Delhi District Court
Cc No. 157/04 vs Shri Deepak Sharma on 31 March, 2012
IN THE COURT OF MS. VANDANA JAIN : METROPOLITAN
MAGISTRATE : MAHILA COURT (E) : KARKARDOOMA COURTS :
DELHI.
CC NO. 157/04
i) Smt. Rohini @ Dolly
W/o Shri Deepak Sharma,
9-6375, Central Market,
Netaji Gali, Gandhi Nagar,
Delhi
ii) Master Rishab,
S/o Shri Deepak Sharma
(A minor represented through her mother
petitioner no. 1) ....Petitioners
Versus
Shri Deepak Sharma,
R/o House No. 29/28,
Gali No. 11, Vishwas Nagar,
Shahdara, Delhi-32 ....Respondent
Nature of Petition : u/s 125 Cr. PC.
Date of Institution : 21.07.2004
Reserved for judgment : 26.03.2012
Date of judgment : 31.03.2012
JUDGEMENT
1. Brief facts of the present case are that petitioner no. 1 was married to respondent on 23.01.1999 at Delhi as per Hindu Rites and Customs and out of their wedlock one male child namely Master Rishab i.e. petitioner no. 2 was born. It is Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma further stated that respondent is young man about 30 years of age and is only son of his parents. She further stated that respondent is perfectly healthy, stout, young and he is not only capable of generating an income of Rs. 35,000/- per month or more but as a matter of fact he has been engaged in flourishing business in sanitary goods, with his seat of business lay in the heart of commercial Market in Chawari Bazar, Delhi and has also installed an industry of paint, distemper etc. at Vishwas Nagar and he is earning Rs. 40000/- per month. It is further stated that ever since the marriage of petitioner no. 1 with respondent, she had been subjected to all kinds of torture and victimization with the object of exerting pressure on her parents for more money and more valuable and whenever there was delay or silence on the part of the parents of petitioner no. 1, she was subjected to extremely cruel and inhuman oppression. She further stated that she was even stabbed once. She further stated that when she became pregnant, respondent and his parents and other family members insisted upon an abortion and to save her child, she again took refuge at the place of her parents. She further stated that delivery was arranged at St. Stephen Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma Hospital. It is further stated that respondent and his parents did not come to see the child and the entire pre-natal, natal and post-natal expenses were borne by petitioner's no. 1 parents. She further stated that respondent and his parents, sister and brother in law and other relatives conspired to finally get rid of petitioner no. 1. She further stated that on 8.4.2004, she was visited by respondent's brother-in-law, Rajeev took her to the house of the respondent on the pretext of reconciliation and she reached to the place of the respondent, kerosene was poured on her and ignited matchstick was thrown at her but she however managed to flee from the place and eventually lodged a report at the police station and subjected her to medical examination. She further stated that for the kerosene burns, she was hospitalized and placed under intensive care for nine days. Copies of her statement along with medical report has been annexed. Petitioner further stated that for the reason stated above, it became impossible to live with the respondent. It is further stated that petitioner is a housewife and incapable to generate any means for her bread and butter. It is further stated that petitioner no. 2 is a minor child and needs books, Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma school uniform and clothes etc. Petitioner has claimed maintenance @ Rs. 10000/- per month for her and 5000/- per month for the child.
2. In reply respondent has stated that he is the only son of his parents. However, he denied the fact that he is doing a flourishing business of sanitary goods in Chawri Bazar and specifically denied that he has installed an industry of paint. He also denied his income to be Rs. 40000/- per month. He further stated that he is only 12th class pass and his family members have disowned him and he is now living separately and doing a job and is earning Rs. 3500/- per month as fixed salary. The salary certificate and the rent receipts are attached. He has refuted all the allegations made by the petitioner with respect to delivery of the child and stated that all the payment of the hospital was made by the father of the respondent and from the hospital she wished to go to her parental home for some days but she did not come back despite repeated requests made by the parents of the respondent. He has further stated that soon after that she compelled the respondent to live with her in her parental home and therefore, his parents disowned him. Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma
3. Thereafter, the replication was filed. She has also denied the allegations made in the written statement and has stated that respondent is a man of means and he is running an industry in the name and style of Hindustan Chemicals of Hindustan. It is further stated that it is highly unlikely that the only son of Industrialist (Hindustan Chemicals) with a shop at Chawri Bazaar who has established clientèle all over the India gives up his flourishing business and takes to a job.
