Bangalore District Court
Smt.S.Reshma vs Sri.Salman Harris on 31 May, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE TRAFFIC
COURT - V, BENGALURU
PRESENT : SMT.POOJA SHETTI
B.A., LL.B. (Hon's).
M.M.T.C - V, BENGALURU
DATED THIS 31st DAY OF MAY 2019
Crl. Misc.No.20 - 2014
PETITIONER : Smt.S.Reshma,
D/o.Late.Mr.J.Shakul Hameed,
Aged about 37 years,
Residing at C/o.Vimochana,
No.33-1/9, Thayagaraj Layout,
Jai Bharath Nagar,
Bangalore - 560 033.
// VS //
RESPONDENTS : 1. Sri.Salman Harris,
S/o.Late.Mr.J.Shakul Hameed,
Aged about 45 years, Residing at
No.24, P.K.Pudur, Vijayapuram
Post, Nallur, Kangayam Road,
Tiruppur - 641 604.
2. Sri.Dr.Salman Anees,
S/o.Late.Mr.J.Shakul Hameed,
Aged about 44 years, Apollo
Clinic, MM Road, Frazer Town,
Bangalore - 560 005.
ORDER
This is the petition filed by the petitioner against the respondents under section 12 of the Protection of Women from 2 Crl. Misc.No.20 - 2014 Domestic Violence At., 2005 (herein after referred as P.W.D.V. Act, 2005) seeking various relief's.
2. The brief facts of the petitioners case is as follows;
The petitioner has filed present petition against her brothers. According to petitioner, in September 2004, when the petitioner was pregnant, the petitioner and her husband had come to the petitioner's mother's house for the celebration of Ramzan. The 1st respondent kept taunting at the petitioner's husband as to how he has given the petitioner's husband a lot of money. When the petitioner's husband denied it, the 1st respondent assaulted and hit him, hence petitioner's husband was forced to leave the house, as the 1st respondent did not apologized the husband of the petitioner, she was forced to remain in her parents house. The petitioner further submits that, during her stay, respondent No.1 kept on demanding her to give him jewels which she has in her custody and also to bring jewels from her husband's house, when petitioner refused respondent No.1 use to hit and shout at her.
3. The petitioner further submits that, on 27.06.2005 she gave birth to a male child, due to the request of petitioner, her 3 Crl. Misc.No.20 - 2014 husband came for the child birth. However, even there, the 1st respondent started shouting and kept taunting the petitioner's husband over trivial matters. Her husband stayed for four days after the child was born but unable to bear the taunts and humiliation, left for good. Thereafter, despite repeated efforts the petitioner's husband refused to take her back. Thereafter, petitioner lived at her parent's house along with respondent No.1 and his family. The petitioner further submits that, her father died on 17.12.2006 and thereafter having lost her only support in the family, the 1st respondent started abusing the petitioner physically and mentally. Further, the 1st respondent would refuse to provide her with food and would constantly taunt her saying that, she was a burden on the family. He would even physically abuse and hit her for trial reasons. At times, the 1st respondent would not allow the petitioner to see her own son and would throw her out of house and make her stand barefoot under the hot sun for 3 to 4 hours.
4. The petitioner further submits that, petitioner was made to cook for the entire household and was made to do all the household chores. However, the 1st respondent would always 4 Crl. Misc.No.20 - 2014 complain about her cooking and never appreciated her efforts. On the contrary, she was hurled with abuses and taunts all the time. However, petitioner tolerated all the abuses for the reputation of family and as she had no way to go. The petitioner further submits that, due to the continuous demand, she has handed over her gold bracelet and earring to 1st respondent and he has pledged the same for Rs.75,000/-. The petitioner further submits that, during February - 2009, she and her husband obtained divorce, at that time, jewellaries mentioned in Annexure - E was returned to her and same has been taken by the 1st respondent by compulsion. After the death of petitioner's father, 1st respondent instead of ensuring partition, told the petitioner that, he will give money to her, if she requires that, made petitioner to be dependant on him. Thereafter, 1st respondent would lock up the kitchen stating that, she might attempt suicide and would spread such false rumors even among family. The petitioner further submits that, the 1st respondent refused to provide her even for basic necessities and the petitioner had to beg him every time, whenever she needed any assistance. Finally left with no option, the petitioner took up a job as a teacher and was beginning to settle down in January 2009. 5 Crl. Misc.No.20 - 2014 Respondent No.1 thereafter started telling her that, she was becoming a burden on the family admitted that, she should try and find a house elsewhere. Due to the constant abuse of the 1st respondent and worried for the safety of herself and her child, the petitioner was forced to shift to her sister's house in Bangalore in June - 2009.
