Delhi District Court
Sonia Sahani vs Biren Sahani, Order On Application ... on 30 March, 2016
CC NO. 1899/15
PS-C.R Park
U/s-12 PWDV Act
30.03.2016
Sonia Sahni
Vs
Biren Sahni
Order on Application U/s 23 Protection of Women from
Domestic Violence Act, 2005
Arguments heard on the application for interim application
filed by the complainant. Record has been perused.
When arguments were heard on the last date, both parties
were given opportunity to file written arguments. Respondent was also
directed to file fresh affidavit of income and expenditure with copy to opposite party. The same was filed after supplying copy to the opposite party. Respondent had filed copies of several documents running into approximately 639 pages. Several of such documents related to the alleged working capacity of complainant. The counsel for complainant had not filed additional written arguments in rebuttal. Thus, an opportunity was given to him to address oral arguments, if any. To which he replied that he does not want to address any further arguments and stated that Order may be pronounced based on the submissions already made by him. Accordingly, order was reserved.
After perusing applications, replies, replication, several Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 1 of 16 documents and annexures, affidavits of income and expenditure of both the parties and their written arguments, I now proceed to decide the application U/s 23 Protection of Women from Domestic Violence Act, 2005 (hereafter referred to as PWDV Act) filed by the complainant.
At the outset, respondent has taken several technical objections to the applications, documents filed by the complainant. The respondent has claimed that the application U/s 12 PWDV Act ought not to be entertained as no Domestic Violence Act was committed by him. He further submits that the application U/s 12 PWDV Act is not maintainable as the same has not been filed in the prescribed format. He submits that the complainant had not specified any documents in her application U/s 12 PWDV Act and thus presumption arises that no document was filed with the main application. He argued that no document can be taken on record subsequently. The respondent further objected that the complainant had filed separate Annexure of facts of the case and the same cannot be treated as a part and parcel of the main application and that the application under S. 12 PWDV Act is without any cause of action.
PWDV Act, 2005, is a beneficial peace of legislation and strict interpretation of its provisions would defeat the aims and objectives of the Act itself. An interpretation which furthers the intent of the legislature is required to be adopted. As such the Act has to be interpreted liberally. Furthermore, by virtue of Section 28 (2) of PWDV Act, the Court is empowered lay down its own procedure for disposal of the applications under the Act. There is no prescribed time limit for filing documents and Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 2 of 16 annexures. Thus, there is no bar in taking documents of both parties on record. Otherwise also, both the parties had filed documents at subsequent stages and the same were taken on record. As far as the allegations of domestic violence are concerned, the applicant has to be given an opportunity to prove her allegations under the law and the same cannot be dismissed at the outset without trial.
As far as the separate Annexure of facts of case filed by the complainant is concerned, the statement of complainant was recorded on oath in the Court on 05.03.2016 wherein she had signed all the pages of the said compilation which was Exhibited as Ex. C1 containing 22 paragraphs and affirmed the same to be true and correct. The copies of the said annexures were duly supplied to the respondent. Thus, no prejudice would be caused to the respondent, if the same are taken into consideration.
All above objections taken by the respondent are merely technical in nature and do not go to the root of the case. Thus, they are being dismissed accordingly. I shall now proceed to decide the Application Under S.23 PWDV Act on merits.
Existence of Marital Relations:
There is no dispute that the complainant is the legally wedded wife of the respondent no.1.
Paternity of Children:
There is no dispute about paternity of Son of the parties. Custody Status of Children:
Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 3 of 16 The son is major and is residing with his father i.e Respondent.
Whether a Prima Facie case is made out in favour of the applicant:
Whereas, complainant had made several allegations against the respondent starting from the period prior to her marriage till the date of leaving the matrimonial home. Respondent has argued that he did not commit any act of Domestic Violence against the complainant as alleged. He contended that the complainant was asking for a share in his properties at the instigation of her father due to which relations soured between them. His contention is that complainant had left home voluntarily without any just cause.
