Delhi District Court
Cc No. 16/1/14 Ps Sarai Rohilla Shamima ... vs . Shabbir Hussain & Ors. 1/15 on 19 June, 2015
IN THE COURT OF MS. MONA TARDI KERKETTA: MM:MAHILA COURT:
TIS HAZARI COURTS : DELHI
CC NO. 16/1/14
PS. SARAI ROHILLA
U/S.12 DV ACT
UID No. 0240IR:0063572014
IN THE MATTER OF:
1. SMT. SHAMIMA BANO
W/o SH. SHABBIR HUSSAIN
2. KUMARI TANZEERA KAYNAT
D/o SH. SHABBIR HUSSAIN
3. MOHD. BASIT
S/o SH. SHABBIR HUSSAIN
4. SADAF ALMAAS
D/o SH. SHABBIR HUSSAIN
5. MOHD. MOHIT
S/o SH. SHABBIR HUSSAIN
ALL THROUGH THEIR NATURAL GURDIAN
SMT. SHAMIMA BANO BEING MOTHER
ALL R/o 313/53, 3rd FLOOR, GALI NO. 11,
TULSI NAGAR, INDERLOK,
DELHI110035
........ COMPLAINANTS
VERSUS
1. SH. SHABBIR HUSSAIN
S/o SH. IQBAL HUSSAIN
CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 1/15
2. SMT. RAISA BIBI (NOT SUMMONED)
W/o SH. IQBAL HUSSAIN
3. SH. ZAHEER HUSSAIN (NOT SUMMONED)
S/o SH. IQBAL HUSSAIN
4. MS. SHAKEELA @ GUDIYA (NOT SUMMONED)
D/o SH. IQBAL HUSSAIN
ALL R/o 50/B, CRAIG STREET,
KUMAR PARA,
POLICE STATION : BELGHORIA,
KAMARHATI KOLKATA700058,
WEST BANGAL
ALSO AT :
4S.K., MUSLIM ROAD,
KAMARHATI, POLICE STATION : BELGHORIA,
KOLKATA700058, WEST BANGAL
ALSO AT :
C/o RAKHMUDDIN, H. NO. B13, TYAGI MARKET,
LONI, U.P.
5. SMT. FARIDA @ MUNNI (NOT SUMMONED)
W/o SH. SAHYUM
D/o SH. IQBAL HUSSAIN
R/O 4S.K., MUSLIM ROAD,
KAMARHATI, POLICE STATION : BELGHORIA,
KOLKATA700058, WEST BANGAL
6. SMT. SHABANA (NOT SUMMONED)
W/o SH. RAKHMUDDIN
D/o SH. IQBAL HUSSAIN
CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 2/15
R/O H.NO. B13, TYAGI MARKET,
LONI, U.P.
....... RESPONDENTS
Date of Institution : 31.01.2014 Date of reserving for order : 19.06.2015 Date of final order : 19.06.2015 BRIEF REASONS FOR THE JUST DECISION OF THE CASE :
1. The present complaint has been filed by the complainant U/s 12 of Domestic Violence Act, 2005 against her husband and in laws. The brief facts of the case as disclosed in the complaint are that the marriage between the complainant no. 1 and respondent no.1 was solemnized on 05.05.1998 before the Marriage Officer at Kolkata. It is further stated that after the marriage, complainant no. 1 started living together, cohabiting and performing their marital obligations towards each other at the matrimonial house situated in Kolkata. It is further stated that the complainant no. 1 with the respondent no. 1 was a culmination of love affiair and the parents of the complainant was not initially agreed but after passage of time, they were agreed and accepted the marriage of complainant no. 1 and respondent no. 1. It is further stated that from the said wedlock four children were born.
