Delhi District Court
Ramesh Kumar vs Smt. Reena on 1 May, 2010
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 10.09.2009
Date of judgment reserved on : 09.04.2010
Date of decision : 01.05.2010
Criminal Appeal No. 42 & 43 /2009
IN THE MATTER OF :
1. Ramesh Kumar
S/o Late Sh. Samay Chand
2. Shanti W/o Late Sh. Samay Chand
Both are R/o H. No. 140, Village Gondli,
Krishna Nagar, Near Lal Quarter,
Delhi.
..... Appellants
Versus
Smt. Reena
W/o Sh. Ramesh Kumar
D/o Sh. Suresh Chand
R/o C-35, Sujan Singh Park,
1st floor, Khan Market,
New Delhi. ..... Respondent
O R D E R :-
Present appeal under section 29 of the Protection of Women from Domestic Violence Act is filed by Sh. Ramesh Kumar who is the husband of the aggrieved person Smt. Reena and 2nd appellant Smt. Shanti is the mother in law of the aggrieved person. Judgment dt. 6.8.2009 has been challenged whereby Ld. MM allowed aggrieved person petition u/s. 12 of the Act, & granted relief of maintenance amount at the rate of Rs. 2000/- per month from the date of the filing of the petition and has also awarded an amount of Rs. 25,000/- towards compensation for the act of Page No. 2 domestic violence committed against aggrieved person by the appellants - respondents. Ld. MM as held and observed in Paras No. 15 and 16 of her judgment that complainant / aggrieved person had resorted to various instances of the acts of cruelty and domestic violence including beating and harassment to her were referred. Denial of the said allegations was found non specific and it was only a general denial. Aggrieved person had supported allegation in complaint by her evidence by affidavit and accordingly respondents / appellants were found to have committed acts of domestic violence against complainant. Reliefs were accordingly granted.
The judgment has been challenged in this appeal and the grounds are that findings are based on conjucture and surmises . Complaint is alleged to have been filed only to extract money. Appellant no. 2 had never been served and could not have been proceeded ex-parte in this judgment. The trial court ought to have taken into consideration the written statement which appellant no. 1 had filed. Complainant by her affidavit evidence had not specifically deposed the acts of domestic violence and thereby award of compensation of Rs. 25000/- against the alleged acts of the domestic violence was untenable and caused miscarriage of justice. It is further pleaded that appellant was a safai karamchari and did not have a permanent job and such a big amount of Rs. 25000/- was absolutely disproportionate to his earning as well to the alleged acts of domestic violence. It is further pleaded that aggrieved person was earning Rs. 6000/- a month in a job of beautician and Ld. MM has ignored to consider it. Cause of disruption in the matrimonial relationship between the parties was the late arrival of the aggrieved person to matrimonial home because of her job of a beautician and she used to misbehave with Page No. 3 the appellants in such a situation. It is further pleaded that Smt. Shanti being a woman could not be made liable under the provision of Domestic Violence and accordingly the order impugned was prayed to be set aside.
Pursuant to notice in this appeal issued to aggrieved person Smt. Reena she appeared in person with her advocate. I have heard counsel from both sides wherein advocate Shri Sameer Chandra appeared for the appellant and advocate Sh. Rajesh Passi appeared for the respondent. Ld. appellant counsel argued that the judgment impugned has been passed exparte and deserve to be set aside.
Counsel submitted that when complaint came up for hearing before Ld. MM on 15.7.2009 on which date respondents filed written statement, the matter was adjourned to 20.7.2009 but then as a mistake respondents took it as 30.7.2009 when on 30.7.09 respondent found his case not appearing in the cause-list of the court, he found that case has been taken up for hearing on 20.7.09 and on 23.7.09 respondents had been proceeded ex-parte and finally exparte judgment was passed on 6.8.2009. Counsel submitted that judgment was practically an exparte one sided judgment without a proper and reasonable opportunity to respondent to present his case. Counsel further submitted that respondent no. 2 Smt. Shanti has remained absolutely unheard. She had never been served in the complaint and there was no occasion for the case to proceed exparte against her and in fact there was no exparte order against her but still she has been made a judgment debtor in the impugned judgment. Finally Ld. defence counsel argue that respondent in this appeal could not be said to have proved the acts of domestic violence against appellants and thereby order deserved to be set aside. Award of compensation was Page No. 4 without any basis and not even prima facie connected with the acts of Domestic Violence and it was not sustainable. On the other hand respondent counsel pointed out that judgment given by Ld. MM is on a proper and legal analysis of the evidence and material on record and was not liable to be interfered. I have appreciated these contention.
