Delhi District Court
Ca No. 40/2019 Kirorimal & Ors vs . "S" on 3 July, 2023
CA No. 40/2019 Kirorimal & Ors Vs. "S"
IN THE COURT OF SH. GAUTAM MANAN,
ADDITIONAL SESSIONS JUDGE-02
SOUTH-WEST, DWARKA COURTS, DELHI
CNR No. DLSW01-001029-2019
In the matter of:-
1. Kirorimal
S/o Sh. Ramphal
R/o Village Kilhorad, P.O. Sandal Kalan,
District Sonepat, Haryana.
2. Ramphal
S/o Sh Maya Chand
3. Sona Devi
W/o Sh. Maya Chand
Both R/o H.No.-1251/31,
Pragati Nagar, Near Chotu Ram Chowk,
Gohana Road, Sonipat, Haryana
4. Ram Niwas
W/o Sh. Ramphal
R/o H.No.-1662, Sector-23,
Sonepat, Haryana. ... Appellants
Versus
"S"
W/o Sh. Kirorimal
D/o Sh. Hari Ram
R/O RZ-125, Block-A, Phase-IV,
Prem Nagar, Najafgarh,
New Delhi-110043 ... Respondent
Order on Appeal Page 1 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
Date of institution 21.01.2019
Judgment reserved on 29.05.2023
Judgment pronounced on 03.07.2023
ORDER
1. Appeal is preferred under Section 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as DV Act) challenging judgment dated 21.12.2018 of Ld. MM (Mahila Court-03), South-West Dwarka, in case titled as "S" Vs "K" & Ors." bearing CC No. 4999154/16 Brief facts of the case
2. On 25.11.2020 respondent filed an application under Section 12 of DV Act on averments that she married appellant no. 1 on 19.11.1999. Two children Khushi and Mannu were born out of the said wedlock. Parents of respondent gave cash, gifts, gold & silver jewellery weighing about 7 tolas to the appellants,. Approximately Rs 3-4 lakhs were spent on the marriage of respondent.
Order on Appeal Page 2 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
3. After the marriage, respondent was harassed for want of dowry and on many occasion she was locked in a dark room by the appellants. Signatures of respondent was also obtained by them on a blank paper and she was threatened to be beaten if she didn't obey instructions of appellants. Appellants used to put respondent in fear by telling her that they have burnt their daughter-in-law.
4. Respondent alleged that at the time of delivery of first child, she was beaten mercilessly by the appellants. Her condition became serious and she was sent to her matrimonial home for her better treatment. Thereafter respondents came to the house of father of respondent with panchayat and took her back to her matrimonial home with the assurance that they will not repeat such kind of wrong act with the respondent in future.
Order on Appeal Page 3 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
5. Respondent averred that she again got pregnant and the respondents were warned by the Doctor that the she was not in a condition to give birth to the second child and if she would give the birth to the child then her life as well as baby's life would be in danger but appellants refused to act on advice of Doctor instead they got an Insurance Policy of the respondent in hope that respondent would die and appellants would get the insured amount.
6. Respondent stated that all the medical expenses incurred for the birth of child were brone by her parents and thereafter respondent went to her parental house. Again appellants no.1 & 2 went to the house of the father of the respondent with panchayat to bring her back to her matrimonial home but respondent refused to go back because she knew that her life as well as the life of the children was not safe in her matrimonial house but panchayat including Order on Appeal Page 4 of 22 CA No. 40/2019 Kirorimal & Ors Vs. "S"
appellants no.1 & 2 again gave assurance that they would not demand any money and would not harm respondent and her children in future. On their assurance, respondent came back to her matrimonial home with her children.
7. Respondent alleged that thereafter again appellant no.1 along with his family members started to beat respondent for want of money. Respondent was badly beaten by them and she fell unconscious due to the beatings. When her parents came to know about the same they rushed to matrimonial home of respondent and seeing her condition, on 15.03.2007, they brought her back along with her children to their house. Parents of the respondent also made a complaint before concerned Police Station on 16.03.2007.
8. Respondent averred that she remained bed-ridden from 15.03.2007 and she remained un-well. Her father spent Order on Appeal Page 5 of 22 CA No. 40/2019 Kirorimal & Ors Vs. "S"
approximately Rs. 30,000/- to Rs.40,000/- on her treatment. Thereafter respondent gave a written complaint before C.A.W. Cell Dwarka and a case Under Section 498A/406 IPC was registered at police station Najafgarh vide FIR No. 691/07 against appellants. Respondent was not left with no other option except to leave the company of the her husband due to danger to her life in his company.