2. It is further stated that the behaviour and attitude of the respondents was quite good but with the passage of time, the respondents started to show their actual colour and started to demand huge amount and also used to ask the complainant no. 1 to bring cash for them from her parents. The respondent no. 1 used to say that he wanted to set up his business for which he wanted huge amount. Whenever the complainant no. 1 objected to the same, she was beaten up by the respondents. It is further stated that the respondents used to taunt and say that, the complainant no. 1 had come without any dowry while her family is very well off and the respondents further used to say that in case the complainant no. 1 wanted to continue the CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 3/15 marriage with the respondent no. 1, she is required to bring dowry and cash from her parents for them.
3. It is further stated that the complainant no. 1 also not being provided sufficient food in the matrimonial house and she used to do all household chores there. Whenever if there was any mistake incidentally occurred on the part of the complainant no. 1, she was given beating mercilessly by the respondents and even she was not provided proper medical treatment whenever she fell ill. It is further stated that even the complainant no. 2 to 5 were also not being treated properly by the respondents and they were also being beaten up with the complainant by the respondents on trivial issues and on one pretext or the other. It is further stated that even complainant no. 2 to 5 were also not allowed to go to school and the respondent no. 1 never given even a single penny to them for their basic need of life.
4. It has further stated that the complainant no. 1 bore all the harassment, torture, humiliation and cruelty which were being committed by the respondents towards them, since the complainant no. 1 was always wanted to continue and maintain her matrimonial life. On the other hand, the respondent no. 1 was/is adamant to achieve his illegal design. Whatever amounts brought by the complainant no. 1 from her parents, the respondent no. 1 used to snatch from her and used to spent the same upon him to fulfill his illegal acts and activities and further used to ask her bring more money from her parents. It is further stated that when the complainant no. 1 could not able to bear the torture meted out to her by the respondent no. 1, she narrated her ordeal/misery story to her parents. On hearing, the sad story of the complainant no. 1, the parents of the complainant no. 1 in order to save her marriage given a lot of amount which has been taken by the respondent no. 1 from her and he spent the same to fulfill his lust and illegal acts and activities.
5. It is further stated that the complainant no. 1 always thought that one day the good sense would prevail over the respondent no. 1 and he would understand his responsibilities and liabilities towards the complainants being the husband of CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 4/15 complainant no. 1 and the father of the complainants no. 2 to 5 respectively, but unfortunately, the complainant no. 1 was wrong and the ordeal/ miseries of the complainant no. 1 never stopped but continued higher day by day. It is further stated that the first week of April, 2010, the respondent no. 1 again given the merciless beating to the complainant no. 1 with the result she suffered bodily injury and she was got treated herself from the local hospital in Kolkata. Thereafter, the respondent no. 1 continuously used to beat the complainant no. 1. Again, in the first week of February, 2012, the respondent no. 1 mercilessly beating to the complainant no. 1 at that time she was also suffered bodily injury and she herself got admitted and treated in the local hospital in Kolkata. The respondent no. 1 also assaulted the complainant no. 1 in the Month of April, 2013, with the result she again suffered bodily injury and she herself got admitted and treated from the local hospital in Kolkata.
6. It is further stated that the complainant no. 1 made a lots of complaint against the respondent no. 1 for his offences committed by him towards the complainant no. 1 with the police station in Kolkata which wer duly received by the concerned police in Kolkata vide acknowledgments dated 22.01.2011, 13.11.2011, 19.11.2011, 05.12.2011, 04.02.2012, 07.03.2012, 27.12.2012, 29.03.2013, 02.04.2013 and 22.04.2013 but unfortunately till date no action has been taken against him by the concerned police in Kolkata. It is further stated that family members of the complainant no. 1, who are respectable and religious persons and God fearing have tried to their best level with the help of the common friends and relatives and to make understand the respondent no. 1 and pursued him to treat and maintain the complainant no. 1 properly at the matrimonial house and also requested him to fulfill all the matrimonial duties and obligations but all the efforts have gone in vain and he is adamant to stick his unlawful and unjustified demands.
