Delhi District Court
Cherry Singh vs . Narender Singh Judgement Dt. ... on 6 March, 2017
Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017
IN THE COURT OF SHRI VIRENDER KUMAR GOYAL :
ADDL. SESSIONS JUDGECUMSPECIAL JUDGE03:(PC ACT) (CBI):
PATIALA HOUSE COURTS, NEW DELHI
Criminal Appeal No.22/2015
Cherry Singh
W/o Sh. Ajit Pal Singh
D/o Co. Manmohan Singh Jassal,
D4, Vasant Kunj, New Delhi110070 .....Appellant
Versus
Narender Singh
House No. 1641,
Sector64, Phase10,
Opposite SBI Colony,
Mohali160062, Punjab .....Respondent
Date of institution : 02.12.2015
Date of arguments : 04.03.2017
Date of judgement : 06.03.2017
JUDGEMENT
This is an appeal filed on behalf of the appellant under Section 29 of The Protection of Women from Domestic Violence Act, 2005, against the order dated 30.03.2015 passed by Ld. Metropolitan Magistrate.
In brief, a petition under Section 12 of The Protection of Women from Domestic Violence Act, 2005, was filed by appellant against her husband/ respondent no. 1 and against her CA No. 22/2015 Page 1 of 11 Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 fatherinlaw/ respondent no. 2, wherein she sought certain reliefs against the respondents.
During the proceedings, an application was filed for deletion of name of respondent no. 2 i.e. fatherinlaw of the appellant. It was held that the petition was not maintainable against respondent no. 2 as no relief has been sought against the respondent no. 2, so, his name be deleted from the array of parties.
After hearing, the Ld. Metropolitan Magistrate disposed of the said application and allowed the same vide order dated 30.03.2015 observing that considering the entire application, the complainant/ appellant has not levelled any allegation against respondent no. 2 and also stated that considering the domestic incident report of the protection officer, it is apparent that the respondent no. 2 has not committed any domestic violence against the complainant/ appellant and thus is deleted from the array of parties and is discharged.
This order has been challenged on various grounds alleging that from the bare perusal of the complaint it is clear that the appellant has made specific allegations against respondent no.2.
It is further alleged that the Ld. Trial Court has failed CA No. 22/2015 Page 2 of 11 Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 to appreciate the scope of The Protection of Women from Domestic Violence Act, 2005, which expressly deals with every type of violence whether economic, verbal, emotional, physical, etc. It is further alleged that the conduct of the respondent towards the appellant is covered under the definition of the Domestic Violence as defined in Section 3 of The Protection of Women from Domestic Violence Act, 2005.
It is further alleged that the Ld. Trial Court failed to appreciate that the appellant has made specific allegations against the respondent i.e. fatherinlaw that the respondent used to instigate his son to transfer the property bearing no. 2299, Jalvayu Vihar, Sector67, Mohali, in his name, in which the appellant had contributed significant amount and thereby cause economic abuse on the appellant, so the impugned order is liable to be set aside.
It is further alleged that the application of respondent no.2 for deletion of his name from the array of parties is allowed by the Ld. Trial Court without appreciating the facts of the present case.
It is further alleged that the Ld. Trial Court failed to consider the facts that the respondent no. 1 transferred the said property in the name of respondent no. 2 after the appellant was forced to leave the house, hence the said order is liable to be set CA No. 22/2015 Page 3 of 11 Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 aside.
It is further alleged that respondent no. 1 had taken a loan of Rs.10,25,000/ from Navy for the purchase of the said property and the appellant had foreclosed the said loan by paying Rs.2,60,273/ vide cheque no. 669898 dated 08.11.2008, drawn on ICICI Bank.
It is also alleged that the Ld. Trial Court failed to appreciate that the appellant had paid Rs.5 lacs through cheque for the purchase of Honda City Car, which is being used by the respondent and his son and because of which, the appellant was forced to take another car on loan and she was unnecessarily burdened with the EMI of the car loan.
It is further alleged that in view of the above submissions, the impugned order may be set aside.
