Delhi District Court
Smt. Sujita Behl vs Purshotam Behl Etc on 11 July, 2013
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
Crl. Appeal No.69/11
Smt. Sujita Behl
W/o Sh Purshotam Behl
D/o Sh.Hari Singh Yadav
Now C/o Mrs. Shashi,
....Appellant
Vs.
Purshotam Behl etc.
...... Respondents
Date of Institution : 08.09.2011
Reserved for order on : 02.07.2013
Date of Pronouncement: 11.07.2013
ORDER
The present appeal U/s 29 of Protection of Women from Domestic Violence Act, 2005 has been preferred against the order dated 06.08.2011 passed by Ms. Shelly Arora, Ld. MM in case titled Sujata Behl Vs. Purshotam Behl & Ors.
2. Briefly stated the facts for giving rise to this appeal is that appellant Sujata Behl had filed complaint u/s 12 of Protection of Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 1 of 19 Women from Domestic Violence Act wherein she has alleged that she got married to respondent no.1 on 5.11.92. It was a love and intercaste marriage. The father of appellant gave sufficient dowry articles including gold and silver jewellery and other household articles. The inlaws of appellant had also given one gold necklace, ear rings, one gold ring, two gold bangles, six tolas and other articles. The dowry articles are in the possession of respondent. It is further the case of the appellant that she was taunted with remarks that she belongs to lower status of family and does not fit in his society. The marriage was duly consummated and one male child was born out from the said wedlock on 26.1.94 who is now aged about 17 and half years and still in the custody of respondents. Father in law of appellant said to the appellant that they were expecting atleast a Maruti car in marriage but her family has not given two wheeler scooter. Her Nanad also commented on this. Respondent no.4 asked her to convey the demand of maruti but when she denied, he started abusing and used filthy, defamatory and derogatory language. Thereafter father of appellant showed his inability to fulfill the said demand. It is further averred that respondent no.1 is an employee in baning sector and parallel he was also doing a business and when he suffered loss in business he asked the appellant to bring Rs.50,000/ from her father but her father only could arrange Rs.30,000/ and gave to respondent no.1. The appellant Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 2 of 19 was compelled to join some service and due to adverse condition she joined with Naveen Advertisement Company but left the said job in the year 2006 under the instruction of respondent no.1. It is further averred that after 8 years of marriage, the respondents were allotted three different flats in Rashi Apartment bearing no.127, 135 and 147. Flat no.147 was occupied by appellant and the respondent no.1. Respondent no.2 once tried to outrage the modesty of appellant and tried to kiss her to which she complaint to her husband but of no avail. She called her father wherein respondent no.3 assured that he would not enter or look toward the room. Thereafter son of respondent no.4 named Ankit Behl brought a CD and asked the appellant to view it, which was found to be a blue film. Respondent no.1 started extending threat to appellant to kill her and her family members and he purchased a revolver of Rs.66,000/for that purpose. Appellant called her father to which respondent no.1 got infuriated and pointed out the revolver towards her father. Her father brought her to his house but the said incident was not reported to the police for saving the dignity and respect of both the families. Thereafter, after a meeting, appellant again joined the company of her husband .On 6.10.07, respondent no.1 demand Rs.1,00,000/ and compelled the appellant to bring the same from her father but appellant showed inability to which respondent no.1 sat in the window of flat at 7 th floor and hanged his leg outside and only after assurance he came Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 3 of 19 down from the window. He threatened on 25.12.2007 that he will commit suicide and make her and her family liable for it by writing a suicide note. On 11.01.2008 when she refused to fulfill the demand, all the respondents gave beating with slap, kicks and blows. She was pushed of her matrimonial home and the flat was locked. On 16.1.2008 she was available at the beauty parlour of one Ms. Gunjeeta where she received call from respondent no.1 who came and took her to the flat of respondent no.3 where she they subjected