7. It is further stated that lone and repeated efforts of the complainant no. 1 and her family members for requesting the respondent no. 1 to establish a happy living ultimately failed and she is completely victim of injustice and as such the respondent CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 5/15 no. 1 deserted her as he flatly refused to maintain the complainants. It is further stated that under these circumstances and owing to the torture, harassment being meted out by the respondent no. 1 to the complainant no. 1, the complainant no. 1 alongwith other complainants constrained to come to Delhi from Kolkata since her extended family members and many relatives are residing in Delhi, in order to lead her life peacefully and save herself from the terror and torture of the respondents. After coming in Delhi, the complainant no. 1 alongwith other complainants temporarily stayed with the extended family members in the house situated at Bara Hindu Rao, Delhi and cousin brother of the complainant no. 1, who arranged a rented accommodation for her in which at present she has been residing alongwith her children i.e. complainant no. 2 to 5 and in respect thereto a Rent Agreement dated d01.08.2013, executed and as per the said Rent Agreement, she has been paying rent @ Rs. 2500/ per month. It is further stated that somewhere in the month of May 2013, she got admitted her all children in the school at Delhi. All such expenses incurring in maintenance of the complainants at Delhi are being paid by her parents and family members from Kolkata.
8. It is further stated that respondent no. 1 has not paid spared the complainant no. 1 in Delhi and on 09.10.2013, the respondent no. 1 forcefully entered into the rented house of the complainant no. 1 situated in Delhi and tried to kidnap her and her children and also threatened the complainant no. 1 with dire consequences for which the complainant no. 1 with the help of his cousin brother made a PCR Call and reported the said incident against him in writing to the PS Sarai Rohilla with the copy of Chowky Incharge of Police Post Inderlok, Sarai Rohilla, Delhi which was duly acknowledged by the PS Sarai Rohilla, Delhi. Unfortunately, till date no action has been taken against the respondent no. 1 with the result he again dared to forcefully entered into the rented house of the complainant no. 1 situated in Delhi on 12.10.2013 and the complainant no. 1 made the call at 100 number and PCR van reached there and PCR police called the local police. The local police came to the rented house of the complainant no. 1 and arrested the respondent no. 1 U/s 107/151 CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 6/15 Cr. P.C. later on, he was released on bail.
9. It is further stated that again the respondent no. 1 forcefully entered into the rented house of complainant no. 1 situated in Delhi on 16.10.2013, again the complainant no. 1 called the police on 100 number but at that time he was managed to flee from the spot before arriving the police. It is further stated that against on 17.10.2013, the respondent no. 1 forcefully entered into the rented house of the complainant no. 1 situated in Delhi and again the complainant no. 1 clled the PCR van at 100 number. Again, the respondent no. 1 managed to flee from the spot before arriving the police. The respondent no. 1 continuously threatening on telephone to complainant no. 1 and also mailed text messages to the complainant no. 1 with dire consequences.
10. It is further stated that on 22.10.2012, the complainant no. 1 made a complaint against the respondent no. 1 for the offences committed by him towards the complainants to the SHO, PS Sarai Rohilla, Delhi with copies to the Police Commissioner, Delhi, DCPNorth, New Delhi and Chowky Incharge, Police Post, Inderlok, PS Sarai Rohilla, Delhi but unfortunately till date no action has been taken against the respondent no. 1 with the result the respondent no. 1 continuously threatening the complainant no. 1 with dire consequences. It is further stated that the parents and family members of the complainant no. 1, who has been continuously maintaining the complainants with all type of expenses like rent of accommodation, clothing, food, medical, educational fees and other expenses. On the other hand, the respondent no. 1 is earning a lot of amounts from his business and has been leading a luxurious life having all modern amenities of life at his disposal but unfortunately he has not paid a single penny to complainants to maintain them while he has not other liabilty except to maintain them. It is further stated that the complainant no. 1 has no source of income and she and her children are totally dependent upon her parents and family members, who have been maintain the complainants since complainant no. 1 has been deserted by the respondent no. 1.
CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 7/15
11. It is further stated that the respondent no. 1 being a husband of the complainant no.1 and the father of the complainant no. 2 to 5 has each and every duty, liability and responsibility to maintain the complainants and as such the complainants are entitled to be maintained by the respondent no. 1. It is further stated that the respondents who have committed offences by taunting the complainant no. 1 for not bringing dowry and amounts for them and further demanding dowry articles and also by inflicting physical and mental cruelty to the complainant no. 1. The complainant no. 1 has moved a lot of complaints against the respondent no. 1 in both police stations in Kolkata and Delhi but till date no action has been taken against them.
12. It is further stated that the respondent no.1 has no reason to deny to maintain the complainants and under these circumstances, the complainant no. 1 was left no option but to file a petition for maintenance U/s 125 Cr.P.C. against the respondent no. 1 for herself and for on behalf of the complainant no. 2 to 5 being the mother and natural guardian since they are minors, before the Court of CMM, Central, THC, Delhi on 12.11.2003. It is further stated that on 13.11.2013, the complainant no. 1 has also filed a complaint against the respondents for the offences committed by them towards the complainant to the CAW Cell, ACP Officer, PS Sarai Rohilla, which is pending for investigation.
13. It is further stated that the respondent no. 1 & 6 on 25.11.2013, threatened the complainant no. 1 not to file any complaint against them and in case she filed any complaint or any case against them, she would be ready to face the dire consequences. The respondent no. 1 wandering in the area where the complainants t present are residing and the complainant no. 1 has a reasonable apprehension in her mind that he can commit any offence towards the complainants at any time since he has earlier committed offences towards the complainants and as such restraining order not to enter the house of the complainants at presently they are residing against the respondent no. 1.
14. It is further stated that the complainants have been residing at Delhi. Part CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 8/15 cause of action also arose in Delhi and some of the offences have also been committed by the respondents no. 1 & 6 in Delhi. Hence this Hon'ble Court has jurisdiction to entertain the present petition.
15. The following orders have been requested to be passed :
(i) Protection Order Under Section 18 :
(a) prohibiting the acts of domestic violence by granting injunction against the respondents from repeating such acts of violence in future,
(b) directing the respondent no. 1 to return the jewellery and istridhan of complainant no. 1 and be restrained from destroying and misappropriating the jewellery and istridhan,
(ii) Residence Order Under Section 19:
(a) restraining the respondents from selling, alienating, disposing or creating any encumbrances in the shared household i.e. H. No. 50/B, Craig Street, Kumar Para, PS Belghoria, Kamarhati, Kolkata700058, West Bengal and depriving the complainants of their share in the shared household,
(iii) Monetary Relief Under Section 20:
(a) directing the respondent no.1 to pay Rs. 10,000/ per month each to the complainants as maintenance,
(b) directing the respondents to pay a sum of Rs. 10,00,000/ ( Rs. Ten Lacs) for causing mental and physical harassment before and after deserting the complainant no. 1 from the company and society of respondent no. 1.
(iv) Compensation Order Under Section 22 :
(a) directing the respondents to pay a sum of Rs. 20,00,000/ ( Rs. Twenty Lacs) to complainant no.1 for causing mental and physical harassment,
(v) Any other order or relief as deemed fit.
16. Vide order dated 13.02.2014, cognizance qua respondent no. 2 to 6 was declined and respondent no. 1 was directed to be summoned. The respondent appeared before the court on 25.04.2014 and expressed his willingness to contest the petition. He was directed to file reply with advance copy to the opposite party.
CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 9/15 Despite availing opportunities, he did not file reply to the petition. Thereafter, considering the conduct of respondent, right to file reply was closed and his defence was struck off vide order dated 13.08.2014. Subsequent thereto, matter was fixed for complainant evidence.
17. In support of the case, complainants have examined complainant no. 1 as CW1 and tendered their evidence by way of affidavit, which is Ex.CW1/A bearing CW1's signatures at point A & B and also relied upon documents Ex. CW1/1 to Ex. CW1/7 i.e. marriage certificate, birth certificates, medical prescriptions, rent agreement, school identity cards of complainants no. 2 to 5, complaint dated 22.10.2013 made to SHO, PS Sarai Rohilla and complaint dated 13.11.2013. Cross examination of CW1/complainant no. 1 was deferred for appearance of respondent and his counsel. They did not appear even on the NDOH, therefore, considering the conduct of respondent, cross examination of CW1/complainant no.1 recorded as Nil. Opportunity given.