I have heard Ld. Counsel Sh. Arvind Kumar Gupta for appellant and Ld. Counsel Sh. Setu Niket, for respondents.
During the course of arguments, Ld. Counsel for the appellant has contended that there are sufficient allegations against respondent no. 2 and drawn the attention of the court towards para 21, 22 and 24 of the petition, wherein allegations have been made against respondent no. 2. Ld. Counsel for appellant has further drawn the attention of the court towards CA No. 22/2015 Page 4 of 11 Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 Section 3 of The Protection of Women from Domestic Violence Act, 2005, and specifically Section 3 Explanation (1)(iv)(b), which runs as under :
"3. Definition of Domestic Violence ...................
Explanation I : For the purpose of this section, -
(i) ....................
(ii) ...................
(iii) ...................
(iv) "economic abuse" includes -
(a) ........................
(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) .........."
In support of his contentions, Ld. Counsel for appellant has also relied upon the judgement titled as "Swati vs. Arvind Mudgal, 218 (2015) DLT 729".
Ld. Counsel for the appellant has further drawn the attention of the court towards the WS filed on behalf of respondent no. 2, wherein false, scandalous and malicious allegations have been made against the appellant.
CA No. 22/2015 Page 5 of 11Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 Ld. Counsel for appellant has further contended that according to Section 25 of The Protection of Women from Domestic Violence Act, 2005, a Magistrate can only alter, modify or revocate any order if the Magistrate is satisfied that there is a change in the circumstances.
It is further contended that there was no change of the circumstances, hence, the respondent no. 2 could not be deleted from the array of parties.
During the course of arguments, it is also revealed that a civil suit has been filed by the appellant for declaration and partition in respect of the property bearing no. 2299, Jalvayu Vihar, Sector67, Mohali, wherein the appellant is seeking declaration and partition on the basis of contribution made by her. Whereas, in the petition, the appellant is seeking to restrain the respondents from alienating, transferring, mortgaging or creating any encumbrance on this property.
Ld. Counsel for appellant has further contended that according to Section 26 of The Protection of Women from Domestic Violence Act, 2005, besides filing the petition under Section 12 of The Protection of Women from Domestic Violence Act, 2005, the petitioner may also sought relief available in any other legal proceedings before the Civil Court, Family Court or a CA No. 22/2015 Page 6 of 11 Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 Criminal Court effecting the aggrieved person. So the filing of the civil suit has no bearing on this aspect.
On the other hand,Ld. Counsel for respondent no. 2 has contended that the house no. 1641, Sector64, Phase10, Opposite SBI Colony, Punjab, is not a shared household. Lastly, both the appellant and respondent no. 1 had resided at Netaji Nagar, which is also reflecting in DIR filed before the court of Ld. Metropolitan Magistrate. Certified copy of the same h as been filed before this court during the course of arguments. In support of his contentions, Ld. Counsel for respondent no. 1 has relied upon the following judgements :
(i) S.R. Batra & Anr Vs. Taruna Batra (Smt), (2007) 3 SCC 169;
(ii) Dhupender Singh Mehra & Anr. Vs. State (NCT of Delhi), 2011 (1) Crimes 520 (Del.);
(iii) Sonia Chauhan Raghove Vs. Sanjive Raghove & Ors., 2012 II AD (DELHI) 623;
(iv) Sudha Mishra Vs. Surya Chandra Mishra, 2014 (145) DRJ 566, and
(v) Razia Begam & Ors. Vs. State, NCT of Delhi & Ors., 2010 [4] JCC 2941.
A copy of the letter has been filed with the appeal on record addressed to the appellant from Air Force Naval Housing CA No. 22/2015 Page 7 of 11 Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 Board, Race Course, New Delhi. According to which, Flat No. 2299, Jal Vayu Vihar, Sector67, S.A.S. Nagar, Mohali was allotted to respondent no. 1 as per application dated 28.03.2005. Respondent no. 1 had named the appellant as nominee against the respondent. Possession of the flat was taken by respondent no. 1 on 24.01.2006. In the year 2008, respondent no. 1 requested Air Force Naval Housing Board to issue NOC for joint registration to register the flat jointly with his wife, which was issued. Later on, respondent no. 1 applied for transfer of that flat in favour of his father i.e. respondent no. 2 and Transfer Certificate was issued and presently the said flat stands in the name of respondent no. 2.