her to physical beatings after bolting her in a room. She called her father but wife of respondent no3 requested the appellant and her father not to complaint to the police. It is further averred that the appellant was again thrown out of her matrimonial home and on 17.1.08 respondents requested the father of appellant not to take any action. On 26.1.08 on the occasion of birthday of her son Master Kanishk, she went to her matrimonial house but she was not entertained and she waited in flat no.148 of Mrs. Saxena. Thereafter she came back to her parents house. Thereafter with the intervention of common friends, she went to her matrimonial home on 12.2.08. On 1.3.08 appellant asked the respondent no.1 to give some amount for household expenses but he flatly refused. She requested that she had not money to buy vegetable to which she was badly, physically assaulted and she was thrown out of her house in wearing three clothes and since then she is living in her parents house. It is further Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 4 of 19 averred that appellant has not source of income as she is unemployed. Respondent no.1 is serving in Central Bank of India in the capacity of Assistant Manager and earing more than Rs.50,000/ p.m. He is maintaining two cars make Honda City and Maruti. He is under legal obligation to maintain her. She may be allowed maintenance i.e. Rs.25,000/ p.m. She also claimed amount of dowry articles. The appellant has filed application u/s 17 of Protection of Women from Domestic Violence Act and prayed that respondent no.1 be directed to allow the petitioner to enter in the matrimonial home/sharehouse hold and another application u/s 23 of the Protection of Woman from Domestic Violence Act for grant of ex parte and Adinterim order. Ld.MM heard the arguments on both the applications and vide order dated 6.8.2011, Ld. MM dismissed both the applications. Feeling aggrieved by the said order, the appellant preferred this present appeal for setting aside the said order.
3. This appeal was received by this court on 08.09.2011. Trial court record was summoned wich was received. Thereafter I have heard the arguments from the Ld. Counsels on this appeal.
4. I have heard the counsels for both the parties at length. During the course of arguments Ld. Counsel for the appellant has submitted that the Ld. MM has ignored the legal aspects of law while Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 5 of 19 passing the impugned order. It is submitted that the right of residence in the share house hold property is an absolute right and the same has been defined u/s 2(s) of the said Act and the domestic relationship has been defined u/s 2(s) of the Act. He has drawn the attention of the court on section 2(f) and drawn attention on reply dated 8.3.2010 filed before Ld.Trial court that the articles are lying in the matrimonial home/share household property and that there is domestic relationship as husband and wife as no divorce has been taken. Ld. Counsel has relied upon case law Vimalben Ajitbhai patel Vs. Vatsalaben Ashokbhai Patel, LRC 2008(2) page 89 Supreme Court, para 27 of Judgment wherein it is stated that right of residence a higher right than right to maintenance and said right extents to joint properties in which the husband of woman having a share. He also relied upon another Judgment B.D Bhanot Vs. Savita Bhanot LRC 2012 (2) Page 1 SC , para 8 wherein it is observed that protection - cum residence order - even if a wife who had share household in a past but was no longer doing so when domestic violence Act came into force would still be entitled to protection under the Act of 2005. Ld. Counsel has further relied upon case law Vandana Vs. T Srikant & Anr. (OA No. 764/2007 in CS no.548/2007 (Madras High Court) para 13,15,1,6,20,23 & 29 and stated that intention of the legislature has been shown as to why Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 6 of 19 sec.17 of the DV Act was being made for the protection of Women. Ld. Counsel has argued that respondent no.1 is the owner of the flat no.147 CGHS Ltd. Plot no.3 Sec.7, Dwarka, and both cohabited as husband and wife in the said flat and most importantly the belongings are still lying in the said flat. It is stated that the appellant had taken temporary shelter in the house of her father/brother as she was turned out of the matrimonial house and he relied upon Judgment titled Sharad Kumar Pandey Vs. Mamta Pandey, DLT 2010 (3) Crl. Pg 695, para 10.
