Delhi District Court
Criminal Appeal No. 06/14 vs Rattan Lal & on 30 October, 2014
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI
Criminal Appeal No. 06/14
Poonam
W/o Sh. Sunil,
D/o Sh. Ramesh
R/o H. No. A-31/6-A, Main Road,
Moujpur, Delhi-53 .................Appellant
Verses
(1) State (Govt. of NCT of Delhi)
(2) Rattan Lal (Father-in-law)
(3) Smt. Angoori Devi (Mother-in-law)
(4) Smt. Pooja (Nand)
(5) Sh. Piyush (Brother-in-law)
(6) Sh. Kamal (Jeth)
(7) Smt. Khushboo (Jethani)
All resident of A-177, Madipur,
J.J. Colony, New Delhi ...................Respondents
Date of filing of appeal : 05.04.2014
Date of reserving order : 09.10.2014
Date of Order : 30.10.2014
ORDER
1. The appellant has challenged order dated 28.02.2014 passed in CC No. V-18/11/12 titled as Poonam Vs. Rattan Lal & Ors. whereby the criminal complaint U/s. 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as "The Act") filed by the appellant on the ground that there were no specific allegations or incidents of domestic violence averred in the petition against the respondents.
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 1/152. Precisely stated, the appellant filed a criminal complaint U/s. 12 of the Act against the respondents for seeking following reliefs:
"2. It is prayed that this Hon'ble Court may take cognizance of the complaint/Domestic Incident Report and pass all/any of the orders, as deem necessary in the circumstances of the case,
(a) Pass protection orders U/s. 18 and/or
(b) Pass residence orders U/s. 19 and/or
(c) Direct the respondent to pay monetary relief U/s. 20 and/or
(d) Direct the respondent to grant compensation or damages U/s. 22 and/or
(e) Pass such interim order as the Court deems just and proper;
(f) Pass any orders as deems fit in the circumstances of the case.
3. Orders required:
(i) Protection Order under Section 18 Prohibiting act of domestic violence by granting an injunction against the respondents from repeating any of the acts mentioned in terms of the column 4 (a) /
(b)/ (c)/ (d)/ (e)/ (f)/ (g) of the application Any other order, please specify The respondents be restrained from causing any harassment for not bringing sufficient dowry as per their status. The respondents be directed to return the stridhan articles of the aggrieved and further, the respondents be restrained from destroying the dowry and stridhan of the aggrieved lying in the matrimonial home of the petitioner.
(ii) Residence Order under Section 19 An order restraining the Respondent(s) from dispossessing the petitioner from the matrimonial home and further, the respondents be restrained from interfering with the petitioner while using shared household. The respondents be restrained from alienating/disposing/encumbering the shared household for depriving the petitioner from household.Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 2/15
(iii) Monetary relief under Section 20 The respondents be directed to pay a sum of Rs.
2,00,000/- for causing mental harassment before and after leaving matrimonial home by the petitioner.
(iv) Monetary relief under Section 20 The respondents are man of means and petitioner has no source of income, therefore, the respondents be directed to pay a sum of Rs. 15,000/- to the petitioner and minor child.
(v) Compensation order under Section 22 The respondent is causing mental and physical harassment to the applicant. Therefore, the respondent may kindly be directed to pay the compensation in tune of Rs. 2,00,000/- to the applicant."
3. The appellant was seeking the above-mentioned reliefs on the averments that she was married to Sh. Nitin Chauhan on 15.01.2007. After her marriage, she alongwith her husband resided at A-177, First Floor, Madipur, J.J. Colony, New Delhi. From her marriage, two children were born. However, one child expired. Other female child namely Pari @ Samu aged 3 ½ years was in her custody. Unfortunately, her husband expired on 05.06.2011. After the death of her husband, all the respondents were harassing her in order to throw her out from her matrimonial home. The appellant was not allowed to use the phone and further, she was not allowed to talk to anyone. The appellant succeed in saving her life with the help of local police and her parents. At the time of her marriage, sufficient dowry articles were given to the respondents. Costly articles were in the possession of the respondents.
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 3/154. The present criminal complaint was filed on 14.07.2011 and thereafter, protection officer submitted Domestic Incident Report (DIR) pursuant to the direction of Ld. trial Court. DIR is a statutory document and it is required to be considered in order to ascertain whether the appellant was subjected to any kind of violence and other matters connected therewith.
5. It would be appropriate to reproduce the entire Domestic Incident Report (DIR) as it would have a bearing on the outcome of this appeal.