5. The petitioner further submits that, during April 2010, during her son's school vacation, she went to Tirupur and asked the 1st respondent to return the her jewels, he has assaulted her and had kept a knife against the neck of her son, the said incident has scared petitioner and her son. Thereafter, as the 1st respondent refused to return the jewels or to pay money to the petitioner for her son's education, she was constrained to live along with 1st respondent and her mother. During her stay, she was abused physically and mentally. She was allowed to spend time with her son. Further, the 1st respondent forced her to give up her portion of property. During February - 2011, one day when petitioner asked 1st respondent about the jewellaries, he assaulted her black and blue in the presence of her son, his wife, brother-in- 6 Crl. Misc.No.20 - 2014 law and her nephew. When petitioner tried to break free, the 1st respondent with the assistance of his wife had hit on the head of the petitioner with a tray. Thereafter, 1st respondent pulled his pants down and came charging towards petitioner and tried to undress her saying that, he will sleep with her as she has been separated from her husband for last 7 years. The petitioner was shocked by his act and her brother-in-law and nephew stopped 1st respondent. The said incident has scared the petitioner, hence she left the house on next day and came to Bengaluru to stay with her sister. Thereafter, she came to know that, 1st respondent has told many relatives that, she has eloped along with jewellaries with some man. In the month of April - 2012, she shifted to a paying guest accommodation and in the month of June - 2013, when she was unable to afford P.G., she requested 2nd respondent to allow her to stay in his house. Initially, the 2nd respondent was fine with her, thereafter within two weeks of her stay on 29.06.2013, the 2nd respondent objected petitioner meeting their sister and when petitioner denied meeting her sister, he has assaulted her black and blue, when her son intervened he has assaulted her son also. Thereafter, petitioner was forced to leave the house of 2nd 7 Crl. Misc.No.20 - 2014 respondent. Thereafter, petitioner took assistance of a NGO by name AASRA, where they conducted a meeting which has been attended by 1st respondent and he admitted that, he had pledged jewellaries of the petitioner, then petitioner came to know that, 1st respondent has forged her signature also and according to petitioner, she has reasonable apprehension that, 1st respondent might have forged her signature in order to mis-appropriate her rightful share.
6. The petitioner further submits that, thereafter she came to know that, the 1st respondent has also mis-appropriate jewellaries of her sister and with respect to that, her sister and brother-in-law had filed a complaint on 14.12.2012 at Ooragam Police Station. In order not to precipitate matters and out of fear to go to Tirupura, did not filed complaint. Thereafter, petitioner came to know that, respondent No.1 has pledged her jewellaries at Kumbakonal Paraspara Sahayanidhi Ltd., hence she has issued a notice through her lawyers on Kumbakonal Paraspara Sahayanidhi Ltd and obtained reply, where it has been stated that, the 1st respondent has redeemed the jewellaries. Now, the petitioner has 8 Crl. Misc.No.20 - 2014 no suitable home, source of income and her jewllaries has been mis-appropriate, she was constrained to file the present petition. Hence, the petition.
7. After the registration of the petition, the notice was sent to the respondents through RPAD and P.O. Respondent No.2 appeared through his advocate and filed his objections to the main petition. Despite of several opportunity, 1st respondent though appeared before the court, failed to file objection.
