Delhi District Court
The Present Appeal Has Been Filed U/S 29 ... vs . on 23 February, 2023
IN THE COURT OF MS. ANU AGGARWAL: ASJ-06 (POCSO):
SOUTH-EAST DISTT: SAKET COURTS: NEW DELHI
CA No. 71/2022
Roopali Puri
vs.
Rajinder Puri and Ors.
In the court of Ms. Anu Aggarwal, ASJ-06,(POCSO Act), Saket
Court Complex, New Delhi (was earlier presiding over as ASJ-
07/PHC/New Delhi and had retained the present file for passing
of the judgment).
IN THE MATTER OF:
Mrs. Roopali Puri
W/o Sh. Vikas Puri
R/o EA-56, 1st Floor,
Inderpuri, New Delhi
Vs.
1. Shri Rajinder Puri (father in law)
2. Smt. Usha Puri (Mother in law) both
R/o EA-56, 1st Floor, Inderpuri, New Delhi.
3. Sh. Ashwani Mehra (Nandoi)
4. Smt. Babita Mehra
W/o Sh. Ashwani Mehra (Nand)
Both R/o C-184, Second Floor,
New Friends Colony, New Delhi.
5. Sh. Sameer Ahuja (Nandoi)
6. Smt. Neeta Ahuja
W/o Sh. Sameer Ahuja (Nand)
Both R/o House No. 10, Second Floor,
Road No. 45, East Punjabi Bagh,
Behind MGS Hospital, New Delhi.
The case is listed for orders today. Pursuant to the
order of Hon'ble High Court of Delhi No.
07/G.1/Gaz.IA/DHC/2023 dated 01.02.2023, I have been
CA No. 71/2022 Page 1 of 22
transferred from the post of ASJ-07, New Delhi, Patiala
House Court to ASJ-06 (POCSO), South-East, Saket. In
the said transfer order, the directions have been by the
Hon'ble High Court of Delhi as under:
"the judicial officers under transfer shall notify the
cases in which they have reserved judgments/ orders
before reliinquishing the charge of the Court in terms of
the posting/ transfer order. The judicial officer shall
pronounce judgments/ orders in all such matters on the
day fixed or maximum within a period of 2/3 weeks
thereof, notwithstanding the posting/ transfer."
Therefore, pursuant to the above directions of the
Hon'ble High Court of Delhi, I am hereby proceeding with
the order of the present case.
ORDER ON APPEAL
1. The present appeal has been filed u/s 29 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred as
PWDV Act) against order dated 26.02.2022 passed by Ld. MM
(Mahila Court-01), Patiala House Courts, New Delhi whereby the
application of the appellant u/s 19 of PWDV Act was dismissed and
restraining order passed on 11.10.2021 was vacated.
2. The appellant is the complainant in the complaint filed u/s 12
of PWDV Act before Ld. Trial Court. The said complaint was filed
by the appellant against six respondents. Vide order dated
11.10.2021, the Ld. Trial Court summoned only respondent No. 1 and 2 as other proposed respondent were not sharing the household with the appellant. The respondent No. 1 is the father-in-law of the appellant and the respondent No. 2 is her mother in law. CA No. 71/2022 Page 2 of 22
3. The appellant got married with Sh. Vikas Puri, son of the respondents, on 26.11.2001. Out of the said wedlock, one daughter was born on 29.09.2002. She filed a case under DV Act against her in laws on 09.10.2021. Vide order dated 11.10.2021, the Ld. Trial Court summoned respondent No. 1 and 2 and also granted ex-parte order in favour of the appellant restraining the respondent from dispossessing her from the shared household i.e. EA-56, 1 st, Inderpuri, New Delhi till further orders. On 26.02.2022, the Ld. Trial Court vacated the ex-parte order granted in favour of the appellant and disposed of her application u/s 19 of PWDV Act observing as under:
"The complainant had also filed suit for injunction in Civil Court which has already been dismissed vide order dated 17.12.2021 with the observation that "Respondent No. 1 is the owner of the suit property" and the order of SDM is also on record as per which the respondent No. 1 is the owner of the property. The application for the complainant prima facie appears to have been filed with ulterior motive and she is forum shopping with respect to obtaining orders qua the shared household. The property belongs to the respondent No. 1/father-in-law and the complainant's maintenance is the duty of the husband of the complainant who has not been made a party. The Court does not find any reasons to pass any order on the application CA No. 71/2022 Page 3 of 22 of the complainant u/s 19 of PWDV Act and the restraining orders passed on 11.10.2021 also stands vacated".
