Delhi District Court
Jasmine Chawla vs . Sinjiv Singh Chawla & Others on 11 June, 2010
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IN THE COURT OF Ms. VEENA RANI METROPOLITAN MAGISTRATE
PATIALA HOUSE COURTS, NEW DELHI.
IN RE :
Jasmine Chawla v. Sanjive Singh
Chawla & others.
Complaint under the Protection of women from Domestic Violence Act,
2005
P.S.- Vasant Kunj.
THE ORDER
1. The present complaint u/s. 12 of the Protection of women from Domestic
Violence Act, 2005 has been filed on 27th March 2010 by Mrs. Jasmine Chawla :
Sh. Sanjive Singh Chawla (husband is R-1); Dr. Lal Singh (father-in-law is R-2) ;
Smt. Matawati (mother-in-law) (R-2), Mrs. Satwant Kaur (Mother-in-law is R-3);
Dr. Amarjit Singh (brother-in-law is R-4); Rishu Chawla (sister-in-law is R-5);
Arunjit Kaur (sister-in-law is R-6); and R.S Sachdev (brother-in-law is R-7). The
Protection of women from Domestic Violence Act, 2005 would be referred as
the Act, 2005.
2. By way of this petition the following orders have been sought :
i. The protection orders u/s 18 of the Act, 2005;
ii. The residence orders u/s 19 of the Act, 2005;
iii. The monetary relief u/s 20 of the Act, 2005;
iv. The compensation and damages u/s 22 of the Act, 2005;
v. The interim order u/s 23 of the Act, 2005;
3. The complainant-wife has specifically asked for the following monetary relief(s):
i. Rs.50,000,000/- (Rupees Five Crore) towards damages for the
injuries including the emotional distress & mental torture etc.;
ii. Rs.15,00,000/- (Rupees Fifteen Lakh) per month as interim
maintenance.
Jasmine Chawla Vs. Sinjiv Singh Chawla & others
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4. By way of the present order I shall dispose of the interim order(s) as deemed
necessary under S.23(1) of the Act, 2005.
5. The applicant-aggrieved has averred in the application that she was married to
the respondent R-1 on 27.11.1994 and ever since has been undergoing
maltreatment in the hands of the respondents. There had been dowry demands by the respondents. The applicant-aggrieved is having custody of two minor children Mahar Chawla & Bakshish Chawla. The applicant has averred incidents where she had been allegedly subjected to the domestic violence. The respondent No.1 had remarked at the time of the honeymoon that he had had relations with a girl called Harpreet and that it would be difficult for him to forget the said lady. At the time of the first and the second pregnancy the R-1 to R-3 never took good care of the applicant-aggrieved. In the year 2006 when the practice of the R-1 increased many-fold his nature turned more aggressive and violent. Since the year 2007 the respondent R-1 has neglected the applicant. The respondent R-1 often used filthy and abusive language. The respondents R-4 & R-5 often taunted the child of the applicant who had a stammering problem. In the month of Feb-March 2007 the wife of the cousin of R-1 expired. The parents of the applicant-aggrieved wanted to join for the condolence and wanted to know the address where would the mourning assembly gather. The respondent R-1 declined to tell the address saying that there was no need for them to come as he had no relation with them and the applicant-aggrieved. The respondent R-1 also did not allow the applicant-aggrieved to visit her ailing grandmother in Feb. 2007. On another occasion when the parents of the applicant had gone to resolve the issues they were treated badly. On 16.05.2008 it was the occasion of the birthday of the respondent R-1 and everyone had brought gifts for him. However, the gifts brought by the applicant-aggrieved and her children were ignored and the gifts brought by others were appreciated. On 16.08.2008 the respondent No.1 left Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 3 of 14 the company of the applicant and on 26.08.2008 he sent the notice for divorce to her. On 27.08.2008 the respondent R-1 coerced the applicant to sign the gift deed regarding her share in the house No. B-3 Geetanjali Enclave if she wanted the respondent R-1 to withdraw the divorce petition. The applicant signed the gift deed however, the divorce petition was not withdrawn. Thereafter the applicant and her two minor children started staying at the Gautam Nagar house.
6. The applicant-aggrieved has also averred that the respondents wanted to keep her away from the two houses i.e Gautam Nagar House ; and the Geetanjali Enclave house. In order to give shape to such a conspiracy the applicant was persuaded by the respondents that if the applicant shifted to a rented accommodation at Vasant Kunj then things would improve. The applicant fell in the trap and shifted along-with her two minor children to the rented accommodation at Vasant Kunj which was a small two bedroom accommodation. Despite such shifting the things never improved and on 31.03.2009 the respondent gave a statement in the Court of the ADJ that he did not want to live with the applicant. As far as the gift deed regarding the Geetanjali Enclave House was concerned the Hon'ble Delhi High court in the Civil Suit No. 04/2009 had retrained the respondent R-1 from alienating or creating third party interest in the said house. The applicant-aggrieved has averred that the respondent R-1 owns various movable and immovable properties and is said have an earning of Rs.1 Lakh per day. The details of the various movable and immovable properties are given by the applicant in her application. The application has been supported by an affidavit.