Be that as it may, in order to obtain interim relief, the complainant is required to show a prima facie case in her favour and that she is a victim of Domestic Violence at the hands of the respondent and thus an "aggrieved person" within the meaning of PWDV Act.
Following definitions of the Act of 2005 are relevant. "2 (a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
Definition of 'domestic violence' is to be found in Section 3 of the Act of 2005, which reads thus.
"Section 3 (a) harms or injuries or endangers the health, safety, life limp or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse ; or
(b)...................
(c)...................
(d)..................
Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 4 of 16 Explanation I For the purposes of this section, -
(i)...
(ii).
(iii)
(a).........
(b)....
(iv)"economic abuse" includes
(a) deprivation of all or any economic or
financial resources to which the aggrieved person in entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance.
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person;
and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
II For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration."
Now Explanation - II clearly provides that 'overall facts and circumstances of the case shall be taken into consideration'.
I now proceed to consider the major allegations made by complainant and the counter allegations of respondent in the following paragraphs :
1. The counsel for complainant has submitted that there have been several instances of Domestic Violence in the matrimonial relationship between the parties. It is alleged in the application that respondent made the Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 5 of 16 complainant pregnant within two weeks of the marriage. The complainant is alleged to have been a Meritorious Student having excellent Academic record and was stated to have been preparing for Civil Service Examination at the time when she got married.
2. Complainant has merely stated that she wanted to enjoy married life for 2-3 years before conceiving. It is not alleged that complainant had expressed her unwillingness to conceive to the respondent at any stage. Thus, as far as the pregnancy of the complainant is concerned, it is not a crime for a husband to impregnate his wife after marriage and this does not tantamount to an act of Domestic Violence.
3. Furthermore, the allegation that complainant wanted to enjoy her matrimonial life for 2-3 years before conceiving given rise to presumption that her martial life was indeed happy. As far as the contention of the complainant regarding her "Excellent Academic Record" is concerned, she had scored 75.5 % Marks in 12th Class, 54 % in Graduation and 65 % in Post Graduation. These details have been provided by her in the application form of Modern Montessori International Teacher Training Institute and reflect her fluctuating grades. Further more, there is nothing on record to show that respondent had restrained or stopped the complainant from pursuing any competitive examinations.
4. The counsel for complainant has further alleged that on many occasion, the complainant was not permitted to enter her own bedroom and they lived as strangers in their own house for approximately two years. The respondent no. 1 would bring his girlfriends and other Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 6 of 16 women to the shared household and would indulge with them. It is alleged that respondent is a Womanizer. The respondent no. 1 would often exploit the young and beautiful girls in the name of casting them as heroines. The complainant was allegedly denied entry to her own drawing room where the audition tests were being conducted. On several occasions, the respondent no. 1 is alleged to have slapped the complainant and threatened to kill her.
5. As far as the allegations of adultery are concerned, no further particulars have been mentioned in the applications. The complainant has neither named nor described any such women in her application, with whom the respondent no. 1 was alleged to be in adulterous relationship. She has not even specified any proximate date or time of any such incident. Further more, the son of the complainant was also residing with them and would have witnessed such an incident on atleast some occasions, if it had occurred repeatedly as alleged. In her replication, the complainant had stated that her son used to remain out from 08:00AM till 11:00 PM for Company work. However, she did not mention the nature of work of her son which required him to remain out for such prolonged duration every day. The allegations are vague and general in nature and in the absence of any further particulars, no prima facie view can be formed at this stage without trial.
6. It is further alleged that on one occasion, the respondent no. 1 even spat on the face of the complainant as he was unhappy that she talked to one of his friends in his absence.
7. This allegations is also vague as much as no relative date Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 7 of 16 and time of the incident has been mentioned much less, the name of the alleged friend to whom the complainant was talking on the alleged occasion.