DOMESTIC INCIDENT REPORT under section 9(b) and 37(2)(c) of the protection of women from Domestic Violence Act. 2005 (43 of 2005) DIR No. 275/11 Date 14/03/12 Details of the complainant/aggrieved person:
(1) Name of the complainant/aggrieved person: Poonam (2) Age: 24 years (3) Address of the shared household: R/o A-177, Madipur J.J. Colony, New Delhi (4) Present Address: A-31/6-A, Main Road Maujpur, Delhi-53 (5) Phone Number, if any: 9250228256
2. Details of respondents:
S. No. Name Relation with the Address Telephone aggrieved person No. if any
1. Rattan Lal Father-in-law A-177, Madipur J.J. Colony,
2. Kamal Jeth New Delhi
3. Details of children, if any, of the aggrieved person:
(a) Number of Children:
(b) Details of Children:
Name Age Sex With whom at present residing Pari 4 years F R/o A-177, Madipur, J.J. Colony, New Delhi Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 4/15
4. Incident of : domestic violence:
S. Date, place and Persons caused Types of Violence Remarks No. time of violence Domestic Violence Physical Violence Date Not Resp. No. 1 and 2 Causing hurt of Remember any kind, please.
specify
(i) Sexual Violence Please tick mark (Tick) the column applicable ✗ Forced sexual intercourse ✗ Forced to watch pornography or other obscene material.
✗ Forced using net to entertain Jeth Kamal others ✔ Any other act of sexual Nature, abusing, humiliating.
degrading or otherwise violative of your dignity (Please specify)
(ii) Verbal and emotional abuse ✗ Accusation/aspersion on your character or conduct, etc. ✗ Insult for not bring dowry, etc. ✗ Insult for not having a male child ✗ Insult for not having any child.
✔ Demeaning, humiliating or undermining remarks/statement.
✔ Ridicule ✔ Name calling All resp. ✗ Forcing you not to attend school, college
-do- or any other educational institution.
-do- ✗ Preventing you from taking up a job ✗ Preventing you from leaving the house.
✗ Preventing you from meeting any
particulars persons.
✗ Forcing you to get married against your
will.
✗ Preventing you from marrying a person of
your choice.
All resp. ✗ Forcing you to marry a persons of
his/their own choice.
✔ Any other verbal or emotional abuse.
(Please specify)
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 5/15
(iii) Economic violence
After Resp. No. 1 ✔ No providing money for maintaining
death of -do- you or your children
husband ✔ Not providing food, clothes,
medicine, etc. for you or your
children
✗ Forcing you out of the house you
live in
✗ Preventing you from accessing or
using any part of the house.
✗ Preventing or obstructing you from
carrying on you employment.
✗ Non-payment of rent in case or
rented accommodation.
✗ Not allowing you to use clothes or
articles of general household use.
✗ Selling or pawing you stridhan or
any other valuable without informing you and without your consent.
✗ Forcibly taking away your salary,
income or wages etc.
✗ Disposing your stridhan
✗ Non-payment of other bills such as
electricity, etc.
✗ Any other economic violence.
(Please specify)
(iv) Dowry related harassment
Demands for Dowry made, please
specify.
No Any other details with regard to
dowry, please specify.
Whether details of dowry items,
stridhan, etc. attached with the form.
Yes No
(v) Any other information regarding acts of domestic violence against your or your children.
(Signature or thumb impression of the complainant/aggrieved person) Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 6/15
5. List of documents attached Name of document Date Any other details Medical test certificate - -
Doctor's certificate or any - - other prescription - - List of Stridhan - - Any other document - -
6. Orders that you need under the Protection of Women Domestic Violence Act, 2005 S. No. Orders Yes/No Any other (1) Protection order under Section 18 No _____ (2) Residence order under Section 19 No _____ (3) Maintenance order under Section 20 Yes Need Maintenance (4) Custody order under Section 21 No _____ (5) Compensation order under Section No _____ 22 (6) Any other order (Specify) Yes Need back her stridhan
7. Assistance that you need S. No. Assistance available Yes/No Nature of Assistance (1) Counselor No (2) Police Assistance No (3) Assistance for initiating criminal proceeding No (4) Shelter home No (5) Medical Facilities No (6) Legal aid No
8. Instruction for the Police Officer assisting in registration of a Domestic Incident Report...........
(Counter signature Protection Officer) Place : Delhi Name : (Diksha) Date : 11/11/11 Address :
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 7/156. On being served with the process, the respondents appeared and filed an application for discharge of the respondents on the ground that the complaint was not maintainable as all the respondents were not covered under the definition of the domestic relation. Respondent No. 4 was sister-
in-law and respondent No. 5 was brother-in-law (nandoi) and they were residing separately at C-1 Block, Paschimpuri, Delhi. It was further case of the respondents that all the respondents were living separately and they did not share household. It was further case of the respondent that there was no averment in the complaint regarding violence by any of the respondents.