4. The impugned order has been assailed by the appellant on the ground that the right of the residence of the woman in her matrimonial house is protected by PWDV Act and the Ld. Trial Court ought to have taken the reply of the respondent on record before vacating the residence order. It is stated that the impugned order was passed in haste and the interest of the respondent was already protected by the order dated 28.01.2022 passed by the Senior Citizen Tribunal.
5. It is stated that a false and frivolous case has been filed by the respondent under the Senior Citizen Act and their declaration that they are disowning Vikaspuri is a camouflage so that the appellant and her daughter cannot claim their right of residence in the shared household and be dispossessed. It is stated that the respondent would allow the back door entry to their son later and would force him to remarry. It is stated that the Ld. Trial Court committed error in relying upon the interim order dated 17.12.2021 of the Ld. Civil Judge and the order dated 28.01.2022 passed by Ld. District Magistrate in a summary proceeding under Senior Citizen Act qua the ownership of the respondent No. 1 over the shared household. Such observations of the respective Courts/Tribunal do not CA No. 71/2022 Page 4 of 22 conclusively determine the ownership of the respondent No. 1.
6. It is stated that The Ld. Trial Court failed to appreciate the averments of the appellant that the shared household is not a self- acquired property of the respondent No. 1. The electricity bill of the second floor is in the name of appellant, and she is paying the bill regularly. It is stated that the appellant had filed the civil suit to protect herself and her daughter from forceful eviction and the same cannot be termed as forum shopping. It is stated that the Ld. Trial Court failed to appreciate that the case of the appellant is to seek right of residence in the shared household and not to claim any maintenance. It is stated that the Ld. Trial Court passed the impugned order without applying mind to the facts of the case and therefore the impugned order should be set aside.
7. At the outset, it is important to observe that when the appeal was filed, the appellant made even the proposed respondents as respondents in the appeal, even though, the Ld. Trail Court had summoned only respondent No. 1 and 2. Since the other respondents No. 3 to 6 were not summoned by the Ld. Trial Court, they could not have been made party to the present appeal.
8. I have heard the arguments of the Ld. Counsel for the appellant and Ld. Counsel for the respondents. I have perused the entire record and the Trial Court Record. I have also gone through CA No. 71/2022 Page 5 of 22 the application filed by the appellant to bring on record certain additional facts and submissions. I have also gone through written arguments filed by the appellant.
9. Ld. Counsel for the appellant has argued that the appellant had filed the civil suit pursuant to her right to protect her possession and residence in the matrimonial house and therefore, it cannot be termed as forum shopping. Ld. Counsel has further argued that the Ld. Trial Court instead of passing any order on the application of the appellant u/s 19 of PWDV Act, observed that the Court does not find any reason to pass any order on the application of the complainant u/s 19 of PWDV Act. Therefore, the application has not been disposed of by giving proper reasons and the matter should be remanded back. Ld. Counsel has submitted that the appellant has the right to reside in the matrimonial house and she cannot be vacated from the same. Ld. Counsel has argued that the impugned order is liable to be set aside. Ld Counsel has relied upon following judgments in support of his arguments:
(1) Prabha Tyagi vs. Kamlesh Devi, Criminal Appeal No. 511/2021, Superme Court of India.
(2) S Vanitha vs. The Deputy Commissioner, Bengaluru Urban District & Ors. Civil Appeal No. 3822/2022, Superme Court of India.CA No. 71/2022 Page 6 of 22
(3) Ravneet Kaur vs. Prithpal Singh Dhingra, RFA 832/2018, High Court of Delhi.