4. Thereafter, petitioner in order to support her case, petitioner got herself examined and she filed her evidence by way of affidavit and reiterated all the facts mentioned in the petition.
5. Ld. Counsel for respondent cross-examined the petitioner wherein she stated that her father and family members have spent approximately Rs. 13 to 14 lacs. She further stated that she does not remember whether any list of istridhan articles was prepared at the time of marriage which was signed by both the parties. She further stated that she does not know whether said list was attached by her with her petition or not. She denied the suggestion that the gifts and presents were given to her by her family members as per Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma prevailing customs at the time of marriage. She admitted that there was no demand from respondent side prior to marriage. She further stated that she does not know whether she has filed the hospitalisation bill of delivery of petitioner no. 2. She denied the suggestion that she has not filed any such bills on record as she is not in possession of any such bill or that no expenses were incurred upon as she got treatment under the free-ship kota at St. Stephen's Hospital. She further stated that she is 12th passed and she can read, write and understand English. She further stated that she was told that respondent is a graduate but she is not sure whether he is graduate or not. She further stated that she does not know whether copy of her criminal complaint was filed against respondent and family members in April 2004 is filed by her along with her petition. She denied the suggestion that she has not filed copy of the complaint intentionally as the contents thereof are contrary to the pleadings of the case. She further denied the suggestion that his father visited St. Stephen Hospital when she was admitted there for the delivery or that her father did not allow them even to see the child. She admitted that during the period, she had stayed Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma with respondent at Kaushambi, Jhilmil and finally at Shakarpur. She further admitted that the address of Shakarpur house is U-141, Shakarpur, Delhi and this flat is owned by her mother in law and not by her father in law. She further stated that they stayed together at Shakarpur house for about 2-2 ½ months as she does not remember exactly. She further stated that she does not have the possession of said house at Shakarpur nor her lock is there on the flat. Voluntarily she stated that the said flat was got sealed by the respondent. She further stated that her sister in law got married prior to their marriage. She further stated that she has not filed any petition for restitution of conjugal rights till date. She denied the suggestion that she has not done so as it was she who had deserted the respondent without any just cause and reason and she is living separately from the respondent without reasonable excuse. She further stated that she does not possess any property in her name. She denied that respondent was compelled by her and her family members to leave Shakarpur house. She further denied the suggestion that after shifting over to Shakarpur house she and her father put pressure on the respondent to get the Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma Shakarpur house transferred in her name or that on refusal they compelled the respondent to leave the house. She further denied the suggestion that she has not given details of expenditures incurred upon petitioner no. 2 as alleged. She further stated that her father is a property dealer. She denied the suggestion that she has joined hands with her father in his property business or that she is looking after his office or that she is earning Rs. 20,000/- per month while working with her father as property dealer. She further stated that she does not remember the exact address of shop of respondent at Chawri Bazar but it is situated in Ganpati Market, Chawri Bazar. She further stated that she had been to that shop 7-8 times during her stay with the respondent and the adjoining shop of the hardware and sanitary wares and one of the shop is M/s Balaji Enterprises and second she does not remember. She denied the suggestion that there is no Ganpati Market in Chawri Bazar or any shop in the name of Balaji Enterprises or that respondent is not running any shop at Chawri Bazar not generating income of Rs. 35000/-. She further stated that the paint and distamper manufacturing factory was situated at the ground floor of parental home of respondent at Vishwas Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma Nagar. Voluntarily she stated that they have shifted the premises. She further stated that she cannot tell where it has been shifted. She denied the suggestion that respondent has nothing to do with any factory of paint and distamper at Vishwas Nagar or that no paint factory was ever been run at the parental house of respondent. She further denied the suggestion that respondent is not earning any sum of Rs. 40,000/- from any such paint business or that her contentions are hypothetical in nature. In reply to question of ld. Counsel for respondent i.e. when for the first time she were subjected to the alleged cruelty by the respondent or his family members after marriage, she replied that it was about 5-6 months after her marriage that she was subjected to mal- maltreatment/harassment. She cannot tell the exact date. She further denied the suggestion that she is unable to tell any date as no such cruelty was ever meted out to her from respondent side. She denied the suggestion that no such incident dated 08.4.2004 had taken place or that the entire story was concocted by her in connivance with her father so as to take revenge from the respondent and his family members. She admitted that as averred in her complaint, Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma pursuant to the incident dated 08.4.2004, she was hospitalized at Hedgewar Hospital and she was discharged on the same day. She denied the suggestion that thereafter she intentionally got admitted at Garg Hospital and procured false documents for the purpose of adducing false evidence against the respondent and his family members or that she had taken away her entire belongings while leaving her matrimonial home along with respondent for rented premises. She further stated that she does not remember whether she is maintaining any saving bank A/c No. 180581 with Oriental Bank of Commerce, Gandhi Nagar. She denied the suggestion that she has not filed any case U/s 125 Cr. PC. or any complaint before CAW Cell between 03.9.2003 to 08.4.2004 as she was having no complaint against the respondent or that her parents in law have lodged various complaint against her and her parents for her misconduct and behaviour. She denied the suggestion that she has filed the present case with the purpose to harass the respondent or that respondent is employed and is getting approximately Rs. 4000/- per month or that she is deposing falsely.