8. The complainant had alleged that respondent wanted take undue benefit on the position of her father as a Judicial Officer to earn illegal gratification. However, no specific incident has been mentioned in the application. Furthermore, there is no allegation that the respondent tortured the complainant with a view to coerce her father to accede to the alleged requests for undue favours.
9. It is an admitted fact that the brother of the complainant had stayed at the matrimonial home of the complainant for a considerable period of time. Even though, there is a dispute with respect to the length of the period for which he stayed at their home. However, the fact itself is not disputed. If the relations between the parties were not cordial, the respondent may not have permitted the complainant's brother to remain at their residence for such a long duration. Further more, no act of Domestic Violence has been alleged to have occurred in the presence of her brother during this period.
10. It is alleged by complainant that the respondent no. 1 demanded that she asks her father to give the ground floor flat of the C.R Park house to him and when this demand was not met, his behaviour towards the complainant became rude and abusive.
11. As per the own submissions of the complainant, the respondent owns property worth Rs.166 Crores and is earning several lacs of rupees as rent from various properties. In these circumstances, Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 8 of 16 Complainant is required to lead evidence to prove that respondent had demanded one floor of the ground floor flat of her father at C.R Park. On balance of probability, no prima facie view can be formed qua this allegation at this stage.
12. It is alleged by complainant that respondent never allowed her to have access to office of his company "SOUL FILMS" and Jewellery Unit at Okhla.
The complainant, merely by virtue of her relationship with the respondent has a right to access the resources and properties at the shared household. Such right does not extend to the access of the office premises of the respondent. As far as the office premises of the respondent's company are concerned, they are outside the purview of the 'Shared Household'. Thus, in the absence of anything to the contrary, the wife cannot be said to have a vested right to interfere in the working/office of the husband.
As far as the Jewellery Unit at Okhla is concerned, the applicant had herself admitted in para no. 20 of Ex.C1 that she had opened that factory at Okhla with Female Jewellery Designers in the year 2012.The complainant being at the helm of affairs of Jewellery Unit, the respondent had no authority either to provide or deny access of the complainant to the said Jewellery Unit.
13. It is further alleged by complainant that on 27.10.2014, the respondent sent some papers to complainant for signatures alongwith one receipt of Rs.5,00,000/- which complainant refused to sign, suspecting them Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 9 of 16 to be forged. Due to this, the respondent no. 1 became unduly furious and threatened to kill her. He is alleged to have hit her physically and the Manager of the respondent no. 1 came in between asking her to sign papers. Fearing for her life, she signed two blank cheques and one receipt of Rs.5,00,000/- as per the demand of the respondent. The respondent is alleged to have asked her to go to her parent's residence or else she would be killed. She is stated to have called her son for help who was unavailable. So she locked herself inside the room on advice of her son. The complainant was allegedly constrained to leave the matrimonial home on 28.10.2014. Since then, she is residing at her parent's residence.
14. Five Lac Rupees is a substantial amount. If the same was received in the name of the complainant, there should be a corresponding entry in her bank account and a mention of it in her ITR. If the respondent had used said two cheques to withdraw the money from her account at any point of time, the same should also be reflected in the bank account statement of the complainant. She has not specified any details of the bank and account on which such cheques were drawn. No statement of such bank highlighting the relevant entry has been placed on record. In the absence of which, no prima facie view can be formed at this stage qua this allegation.
15. On the Other hand respondent has submitted that complainant is suffering from Bipolar Disease since the year 1994. It is alleged that on several occasions, the complainant had even caused physical harm to their only son. The complainant has admitted in para (H) of Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 10 of 16 her Replication that she was diagnosed with Bipolar Disease. As per the documents on record, the complainant was even admitted to Geetanjali Hospital from 13.01.1994 to 16.01.1994 due to her ailment.