(4) Maria Margarida Sequeria Fernandes vs. Erasmo Jack De Sequeria, Civil Appeal No. 2968/2012, Superme Court of India. (5) Om Prakash Gupta vs. Anjani Gupta, Crl. M.C. 5188/2013, High Court of Delhi.
(6) Navneet Arora vs. Surender Kaur & Ors. FAO(OS) 196/2014, High Court of Delhi.
10. Ld. Counsel for the respondent has argued that even though the proposed respondents No. 3 to 6 were not summoned by the Ld. Trial Court but the appellant made them party in the present appeal, which itself shows that the only purpose of the appellant is to harass the respondent. It is stated that the prime responsibility of maintaining the appellant is that of her husband, but she has not made the husband party to the litigation. It is further submitted that in the entire complaint before the Ld. Trial Court, not even a single allegation has been levelled against the husband by the appellant and only after passing of the impugned order that in the appeal, she has made some allegations upon the husband. It is stated that the appellant is residing with her husband in the property in question and the purpose of the filing of the complaint u/s Domestic Violence Act is to usurp the property of respondent No. 1.
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11. It is stated that the property in question is the self-acquired property of respondent No. 1. The appellant along with her husband was continuously harassing the respondents who are senior citizen and therefore, they disowned their son and filed case under the Senior Citizenship Act. It is only after the respondents approached the Senior Citizen Tribunal that the present case has been filed by the appellant at the behest of the her husband to usurp the property of the respondent No. 1.
12. It is argued that even though the respondent No. 1 is the actual owner of the property but he along with his wife is forced to live out side the property and the entire property is in the possession of the appellant and her husband. It is stated that the appellant is misusing the provisions of Domestic Violence Act and therefore, the appeal be dismissed.
13. After hearing the arguments and perusing the entire record, I am of the considered view that the appeal is liable to be dismissed for the reasons as stated below:
14. The DV Act came to be enacted essentially to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights so that the civil law protection could not be availed by them. However, what is important is that the women claiming right under PWDV Act must be subjected to domestic violence and CA No. 71/2022 Page 8 of 22 only then she can file and claim various reliefs given to her under the Act including right of residence in the shared household. Even before passing of interim and ex-parte order u/s 23 of PWDV Act, the Magistrate has to satisfy herself that an application prima facie discloses that the respondent is committing or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence. The commission of act of domestic violence by the respondents as against the applicant is the condition necessary for filing of any application under PWDV Act.
15. The right to reside in the shared household is not the absolute, indefeasible right granted to the female and it depends upon the facts and circumstances of each case. Merely because a DV Act Petition has been filed levelling some allegations would not ipso facto makes it mandatory for the Magistrate to grant reliefs claimed by the petitioner and the Magistrate is required to apply his mind to the entire facts and circumstance of the case and only after satisfying himself that the domestic violence has been committed and the petitioner is entitled to the relief claimed that the Magistrate is to grant the relief. The Magistrate can also decline granting the relief claimed if the Magistrate is of the view that no domestic violence has been committed and a petition has been filed for ulterior motives.
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16. As regards the first contention of the Ld Counsel for the appellant that the Magistrate did not dispose the application under section 19 of PWDV Act, I am unable to appreciate this contention. The impugned order has to be read in totality and reading the entire order, it is clear that the Ld. Trial Court dismissed the application of the appellant and refused to grant her any protection qua shared household.
17. After going through the entire petition filed by the Appellant under section 12 of PWDV Act, the kind and the manner in which the allegations of domestic violence have been made has shocked the conscience of this court. It is not disputed that the appellant got married with the son of the respondents on 26.11.2001 and therefore she is married with the son of the respondents for more than 21 years. Even though the appellant got married with the son of the respondents only in the year 2001 but the allegations dates back to the year 1980, the time period when the husband of the appellant was only a small child of five year and the appellant must also be a small child. The appellant has alleged that in the year 1980 the respondents used to beat her only son even before marriage when he was child and a young boy. The said fact was shared with her by the respondent No. 2. The respondent No. 2 shared that when her son was five years old and he used to refuse to bring the water, she CA No. 71/2022 Page 10 of 22 slapped him. I am aghast reading such allegations. The appellant got married with the son of the respondent only in the year 2001 and she is mentioning the incident of year 1980 when her husband was the small child and she was not even in any kind of relations with the respondents . I am failed to understand as to how come such kind of incident, even if it is accepted as true for the sake of arguments, can be part and parcel of domestic violence petition and how it can be termed as domestic violence against the appellant.