9. Respondent submitted that appellant no.1 is contractor and is earning Rs. 40,000/- (Rupees Forty Thousand only) per month that is Rs. 20,000/- each from his work and from his movable & immovable properties whereas respondent is an unemployed lady and having no source of income and she is fully dependent upon the mercy of her parents and other close relatives for fulfilling her and her children's needs and requirements.
Order on Appeal Page 6 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
10. Appellants contested the application of the
respondent by filing their reply. Appellants denied the allegations made against them by the respondent and stated that when the adulterous act of respondent was caught, she left the company of her husband and filed false complaints against him and his family members.
Evidence
11. In order to prove her case respondent examined herself as CW1 and her father as CW2. Respondent tendered her evidence by way of affidavit Ex. CW1/1 and proved her medical record as Ex CW1/A, B & E, copy of FIR Ex CW1/C which was registered under Section 498A/406 IPC and copy of police complaint as Ex CW1/D.
12. CW2 Hari Ram tendered his affidavit Ex.CW2/1 in his evidence in which he deposed on the lines of his daughter. Order on Appeal Page 7 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
CW-2 in his cross examination stated that complainant was beaten in his presence also by the appellant no.1.
13. In defense appellant no.1 examined himself as RW1 and RW2 Jai Bhagwan, from Food inspector at Supplies Department, Haryana. Appellant no.1 Kirori Mal, tendered his affidavit Ex.RW1/A in his evidence wherein he reiterated the contents of his reply to the application of the complainant u/s 12 of DV Act. Appellant relied his medical record as Ex. RW1/1, a family settlement deed as Ex. RW1/2, a cutting of newspaper as Ex. RW1/3 and Ex.RW1/4 his ration card.
14. RW2 Jai Bhagwan Inspector at Food and Supplies department, District Sonepat, Haryana proved the ration card issued in 2005 bearing no. 484368 which is having the names of appellant no.1 and respondent.
Order on Appeal Page 8 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
15. After hearing rival contentions Ld. Trial Court passed the impugned judgment.
Impugned Order
16. Vide impugned order, Ld. Trial Court awarded maintenance to the tune of Rs. 4000/- per month in favor of respondent and Rs. 4000/- per month each in favor of the children of the parties from date of filing of the petition till the children attain the age of majority to be paid by appellant no.1 to be paid before 10th of each calendar month. Ld. Trial Court also directed appellants to pay respondent compensation for a sum of Rs. 3,00,000/- for the harassment and torture meted to her by the appellants. Grounds of Appeal
17. Impugned order is challenged by appellants on the ground that Ld. Trial Court failed to appreciate that the appellants no. 2,3, and 4 were discharged on the basis of the same allegations in FIR No.691/07, U/s 406/498A. Order on Appeal Page 9 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
18. Appellants stated that Ld Trial Court did not consider that respondent lodged an FIR against appellant no.1 at PS: City Sonepat vide FIR No. 390/13 U/s 323/325/506 IPC on same set of allegations in which appellant no.1 was acquitted and while appreciating facts of the case Ld. Trial court failed to take into consideration of the cross- examination of respondent conducted in her case filed under Section 125 Cr.PC and in FIR No. 691/07, PS: Najafgarh U/s 498A/406/34 IPC despite the fact that certified copy of the same was also placed on record before the Ld. Trial Court.
19. Appellants stated that Ld Trial Court failed to consider that respondent filed present complaint U/s 12 D.V. Act in the year 2010 after three years of the separation and no DIR was on record till the advancing of the final arguments in the said complaint case and when during the course of the final arguments the appellants made submissions regarding Order on Appeal Page 10 of 22 CA No. 40/2019 Kirorimal & Ors Vs. "S"
the non filing of the DIR as the law laid down by the Hon'ble Delhi High Court in Kiran Dutta Vs. State & Anr. only then Ld Trial Court issued directions to the protection officer to prepare and file the DIR before the Ld. Trial Court during the course of the day. It is stated that such a DIR filed which was filed in a day before Trial Court cannot be considered at all.