16. The following information regarding Bipolar Disorder is extracted on the Modi's Medical Jurisprudence:
"(b) Bipolar Disorder (Maniac Depressive Psychosis)- Bipolar disorder is used for a group of mental illness with primary distrubance of affect, from which all other symptoms arise. The affect i.e the mood varies between extreme poles for cheerfulness and sadness. The illness has a second characteristic of periodicity. The third characteristic is returning to marmalcy from attack, without impairment of mential intergrity of mental intergrity. In practice, one finds that a single attack of a mania or a single attack of depression can occur. It occures in persons predisposed to mood disturbances.
Maniac-Phase- The partient in this phase is optimistic, full of self-confidence and has a general feeling of well being. The mood is elated which is often infectious. Stream of thought is rapid and conversation reflects characteristic ' flight of ideas' i.e talk and thougth are controlled less by sequence or meaning, than by casual associations with every sort of object in the environment. The attentiion is fleeting and there is a hight degree of distractability. The delusions of grandeur and ideas of conceit are present. Occasionally, the partient becomes garrulous and develops ideas of persecution. Sleep is not only severely disturbed in graver psychosis, but also reduced in milder forms. The intake of food is also reduced as the subject is constantly diverted to something else. The, mani-acs of hypomaniacs usually have no insight about their illness.
Serious law breaking is uncommon during hypomaniac phase ad offences such as petty theft, deceiption, drunken and disorderly behaviour and minor offences are committed. Occasionally, in hypomaniac,sexual excitement may lead to indecent assault or rape but usually the warmth of a hypomaniac enables him to satisfy his sexual need without breaking the law. The other common crime indulged in by hypomaniacs is fraud on a large scale, in order to obtain money for his grandiose schemes.
Depressive-Phase- The patient looks tired and self concerned. The sadness of mood is reflected in posture, movements and facial expression. The history of change in the patient's behaviour is characteristic and important. He retires from his usual social activities, avoids friends and is forced into Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 11 of 16 intensity from a mild feeling of sadness to most intense distressing misery. With this, there is diminished capacity for normal affective response and the past, present and future look dark and gloomy. Suicide of suicidal attempts is often the first and the last symptom of depressive illness. Suicide is well planned and is of great danger to the patient. In some cases, the depressive patient kills the relatives, especially dependent young children. The whole mental activity is reduced and in extreme cases, reaches stuporous stage. Depressive patients have a feeling of self-reproach and guilt. In typical cases, there is early morning wakening and sleep is not freshening. This is associated with loss of appetite and libido."
17. The following information regarding Bipolar Disorder is extracted on the website of National Institute of Mental Health:
"Bipolar disorder, also known as manic-
depressive illness, is a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day- to-day tasks. Symptoms of bipolar disorder are severe. They are different from the normal ups and downs that everyone goes through from time to time. Bipolar disorder symptoms can result in damaged relationships, poor job or school performance, and even suicide. But bipolar disorder can be treated, and people with this illness can lead full and productive lives."
"Causes : Bipolar disorder tends to run in families. Some research has suggested that people with certain genes are more likely to develop bipolar disorder than others. Children with a parent or sibling who has bipolar disorder are much more likely to develop the illness, compared with children who do not have a family history of bipolar disorder. However, most children with a family history of bipolar disorder will not develop the illness."
18. In this disease, the patient may undergo acute episodes of depression or elation. There is nothing on record to show that complainant was completely cured of the disease. In these circumstances, it is quite possible that the relations between the parties soured due to the disease of the complainant. As per the literature available on the internet, it is difficult to ascertain the main cause of disease. In the absence of any scientific Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 12 of 16 evidence, the disease of the complainant cannot be attributed to any alleged act of the respondent.
19. The complainant has also alleged that the respondent was also having some mental disease and was taken to a Psychiatrist by her father at Jaipur, Rajasthan. The doctor's prescription has not been placed on record in this regard. Complainant had also alleged that the relatives of the respondent were also of the opinion that respondent was a maniac. However, no such medical record diagnosing the medical condition of the respondent is placed on record. Thus, this allegation is required to be proved at trial.