5 Ld. Counsel has further contended that the appellant is not having any source of income to fulfill her basic needs and requirements. She is totally dependent on her father who is hardly maintaining himself from his source of income. Respondent is a man of means and serving as Assistant Manager and drawing a sum of Rs.50,000/ p.m. He is having bank balance as well as movable and immovable properties. He has Dmat account and he is earning Rs.30,000/ p.m part from his salary. He is maintaining two cars i.e Honda City bearing no. DL 3CAA 5377 and Maruti Car no. DL 6CC. He has not made any provision for the maintenance of the appellant. He has no responsibility except to maintain himself and his son Kanishk. It is submitted that the appellant is serving solely on the charity of her father while respondent no.1 is under moral, social Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 7 of 19 and legal obligation to maintain her being legally wedded wife. It is argued that the appellant has denied the allegations made by the respondent that she was engaged in the business of supplier, running beauty parlour or done courses of psychiatrist from YMCA and when such allegations have been denied it is specific that Ld.MM has erred in passing the said order. Ld. Counsel has drawn the attention of the court on the ingredients required for granting the maintenance and relied upon a case law titled Meenu Chopra Vs. Deepak Chopra DLT 2001 Vol. 92 Page 873 (Delhi High Court), Rajesh Barman Vs. Mittal Chatterjee (Burman) bearing SLP (C) No. 14183/2007 , Pradeep Kumar Kapoor Vs. Shailja Kapoor, AIR 1989 Delhi, FAO (OS) No. 139/2006 titled as Radhika Narang & Ors Vs. Karan Raj Narang & Anr. It is further submitted that the Ld. Trial court has also gone beyond the record by mentioning that appellant was not kicked from her matrimonial home while it is clearly mentioned in the application that she was thrown out on 01.03.2008 and thereafter she was not allowed to enter in her matrimonial home. He has drawn the attention of the court on para 3, sub para 2 on page no.3 of the affidavit filed by Lt. Col. Sh Shree Bhagwan, Retd.Special MM on 24.09.2010 wherein he has deposed that on 1.3.09 at about 9 a.m, the appellant was sobbing and going towards the main gate and on humanitarian ground he asked the reason for sobbing, the appellant was not able to speaking and mumming. When the said witness saw Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 8 of 19 the face of appellant, the same was bit puffy and swollen and her having the figure marks on left cheek which shows that she was thrown out of her matrimonial home. He has also drawn the attention on the inspection visit of protection officer where one lady Mrs.Saxena disclosed that appellant was not allowed to enter in the matrimonial home. It is prayed that the order passed by the Ld. MM may kindly be set aside and both the application may kindly be allowed.
6. On the other hand Ld. Counsel for the respondent has argued that the appellant was never maltreated by the respondent. She had left the company of the respondent on her own and after one and half year she again came and asked that she wanted to live with respondent. He has drawn the attention of the court on section 17, 23 and 19 of DV Act and stated that the Ld. MM has considered each and every fact of the case and passed a speaking order. It is submitted that appellant has failed to prove the domestic violence prima facie and section 17(2) is not applicable and that there should be prima facie case of domestic violence to be made out for passing interim order. It is submitted that appellant has herself left the matrimonial home on 28.2.08 and filed the complaint only after about one and half year and this clearly shows that appellant had given up living with respondent and he relied upon case law Adil Vs. Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 9 of 19 State, Crl. M.C. 4159/2009. Ld. Counsel has further submitted that the complainant has failed to lodge any complaint alleged in the complaint. It is further submitted that the report of Protection Officer is against the complainant. Ld. Counsel has relied upon a case law Vijay Verma Vs. State of NCT of Delhi & Anr Crl. M.C. NO. 3878/2009 wherein it has been observed that the relief of residence is only available to an applicant who is or has been residing with the accused/respondent in the shared household soon before filing of the complaint and relief of residence is not available to complainant who has long stopped residing with the accused and now seeking the claim of repossession, which is not maintainable. Ld. Counsel has further submitted that the appellant is a well qualified and experienced individual. She is working with an advertising company, with a school, with an air ticketing officer and now is in business of beauty parlour. He relied upon a case law Damanpreet Kaur Vs. Indermeet Juneja & Anr. 2012 (4) JCC 2375 wherein it has been observed that the applicant who is a well educated/qualified and chooses not to work on her own free will is not entitled to interim monetary compensation. It is submitted that the appellant did not bother to think about the only son, then minor who lived without love and affection of his mother and if at this stage the appellant is allowed entry in the flat, it would affect the mental development of Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 10 of 19 the son. It is submitted that the appeal may kindly be dismissed.