6. Respondent filed his evidence by way of affidavit Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma wherein he stated that he was married to petitioner no. 1 according to Hindu Rites and Ceremony and he has been falsely implicated in the false case and she is living separately without any cause and reason. He further stated that he was disowned by his family by way of publication in daily newspaper Veer Argun on 19.11.2000 and as he was not having any other accommodation he has to live with his father. He further stated that family members of petitioner no. 1 always interfered in their married life and extended threat to implicate him in a false case and a complaint in this regard was also filed by him at PS Shakarpur. He further stated that due to persistent interference and mental torture, he left his home two times and in this regard DD No. 32-A, dated 29.10.2000, PS Gandhi Nagar and DD No. 28-A, dated 03.9.2003 PS Shakar Pur was registered. He further stated that petitioner no. 1 was given full affection and care specially during the time of her pregnancy but petitioner no. 1 adopted severe attitude towards his parents. He further stated that all the delivery expenses were incurred by his father and petitioner left the hospital without his consent at her parental home. Thereafter, she never came back at the Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma matrimonial home and compelled him to live at her father's home. He further stated that in order to save his marital life, he lived at rental house at Koshambi, Distt. Ghaziabad, UP and Jhilmil Colony, Delhi as per wishes of parents of petitioner no. 1. He further stated that when he stayed at the parental home of petitioner no. 1, he was insulted regularly. He further stated that he along with his child and petitioner no. 1 also lived at his father's home at Shakarpur. He further stated that he never refused to maintain the petitioner no. 1. He further stated that he is ready to keep the petitioners and will maintain them as per his capacity. He further stated that a false case u/s 498-A/307 IPC was filed against him and his family members and same is pending in the court of Ms. Sarita Birhal, ld. ASJ, Karkardooma Court. He further stated that petitioner no. 1 was never tortured by him and his family members. He further stated that his father also filed a complaint to DCP (East) on 07.4.2004 regarding the false case. He further stated that he was the 1/10 th partner of the firm of Shri Jaibir Singh in the name of M/s. Balaji Enterprises, Gadpati Market, Chawdi bazar, Delhi but due to family dispute he left the oral partnership. He further stated after desertion Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma of petitioner no.1, he joined M/s Krishan Kala Mineral as Sales Executive at the monthly salary of Rs. 3500/- per month but he also left the job after involvement of cases. He further stated that he has been presently working in M/s Carry Packers (Regd.) at 5/48, Gali No. 1, North Chhjupur, Delhi 94 as Sales Supervisor since 01.4.2008 and his monthly salary is Rs. 5000/- per month. He further stated that he is XIth pass. He further stated that petitioner no. 1 has deprived him and his family members from affection of his child and has ruined his life and that of his family members. He further stated that he is ready to keep his wife and child as per his capacity provided that the petitioner no. 1 takes back all the cases lodged against him and his family member.
7. Respondent was not cross-examined by the petitioner despite several opportunities granted to her. Therefore, RE was closed. Final arguments were heard.
8. In order to establish the case U/s 125 Cr. P. C., petitioner is required to prove:-
i) Relationship between the parties.
ii) Petitioner residing separately from the respondent
with any sufficient cause.
iii) Petitioner is unable to maintain herself. Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma
iv) Respondent neglects or refuses to maintain the petitioner.
v) Respondent has sufficient means to maintain the petitioner.