7. An objection has been raised with respect of the 'format' of the application u/s 12 of the Act, 2005. The respondents have argued that the applicant has not adhered to the 'technical requirements' under the various provisions of the statute. In this regard it would be relevant to consider the provision of Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 4 of 14 S.12(1) and S.12(3) of the statute which state that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act. Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
8. In "Milan Kumar Singh v. State of U.P." 2007 CRI. L. J. 4742 it was observed by the Hon'ble Allahabad High Court :
"the words "as nearly as possible thereto" appeared in Section 12 (3) of the Act and Rule 6 both. This is the social legislation and purpose of the Act is not to create hurdle before the aggrieved person in filing the complaint, but Form has been prescribed in the Rules, only to facilitate filing of complaint so that it may contain all necessary particulars for decision of the case. If any complaint is drafted in such a manner with all necessary particulars and usual information required by prescribed Form are contained therein, that cannot be said to be a bad complaint in the eye of law. The Form prescribed by the Act is nothing else, but proper forum and facility given to the complainant for placing all relevant facts before the court concerned. The Legislature was very much aware of this fact, that is why both in Section 12 and Rule 6, the words "as nearly as possible thereto" have been mentioned. The intention of the Legislature was not at all to reject the complaint for not filing in prescribed Form II."
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9. In view of the provisions of law and its meaningful interpretation it would be prudent to hold that a provision has to be construed in order to advance its 'objective & purpose which in the Act, 2005 happens to be 'more effective' protection of the rights of women'. Therefore the contentions on part of the respondents regarding the 'technical requirements' are without merits.
10. The respondent No.1 has filed the reply to the application u/s 23 of D.V. Act and has stated therein that the applicant-aggrieved had given a different version on the facts in her reply during the divorce proceedings. The applicant-aggrieved does not have right of residence in the Geetanjali House residence for the reason that she had abandoned the company of her husband on her own free will and also for the reason that the matter related to the said property is sub-judice. According to R-1 the applicant-wife had been inflicting cruelty on him and his family members. The applicant is said to well qualified and is to be earning Rs.20,000/- per month. The respondent R-1 is a homeopathic doctor and never wanted to commercialize it. The facts as averred by the applicant- aggrieved in her main petition have been denied by the respondents No.1. The respondent No.1 has denied that he earns RS.1 Lakh per day.
11. As far as the issue of the premises at B-3 Geetanjali Enclave is concerned it is the matter of records that a case No.04/2009 is already pending before the Hon'ble Delhi High Court. In the present case the situation is that the respondent-husband is residing at B-4 Geetanjali Enclave alone and there exists a restrain order dated 01.05.2009 passed by the Hon'ble Delhi High court thereby restraining the husband herein from selling, alienating, encumbering or creating any third party interest with respect to the Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 6 of 14 property subject matter of the gift deed aforesaid. The Hon'ble Delhi High court was apprised of the fact that the respondent-husband herein alone is in possession of the aforesaid second floor and the Hon'ble High court was also pleased to observe that the respondent-husband is also restrained from parting with possession of the said second floor to any other person. That being the position the prayer of the applicant-aggrieved of seeking possession of the said premises cannot be granted as the subject issue is already sub- judice in the Hon'ble Delhi High court.
12. It would be relevant to mention that the main allegations of the domestic violence has been against the respondents No.1 to 3. As far as the other respondents i.e. R-4 & R-5 are concerned there happens to be no specific allegations against them. The marriage had occurred in the year 1994. This long period though does not bar the filing of the present complaint corrodes the role of the respondents No. R-4 to R-7. It is due to the said reason that the incidents attributed to the said respondents No. R-4 to R-7 does not come up distinctly. It would also be relevant to mention that there happens to be no specific allegations against the respondents R-6 & R-7. In fact the main application u/s 12 PWDV Act, 2005 the paragraph No. 21 at page 15 discloses that on one occasion the respondent R-6 had given a patient hearing to the applicant-aggrieved on telephone and also assured the applicant that she would to talk to the R-1. There happens to be no allegation against the respondent R-7.