20. Appellants have contended that Ld. Trial Court failed to take note of the fact that the respondent deserted the appellant no.1 out of her own sweet will and consent. Therefore, she is not entitled to claim any maintenance from the appellant no.1. Even otherwise, respondent has done Nursery Teacher Training and also took admission in B.A. after her marriage and she is capable of earning whereas appellant is under treatment for the last 10 years as he had met with an accident. It is prayed that in these facts, impugned judgment be set aside and quashed. Order on Appeal Page 11 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
21. Respondent has contested appeal by filing a reply wherein it is stated that Ld Trial Court has rightly appreciated the matter in view of the evidence led on behalf of respondent. It is submitted that Ld Trial Court has rightly held that respondent is entitled for compensation from appellants and maintenance for herself and her children from appellant no.1. It is submitted that there is no merits in the appeal and same is liable to be dismissed.
22. I have heard rival contentions of the parties. I have also perused the TCR.
Analysis
23. Main contention of the appellants is that Ld. Trial Court fell in error by not appreciating that respondent failed to prove any act of domestic violence and appellants no. 2,3, and 4 were discharged in respect of the same allegations in case FIR No.691/07, U/s 406/498A, P.S Najafgarh lodged by Order on Appeal Page 12 of 22 CA No. 40/2019 Kirorimal & Ors Vs. "S"
respondent against them and appellant no.1 was acquitted by concerned Court in case FIR No. 390/13 U/s 323/325/506 IPC, PS City Sonepat on allegations of assault. It is submitted that since respondent has failed to prove any act of domestic violence,
24. Respondent in her affidavit Ex CW1/1 deposed that she was beaten many a times by appellants and in this regard she has placed on record medical documents Ex. CW-1/B & E. Medical record of respondent indicates that due to assault she received multiple injuries all over her body. Though appellants allege that respondent was beaten by her own parents when she was found to be involved in adultery but appellants have not led any evidence to substantiate allegations of adultery. Thus, version of appellants that respondent was beaten by her own parents is not acceptable and us rightly rejected by Ld Trial Court.
Order on Appeal Page 13 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
25. Respondent has specifically narrated the incidents of maltreatment meted out to her by the appellants. Respondent has also proved a complaint Ex CW1/D thereby narrating the incident of assault on her by the appellant no.1. Facts proved on record also prove that respondent was deprived of any financial assistance by her husband nor any provision of her residence was made by him.
26. Though appellants have also taken the ground for non-filing of Domestic Incident Report (DIR) but Trial Court record reveals that on 25.11.2010, a DIR was filed by the Protection Officer wherein it has been mentioned that respondent was threatened by the appellant no.1 in abusive language which further lends support to the case of respondent that she was subjected to domestic violence. Order on Appeal Page 14 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
27. Appellants have contended that though respondent states that she was assaulted in 2007 but she has filed application under section 12 DV Act only in 2010 and hence her allegations ought to have been rejected. As a matter of fact, generally, it is seen that women try to reconcile with their matrimonial life and try to save it. Respondent had two small children in her lap when she left her matrimonial home, it was not easy task to take care of children and to pursue her case. In these circumstances, respondent cannot be non suited for filing present case in 2010.
28. Allegations against appellants are specific and the facts brought before the Court regarding their behaviour towards respondent makes respondent an aggrieved person as defined under Section 2(a) DV Act. Testimony of respondent establishes that she was subjected to domestic violence. Order on Appeal Page 15 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
29. Now, let us consider reliefs granted to respondent by Ld Trial Court.
Reliefs:
30. Maintenance: Law of maintenance is founded on four broad principles. Financial capacity / income of the parties, status and standard of living of the parties, reasonable need of the claimant and liability of the non-claimant.
31. Appellant no. 1 in his affidavit Ex RW1/A testified that he is paying a sum of Rs 600/- per month as per the orders passed in case filed by respondent under section 125 Cr.P.C and he has no permanent source of income, as such, he is not in position to pay any more amount to the respondent.
32. On the other hand, respondent deposed that monthly income of appellant no.1 is Rs 40,000/- whereas she has no source of income. Respondent has stated that she is Order on Appeal Page 16 of 22 CA No. 40/2019 Kirorimal & Ors Vs. "S"
also taking care of her two children born out of wedlock.