It is the contention of the 2nd respondent that, petition itself is not maintainable, as their exist no domestic relationship between the petitioner and 2nd respondent. Further, there is delay in filing the petition, hence the petition is also barred by limitation. According to 2nd respondent, stay of petitioner for a brief period of three weeks cannot be termed as domestic relationship. Further, petitioner fails to properly explain the delay in approaching the court, hence the allegations are baseless. The respondent further submits that, he has filed a suit in O.S.No.10/2014 before Hon'ble 1st Addl. District Judge, Tirupura against the petitioner seeking partition and separate possession of his share in both movable and 9 Crl. Misc.No.20 - 2014 immovable property left behind by the father of petitioner and respondents. The said suit is pending for adjudication, the petitioner in the disguise of domestic violence seeking either injunction or partition of said properties. She has filed frivolous case against the respondent, in order to black mail and extract money. With the above submission, the respondent No.2 prays to dismiss the petition.
8. In order to prove the contention of the petitioner, she examined herself as PW.1 and got 9 documents marked as Ex.P.1 to Ex.P.9. On the other hand, respondent in his defense examined himself as RW.1 and got marked 2 documents as Ex.R.1 and Ex.R.2.
9. Perused both the documentary and oral evidence. Heard the arguments of petitioner side.
10. The points that arise for my consideration are;
1. Whether the petitioner proves that the respondents have subjected them to domestic violence ?
2. Whether the petitioner's are entitled for the relief's sought by them ?
10 Crl. Misc.No.20 - 2014
3. What order?
11. My findings on the above said points are as follows:
Point No.1: In the NEGATIVE;
Point No.2: In the NEGATIVE;
Point No.3: As per the final order
for the following :
REASONS
12. POINT No.1 and 2: : As these points are interlinked
with each other, they are taken up together for consideration in order to avoid repetition.
13. In the present petition, neither the 1st respondent nor 2nd respondent has denied the fact that, petitioner is their sister. It is the contention of the 2nd respondent that, he has no domestic relationship with the petitioner. According to petitioner, she has stayed with the respondent No.2 during June -2013 and within 2 weeks of her stay, she has been assaulted by the 2nd respondent, objecting her meeting their sister, though the same was denied by the petitioner. Hence, according to petitioner herself, she stayed with the 2nd respondent for a period of two weeks. On the other hand, respondent relies upon Judgment of Hon'ble High Court of 11 Crl. Misc.No.20 - 2014 Delhi in Crl.M.C.No.3878/2009, where in the Hon'ble Court has held that, "The domestic violence can take place only 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".
14. The Hon'ble Supreme Court of India in S.R.Batra & Anr. Vs. Smt. Taruna Batra reported in AIR 2007 S.C. 1118 held that, any place where petitioner might have resided does not amount the shared household. Though, in the present case, petitioner and respondents are sister and brothers, there should be some intention to reside permanently in order to form shared household and she should reside in the said house as a matter of right. As per the Judgments of various courts, resides means "to 12 Crl. Misc.No.20 - 2014 make a abode for a considerable time, to dwell permanently or for a length of time, to have a settle, abode for a time". According to petitioner, she has requested the 2nd respondent to allow her to reside with him, accordingly she went to his house to reside there. In order to prove her contention that, he has assaulted her and her son, she has produced two would certificates and got them marked as Ex.P.5 and Ex.P.6., both the wound certificates are issued on 29.06.2016 by Bowring Hospital and on perusal of Ex.P.5 and Ex.P.6, injuries claimed to have sustained are simple in nature. Though, on perusal of Ex.P.5 and Ex.P.6, it can be concluded that, petitioner and her son as sustained simple injuries but on the basis of information given by her that, those injuries are caused by 2nd respondent it cannot be believed that, those injuries are caused by 2nd respondent. Further, she fails to explain as to even if those injuries are caused to her, why she did not filed complaint against the 2nd respondent. In view of above observation, petitioner fails to prove the existence of domestic relationship and domestic violence against the 2nd respondent. Hence, she is not entitled to claim any relief against the 2nd respondent.
