Delhi District Court
Smt. Kajal vs . on 11 September, 2015
IN THE COURT OF MS. MANU VEDWAN,
METROPOLITAN MAGISTRATE, MAHILA COURT01,
CENTRAL, DELHI.
CC NO. 573/6/09
U/s 12 of The Domestic Violence Act.
PS : Pahar Ganj
Case ID no. 02401R0495812009
Smt. Kajal
W/o Sh. Rajesh
R/o 3840, Tel Mandi, Paharganj,
New Delhi. ..........Complainant
Vs.
1. Sh. Rajesh
S/o Sri Ram
2. Smt. Angoori Devi
W/o Sri Ram
Both residing at:
51/26, Manohar Nagar,
Pataudi Chowk, Gurgaon. ..........Respondents
Date of Institution of case : 14.10.2009
Date of reserving the judgment : 04.09.2015
Date of decision of case : 11.09.2015
JUDGMENT
1. Vide this judgment, I shall dispose of the petition under Section 12 of Domestic Violence Act, 2005 filed by the complainant against the respondents.
Brief facts of the case are stated as under: 2 It is the case of the complainant that she got married CC No. 573/6/09 Page 1 of 14 with respondent no.1 at Siddipur Loha (Bahadurgarh) on 12.07.2001 as per Hindu rites. Father of the complainant gave sufficient dowry in the marriage.
3 It is stated that in the month of August 2001, father of the complainant went to her shared household and found her sick. He brought the complainant to Delhi and took her to City Clinic hospital at Asaf Ali road, where she was diagnosed with Tuberculosis. It is further stated that in the month of September 2001, complainant was admitted for tuberculosis treatment in Kingsway Camp and all the expenses were borne by her father. It is further stated that in the month of October 2001, respondents came to the hospital and got discharged the complainant without permission of parents of complainant. They took her to the shared house on the guarantee to get her treated but they did not do so. 4 It is further stated that in the month of December 2001, complainant started getting fits and was admitted to Mission's hospital, Bahadurgarh by her inlaws. Respondents informed the parents of complainant that complainant had got water in her brain and was referred to hospital in Delhi. It is further stated that on 20.12.2001, father of the complainant brought the complainant to Delhi and admitted her to Pant hospital where she underwent an operation and all the expenses of hospital and medicines were borne by father of the complainant. After staying CC No. 573/6/09 Page 2 of 14 in hospital for a week, complainant was taken to her parental house. It is further stated that since December 2001 to 2004, complainant stayed in her parental house and respondent no.1 husband never gave any money for her treatment. It is further stated that in 2005, complainant got a little better and was sent to her shared house but after 56 months, respondents started troubling her and stopped her medicines due to which her health deteriorated and she was again sent to her parental house for treatment.
5. It is further stated that in the month of January 2006, complainant came to know about her pregnancy. On 08.07.2006, she gave birth to her son and all the expenses of delivery were borne by her parents. In the month of October 2006, fatherinlaw of the complainant passed away. Complainant alongwith her parents went to her matrimonial house and complainant and her child were left there. It is further stated that in the month of December 2007, respondent no.1 took the medical papers of the complainant from her father on the pretext of treatment but never got her checked in the hospital and started drinking and beating the complainant. It is further stated that in the month of August 2008, complainant called her father at 9:00 pm and asked her to save. Father of the complainant reached her place at 11:00 pm and found that the complainant was been locked in a room. Respondent CC No. 573/6/09 Page 3 of 14 no.1 threatened the father of the complainant that he would leave the complainant as she was insane.
6. It is further stated that on 03.10.2008, respondent no. 1 left the complainant to her parental house and never came back to take her despite repeated phone calls and requests of father of the complainant. It is further stated that on 22.02.2009, parents of the complainant alongwith 1015 people went to the matrimonial house of the complainant to resolve the dispute but respondent no. 1 clearly refused to keep the complainant and to pay the maintenance to her and her son. On 07.07.2009 complainant filed a complaint in CAW Cell, Nanakpura, there also respondent no.1 refused to maintain the complainant and her child.
7. It is further stated that respondent no.1 is a LIC agent and is earning Rs.15,000/ per month. It is further stated that the respondents are living in Gurgaon and are having a house measuring 100 sq. yards.
8 On the basis of above facts, the complainant has prayed for protection order u/s 18, residence order u/s 19, monetary relief u/s 20, relief for custody of the children u/s 21 and compensation order u/s 22 of PWDV Act.
9 DIR was filed by the protection officer.
10 After considering the DIR, summons of the petition was served upon respondent no. 1 by the Ld. Predecessor of this CC No. 573/6/09 Page 4 of 14 court vide order dated 14.10.2009.