33. After scrutinizing material before it, Ld Trial Court fixed the maintenance to the tune of Rs. 4,000/- per month to respondent and Rs. 4,000/- per month to each child from date of filing of her application under Section 12 DV Act. Findings of Ld Trial Court in this regard reads as under:
In view of the principle laid down in the above cited judgment and considering the financial status, social strata to which parties belong, I consider that respondent no. 1 is able to earn at least Rs.20,000/- per month. Therefore, I order the respondent no 1/ husband to pay a sum of Rs.4,000/- per month to the complainant from the date of filing of the petition i.e 25.11.2010 and Rs. 4,000/- per month to each child from the date of filing of the petition till they attain age of majority. The maintenance shall include food, clothing, medical expenses, rent/ alternate accommodation, water bill, electricity bill, if any, etc. all inclusive for the complainant and her children. Respondent no. 1 is directed to clear all the arrears of maintenance within three months from the date of order and to continue to pay maintenance to the complainant at the above said rate by the 10th of every month by depositing in Order on Appeal Page 17 of 22 CA No. 40/2019 Kirorimal & Ors Vs. "S"
the bank account of complainant. In case it is not possible to deposit the amount in the bank account of complainant, the payment shall be made to the complainant against the receipt. Maintenance amount awarded in any other proceedings shall be liable to adjustment.
34. Though Ld Trial Court assessed the monthly income of appellant no.1 to be Rs 20,000/- but except for a statement of respondent, there is no material on record which indicates that appellant no.1 is earning Rs 20,000/- per month. Social background, financial position of parties and overall facts suggests that appellant no.1 must not be earning more than Rs 15,000/- per month.
35. Accordingly, impugned order is modified to the extent that appellant no.1/ husband is directed to pay a sum of Rs.3,000/- per month to the respondent/ complainant from the date of filing of the petition i.e 25.11.2010 and Rs. 2500/- per month to each child from the date of filing of the petition till Order on Appeal Page 18 of 22 CA No. 40/2019 Kirorimal & Ors Vs. "S"
they attain age of majority. Appellant no. 1 shall clear all the arrears of maintenance within three months from the date of order and to continue to pay maintenance to the respondent at the above said rate by the 10th of every month by depositing in the bank account of respondent. Maintenance amount awarded in any other proceedings shall be liable to adjustment as directed by the Ld Trial Court.
36. Prohibition of committing Domestic Violence: Ld. Trial Court has prohibited appellants from committing any acts of domestic violence against respondent. In view of the finding that respondent was subjected to domestic violence as such Ld. Trial Court has rightly passed an order to restrain appellants from committing any act of domestic violence on respondent and restraining them from entering parental home of respondent and disturbing her life.
Order on Appeal Page 19 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
37. Compensation: Ld Trial Court, in view of the evidence led has arrived at the conclusion that respondent is to be compensated to the tune of Rs. 3,00,000/- for the mental trauma and stress suffered by her at the hands of appellants. Though in her application filed under Section 12 DV Act, respondent claims compensation to the tune of Rs 5,10,000/- inclusive of Rs10,000/- incurred towards medical expenses but no evidence has been led by the respondent to enable the Court to arrive at the claimed amount. In her evidence, respondent has not given any bifurcation/ details of compensation sought.
38. Impugned order also does not give rationale as to on what basis Ld Trial Court arrived at the compensation amount of Rs 3 lacs. In her affidavit Ex CW1/1, respondent deposed that her father spent Rs 30-40,000/- on her medical treatment and further alleges that appellant no.1 snatched Rs Order on Appeal Page 20 of 22 CA No. 40/2019 Kirorimal & Ors Vs. "S"
80,000/- from her. However, there is no evidence to this effect. Nonetheless, it has stands established on record that respondent was subjected to domestic violence, maltreated and harassed by the appellants. Thus, keeping in view of financial background and status of the appellants it would be appropriate that appellants are directed to pay a sum of Rs 1,00,000/- ( Rupees One Lakh Only) to the respondent towards compensation of the trauma suffered by her. Conclusion:
39. In terms of above discussions, impugned order is modified to the extent that appellant no.1/ husband is directed to pay a sum of Rs.3,000/- per month to the respondent/ complainant from the date of filing of the petition i.e 25.11.2010 and Rs. 2500/- per month to each child from the date of filing of the petition till they attain age of majority. Order on Appeal Page 21 of 22
CA No. 40/2019 Kirorimal & Ors Vs. "S"
Further, compensation amount is modified to extent that appellants are directed to pay a sum of Rs 1,00,000/- (Rupees One Lakh Only) to the respondent towards compensation of the trauma suffered by her. Remaining directions given by Ld Trial Court are upheld. Appeal stands partly allowed in aforesaid terms.
Trial Court record be sent back with copy of the order. File be consigned to Record Room.
Announced in the open Court on 3rd July, 2023 GAUTAM Digitally signed by GAUTAM MANAN MANAN Date: 2023.07.03 16:35:03 +0530 (GAUTAM MANAN) ASJ-02/DWARKA COURTS NEW DELHI Order on Appeal Page 22 of 22