Delhi District Court
Usha vs Sunil Kumar Page No. 1 Of 47 on 5 May, 2015
Usha vs Sunil Kumar Page No. 1 of 47
IN THE COURT OF MS. SHILPI JAIN, METROPOLITAN
MAGISTRATE: ROHINI: DELHI
CC No. 81/3/11
PS - Rohini
U/s. Domestic Violence Act.
ID No.02404R01118002011
In Reference :
Smt. Usha
W/o Sh. Sunil Kumar
R/o C - 4/291, Sector 6,
Rohini, Delhi. ...................Petitioner
VERSUS
1. Sh. Sunil Kumar, (Husband)
S/o Sh. Dharampal Arya
2. Sh. Trilok Bhushan (Nandoi)
3. Smt. Kanta Devi Nagpal (Nand)
W/o Sh. Trilok Bhushan
4. Sh. Prem Pal Shridhar (Jeth)
S/o Sh. Dharampal
5. Smt. Sunita (Jethani)
W/o Sh. Prempal ................. Respondents
Date of institution of case : 08.03.2011
Date on which case reserved
for judgment : 05.05.2015
Date of pronouncement of judgment : 05.05.2015
Usha vs Sunil Kumar Page No. 2 of 47
JUDGMENT
1. The complainant has filed this complaint U/s 12 of the Protection of Women from Domestic Violence Act, 2005 against respondent no. 1 Sunil Kumar (husband), respondent no. 2 Trilok Bhushan (Nandoi), respondent no. 3 Smt. Kanta Devi Nagpal (Nand), respondent no. 4 Prem Pal Shridhar (Jeth) and respondent no. 5 Sunita (Jethani) seeking relief of protection order, maintenance, compensation and residence order.
2. The complainant herein is the wife of the respondent no.
1. Relevant facts for disposal of the case, in brief, are that complainant got married to the respondent no. 1 on 11.10.09 at Delhi as per Hindu rites and ceremonies. After the marriage petitioner and respondent no. 1 lived and cohabited together and two children namely Heena and Himanshu born out of the said wedlock who are in the custody of complainant at present. After the marriage complainant and respondent started living at the house at Kishanganj, Delhi and the respondent husband was running the factory on ground floor of said house. Respondent no.2 used to come at the said factory and sit there for hours. It is alleged that respondent no. 2 is a man of bad habits and used to pass teasing and sarcastic comments to complainant and even tried to touch her private parts. Complainant told the same to respondent no. 1 but of no avail. Respondent no.2 forced complainant to maintain physical relations with him and thereafter complainant pressurized R1 to Usha vs Sunil Kumar Page No. 3 of 47 shift from said house and accordingly, complainant and respondent no. 1 shifted to Rohini. Thereafter R3 gave birth to a female child and respondent no. 1 left the company of complainant in order to take care of respondent no. 3 and at that time R2 took the opportunity and entered the room of complainant in night time in order to maintain illicit relations with her but somehow complainant saved herself. Respondent no. 1 took no action against respondent no. 2 for the aforesaid act and on the contrary started blaming complainant for her conduct. It is also alleged that respondent no. 5 is also having illicit relations with respondent no. 2. it is also alleged that respondent no. 5 used to talk to respondent no. 1 using very shameful words and when complainant objected for the same, respondent no. 1 paid no attention. Respondent no. 2 to 5 started instigating R1 against the complainant. R3 visited the house of complainant in the month of June 2008 and stated that respondent no. 1 will not bear any expenses of complainant and her children. It is also alleged that respondent no. 1 is having illicit relations with various loose character females and he spent all his earning on his bad habits and do not pay anything for the maintenance and education of complainant and her children. Respondent no. 1 gave merciless beatings to complainant and her children on petty matters and used to extend threats to the life of complainant and her children. It is further alleged that complainant was not properly behaved in her matrimonial home and many times, she was insulted in the presence of neighbours and she was Usha vs Sunil Kumar Page No. 4 of 47 not provided with adequate food also. The complainant used to cook food and respondent no. 1 after having some food used to throw the remaining food in dustbin and the complainant and her children have to sleep without eating food. Respondent no. 1 did not allow the complainant and her children to use the bathroom and toilet and used to break the bolts of the bathroom. Due to the fear of the respondent, complainant used to sleep with doors locked. On 20.12.09 respondent no. 1 came late in the night in drunk condition and break the door and tried to strangulate the complainant. Respondent no.2 to 5 used to beat the complainant and abused her with bad language. Respondents used to pressurize the complainant to leave the house and on her refusal she was beaten up with Danda. Respondent no. 3 dragged complainant by her hairs and R2 and R4 gave kicks and R5 shouted that "aaj isko jaan se mar dalo". Respondent no. 1 is self employed person, running a factory and earning Rs. 40,000/ p.m. approximately and complainant is a housewife, having no source of income to maintain herself and her children. An amount of Rs. 25,000/ PM as monetary relief, protection order, residence order and compensation to the tune of Rs. 5 lacs are being claimed as a relief by the complainant.