7. In consideration of the submissions made by both the Ld. Counsels, I have perused the provisions of the Act. The initiation of proceedings under the Protection of Women from Domestic Violence Act, 2005 is by making an Application under Section 12 of the Act to the Magistrate by an aggrieved person or any other person on his behalf or by the Protection Officer at his instance. Aggrieved Person is defined under Section 2(a) of the Act as 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. Domestic Relationship is defined under Section 2(f) of the Act as a relationship between two persons who live or lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Domestic Violence is defined under Section 3 of the Act as any act, omission or commission or conduct of the respondent which would constitute domestic violence and it is an exhaustive definition, which includes, physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. The word respondent has been defined in Section 2(q) of the Act, which means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 11 of 19 against whom the aggrieved person has sought any relief under this Act. Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
8. The reliefs provided under the Act to the aggrieved person are Protection orders under Section 18 prohibiting acts of domestic violence; Residence orders under Section 19 in relation to a shared household; Monetary reliefs under Section 20 including loss of earnings, medical expenses etc; Custody orders under Section 21 relating to children and Compensation orders under Section 22 for the injuries including mental torture etc. The power to grant interim and exparte interim orders is provided under Section 23 of the Act. Thus, it is apparent from above definition that in order to constitute domestic relationship there must have been living together in a shared household and there must be relationship as specified in Section 2(f).
9. In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, the Hon'ble Court considered the expression "domestic relationship" under Section 2(f) of the Act 2005 placing reliance on earlier judgment in Savitaben Somabhai Bhatiya v. State of Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 12 of 19 Gujarat & Ors., (2005) 3 SCC 636 and held that relationship "in the nature of marriage" is akin to a common law marriage. However, the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage.
10. In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083, this Court held that conjugal rights are not merely creature of statute but inherent in the very institution of marriage. Hence, the approach of a court of law in matrimonial matters should be "much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire". The court should not give up the effort of reconciliation merely on the ground that there is no chance for reconciliation or one party or the other says that there is no possibility of living together. Therefore, it is merely a misgiving that the courts are not concerned and obligated to save the sanctity of the institution of marriage.
11. Reverting back to the appeal, the question emerges as to whether the interim maintenance u/s 23 can be granted to the appellant and order of residence U/s 17 can be passed? As per the case of the respondent, appellant herself had left the house on 28.02.2008 as she wanted to live life as per her choice. From the Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 13 of 19 pleadings of the parties it is revealed that a child was born out from the wedlock on 26.01.1994 who is in the custody of respondent. The child was around 1314 years at the time when appellant left the house. The marriage between the parties was a love marriage and it lasted for about 14 years. The respondent is working in Central Bank of India. It is alleged by the respondent that appellant is also a working lady. But I did not find any proof on record for such work or earning anything. However, it has been stated in the complaint that earlier she has taken up certain jobs. It is evident from the medical prescription/tests that during her stay in matrimonial house she suffered from certain medical problem. After leaving her matrimonial house she made complaint to SHO regarding threatening extended by the respondent in the court when they came for counseling. The said complaints are dated 1.10.09 and 12.10.09. No doubt that the present application under Domestic Act was filed after about one and half year and during the said period she was residing with her parents. Still the appellant is residing at the house of her parents. I have perused the statement of one Kamini Saxena as well as report of protection officer. As per statement, the appellant visited her matrimonial home on 26.01.2008 but the door was not opened. Appellant remained at the house of Kamini Saxena in the night which prima facie show that the appellant was being maltreated. Flat no.147 Rashi Apartment, Dwarka is in the name of Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 14 of 19 respondent where both the parties lived in share household. There is nothing on record which suggest that the appellant is a working lady.
12. Ld. Counsel for the respondent has relied upon case case Adil Vs. State, Crl. M.C. 4159/2009 wherein it has been observed that : 'where the living together has been given up and a separate household has been established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship........'
13. In the present case in hand the situation is different. The appellant did not establish any separate household as she is living on the mercy of her parents. She is also not employed as no such proof is available on file. So, with due respect, this case law is not applicable to the present case.
