Delhi District Court
Ms. Ruchika Gupta vs Ms. Shilpa Aggarwal on 14 January, 2019
IN THE COURT OF SH. SANJEEV KUMARII,
ADDITIONAL SESSIONS JUDGE5, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 204183/2016
In the matter of:
Ms. Ruchika Gupta,
Wife of Sh. Nitin Gupta,
D/o Shri Rakesh Kumar Jain,
R/o E163, Greater KailashII,
New Delhi ........Appellant
VERSUS
Ms. Shilpa Aggarwal
W/o Sh. Praveen Aggarwal
D/o Sh. Phool Chand Gupta,
R/o 602, I Block, Akme Ballet,
Doddanekundi, Outer Ring Road,
Bangaluru560037 .......Respondent
Instituted on : 30.04.2013
Reserved on : 05.12.2018
Pronounced on : 14.01.2019
JUDGMENT
This criminal appeal has been preferred under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (in short 'DV Act') against the impugned order dated 24.01.2012 passed by learned Metropolitan Magistrate, SouthEast District, Saket Courts, New Delhi in CC No. 179/03 (1590/1), titled as "Ruchika Gupta v.
CA No. 204183/2016 Ruchika Gupta v. Nitin Gupta & Ors. Page No.1 of 7 Nitin Gupta" whereby an application for dropping of proceedings filed on behalf of the respondent Shilpa Aggarwal was allowed and proceedings qua her was dropped.
2. I have heard arguments on the appeal advanced by appellant herself and counsel for the respondent Shilpa Aggarwal. Appellant herself has argued on the appeal.
3. Appellant has submitted that she was married with Nitin Gupta on 16.01.2005. Marriage of respondent Shilpa was solemnized on 30.06.2006 i.e. after about one and half years of the marriage of appellant. At the time of Bidaai of respondent, she (respondent) had taken her jewelleries (appellant) and same has not been returned. The respondent had taken her jewellery at the time of marriage of the respondent. Judgment passed in Harbans Lal Malik v. Payal Malik, 171 (2010) DLT 67 relied upon by the learned Trial Court is not applicable in the present case. She has relied upon the judgments namely V.D. Bhanot v. Savita Bhanot, [SLP (Crl.) No. 3916 of 2010], and Bharat Bararia v. Priyanka Bararia, CRL.MC. 4936/15 passed by Hon'ble Delhi High Court on 17.05.2017 in support of her contention.
4. Learned counsel for respondent Shilpa Aggarwal has opposed the appeal stating that no prayer against the respondent Shilpa Aggarwal has been sought in the complaint/application by the appellant. Respondent was married on 30.06.2006 and therefore, at CA No. 204183/2016 Ruchika Gupta v. Nitin Gupta & Ors. Page No.2 of 7 the time of filing of the complaint before learned trial court, she was not even residing with the appellant. There was no domestic relationship between the appellant and the respondent. As per Domestic Incident Report (DIR), appellant herself has stated that the alleged violence started w.e.f 30.06.2006 which is the date of marriage of the respondent and therefore, no domestic violence has been committed by the respondent. Identical allegations were made against the respondent in FIR No. 336/07 under Section 498A/406 IPC but she was discharged of all the charges vide order dated 01.09.2017 passed by the learned Metropolitan Magistrate and said order has not been challenged by the appellant. Learned Trial Court has rightly dropped the proceedings against the respondent while relying upon the judgment on Harbans Lal (supra). Nowadays the respondent is residing in U.S.A and not in India and therefore, there is no possibility of committing any violence. Child is in the custody of the appellant. The past relations of the respondent with the appellant was good.
5. The appellant has filed application under Section 12, 18 and 20 of the DV Act against the respondent Shilpa Aggarwal & Ors. before learned Trial Court. By impugned order, an application for dropping the proceedings moved on behalf of the respondent Shilpa Aggarwal was allowed and proceedings qua her were dropped.