20. It is an admitted fact that respondent had taken the complainant and their son to several foreign trips. Lastly, they visited France in June 2014. While the complainant admits the foreign trips, however, she submitted that the last trip was to Spain and not France. Be that as it may, several photographs of the last trip of the parties have been placed on record. From these photographs, it is evident that parties were happy in each others company.
21. From a copy of the e-mail placed on record by respondent, it is apparent that he had made reservations at his Goa Apartment for his in- laws (parents of the complainant) and his Uncle and Aunt from 24.02.2014 to 02.03.2014. From this document, it appears that the parties were having cordial relationship in as much as respondent was making arrangement for the holiday of parents of the complainant.
22. The complainant has further alleged that though the Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 13 of 16 stridhan was returned by the respondent at the time of the settlement on 17.08.1997 but she brought it back when she resumed the matrimonial relationship. Now, the Stridhen is alleged to be in the possession of respondent who has not returned the same.
On this aspect, the complainant had submitted that the stridhan was kept by the respondent in his own locker at the residence while the respondent submits that the same was kept at the joint locker of the parties at the bank. The complainant had submitted that only documents were kept in the locker and all the jewellery were kept at home. The respondent had submitted that jewellery was kept in the bank locker and the same was removed by the complainant. He has filed the letter of the bank which shows that the said joint locker was lastly operated by the complainant.
Ordinarily, the parties availing the facility of bank locker for safe keeping their valuables and not just documents and it is only a matter of prudence. Joint bank locker of the parties was lastly operated by the complainant. The submission of the part of complainant was that only documents were kept in the locker whereas the valuables /jewellery was kept only at home is against ordinary prudence and is required to be proved by evidence.
23. Section 23 in The Protection of Women from Domestic Violence Act, 2005 provides as under:
"23.Power to grant interim and ex parte orders.--
(1)In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2)If the Magistrate is satisfied that an application prima facie Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 14 of 16 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, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."
24. There are several other allegations and counter allegations which can not be decided at this stage without trial. As discussed above, Explanation - II to Section 3 PWDV Act clearly provides that 'overall facts and circumstances of the case shall be taken into consideration'. Keeping in view the entire facts and circumstances into account, as discussed above, majority of the allegations made by the complainant are required to be proved at trial and no prima facie view can be formed at this stage. On the contrary, there are several instances as discussed in preceding paragraphs which prima facie show that relations between the parties were cordial soon before the complainant left the matrimonial home. It is an admitted fact (in para no D of the replication) that respondent had planned to open a high end Play School with an infrastructure of Rs.10 crores to Rs.12 Crores under the management of complainant. For this purpose, he also got her admitted to the Modern Montessori International Teacher Training Institute so that she acquires requisite qualification and experience in this regard. These are substantiated by documents of admission and payment of fees placed on record. This pertains to period immediately proximate to the date on which the complainant left the matrimonial home. This is admitted by the complainant in clause (xiii) of her replication. Keeping the entire facts and circumstances into consideration, it is held that the cause of friction between the parties was probably caused due to the alleged demand of share in Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 15 of 16 properties by the complainant or due to the Bipolar disease of the complainant. The same is prima facie not attributable to the acts of the respondent at least at this stage. Thus, Complainant has not been able to show a prima facie case in her favour. In view of clause (2) of S.23 of PWDV Act, no relief can be granted to complainant at this stage without trial. The interim application filed by complainant stands disposed off accordingly.
Nothing stated herein above shall tantamount as any expression of opinion on the merits of this case.
Copy of the Order be given Dasti.
(Shivani Chauhan) Mahila Court/MM-01/SED/Saket Courts, New Delhi/ 30.03.2016 Sonia Sahani Vs Biren Sahani, Order on Application U/S.23 PWDV Act. Page no 16 of 16