18. Subsequent thereto, matter was fixed for final arguments, which were heard on behalf of the complainants. The respondent did not turn up to tender his arguments.
19. I have heard Ld. Counsel for the complainants and perused the entire record with her assistance.
20. At the very outset, it is pertinent to mention that complainant in order to be entitled to the relief under the Domestic Violence Act, 2005 is required to establish, that firstly there is a domestic relationship as defined u/s 2(f) of the abovesaid Act between complainant and respondents and thereafter it is also required to be established that she has been a victim of domestic violence as defined u/s 3 of the said Act.
Domestic relationship has been defined under the Act in Section 2(f) as under :
(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 10/15 related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
21. It be observed that testimony of CW1/complainant no.1 in this regard has remained unrebutted and unchallenged and therefore, deemed to have been accepted by the respondent. No counter claim has been made and proved during cross examination of CW1/complainant no.1. The factum of domestic relationship has also not been disputed by the respondent at any point of time. The factum of domestic relationship is further proved through documents Ex. CW1/1 and Ex. CW1/2 (colly) i.e. marriage certificate and birth certificates respectively. Accordingly, domestic relationship between the parties is proved.
22. It is also incumbent upon the complainants to establish that they have been a victim of domestic violence. The complainant no.1 has mentioned at para 06 to 31 of affidavit about various events and commission of acts of domestic violence committed upon the complainants by the respondent. The testimony of CW1/complainant no.1 as regards, the domestic violence have remained unrebutted and uncontroverted on account of failure of the respondent to cross examine her and therefore deemed to have been accepted by him. No counter claim has been made and proved during cross examination hence factum of being victim of domestic violence has been established.
23. By way of present application, complainants have prayed for protection order U/s 18 of the Act. The testimony of CW1/complainant no.1 as regards, the domestic violence have remained unrebutted and uncontroverted on account of failure of respondent to cross examine her and therefore deemed to have been accepted by him. No counter claim has been made and proved during cross examination. The complainant no. 1 has narrated many incidents in her affidavit of commission of domestic violence upon them. She has specifically stated that even after shifting at Delhi, the respondent has been indulged in committing domestic violence. The complainant no. 1 has made complaints Ex. CW1/6 & CW1/7 to the police in respect to said violences. In the given facts and circumstances, the court is CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 11/15 of the view that there is likelihood of commission of domestic violence upon the complainants even in future. Accordingly, protection order in favour of complainants is granted. The respondent is restrained from committing the acts of domestic violence upon the complainants. So far as return of stridhan, jewelery articles etc. is concerned, it be observed that complainants have not led evidence in support of their claims. Complainant no. 1 has not filed any list of dowry articles if any prepared and witnessed by the family members of the parties at the time of marriage. There is no evidence of retention of dowry articles/istridhan articles of complainant no. 1 by the respondent. Hence, no ground is made out to pass an order for return of istridhan and jewellery articles.
24. Residence Order under section 19 of the act has also been prayed. In this regard, the court is of the view that the complainants have not come up with any cogent evidence to prove their case. They have not even filed ownership document of shared household. They have also not led any evidence to the effect that house in question constitutes as shared household. No prayer to make provision for alternate accommodation or to pay rent in lieu of alternate accommodation has been made. Accordingly, the court is not inclined to pass Residence Order as prayed in favour of the complainants.
25. Now coming to Monetary relief under section 20. The complainants have prayed for payment of Rs. 10,000/ per month each as maintenance and lump sum amount of Rs. 10 Lacs. So far as payment of lump sum amount for causing mental and physical harassment is concerned, the same shall be dealt with the compensation order U/s 22 of the Act. It be observed that in respect to income of the respondent, the complainants have claimed that he is earning huge amount out of the business and leading a luxurious life having all modern amenities of life at his disposal. They have further claimed that respondent has no other liability except to maintain them. In respect to their own income, complainants have claimed to be without any source of income and totally dependent upon the parents of complainant no.1, family members and relatives. In order to show their expenses, CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 12/15 complainants have filed documents Ex. CW1/3 (colly) to Ex. CW1/5 (colly) i.e. medical prescriptions, rent agreement for the rent of Rs. 2500/ per month and school identity cards of complainants no. 2 to5.