18. The perusal of the complaint reflects that as per the appellant, in February 2002, since she was full time working and was pregnant, a full time maid was hire for household work. She has further stated this is for the first time that the respondents hired full time maid. I am failed to understand as to how that can be termed as domestic violence. Rather, keeping a full-time maid when the appellant was pregnant, shows that she was being taken care of when she was pregnant and was also working. The appellant has further stated that the maid was not allowed to do the work of the petitioner but maid used to do her work on her own. It is also revealed from the petition that the appellant was not doing the household work as she has stated that she has told the respondents that it was not possible for her to do the household work after office work. If respondents had kept the full time maid for the first time after appellant got pregnant and she CA No. 71/2022 Page 11 of 22 was not doing any household work then for what purpose the maid was kept. Further the allegations dates back to have happened many years ago but the petiton has been filed only in the year 2021.
19. The appellant has further stated that her husband was contributing by giving money to the respondents for monthly household expenses and he was giving money since his first job in year 1999. I am failed to understand as to how the contribution by the husband of the appellant towards the household expenses can be termed as domestic violence to the appellant. The husband of the appellant is the son of respondents. Every person who is earning and is residing and sharing the same household is supposed to contribute towards the daily/monthly expenses of the house. It was not the responsibility of the respondents to maintain the major son who is earning and his family and therefore, if the husband of the appellant was contributing towards the daily/monthly expenses out of his earning, the same can be considered his duty to do so and by no stretch of imagination, the same can be viewed as any kind of domestic violence to the appellant. Rather non contribution towards household /daily expenses by the son, who is major and is earning and is residing with the Parents & by such non contribution forcing the parents to bear the day-to-day expenses CA No. 71/2022 Page 12 of 22 of not only him but also of his entire family consisting of his wife & Children, is economic violence to the parents. It is not only the duty of the Parents to take care of their children but it is also the duty of the children to take care of their parents, be it physically, emotionally or financially.
20. The appellant has further stated that the respondents demanded her salary, but she refused. They started torturing the appellant and her parents for her refusal to give them her salary. The incident is stated to be of February 2002. The present complaint has been filed by her by on 09.10.2021 i.e. nearly 19 years after the alleged incident.
21. The appellant has further stated that the respondents had removed the maid after she had served them for 14 years and as such they are heartless. The allegations of removal of the maid, not having any attachment with the maid, torturing the maid cannot be construed as any kind of domestic violence being committed with the appellant. Neither the maid was in any kind of domestic relation with the respondents, nor any petition could have been filed for the alleged allegations qua the maid under the DV Act. Further using the provision of DV Act, it is not allowed to the appellant to start any kind of proxy war with the respondent in the name of the maid.
22. The appellant has stated that whenever she used to cook CA No. 71/2022 Page 13 of 22 Rajma and Chhole, the respondent No. 2 used to take out boiled parts of Rajma and Chhole and used to make masala for herself. I am failed to understand how can making of masala for herself by the mother in law and eating the food of her choice by cooking it herself can be termed as domestic violence as against appellant.
23. There are allegations of the respondents taunting the appellant of not doing any household work despite of the fact that the appellant was working in a private company. It is stated that she had told the respondents that it is not humanly possible to do the household work after working for the entire day in the private company.
The above allegations pre-supposes that any person who is working outside for gains is not supposed to do the household work. The question arises as to whether asking the daughter in law to do the household work can be termed as domestic violence, in the entire world, the people who work outside home for gains also work in the home and do their own work. There is absolutely no law that gives privilege to the people working for gains not to work in their houses and not to do their own work. Rather, they cannot demand as the matter of right that they would not perform the household work because they are working for gains. Rather, it is the duty of every person to do CA No. 71/2022 Page 14 of 22 his/her work and not to put the burden on the other person only on account that he/she is working for gains. It is clear from the petition that the appellant was not doing the household work and she also informed the respondents that it is not possible for her to do the household work and therefore, if the respondents were asking her to do the household work which she refused and did not do for good 21 years of her marriage, it cannot be termed as domestic violence to the appellant.