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6. In respect of allegations of domestic violence against the respondent Shilpa Aggarwal, it is inter alia mentioned in para no.4 of application under Section 12 of the DV Act that on the very next day of the marriage of petitioner and the respondent no.1, Smt. Savita Gupta, Nitin Gupta, Phoolchand Gupta, Neeraj Gupta, Ruchi Gupta, Shilpa Aggarwal taunting the petitioner that she has not brought dowry, gifts, cash according to their expectation. It is also mentioned in para no.5 of the said application that thereafter, on 17.01.2005, when the brother of the petitioner came to matrimonial home to take her for custom of fera, the motherinlaw, jeth, jethani and nanad again taunting her for not bringing papers of lunary flat in Gurgaon and Rs.10 lacs more cash. It is also mentioned in para no.7 of the said application that thereafter, the petitioner was again brought to her matrimonial home but on the very next day, the motherinlaw, jethani and nanad asked the petitioner either to fulfill their demands of luxury flat in Gurgaon (Haryana) and Rs.10,00,000/ (Rupees Ten Lacs Only) more cash otherwise they will not keep the petitioner in the matrimonial home, but their demands, on the respondent no.3, 4, and 6 gave merciless beatings to the petitioner. It is also mentioned in para no.10 of the said application that thereafter, at every occasion of festivals like Holi, Diwali, Dusshera and Birthdays, Karwa Chauth etc. the brother and parents of the petitioner had given valuable articles, gifts, cash etc. which are still in the custody of respondent namely Savita Gupta, Shilpa Aggarwal and Ruchi Gupta. It is also CA No. 204183/2016 Ruchika Gupta v. Nitin Gupta & Ors. Page No.4 of 7 mentioned in para no.15 of the said application that thereafter, the entire dowry articles istridhan, ornaments jewellery, valuable clothes and dowry goods etc. have been forcible detained by the respondent nos.2, 3 and 6. Hence, there are allegations against the respondent Shilpa Aggarwal even prior to her marriage.
7. The submission of the learned counsel for respondent that there is no prayer in the application/complaint under Section 12 of the DV Act against the respondent Shilpa Aggarwal cannot be accepted because in application under Section 12 of the DV Act (FormII) it has also been prayed that order under Section 18 of the DV Act to return entire dowry articles, ornaments, istridhan, valuable clothes, cash etc. to the petitioner by the respondent may be passed.
8. In Harbans Lal Malik's case (supra) which has been relied upon in the impugned order, it has been held by the Hon'ble High Court that the domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under DV Act is filed and if, this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there.
9. In Mrs. Savita Bhanot v. Lt. Col. V.D. Bhanot, Crl.M.C. No. 3959/2009 passed by Hon'ble Delhi High Court on 22.05.2010, it was held that a petition under the provisions of the DV Act is maintainable CA No. 204183/2016 Ruchika Gupta v. Nitin Gupta & Ors. Page No.5 of 7 even if the Acts of Domestic Violence have been committed prior to coming into force of the Act or despite her having in the past lived together with the respondent a shared household woman is no more living with him, at the time of coming into force of the Act. When this Judgment was challenged in Hon'ble Supreme Court then said Judgment was upheld on 07.02.2012 in V.D. Bhanot v. Savita Bhanot, [SLP (Crl.) No. 3916 of 2010] holding that the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the D.V. Act. In Krishna Bhatacharjee v. Sarathi Choudhary & Anr., Criminal Appeal No. 1545 of 2015, Hon'ble Supreme Court had relied upon the Judgment passed in V.D. Bhanot's case (supra) and also observed that regard being had to the nature of the legislation, a more sensitive approach is expected from the courts where under the DV Act no relief can be granted, it should never be conceived of but before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised ; that before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of nonadjudication, for the DV Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence. CA No. 204183/2016 Ruchika Gupta v. Nitin Gupta & Ors. Page No.6 of 7
10. Hence, it was held by Hon'ble Supreme Court in V.D. Bhanot v. Savita Bhanot (supra) that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the D.V. Act. Hence, it can be said that learned trial court has wrongly relied upon the judgment of Hon'ble Delhi High Court passed in Harbans Lal's case (supra) and therefore, learned trial court is not correct in saying that even on the date of filing of complaint, she (respondent) was not in domestic relationship with the complainant (appellant) since she was already married in the year 2007; that since the complainant was not in domestic violence with the applicant at the time of filing of the complaint and therefore, she could not have been arrayed as respondent.
11. In view of above discussion, impugned order dated 24.01.2012 to the extent of dropping the proceedings qau respondent Shilpa Aggarwal is set aside. Appeal is allowed accordingly.
Announced in the open Court
on 14.01.2019 (SANJEEV KUMARII)
Additional Sessions Judge05
South East District, Saket Courts, New Delhi
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