11 Thereafter, detailed reply was filed on behalf of the respondent refuting all the allegations. It is stated in the reply that the present case is counter blast to the petition u/s 13 of Hindu Marriage Act filed by the respondent before the Hon'ble Court of District Judge, Jhajjar, Haryana. It is further stated that the complainant was suffering from epilepsy since before marriage and the said fact was never disclosed by the parents of the complainant. It is further stated that the complainant never performed her marital and social obligation towards the respondent and never done any household work. As and when the respondent and other family member asked her for any work, she raised dispute. It is further stated that the respondent had always paid for the treatment of the complainant.
12 It is further stated that on 29.07.2007 respondent came to his native village Sidhipur to see his family members and in his absence, the complainant left the house and went to her parental home. The respondent and his family members tried their best to resolve the matter but all in vain. On 19.07.2009 panchayat was held at Paharganj, but the complainant flatly refused to join the respondent and insulted him by abusing in filthy language. 13 It is further stated that the net earning of the respondent during the financial year 20082009 was Rs.88,700/ CC No. 573/6/09 Page 5 of 14 only for which he has filed income tax return. It is further stated that the house in Gurgaon is in the name of deceased father of the respondent which is a joint family property. It is further stated that the respondent is residing at his native village. 14 Afterwards replication was filed by the complainant wherein facts of petition were reiterated.
15 Complainant in order to support her contentions has examined herself as CW1 and has tendered her evidence by way of affidavit Ex.PW1/A and has reiterated the facts as stated in the petition.
During the course of cross examination, CW1 has submitted that she does not remember when she visited City Clinic hospital for the first time for how long she remained there but clarified that she might have visited in the year 2001. CW1 though submitted that respondent is now the LIC agent but she was not able to tell his income as she is living separately from him from last six years.
16 Complainant also got examined Sh. Nathu as CW2 who tendered his evidence by way of affidavit Ex.CW2/A. CW2 has reiterated in his evidence the same facts as are mentioned by the complainant in her complaint. CW2 also filed copy of complaint dated 20.07.2009 filed in CAW cell as Mark A. Copy of order dated 18.08.2010 passed by Sh. A.K Jain, Ld. ADJ, Jhajjar as CC No. 573/6/09 Page 6 of 14 Mark B. During the course of cross examination, CW2 submitted that he has not filed any documentary proof or other proof to show that due to inadequate medical treatment by respondent, mental condition of complainant deteriorated. CW2 further submitted that at the time of engagement of his daughter, respondent no.1 husband was driving a tempo owned by him and further clarified that his father was also driving the same tempo. CW2 has also submitted that he had placed on record the proof of the ownership of Maruti Swift VDI car owned by respondent no.1. CW2 further submitted that he does not know the monthly earning of respondent husband.
17 Respondent in order to support his contentions has examined himself as RW1 and tendered his evidence by way of affidavit Ex.RW1/1. RW1 also relied upon the following documents: a. discharge card of complainant from Mission hospital Ex.RW1/A b. original receipts regarding expenses incurred on complainant by respondent Ex. RW1/B to Ex.RW1/F. c. medical slip of Mission hospital dated 16.12.2001 Ex.RW1/G d. certified copy of complaint made to PP Pataudi Chowk, CC No. 573/6/09 Page 7 of 14 Gurgaon Ex.RW1/H e. income tax return of respondent Ex.RW1/I On 13.03.2014, Ld. Predecessor had observed that respondent was not appearing since 24.10.2013 and threfore, last and final opportunity was granted to the respondent to lead his evidence failing which his right shall be closed. On 03.04.2014, again respondent has not lead the evidence and therefore, Ld. Predecessor court had closed the right of the respondent to lead the evidence as ample effective opportunities have been given to him. On 10.04.2015, an application of the complainant under Order 18 Rule 17 read with Section 151 CPC alongwith an application under Order 7 Rule 14(3) read with Section 151 CPC were disposed off, through which again one opportunity was granted to the complainant in the light of the discussion therein to lead the evidence. Thereafter, on 06.08.2015, as the complainant has already been given ample effective opportunities in view of aforementioned order to lead the evidence but of no avail, her right was closed and matter was put up for final arguments. On various dates that is on 07.07.2015, 04.09.2015 and in between also, opportunities were given to the parties to propound arguments orally or to file their written arguments. Respondent has miserably failed to either propound oral arguments or to file written arguments. As already sufficient opportunities have been given to CC No. 573/6/09 Page 8 of 14 the parties to propound arguments but respondent is not complying the same, therefore, complainant requested that she should not be suffered for the fault of the respondent and requested that order be passed.