14. Another case law Vijay Verma Vs. State NCT of Delhi 2010(118) DRJ 520, Damanpreet Kaur Vs. Indermeet Juneja 2012(4) JCC 2375 and Inderjit Singh Grewal Vs. State of Punjab & Anr, with Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 15 of 19 due respect are also not applicable to the present facts and circumstances of the case as the appellant is residing with her parents and she is not settled anywhere. It is a place where the appellant has taken shelter and resides temporarily. There is no divorce taken place between the parties.
15. Ld. Counsel for the respondent has contended that the appellant had left the company of respondent on her own. There seems no reason on the part of appellant that she would have done so since she is not employed in an organisation of esteem while respondent is well employed in Central Bank of India. Further it was contended that no complaint was made by the appellant. It may be kept in mind that in a society like ours, there are many situations in which a woman may not want to make complaints just to save her marriage and it is done only when the water flows over head.
16. In case Law Vandhana Vs. T Srikanth, O.A No. 764 of 2007 decided on 03.07.2007 it is stated in head note that sec.2(f)
- Right to reside ...........it is not necessary for a woman to establish her physical act of living in the shared household, either at the time of institution of proceedings or as a thing of the past - If there is a relationship which has a legal sanction, a woman in that relationship gets a right to live in the shared household - Therefore she would be Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 16 of 19 entitled to protection u/s 17, even if she did not live in the shared household at the time of institution of proceedings or had never lived in the shared household at any point of time......
17. In case law Vimalben Ajitbhai Patel Vs. Anr Vs. Vatslabeen Ashokbhai Patel & ors. Arising out of SLP (Civil) No.1061 of 2007) it is observed that Sec.17 - Right to reside in a shared household - Nature - Right of residence a higher right than right to maintenance, and said right extends to joint properties in which husband of the woman having a share.
18. In case Law V.D. Bhanot Vs. Savita Bhanot, 2012/LRCINFO/SC/82 decided on 07.02.2012 it is observed that sec.18&19 - Protection - cum residence order - Even if a wife, who had shared a household in past, but was no longer doing so when Domestic Violence Act came into force, would still be entitled to protection under the Act of 2005.
19. In case law Surinder Pal Chander Vs. Jasbir Kaur 2012(5) LRC 422 (P&H) it is observed that Sec.3 - Domestic Violence - Economic Abuse - Depriving of wife from maintenance would be economic abuse and it would amount to domestic violence Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 17 of 19 Both parties had been residing as husband and wife during continuation of their marriage and were in domestic relationship - wife is being deprived of her legal right of maintenance shall be an aggrieved person u/s 2(a) of the Act - application was very well maintainable before Magistrate u/s 12 of the Act of 2005.
20. In case law Om Prakash Vs. State of Rajassthan & Anr .2012(5) LRC 431 (Raj) it is observed in head note that Act does not require that aggrieved person must stay with offending husband - Merely because wife is not staying with husband, it would not absolve husband from his liability under the Act.
21. On perusal of the order passed by the Ld. Trial court, it is revealed that the applications u/s 17 & 23 of DV act were dismissed as Ld. MM observed that there is no domestic relationship existed between the parties. However, in the facts and circumstances of the case as well as the observations of above case laws, it can be well said that prima facie domestic relationship existed between the appellant and the respondent.
22. By way of the application, the appellant who is residing on the mercy of her parents has prayed for interim relief of maintenance and place to say in the share household. In view of my Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 18 of 19 above discussions and the observations of the case laws mentioned above, I therefore set aside the impugned order dated 6.8.2011 and the case is remanded back to the Ld.MM concerned with the direction to pass the order on both the applications afresh after taking into consideration the plea taken by the appellant in her both applications as well as in accordance with the observations of the case laws mentioned above.
23. TCR be sent back with the copy of this order and appeal file be consigned to record room.
24. Both the parties are directed to appear before the Ld. Trial court on 22.07.2013.
Announced in the Open Court on 11.07.2013.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI Sujita Behl Vs. Purshotam Behl etc C.A.No.69/11 Page No. 19 of 19