence, in the absence of such evidence, it is rather hard to believe that the respondent no.1 was earning Rs. 20, 000/- per month as has been alleged by the petitioner. However, the petitioner's failure to file any documentary evidence regarding income of respondent no.1, does not per se defeat her right to claim maintenance from the respondent no.1 as it is a well settled legal proposition that a husband is legally and morally liable to maintain his wife and child. This right of the wife to claim spousal maintenance has its origins under the Common Law and has been adopted by the Indian Legislature. Under Common Law, the duties of husbands and wives were rigidly defined by gender. The husband had a duty of support and the wife had a duty of services. This meant, as a practical matter, that the husband had the responsibility to support his wife financially, and the wife had a duty to provide her husband with domestic services. This division of labour was a part of the then dominant "cult of domesticity" and "separate spheres"
ideologies, both of which reflected the belief that the proper role of wife was limited to taking care of the home. The reasons for this historical division of labour between the spouses are clear. The division reflected a combination of moral precepts based on religious teachings, stereotypes about the natural proclivities of men and women, and practical realities. In order for a household to survive, there had to be a source of income. Also, the home had to be physically maintained, which required tasks such as cooking, cleaning and rearing the children. Finally, the reality that women had virtually no opportunities in the work place made the support / services division of labour between a married couple inevitable. As a practical matter, the husband's duty of support was implemented through the "doctrine of necessaries", which was also rigidly structured along gender lines. Under the doctrine of necessaries, if a husband neglected his duty to provide his wife with necessities of life, he was liable, under principles of restitution, to pay a merchant to supply the necessary goods to New Case No.6797/16 Renuka @ Renu Vs. Devender and Others Page number 8 of 10 her. The doctrine of necessaries was extremely important because at common law, a woman basically forfeited her legal existence upon marriage. As a result, a wife could not contract on her own for her food, clothing and medical needs. The duty of support still exists in contemporary marriages, though, its extent might have been watered down to some extent. In the Indian social milieu, the wives are still mostly confined to their homes and hearth and very often, they do not have requisite qualifications and skills to go out and find a job for themselves, so as to independently eke a livelihood. In such cases, the husbands are again under the duty to support their spouses. The petitioner, in the present case, is one such wife, bound by Indian traditions, who has a child to raise and no independent source of income. She is not a very educated lady, who could get a job for her sustenance. There is no evidence on record to show that she was having independent source of income, though the respondent no.1 has alleged at one place that petitioner was earning Rs. 3, 000/- by washing utensils in nearby houses. The respondent husband is bound to support her and her son and he cannot absolve himself of his liability by saying that he is not having sufficient income and that he was also maintaining his other family members.
21. The respondent no.1 is a young man with no known debilitating illness etc. and hence, his income is presumed to be around Rs. 10,000/- - Rs.11,000/- per month. Hence, after reasonably apportioning the income between the respondent no.1, the petitioner, child Mohan and the old mother of the respondent no.1 (who is respondent no.2 in the present case), I deem it fit to direct the respondent no.1 to pay Rs. 2,000/- each per month to the petitioner and child Mohan (till the time he attains majority). Respondent no.1 is directed to pay the said amount to the petitioner on or before the 10th day of every calendar month.
22. No other relief is being granted to the petitioner as there isn't sufficient evidence on record to prove the damages sustained etc.
23. Ordered accordingly.
24. With these directions, the petition is disposed off.
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25. File be consigned to record room. Copy of the judgment be given free of cost to both parties.
(Announced in the open court
On 16th May, 2020) (Harshita Mishra)
MM/Mahila Court-01/East/KKD/Delhi
16.05.2020.
This judgment contains 10 pages and each page bears my signature.
(Harshita Mishra)
MM/Mahila Court-01/East/KKD/Delhi
16.05.2020
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