24. There are allegations that the respondents asked the appellant to take loan and she purchased three new cars in the last 20 years and her husband purchased one new car and they closed the loan account out of their own salaries. When the cars were purchased by the appellant and her husband in their names by taking loan, they are supposed to pay the loan from their own salaries, and I am failed to understand how the same can be termed as domestic violence.
25. There are allegations of the respondent No. 2 troubling her Bhabhi's and other daughter in law of the house in similar fashion in the past. Again, the above allegations cannot be termed as domestic violence to the appellant and neither those Bhabhi's or other daughter in law's have filed any kind of petition against the respondents.
26. There are allegations that the respondents did not allow the CA No. 71/2022 Page 15 of 22 appellant and her husband to open a play school on ground floor in September 2003. Not allowing the play school in the house cannot be termed as domestic violence. It was not the duty of the respondents to allow the appellant to open a play school in the house.
27. According to the appellant, on 23.-8.2021, when DEO from DM office came to collect the copy of property papers from respondent no. 1 that the appellant came to know that respondents have filed a case under Seniors Citizen Act. The appellant has stated this was the extreme torture and harassment for the appellants family. In my considered view filing a case and taking legal recourse cannot be termed as domestic violence.
28. According to the appellant, the respondents did not want the girl child and they continuously harassed the appellant and asked her several times to leave the house. The respondent No. 1 told her son to leave the appellant and daughter to remarry another girl who can deliver boy. It is stated from June 2021 onwards, the respondents left the cooking gas open multiple times and the appellant could smell the same and turned it off.
The appellant is married for the last 21 years. She has not named her husband as one of the respondents and no case has been filed by her as against her husband. How come for the 21 years the respondents did not try to get the husband of the appellant remarry to CA No. 71/2022 Page 16 of 22 have a baby boy but suddenly, they started pressurizing the husband of the appellant for second marriage and that too when they are no more residing with the appellant and their son and have already filed case under Seniors Citizens Act against both of them.
29. It is stated that the respondents got themselves vaccinated for corona 4-5 times and they are conscious for themselves but are not worried about the appellant and her daughter who have not got vaccinated. Both appellant and her daughter are major and it is not the duty of the respondents to take them for vaccination. If the appellant and her daughter wanted to get themselves vaccinated, they could have done so on their own. Rather the respondents are old aged and by not getting themselves vaccinated, it is the appellant who is putting the respondents at risk.
30. It is stated that the respondents filed a case under Senior Citizens Act on 19/08/2021 and left the house of 29/08/2021 and is residing with their daughter. The perusal of the record reflects that for the last 21 years of her marriage, the appellant never filed any complaint against respondents. The first complaint was filed by her only on 19/08/2021 after the respondents filed a case under Seniors Citizens Act. All other complaints are after that. The Civil case was filed by the appellant after the filing of the petition under Delhi CA No. 71/2022 Page 17 of 22 Maintenance and Welfare of Parents and Senior Citizen Rules 2009 by the respondents. The application of the appellant in the civil suit under order 39 Rule 1 &2 CPC was dismissed by Ld. Civil Judge, New Delhi District vide order dated 17.12.2021. While dismissing the application, the Ld Civil Court took note of the fact that as per inquiry report under Rule(3)(i) of Delhi Maintenance and Welfare of Parents and Senior Citizen Rules 2009 dated 31.08.2021 by SDM, the property is in the name of respondent no1, the neighbours have confirmed about ill conduct of Roopali Puri with defendants and no averment of suit property being ancestral property has been made by the appellant. Thereafter, the Ld Trial Court also dismissed the application of the appellant under section 19 of PWDV act and vacated the stay order in favour of the appellant vide impugned order.