Ld. Counsel states at bar that though he has filed a separate appeal against the order whereby respondent-appellant Ramesh Kumar had been proceeded exparte but then he would not be pressing that appeal being aware and conscious of the fact that the economic condition of the appellant would not suggest to take up another round of litigation before Ld. MM and Ld. counsel submitted that he presses his appeal against the final judgment only to impress upon this court that finding arrived by Ld. MM regarding the acts of the domestic violence were without the basis and evidence and could be said to be a surmises and conjecture . Ld. Counsel further argued that appellant was a petty daily wage official working in MCD and had a small monthly earnings of Rs. 3200/- which is even the admitted case of the complainant / aggrieved person & awarding maintenance at Rs. 2000/- in favour of the complainant would deprive the appellant of any reasonable means and amount to support and sustain himself. Ld. Counsel further argued that award of compensation of Rs. 25000/- was excessive and not justifically relateble to the acts of the cruelty and domestic violence and thereby the amount deserved to be modified suitably.
Challenge by the appellant that finding as regards acts of the cruelty and domestic violence were without basis or evidence is unacceptable. Ld. MM in para 15 of the her judgment has referred to instance by specific date as had been pleaded by the Page No. 5 complainant wherein she had been subjected to acts of physical and mental torture. Complainant also placed on record copies of complaint given to police authority. Ld. MM also relied upon the report placed before court by the Protection Officer. This domestic incident report, referred to instances of physical violence and she verbal and emotional abuse and economic violence whereby no monetary help and sustenance was being provided by the appellant and daily bare needs were not being taken care of. Instances of dowry harassment were also cited. In a situation where aggrieved persons pleaded instances of acts of domestic violence and supported her plea by filing her affidavit, respondent having proceeded exparte and having failed to place before the court any evidence from his side, it was quite reasonable and legally sustainable the inference and conclusion drawn by Ld. MM regarding the acts of domestic violence attributed to respondent to have been committed against aggrieved person. It was pleaded in grounds of appeal that court ought to have been taken into the pleas of the appellant in the written statement. In absence of any evidence to support any such plea, averment in the written statement would not provide any support to the appellant case. Even otherwise, the only plea which appellant could have pressed was that the complainant had her independent earning as she was working in a beauty parlour and had an income of Rs. 6000/- a month. It is remained a plea only, not supported by any further evidence or material. Admittedly the parties have a minor son residing with the mother and it came to be pleaded in the application that child had been admitted in a school. If aggrieved person has no source of earning and has a minor child to support then maintenance at Rs. 2000/- a month cannot be said or considered to be excessive by any standard, even if we accept the Page No. 6 plea of the appellant that he had a earning only of Rs. 3200/- as daily wages worker. It is for the appellant to see as to how he has to augment his earning but he cannot avoid to provide maintenance to his wife and child. The maintenance amount awarded by Ld. MM would be a bare need satisfying amount and there cannot be any reason or scope to modify it.
As regards compensation granted by Ld. MM, to my view, the discretion exercised by Ld. MM calls for no interference. Ld. MM has taken into consideration the instances of acts of domestic violence which include physical beating and physical and mental torture. Compensation provides for in the provision of 23 is to be assessed by taking into consideration the damages for the injury including mental torture and emotional distress caused by the acts of domestic violence committed by the respondent. Emotional distress can be preceived where a lady got married a few years ago before she was separated from the company of the husband, had to face the acts of physical torture. Compensation amount fixed by Ld. MM does not appears to be un-reasonable excessive and exercise of discretion does not suffer any illegality. Appeal is without merits and is dismissed.
Appeal files be consigned to record room and trial court record along with copy of this order be sent back to Ld. trial court.
Announced in the Open (J. R. ARYAN)
court on 01/05/2010. ADDITIONAL SESSIONS JUDGE
NEW DELHI.
Page No. 7