7. Appellant did not file reply to the said application.
8. Ld. trial Court, after hearing arguments of the parties to the lis and considering material on record, dismissed the complaint vide order dated 28.02.2014.
9. Relevant portion of the impugned order is reproduced, as under:
"From the documents appearing at page No. 15 and 16 of the respondents' documents, as mentioned above, it is apparent that the petitioner herself started residing with her parents since 19.06.2011. Her husband died on 05.06.2011. Whatever allegations have been levelled pertain to the period between 05.06.2011 to 19.06.2011, which in fact was the grieving period for the petitioner as well as the respondents. It is alleged that the respondents harassed the petitioner, however no specific averment in this regard has been mentioned. It is further alleged that the petitioner was not allowed to use the phone and she was not allowed to talk to anyone. Only these allegations of the petitioner are not sufficient to make out a prima facie case of domestic violence against the respondents. As per Section 28 of the Act, the Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 8/15 Court can lay down its own procedure for disposal on an application U/s. 12 or 23 (2) of the Act. Petitioner has already remarried on 07.10.2013. I do not agree with the submissions of learned counsel for petitioner that the present petition must continue against the respondents since they have already been summoned in this case. Even in criminal proceedings, the accused has a right to be heard at the time of consideration of the allegations against him i.e. at the stage of framing of charge and is entitled to a discharge in case the facts so warrant, irrespective of the fact that he has already been summoned as an accused in the case.
In view of the fact that there are absolutely no specific allegations or incidents of domestic violence averred in the petition against the respondents, allowing the present proceedings to continue against the respondents would be sheer abuse of the process of law. Accordingly, having regard to the above discussion, since there are no sufficient grounds for proceeding against the respondents, the present petition stands dismissed."
10. Feeling aggrieved by the impugned order, the appellant filed the present appeal on the ground that Ld. trial Court has not considered intimations/complaints made to police station Punjabi Bagh. Ld. trial Court failed to appreciate that the appellant was residing with the respondents in a share household and there was a domestic relationship between them. Ld. trial Court dismissed the complaint without providing an opportunity to the appellant to lead evidence. Ld. trial Court has failed to appreciate that stridhan of the appellant is still in the possession of respondent No. 2 to 7. Ld. trial Court has committed an error by dismissing the complaint at the stage of arguments on interim application. The complaint U/s. 12 of the Act cannot be disposed of without providing an opportunity to lead evidence.
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 9/1511. I have heard Sh. Vipin Kumar, Advocate for the appellant and Ms. Amita Babbar, Advocate for the respondents and carefully considered the written submissions filed by the respondents and case law referred by the parties to the lis.
12. Sh. Vipin Kumar, Advocate for the appellant has challenged the impugned order, primarily, on two grounds; First, the Court of the Metropolitan Magistrate while adjudicating and deciding the application U/s. 12 of the Act are required to follow the procedure laid down in Cr.P.C. for trial of summons cases, which include taking and recording of evidence and finding of the Court on proof of facts. Secondly, the averments made in the complaint and facts disclosed in the Domestic Incident Report (DIR) would prima facie disclose that the appellant was subjected to domestic violence by the respondents while she was living in share household in domestic relationship with them. Ld. counsel for the appellant has also submitted that stridhan and other valuable articles belonging to the appellant are still with the respondents and therefore, the complaint U/s. 12 of the Act was maintainable.
13. Ms. Amita Babbar, Advocate for the respondents submitted that the respondents No. 4 is sister-in-law (nanand) of the appellant and she was married to respondent No. 5 on 17.06.2009. She submitted that respondent No. 4 and 5 are living separately at C-1, Block-C, Paschimpuri, Delhi since her marriage. She submitted that respondent No. 4 and 5 were not in domestic relationship with the appellant.
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 10/1514. Ms. Amita Babbar, Advocate for the respondents further submitted that the respondent No. 2 and 3 are in-laws and respondent No. 6 and 7 are brother-in-law (jeth) and sister-in- law (jethani) of the appellant and all of them are living separately and not under one Head. She submitted that the appellant has not averred even a single instance of domestic violence in her complaint or Domestic Incident Report (DIR) and therefore, there is no illegality in the impugned order. She submitted that appellant had left her matrimonial home on her volition after giving due intimation to local police. She submitted that the appellant never claimed her stridhan and in case, she intended to receive her stridhan, she could have taken it with her. She submitted that no such grievance was made in the complaint that she ever demanded her stridhan and the respondents in any manner interfered therein. She submitted that appellant has now remarried and her sole intention is to drag the respondents to an unnecessary litigation. She submitted that the appellant cannot claim maintenance for herself or her minor daughter from the respondents. She submitted that appellant's husband had not left any movable or immovable property and the respondents are not earning or enjoining any of his property and therefore, respondents are not liable to pay maintenance or any other amount to the appellant. She submitted that Ld. trial Court had requisite power to divide its procedure for disposal of an application U/s. 12 of the Act. She prayed for dismissal of the appeal.