9. Now let us analyze the facts of the present case in view of the provisions of Section 125 Cr.P.C. as above.
10. i) Relationship between the parties The factum of marriage is not disputed between the parties. The respondent had appeared in person. However, he did not alleged that petitioner no.1 is not his legally wedded wife nor he has stated so qua petitioner no.2. Hence, relationship between the parties stands established.
11. II, III & IV Petitioner residing separately from the respondent with any sufficient cause, Petitioner is unable to maintain herself and respondent neglect or refuses to maintain petitioner.
The petitioner has stated in her petition as well as in the affidavit that she was subjected to physical and mental torture for the demand of dowry. She has also stated that the respondent alongwith his family members insisted upon the abortion during the time when she was carrying petitioner no. 2 in her womb and had had to take the help of her parents and delivery was arranged at St. Stephens Hospital and all the Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma pre-delivery expenses, delivery expenses and post delivery expenses were borne by the parents of petitioner no.1 and she has further stated that from 8.4.2004, she was taken back to her matrimonial home by the respondent's brother in law on the pretext of reconciliation. However, at her matrimonial home they tried to burn her by pouring kerosine oil, and as a result of which she suffered kerosine burns and she was admitted in Intensive Care Unit in the hospital for several days. During, her cross examination several suggestions were put to her with regard to the statement made in the petition as well as in the affidavit. She has admitted the fact that there was no demand from the respondent side prior to marriage. Though, there is a suggestion to the incident dated 8.4.2004, but the factum of petitioner visiting the matrimonial home on 8.4.2004 is not disputed as no suggestion was put in that regard. It is not the case of the respondent that petitioner never came back on 8.4.2004 to her matrimonial home and no such incident had taken place. It is further not the case of the respondent that there were no kerosene burns on the body of the petitioner. There is no suggestion to the fact that the respondent alongwith his Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma family members did not insist the petitioner for abortion and therefore the allegations stand proved and it can safely be presumed that she was forced to live separately from the respondent due to aforesaid reasons.
12. As far as the other ingredient is concerned the petitioner has categorically stated that she is an unemployed lady and has no source of income. The respondent has not been able to prove anything against her avernment either by cross examining her or either in his own evidence. From the aforesaid facts and circumstances it can safely be presumed that she is entitled to maintenance. Hence, the second, third as well as fourth ingredient for involving Section 125 Cr.P.C. stands established.
13. V) Respondent has sufficient means to maintain the petitioner.
Petitioner in her affidavit as well as in her petition has stated that respondent is engaged in a flourishing business of sanitary goods and has shop at Chawri Bazar. She has further stated that he has installed a factory of Paint and distemper etc. at Vishwas Nagar and is earning Rs. 40,000/- per month from both the business. The said averments were categorically denied by the respondent in his written Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma statement and stated that he is earning only Rs. 3500/- per month by doing a job as he was disowned by his parents vide a general publication in local newspaper. Petitioner in her cross examination has denied the suggestion that there is no Ganpati Market in Chawri Bazar or any shop in the name of Balaji Enterprises and the respondent is not running any shop at Chawri Bazar or is not generating the income of Rs. 35000/-. She further stated that she does not remember the exact address of the shop but the same is situated in Ganpati Market, Chawri Bazari. She further stated that she had been to shop 7-8 times during her stay with the respondent. She further stated that the adjoining shops are of hard ware and sanitary wares and one of the shops is M/s Balaji Enterprises and second one she does not remember. She further stated that paint and distemper manufacturing factory was situated at the ground floor of parental home of the respondent at Vishwas Nagar, Delhi. She further voluntary stated that they have shifted the premises, but she cannot tell where it has been shifted. It is pertinent to mention here that the respondent tendered his evidence by way of his affidavit. Though he was not cross examined by counsel for petitioner Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma and the affidavit of respondent has remained unrebutted and uncontroverted. In his affidavit respondent has stated that while he was staying with the petitioner away from his parents he was a partner in M/s Balaji Enterprises, Ganpati Market, Chawri Bazar had 1/10th share as per the oral partnership and due to family problems he could not do the work and suffered losses and the partnership came to an end. He further stated after petitioner no.1 left her home he started working as a sales executive in M/s Krishankala Minerals and earn Rs. 3500/- as salary and he also left the same due to several cases pending against him. He further sated that since 1.4.2008, he worked as Sales Supervisor at a salary of Rs. 5000/- per month at M/s Carry Packers at 5/48, Gali No.1, North Chhajjupur, Delhi. All these averments remained unrebutted and uncontroverted. Though it is a settled proposition that what ever is not put to cross examination to the witness, those facts are presumed to be proved except when they are subjected to certain inherent improbabilities. When a witness is not cross-examined it can be safely presumed against the accused that whatever the witness stated was true. The only exception to this rule is in case Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma where what is stated by the witness and even if believed to be true contains inherent probabilities. Reliance placed on Ganesh Jadav Vs. State of Assam 1995 Crl.L.J. 3748. However, in the present case it is noticed that the respondent filed his written statement on 27.10.2004 as reply to the petition U/s 125 Cr.P.C. wherein he specifically denied that he was doing any business of Sanitary Goods, at Chawri Bazar, and he simply stated that he was earning Rs. 3500/- per month as fixed salary. He chose to remain silent regarding the 1/10th share in M/s Balaji Enterprises, Chawri Bazar as per the oral partnership which he himself averred in his affidavit subsequently. It is further important to mention here that during the cross examination of petitioner, Ld. Counsel for respondent put a specific question to the petitioner that there is no Ganpati Market in Chawri Bazar or any shop in the name of Balaji Enterprises or the respondent is not running any shop at Chawri Bazar, which the witness denied.