26. It be observed that though the testimony CW1/complainant no. 1 has remained unchallenged and unrebutted but no cogent evidence has been brought on record to prove employment and income of the respondent despite claiming that he is a man of means. Accordingly, on the basis of materials placed on record, the income of respondent is assessed as per Minimum Wages Act of an unskilled worker, which is more than Rs.7,500/ pm. Having regard to the income of respondent and status of the parties and their responsibilities, respondent is directed to pay a composite sum of Rs. 5000/ ( Rs. Five Thousand only )per month in favour of the complainants from the date of filing of present petition. Payment shall be made by 10th of every month by instant money order or be deposited in the bank account of the complainant no.1. Arrears shall be cleared within 06 months. Maintenance awarded in other proceedings shall be liable to adjustment.
26. Compensation under section 22 of the Act has also been prayed. In support of the claims, the complainants have filed documents Ex. CW1/3 (colly), Ex. CW1/6 & Ex. CW1/7 i.e. medical prescriptions of complainant no.1, complaint dated 22.10.2013 & 13.11.2013. The document Ex. CW1/3 (colly) reveals that complainant no. 1 got herself medical treated on her own at Govt. Hospitals after getting beatings from the respondent on various occasions. It is clearly mentioned in the prescriptions that she was physically assaulted and beaten by her husband. The documents Ex. CW1/6 & Ex. CW1/7 also show that complainant no. 1 was forced to make complaints against the respondent to the police as and when she was harassed by him. In her examination in chief, she has specifically mentioned about many incidents of commission of domestic violence. She has specifically stated that she tried her level best to settle the matter and persuaded the respondent to treat and maintain them properly at the matrimonial house but all the efforts went in vain. She has also stated that under the compelling circumstances and owing to the torture, CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 13/15 harassment being meted out by the respondent, the complainants were constrained to shift to Delhi from Kolkata in order to lead life peacefully and to save themselves from the terror and torture of the respondent. She has also stated that even after shifting to Delhi, respondent followed them and forcefully entered their rented accommodation and tried to take the custody of children forcibly and illegally by extending threats on 09.10.2013, 12.10.2013, 16.10.2013 & 17.10.2013. The matters were reported to the police but no action was taken. From the testimony of CW1/complainant no. 1, it is clearly established on record that respondent has caused not only physical, verbal and emotional abuse but also economic abuse by depriving the complainants from economic or financial resources, which they are entitled under the law and require out of necessity, therefore they are entitled to be compensated for the injuries including mental torture and emotion distress caused in the hands of the respondent. Accordingly, respondent is directed to pay Rs. 50,000/ (Rs. Fifty Thousand Only) as compensation to the complainants.
27. File be consigned to record room after completion of necessary formalities.
28. Copy of this order be given dasti to the parties and be sent to SHO concerned.
ANNOUNCED IN OPEN COURT (MONA TARDI KERKETTA)
ON 19.06.2015 MM02:MAHILACOURTS:
THC: DELHI:19.06.2015
CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 14/15 CC No. 16/1/14 PS: Sarai Rohilla U/s 12 Dv Act Shamima Bano Vs. Shabbir Hussain & ors.
19.06.2015
Present : None for the parties.
Matter is fixed for orders.
Vide separate detailed order, the present complaint is disposed off accordingly.
File be consigned to Record Room after completion of necessary formalities.
(MONA TARDI KERKETTA) MM02: Mahila Courts THC/Delhi/19.06.2015 CC No. 16/1/14 PS Sarai Rohilla Shamima Bano Vs. Shabbir Hussain & ors. 15/15