13 Crl. Misc.No.20 - 2014
15. With respect to allegations of the petitioner against the 1st respondent, though the petitioner claims that due to 1st respondent's assault, her husband has left her and due to that incident and as the 1st respondent refused to apolize to her husband, her husband refused to take her back. Further, when her husband visited her parents house after the birth of child, the 1st respondent again mis-behaved and humiliated him, hence her husband refused to take back the petitioner, hence she started to reside in her parents house. As a result, she and her husband obtained divorce during February - 2009. During her cross- examination dated 01.04.2015, she deposes that, she has obtained Khula from her husband. She further deposes that, she has not taken any maintenance from her husband at the time of Khula, though elders have decided that, he has to pay Rs.10,00,000/- to her, however whether that, talk has been reduced in writing or not, she has no knowledge. She further deposes that, she does not know whether there is any writing or not, as to what all valuables has been collected by her from her husband's house. On the contrary, it was her contention that, all the gold jewellaries gifted to her at the time of marriage by her parents and other jewellaries 14 Crl. Misc.No.20 - 2014 have been taken by the 1st respondent coercively. According to her own deposition, she does not even know whether at the time of receiving her valuables, it has been listed or not. In order to prove that, she was in possession of gold ornaments, she has produced three photographs and got that marked as Ex.P.1 to Ex.P.3. Admittedly, all those photographs had been taken at the time of marriage. Nothing has been placed on record by the petitioner to show that, even after obtaining khula those jewellaries were with her and it has been forcibly taken by the respondent. The petitioner also produced letter sent to Kumbakonal Paraspara Sahayanidhi Ltd., through her counsel and also reply sent by them and got them marked as Ex.P.7. On perusal of Ex.P.7, 1st respondent and some 5 other persons have pledged some gold ornaments during 2010 and the same was redeem during 2012 to 2013. The communication was made by the said Kumbakonal Paraspara Sahayanidhi Ltd, on 08.01.2014 and all the jewels has been redeemed before 05.03.2013, petitioner's request letter i.e., Ex.P.7 does not contains the date. The present petition under P.W.D.V. Act, 2005., was filed by the petitioner on 24.01.2014, that goes to show that, petitioner prior to filing of this petition, has 15 Crl. Misc.No.20 - 2014 addressed letter to Kumbakonal Paraspara Sahayanidhi Ltd. On the basis of Ex.P.7, nothing can be concluded as to whether it is the jewellaries of the petitioner which has been pledged by the respondent and his relatives. During her cross-examination dated 13.08.2015, when the petitioner was confronted with the photograph, she admits the suggestion that, the photograph of 1st respondents wife, hence the said photograph was marked as Ex.R.1. On perusal of Ex.R.1, the wife of the 1st respondent is also prima-facie seems to be wearing gold ornaments. If, by seeing Ex.P.1 to Ex.P.3, it has to be concluded that, petitioner was in possession of those gold ornaments, same presumption should be drawn with respect to Ex.R.1. During her cross-examination, petitioner deposes that, she does not know as to whether 1st respondents owns jewellaries or not. When it has been suggested that, as she has attended 1st respondents marriage, she is well aware about the jewellaries of his wife. For which, the petitioner contends that, as at the time of marriage, some of the jewellaries has been given to the 1st respondent's wife from the petitioner's side to wear, she does not know about the jewellaries of 1st respondents wife.
16 Crl. Misc.No.20 - 2014
16. Throughout the petitioner and in her affidavit in lieu of her examination-in-chief, petitioner contends that, during her stay with the 1st respondent, he has subjected her to various form of domestic violence, he has even kept knife on the neck of her son and has also sexually abused her, on her demanding her jewellaries back. However, it is her contention that, as she does not wanted to precipitate the matter and fearing going to Tirupura, she has not filed complaint against the 1st respondent. According to petitioner's own submission, she has also worked as a Teacher in the beginning of January 2009, that goes to show that, petitioner is educated and well aware about protection of law. Under such circumstances, contention of the petitioner that, she was fear to go to Tirupura cannot be believed. Further, in the affidavit in lieu of her examination-in-chief, she herself has stated that, in June 2009 she came to Bengaluru and till April 2010 she was at Benglauru. During that period also, petitioner does not initiate any action against the 1st respondent, even if it is believed that, she has been subjected to domestic violence.