The present petitioner under Section 12 of The Protection of Women from Domestic Violence Act, 2005, was filed in the year 2014, whereas according the the pleadings, she made payment of Rs.2,60,273/ towards the final home loan payment of this property and also paid Rs.46,000/ per month installments towards the home loan of the said property. So what has been emerged from the pleadings and the arguments of the parties, is that it is a dispute of property at Jal Vayu Vihar, Mohali, which presently stands in the name of respondent no. 2.
In para 13 of the petitioner filed under Section 12 of The Protection of Women from Domestic Violence Act, 2005, it is mentioned that parents of both the parties visited Delhi and CA No. 22/2015 Page 8 of 11 Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 matter was patched up in the last hope of saving the matrimonial life. The respondent had not been providing for maintenance of the house and had often been indulging in humiliating and degrading the petitioner and writing false and defamatory mails to friends and relatives.
After going through the pleadings of the petition filed under Section 12 of The Protection of Women from Domestic Violence Act, 2005, it is revealed that the allegations have not been made specifically in the name of respondents mentioning them as respondent no. 1 and respondent no. 2, rather the word "respondent" has been used in large and somewhere the word "respondents" has been used and somewhere "respondent no. 1"
has been used. So the pleadings are not specific as to which allegation has been levelled against whom. Even the appellant has admitted in the petition that parents of the parties tried to patch up the family of the parties, which itself negates the pleadings of the appellant as made in para 21 to the extent that respondent no. 2 used to instigate and abet the respondent no. 1 to ill treat the appellant. So, this clearly shows that the respondent no. 2 has been made a party only to the extent in respect of the dispute of the property, in which the appellant is claiming her share on the basis of alleged contribution made by her.
Here in this petition filed under Section 12 of The CA No. 22/2015 Page 9 of 11 Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 Protection of Women from Domestic Violence Act, 2005, the appellant has sought interim protection only in respect of the property as referred above, whereas according to Section 26(2), the relief as referred to Sub Section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceedings before a civil or criminal court. This clearly shows that the relief claimed should be in addition to the relief, which the appellant has sought in the civil suit. Neither of the party has been able to produce the copy of the civil suit before this court and if the suit has been filed for declaration and partition, then certainly an interim application would have been filed therein. Hence, this prayer of para 29 (c) is not in addition, rather seems to be parallel to the reliefs sought by the appellant in the civil suit in respect of the property as referred above. The petition for domestic violence has been filed on 24.02.2014, whereas, the property as referred above has already been transferred on 24.01.2014 in favour of respondent no. 2 by respondent no. 1. The filing of civil suit seeking relief of declaration and partition itself shows that the property was in the name of respondent no. 1, husband of the appellant, who transferred the same in the name of respondent no. 2. According to Section 3 Explanation (1)(iv)(b) of The Protection of Women from Domestic Violence Act, 2005, the aggrieved person should have an interest in the property, is entitled to use the same by CA No. 22/2015 Page 10 of 11 Cherry Singh vs. Narender Singh Judgement dt. 06.03.2017 virtue of domestic relationship. The appellant is claiming interest in the said property on the basis of final payments made and EMI paid, which is yet to be decided by the Civil Court in the civil suit as to whether the appellant is entitled for the relief of declaration and partition or not. So, as on today there is a claim of interest only in the said property and not more than that.
In view of the above discussion, the dispute seems to be of property in between appellant and respondent no.2, which has no concern with the domestic violence, so there is no infirmity or illegality in the order of Ld. Metropolitan Magistrate. Accordingly, the appeal being meritless is dismissed.
Appeal file be consigned to Record Room.
Announced in the open court on 06.03.2017 (Virender Kumar Goyal) Special Judge03 (PC Act)/ CBIcumAddl. Sessions Judge PHC / ND : 06.03.2017 CA No. 22/2015 Page 11 of 11