14. After cross examination of petitioner, affidavit of respondent was filed wherein all the aforesaid avernments were made regarding his partnership in Balaji Enterprises, Ganpati Market, Chawri Bazar which clearly shows that he at Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma one point of time remained as a partner in a shop at Chawri Bazar and he deliberately chose to remain silent in his written statement therefore, the factum of not cross examining the respondent by the petitioner would not help the respondent much as the affidavit suffers from various improbabilities by taking one stand at one place and a different stand at another place. The respondent cannot be allowed to blow hot and cold at the same time. He at one time cannot say that there is no Ganpati Market and at another place he says that he was a partner at one shop in Ganpati Market, Chawri Bazar. In view of the discussions made above, I am of the view that no benefit can be given to the respondent with regard to his testimony being unrebutted and the averments made in the affidavit of the respondent cannot be presumed to be proved. From the aforesaid discussion, it can be gathered that respondent had tried to conceal as to what he is actually doing and he has given three different versions. He has stated that he was working as a partner and thereafter he has worked as a sales executive in M/s Krishankala Minerals and thereafter he has been working as a Sales Supervisor in M/s Carry Packers and is earning Rs. 5000/-. None of the Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma avernments can be taken to be true. He has also stated that his father has disowned him vide a general publication in local newspaper. However, no such document has been placed on record and has not been exhibited and therefore this averment cannot be taken to be true. In these circumstances, and keeping in view the nature of work the respondent was doing at the time when the petitioner left the respondent, the income of respondent is assessed to be Rs. 15000/- per month. Therefore, it stands established that respondent has sufficient means to maintain the petitioner and petitioner and her minor son are entitled to maintenance U/s 125 Cr.P.C.
15. Conclusion & Relief Keeping in view the observations made above and keeping in view assessed income of respondent to be Rs. 15000/- per month, I am of the view that the family cake is to be divided into four portions, out of which two portion is to retained by the earning spouse and remaining two portions are to be divided amongst two petitioners. It is pertinent to mention here that order of interim maintenance has been passed in favour of both petitioners in the present case. Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma
16. Keeping into account backdrop of observations made above, respondent is directed to pay maintenance to petitioners no.1 @ Rs. 3750/- per month from the date of order till the date of re-marriage/life time and to his minor son @ Rs. 3750/- per month from the date of order till attaining majority or till the time law otherwise permits. Any other payment made shall stand adjusted. File be consigned to record room after necessary compliance.
Announced in the Open Court (Vandana Jain)
On 31.3.2012 MM/Mahila Court (E)
Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma
CC No. 157/04
31.3.2012
Present: None
Vide separate judgment passed today, respondent is directed to pay the maintenance to petitioners no.1 @ Rs. 3750/- per month from the date of order till the date of re-marriage/life time and to his minor son @ Rs. 3750/- per month from the date of order till attaining majority or till the time law otherwise permits. Any other payment made shall stand adjusted. File be consigned to record room after necessary compliance.
(VANDANA JAIN ) MM/Mahila Court (E) 31.03.2012 Case No. 157/2004 Rohini @ Dolly Vs Deepak Sharma