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17. According to petitioner, from April 2010, as the 1st respondent neither return the jewellaries nor helped her economically, she was constrained to stay with him till February - 2011. During February - 2011, when she demanded jewellary back, the 1st respondent tried to sexually and physically abused her in front of her son, sister-in-law, brother-in-law and nephew and after the incident, fearing her safety she left her maternal house and went to Bengaluru to reside with her sister. According to petitioner, at the time of incident her son, sister-in-law, brother-in- law and nephew were also present, still she did not makes any effort to call any of them as witness to prove her case. She is making allegation of sexual abuse against her own brother that too in the presence of her relatives. Under such circumstances, mere repetition of pleading is not sufficient. It is necessary that, there should be some corroborative evidence. Further, even if it is believed that, during February - 2011, the alleged incident occurred, petitioner remains silent till 24.01.2014 i.e., the date of filing of this petition. Under such circumstances, contention of the petitioner that, he had fear to go to Tirupura cannot be believed. According to her own deposition, she is living separately from that 18 Crl. Misc.No.20 - 2014 off, 1st respondent from February - 2011 and till the date of filing of this petition, she has not filed any complaint against the 1st respondent. Further, in her affidavit in lieu of her examination-in- chief, in para No.11, it was the contention of the petitioner that, after the death of her father, instead of ensuring partition as per law to all siblings, the 1st respondent refused to allow any share to any persons and it is the contention of the respondents that, in order to get share in the property, the petitioner in the disguise of domestic violence seeking either injunction or partition of said properties. In view of above observation also, the contention of the respondents stands prove. Further, In J.Srinivas Vs. G.Dhanalakshmi, Crl.Petition.No.2419/2009, the Hon'ble High Court of Karnataka, while quashing the proceedings under the provisions of P.W.D.V. Act, 2005., against the respondent held that, if a petition under the provision of P.W.D.V. Act, 2005., is not filed within one year from the date of cause of action, the petition cannot be entertained.
18. Similarly, in Gurudev S/o. Hanamant Gurav Vs. Jayashree W/o.Gurudev Gurav, Crl.Petition.No.11476/2013, 19 Crl. Misc.No.20 - 2014 the Hon'ble High Court of Karnataka, while quashing the proceedings under the provisions of P.W.D.V. Act, 2005., against the respondent held that, if a petition under the provision of P.W.D.V. Act, 2005., is not filed within one year from the date of cause of action, the petition cannot be entertained.
19. In Inderjit Singh Grewal Vs. State of Punjab, the Hon'ble Supreme Court of India held that, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.
20. Hence, in view of above observation and Judgments, this court is of the considered view that, the petitioner fails to prove the domestic violence by the respondents against her and her 20 Crl. Misc.No.20 - 2014 petition is also cannot be entertained as there is a delay of nearly 3 years, in filing of the petition against the 1st respondent. Hence, I answered both Point No.1 and Point No.2 in the NEGATIVE.
21. Point No.3: For the foregoing discussion and finding on Point No.1 and 2, following order is passed;
ORDER The petition filed by the petitioner under section 12 of the Protection of Women from Domestic Violence Act., 2005 is hereby dismissed.
Parties have to bear their own cost.
(The order dictated to the Stenographer, transcribed and typed by him and corrected and pronounced and signed by me on this 31st day of May 2019) (POOJA SHETTI) METROPOLITAN MAGISTRATE, TRAFFIC COURT- V, BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PETITIONER:
P.W.1 Smt.S.Reshma.
LIST OF DOCUMENTS MARKED FOR PETITIONER
Ex.P.1 to 3 Photos.
Ex.P.4 C.D.
Ex.P.5 & 6 Two Wound Certificates.
21 Crl. Misc.No.20 - 2014
Ex.P.7 Notice.
Ex.P.8 Birth Certificate in Tamil Language.
Ex.P.9 Birth Certificate in English Language.
LIST OF WITNESSES EXAMINED FOR RESPONDENT
R.W.1 Sri.Salman Harris.
LIST OF DOCUMENTS MARKED FOR RESPONDENT:
Ex.R.1 Photo.
Ex.R.2 Photo.
(POOJA SHETTI)
METROPOLITAN MAGISTRATE,
TRAFFIC COURT- V, BENGALURU.