13. As far as the role of the respondents R-5 & R-6 is concerned the main application avers that the said two respondents have been instrumental in having the criminal cases registered against the applicant-aggrieve. It is an established principle of law that having recourse to the appropriate authorities Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 7 of 14 cannot be termed as a domestic violence. The reason is that mere having the recourse of law is not violence against anyone. The remedy lies in the law itself. The averment of the applicant that all the respondents were instrumental in coercing her to sign the Gift Deed pertaining to the Geetanjali Enclave House gets diluted against the other respondents since they have not been impleaded as the necessary parties in the suit before the hon'ble high in the suit No. IPA 04/2009. Accordingly the names of the following respondents are deleted from the array of the respondents :
i. R-4 : Dr. Amarjit Singh (brother-in-law);
ii. R-5 : Rishu Chawla (sister-in-law) ;
iii. R-6 : Arunjit Kaur (sister-in-law); and
iv. R-7 : R.S. Sachdev (brother-in-law).
14. The applicant-aggrieved is directed to file the fresh array of respondents.
15. Now I proceed to deliberate on the aspect of the interim monetary relief claimed by the applicant-aggrieved. The whole scheme of the PWDV Act, 2005 revolves around and addresses the menace of 'domestic violence. The first three paragraphs of the statement of object and reasons under which the Bill No. 116 of 2005 for passing the act was placed before the Parliament, are as under (published in the Gazette of India Extraordinary Part II Section 2 page 22 dated 22nd August, 2005) :-
I. "Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 8 of 14 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
II. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
III. It is, therefore, proposed to enact a law keeping in view the
rights guaranteed under Articles 14, 15 and 21 of the
Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society."
16. In a report "The Battered Women's Justice Project, Civil Office" by Christine Thomas (Staff Attorney, BWJP Civil Office, June 2004) it was stated that effective strategies to end violence against women must include strong measures that promote economic security and restitution for survivors. Many women are compelled to stay in abusive relationships or return to their batterers because of financial constraints and economic concerns. Moreover, protection order proceedings are an appropriate and necessary venue to address the economic injustice that often characterizes domestic violence. It is pertinent to acknowledge that even in the most developed countries like the USA there are strong economic provisions for the women. For instance, child support and/or temporary spousal maintenance awards are specifically Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 9 of 14 authorized by most state statutes; typically, these forms of emergency financial support to survivors and their children can be obtained in protection order proceedings. The report by Christine Thomas concluded with the remarks:
"Because economic dependence and severe financial stress on abused women can so acutely impact a survivor's choice to stay or leave an abusive relationship and because economic abuse by batterers is often an aspect of the power and control over their lives, stronger legal advocacy for economic safety and restitution is important to the economic empowerment of battered women and the goal of assuring that women may live free of violence and oppression by their intimate partners. The economic relief available through a protection order may be an essential temporary mechanism to ensure safety and promote economic justice for the survivor."
17. The PWDV Act,2005 is a legislation aimed at strengthening the economic independence of a woman and therefore includes the aspect 'financial deprivation to the women' in the category of 'economic abuse'. Economic abuse can manifest itself in many different ways, and abusers can victimize their partners even after they have left the abusive relationship. According to a research "Abuse in Intimate Relationships : Defining the Multiple Dimensions and Terms. National Violence Against Women Prevention" by Vera E. Mouradian, PhD. Batterers control victims' finances to prevent them from accessing resources, working or maintaining control of earnings, achieving self- sufficiency, and gaining financial independence.
18. The PWDV Act, 2005, has perceived that a woman needs 'economic' contribution from her husband in the light of 'domestic violence'. For the courts it is imperative to see that what are the sources of income by which an Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 10 of 14 aggrieved woman could adequately maintain her and bear the cost of litigation. The term Maintenance as defined in the Advanced Law Lexicon, 3rd Edition 2005 as published by Wadhwa Nagpur includes in all cases, provision for food, clothing, residence, education and medical attendance and treatment. As per Bouvier Law Dictionary Maintenance is also the means of subsistence, supply of necessaries & conveniences; aid, support, assistance; the support which one person who is bound by law to do so, gives to another for his living.
19. At this stage I only need to look at the question whether or not a prima facie case for an 'interim measure' is made out. The contentious issues could only be decided when the cogent evidence come on record. At the moment I need to deal what 'urgent' orders are required to be passed under the Act, 2005. The question is whether an earning woman too can claim the 'monetary relief'. Here I would emphasize the significance of the term "monetary relief" as defined in S.3(k) of the said Act. This term "monetary relief" means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence connected therewith or incidental thereto. The practical approach would be to prima facie see the averments. The thrust of the consideration remains the 'domestic violence'. Yet the court has to 'look-into' without being decisive.