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 11/1515. It is an admitted case of the appellant that the respondent No. 4 - Smt. Pooja was her sister-in-law. It is also an undisputed fact that she was married to respondent No. 5 - Mr. Piyush on 17.06.2009. The respondent No. 4 and 5 are residing separately at C-1, Block-C, Paschimpuri, Delhi. There was no domestic relationship between the appellant and the respondent No. 4 and 5.
16. As noted above, the case of the appellant, in the complaint was that after death of her husband on 05.06.2011, the respondents were harassing the appellant to throw her out from her matrimonial home. Surprisingly, in para No. 4 (ii) 'Economic violence', the appellant has scored off the type of violence i.e. 'forcing you out of the house you living and preventing you from accessing or using any part of the house'.
17. According to the appellant, the respondents were harassing the appellant. However, the appellant has scored off all types of violence under different heads, as detailed above except, demeaning, humiliating or undermining remarks/statement, ridicule and name calling. She has not specified either in the complaint or in the Domestic Incident Report (DIR) the verbal or emotional abuse to which she was subjected to and by whom.
18. According to the appellant, she was not allowed to use the phone and to talk to anyone. In the Domestic Incident Report (DIR), she has scored off 'preventing you from meeting any particular person' under verbal and emotional abuse.
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 12/1519. It is an admitted case of the appellant before Ld. trial Court and moreover, the complaints/intimations filed, relied and referred by the appellant, would go to show that on 19.06.2011, the appellant alongwith her parents left her matrimonial home on her volition and she had taken her clothes etc. with her. The said intimation was duly signed by the appellant. It shows that there was no restriction on the appellant of any kind. She has also not made any allegations in the Domestic Incident Report (DIR) that she was not allowed to make call to any person or to interact with anyone. Domestic Incident Report (DIR), shows that she was not prevented from meeting any particular person.
20. In the complaint, the appellant sought various reliefs available under the Act. However, in the Domestic Incident Report (DIR), she confined her claim to maintenance and stridhan. There is no allegations in the complaint that the appellant was intending to take her stridhan alongwith her and any of the respondents interfered in that process in any manner. On the contrary, in the Domestic Incident Report (DIR), she has scored off 'not allowing you to use clothes or articles of general household use, selling or pawning your stridhan or any other valuables without informing you and without your consent, disposing your stridhan and any other economic violence' under the Head 'Economic violence'.
21. So far as claim for maintenance is concerned, the appellant has neither stated in the complaint nor in the Domestic Incident Report (DIR) about her entitlement.
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 13/1522. It is not the case of the appellant that her husband had left any movable or immovable property and the same is in the possession of the respondents and they are earning or making any profit therefrom. Appellant has no right to claim maintenance against the respondents.
23. Ld. trial Court has rightly observed that there are no specific allegations or incident of domestic violence in the petition against the respondents and further that allowing the proceedings to continue against the respondents would be abused of the process of law.
24. Ld. trial Court has wide powers to devise its own procedure under as provided U/s. 28 (2) of the Act for disposal of an application U/s. 12 of the Act and therefore, no exception can be taken to the impugned order on this ground.
25. On thoughtful consideration of the matter, this Court is of the considered opinion that the appellant has failed to show that she was subjected to any kind of domestic violence and therefore, the complaint U/s. 12 of the Act was rightly dismissed.
26. Before parting with, I would like to place on record that this Court made a sincere efforts to bring the parties to an amicable settlement. The respondents were agreeable that the appellant can take the motor-cycle and other household goods at any time but the appellant was not agreeable. The respondents even stated that the appellant can remove her belongings lying in their house at any time.
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 14/1527. Accordingly, the present appeal filed by the appellant is hereby dismissed. In the facts and circumstances of the case, no order as to cost. A copy of this order be sent to Ld. trial Court alongwith trial Court record for information. The Appeal file be consigned to Record Room.
Announced in the open court SANJAY SHARMA on this 30th day of October, 2014. Special Judge NDPS (N/E) ASJ:KKD Courts, Delhi.
Cr. Appeal No. 06/14 Poonam Vs. State & Ors. Page 15/15