31. The respondent No. 1 had filed a case No. 10/2021 titled as Rajender Puri vs. Vikas Puri & Ors., under Rule 22(3)(i) of The Delhi Maintainance and Welfare of Parents and Senior Citizen Rules, 2016(amended) for eviction of his son, daughter in law and grand daughter from the property bearing No. EA-56, Inderpuri, IARI, Delhi-12 on account of his mental and physical harassment at the hands of the respondents. The verification report was called and as per the verification report, the property is registered in the name of CA No. 71/2022 Page 18 of 22 respondent No. 1. The field inspection was carried out and as per field inspection, Smt. Roopali Puri (appellant herein) was found abusing and quarreling with her mother in law and father in law. The Ld. District Magistrate vide order dated 28.01.2022 passed the following directions:
"Therefore in view of the above facts, it is directed that if Sh. Rajender Puri wants to live peacefully at property in question being owner of the said property, the respondent shall not refrain her. Further, it is also directed that the appellant and the respondents shall not indulge in any arguments, threaten or cause any harm to each other and live peacefully and amicably at the property in question".
32. Therefore, it is clear from the record that the respondents took the legal measure to evict the appellant and her husband, which they can do so legally and they cannot be injunct not to carry out the legal proceedings against the appellant or her husband to evict them as per law. It is well settled principle of law that daughter in law can claim the right of residence in the shared household, whether or not she has any right/title/interest in the said property under the provisions of PWDV Act. However, the relief claimed cannot be granted to the petitioner under PWDV Act only on the ground that she is daughter in law of the respondents and has lived or is living with them in the shared household in domestic relation. CA No. 71/2022 Page 19 of 22 Each case has to be considered on the basis of its entire facts and circumstances and only when the petitioner is able to show even prima facie that she has been subjected to domestic violence that any relief can be granted to her.
33. In the present case, from the bare perusal of the petition, one can conclude that the appellant is hell bound to levy all kind of allegations against the respondents, which cannot be appreciated for the reasons as stated above in the preceding paragraphs. It is also clear that the appellant did not file any complaint against the respondents in the last 21 years of her marriage and she started filing complaints and cases only after the respondent resorted to Senior Citizen Act. It is also clear that the entire property is in the possession of the appellant, and it is the respondents who are out of the property and staying with their daughter, even when respondent no1 is the actual owner of the house. There is enquiry report being conducted by SDM that shows that as per neighbours ,it was the appellant, who was having ill conduct with the respondents. It is also clear that appellant is residing with her husband in the said property and both are enjoying the property. The appellant has neither made her husband party to the litigation nor levelled any allegation against him. Though there may be instances where female has been subjected to domestic violence by the other members of her family CA No. 71/2022 Page 20 of 22 and not by husband and in such cases, she would be fully justified in filing case against those who have committed domestic violence without making her husband party to litigation but it is not one of such case on the basis of the entire facts and circumstances.
34. The appellant has not only sought the relief of her residence in the property but has also sought orders directing the respondents to remove themselves from the property and directing the respondents to secure same level of accommodation for her or to pay rent of 50,000 per month, in case such circumstances requires. At the outset, the day this petition was filed, the respondents were already not residing in the said property to the knowledge of the appellant. Securing same kind of accommodation for the appellant or to pay rent for the same is the duty of the husband of the appellant, who is not the party to litigation. Further, it is clear from the entire record that the provisions of PWDV Act has been used to circumvent the orders passed by the Tribunal. The Provision of PWDV Act, which is social welfare legislation, cannot be allowed to be used to restrain the respondents to take legal measures against the appellant or their son or to circumvent the orders of a Tribunal or to claim ownership or to retain the possession of the property without their being any genuine case of domestic violence being taken place with the appellant. Any other recourse would lead to abuse of the process CA No. 71/2022 Page 21 of 22 of the benevolent provisions of PWDV Act.
35. Therefore, the appeal is without any merits and is dismissed. Announced in Open Court on 23rd February, 2023.
(Anu Aggarwal) ASJ-06 POCSO Act, South-East District, Saket Courts, New Delhi Earlier was posted as ASJ-07, PHC, New Delhi.
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