20. For computing maintenance the following test have been laid down by the Hon'ble Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors., 1997 (7) SCC 7, wherein it has been observed thus :
'No set formula can be laid for fixing the amount of maintenance. It Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 11 of 14 has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."
21. The respondent-husband (R-1) has averred that he has no fixed income and charges a meager fees from his patients. The said R-1 has avoided disclosing a particular sum of the monthly earning. The applicant-aggrieved has categorically provided with the details of the moveable and immovable properties of R-1. It is also an admitted matter that the respondent R-2 who is the father of R-1 also happens to be a homeopathic practitioner. The denials with regard to the properties and the monthly income of the respondents R-1 & R-2 seems obscure at this stage. I am not commenting on the merits of the case as the same would require cogent proof, nonetheless at this stage I need to gauge the circumstances as they appear on the face of it. The perusal of the documents suggest that the respondent R-3 happens to be the proprietor of Dr. Lal's Expertise which is into the trading of the Homeopathic & Herbal Medicine. The respondent R-1 had filed the income-tax returns of the previous years before the HMA court but no income-tax returns Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 12 of 14 have been filed in this court. The copy of the income-tax returns filed by the applicant-wife which after the deductions depict her total annual income of around Rs.1.4 Lakh. The monthly income a little above Rs.11,000/- (Rupees eleven Thousands). It is settled principle that an earning wife would not necessarily be debarred from having monetary benefit. It is also a matter of record that the applicant-aggrieved has sued her husband as an indigent person under Order 33 of the CPC in the Hon'ble Delhi High court. It cannot be overlooked that the applicant aggrieved is bringing up two growing children. The children are the worst sufferers of the family disturbances and the monetary relief is indispensable keeping them in mind.
22. The Law commission of India in its 83rd Report has linked the aspect of the 'welfare of child' with the famous tale of King Solomon who decided matter of 'maternity' on the basis of psychological instinct. The Law commission of India in its 133rd Report has observed that bringing up of a child, providing the emotional and physical needs of a child and building up the personality and inner world of a child is the obligation and responsibility of both the parents. It is as much the duty of the father as that of the mother. The welfare of the child is of paramount consideration. The interpretation in favour of a child thus has to be construed accordingly. In an article "HOW BROKEN FAMILIES ROB CHILDREN OF THEIR CHANCES FOR FUTURE PROSPERITY" (No. 1283 June 11, 1999) the author PATRICK F. FAGAN has written that broken families earn less and experience lower levels of educational achievement. Worse, they pass the prospect of meager incomes and family instability on to their children, making the effects intergenerational. It has been acknowledged by the psychiatrists that the child from a broken family carries the burden of : Deep Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 13 of 14 Hurt; Anger & Bitterness; Guilt; Shame & Inferiority; and Low Self Esteem. Such a child is caught between the cross-fire as there is a tendency (sometimes unconsciously) for each of the parents to want to project themselves to be the innocent party. By doing so, however, they often have to "cut" the other person down so as to make themselves look good. The child begins to get a piece of the action and becomes involved in this unpleasant war. Children with such experiences often report a deep sense of resentment. Some may also feel guilty. They feel that they have contributed actively to the marriage breakdown. At the moment I can only wish that the couple reunites for the sake of their children.
23. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the light of the evidence adduced in the present case the financial status of the respondent comes out to be to be more affluent in terms of means & the assets.
24. In view of the background of the Act, 2005 and appreciating that the Act, 2005 is essentially characterized by the 'gender-disposition' towards the women I am less hesitant to hold that the applicant-wife Jasmine Chawla Vs. Sinjiv Singh Chawla & others Page 14 of 14 does deserve some 'monetary relief'. Keeping in view the facts and the circumstances of the case the respondent-husband is directed to pay Rs.60,000/- (Rupees sixty thousand ) per month to the petitioner. The said maintenance would be over and above the rent that the respondent R-1 would continue to pay. In the eventuality that the applicant-aggrieved is compelled to vacate the house by the due process of law the respondent R-1 shall make arrangement for her reasonably suitable accommodation. It is again made clear that the monthly maintenance of Rs.60,000/- (Rupees sixty Thousand) per month shall remain over and above the monthly rent of the accommodation payable by the respondent husband. The monthly said maintenance of Rs.60,000/- (Rupees sixty thousand) per month apart from the monthly rent for the accommodation of the applicant herein shall be attributable to the respondents R-1 to R-3 jointly and severally.
25. The present application is disposed of accordingly and the same shall not be construed as a comment on the merits of the case.
Announced in the open court on 11th June 2010.
(VEENA RANI) METROPOLITAN MAGISTRATE MAHILA COURT : SOUTH DELHI.
Jasmine Chawla Vs. Sinjiv Singh Chawla & others