18 Written arguments on behalf of the complainant filed. It is stated in the written arguments filed by the complainant that Ld. ADJ had awarded interim maintenance allowance of Rs. 7000/ per month that is Rs.5000/ for the respondent (wife) and Rs.2000/ per month to her minor child. It is further stated that the complainant under the provision of R.T.I Act 2005, applied for the certified copies of yearly earning of respondent husband of three years i.e. from 20112012, 20122013 and 20132014. As per the information supplied by LIC department the net income of respondent husband of his yearly commission as an LIC agent was Rs.1,050,914.38/, Rs.1,097,623.53/ and Rs.7,29,048.48/ respectively for three years. It is further stated that the certified copy of order dated 18.08.2010 passed by Sh. A.K Jain, Ld. ADJ, Jhajjar, Haryana in respect of the earnings of Rs.15,000/ per month of the respondent as an LIC agent, is filed on record. It is further stated that the certified copies dated 10.06.2014 supplied by the LIC department of divisional office of Rohtak, Haryana in respect of three years earning of the respondent as LCI agent supplied under the provisions of RTI Act 2005 are also on judicial CC No. 573/6/09 Page 9 of 14 file. It is further stated that it is the settled law that the certified copies under Section 79 of the Evidence Act shall be presume as genuine documents.
During the oral arguments, it is submitted by counsel for the complainant that the complainant is mentally not fit and is not in a position to maintain herself as well as her child. It is further submitted that in the entire evidence, complainant has time and again reiterated the domestic violence suffered by her. 19 It cannot be disputed that it is the moral obligation of the respondent to maintain the complainant who is his legally wedded wife and the child. Complainant has categorically deposed that she is unemployed and has no source of income to maintain herself as well as the child. Despite ample effective opportunities given at the time of leading the respondent's evidence and later on, also respondent has miserably failed to place on record any recent documentary evidence pertaining to his income.
The word maintenance as described in Merriam Webester dictionary is the state of being maintained. Spousal maintenance on the other hand is a financial support paid by a party to a marriage to one's husband or wife in circumstances where he/she is unable to adequately support himself/herself. While, deciding the maintenance application court considers the needs of the applicant as well as respondent's capacity to pay. A CC No. 573/6/09 Page 10 of 14 court considers alongwith other factors, ability to work and suitable standard of living. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else.
Wife is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. Monthly income of the husband may not very often be within the knowledge of wife, particularly in a case where the relationship is considerably strained and the spouses are living apart for considerable period. If the husband as in the present case despite effective opportunities failed to disclose the true income then reasonable methods at the hands of the court be used to draw the presumption thereof. The court has also to consider the status of parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statute but involuntary payments and deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time amount so fixed cannot be excessive or extortionate. The contentions of respondent regarding his earning is not conceivable.
CC No. 573/6/09 Page 11 of 14
At the time of passing interim order by Ld. Predecessor, it was admitted by the respondent that he is an LIC agent and also admitted his gross income of Rs.88,000/ per annum. Thereafter, as per order dated 18.08.2010 passed by learned Additional District Judge, Jhajjar, petitioner had admitted that he was earning Rs.15,000/ per month. Thus, it is not unreasonable to assume that earning of respondent must have now been increased. Further, taken into consideration the social status of the parties, which is evident from their appearance, income of respondent husband as of today is assessed to be Rs.35,000/ to Rs. 40,000/ per month. In accordance with Annurita Vohra Vs. Sandeep Vohra : 2004 (3) AD 252, wherein it has been held that the family income should be divided equally between all the family members entitled to maintenance with one extra portion/share being allotted to the earning spouse since extra expenses would necessarily occur. The complainant is held entitled for maintenance @ Rs.10,000/ per month from the date of the judgment which includes maintenance of her child and for alternate accommodation, if any. Needless to say that the amount already paid in any other proceedings shall stand adjusted. Respondent is directed to clear the arrears of maintenance within three months and to pay the monthly maintenance by 10th day of every month of English Calender.
CC No. 573/6/09 Page 12 of 14 20 Regarding the residence order it is pertinent to mention here the judgment of Hon'ble Supreme Court of India in SR Batra vs. Smt. Taruna Batra decided on 15.12.2006 in which it was held that " As regards Section 17 (1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant no. 2, mother of Amit Batra. Hence it cannot be called a 'shared household'.
In the present case, it has never been proved that the property in question is a shared hold as discussed herein before, so residence order is hereby declined.
21 Respondent is restrained from committing any further act of domestic violence against complainant and are restrained from causing any harassment or cruelty against the complainant from date of this order onwards. Respondent is directed to pay Rs.4000/ towards the litigation expenses to the complainant.
22 In the absence of any cogent evidence, other reliefs are accordingly denied. With the above directions the complaint CC No. 573/6/09 Page 13 of 14 U/s. 12 of Protection of Women from Domestic Violence Act 2005 filed by the complainant stands disposed of.
File be consigned to Record Room after due compliance.
Announced in the open court today on this 11th day of September, 2015. (MANU VEDWAN) MM : Mahila Court01,Central Tis Hazari Courts, Delhi.
CC No. 573/6/09 Page 14 of 14