3. DIR was filed and on the basis of DIR and petition respondent no. 1 to 4 namely Sunil Kumar (husband), Trilok bhushan (Nandoi), Kanta Devi Nagpal (Nand) and Sh. Prem Pal Usha vs Sunil Kumar Page No. 5 of 47 Shreedhar (Jeth) were summoned by Ld. Predecessor vide order dated 28.04.2011.
4. All the respondents filed their reply wherein It is submitted that all the allegations are blunt in nature and they are not specific. It is averred that complainant has not disclosed any time, place and day, month and year of the alleged incidents and the case is false and frivolous. It is averred that complainant is running a beauty parlour (Shringar beauty parlour) since many years but the same was concealed by her from the court. It is denied that R1 was running factory on ground floor of the house at Kishan Ganj and it is also denied that respondent no. 2 used to sit there for hours. Respondent vehemently denied all the allegations of bad habits and teasing levelled against respondent no. 2 and submitted that there was only a small factory in the house and respondent no. 2 was a conductor in DTC and in the year 1993 he got retired. It is further averred that there is no visiting terms in between the family of respondent no. 2 and complainant because complainant used to quarrel and never gave any respect to the family members of her in laws and the relatives. It is further averred that on 11.3.97 on the occasion of birthday of child Heena, complainant quarreled with respondent no. 2 and 3 and thereafter they never visited the house of the complainant. It is further averred that all the allegations are false and concocted story and that is why complainant never lodged any complaint with the police officials. It is also denied that respondent Usha vs Sunil Kumar Page No. 6 of 47 left the company of complainant in order to take care of respondent no. 3 and submitted that complainant alongwith her husband i.e. R1 went to see the child of R3 and complainant hardly remained over there for one night only and on the next day complainant came to Delhi by Dadar train by saying that it is too much congested and she cannot live there. R2 and R3 are residing in joint family in a very small accommodation and complainant has levelled false allegations against the respondent in order to defame the whole family. It is further submitted that complainant never visited Sonepat (Haryana) since last 67 years whereas the respondent no. 5 is residing over there peacefully with her family members. In the year 2010 respondent no. 4 alongwith his wife respondent no. 5 came to see the children of complainant on 07.2.10 being a holiday i.e. Sunday. It is further submitted that respondents are residing separately from each other at a long distance and R4 and R5 are residing at Sonepat (Haryana) and it is not possible that they all gather at our place without any festival, occasion, marriage etc. in order to instigate R1 and that too when the complainant was herself was having no talking terms with respondents since 1997. It is further averred that R2 and R3 are residing at Narela and they are also not having any relations with the complainant since last 14 years. It is also averred that R1 is duly supporting his family and treating them very well and complainant being a quarrelsome lady insulted her Nand and Nandoi on 11.3.97 on the birth of her daughter Heena and after receiving the said insult R2 and R3 never Usha vs Sunil Kumar Page No. 7 of 47 visited the house of complainant and accordingly question of visiting the complainant in June 2008 by R3 does not arise at all. It is further submitted that complainant herself is running a beauty parlour since many years under the name and style "SHARAMGARIKA Beauty Parlour" in Sector 6 in front of her residence and for the same she is paying rent of Rs. 5000/ p.m. to the owner. It is further averred that complainant herself is earning Rs. 20000/ p.m. and R1 is heart patient since long time and he is under treatment of Jeevan Mala Hospital. R1 is doing dye job work on low level being heart patient. It is submitted that R1 is earning Rs. 10,00012,000/ approximately and he is giving Rs. 5000/ p.m. to the complainant for daily expenses. It is further submitted that complainant herself sold her jewellery to some famous jeweller for a consideration of Rs. 80,000/ approximately which was deposited by the complainant in her bank. It is further submitted that complainant is fond of business of share market and she is having huge amount of money in her bank account. It is further submitted that R1 is having love and affections towards his children and family and he never inflicted any kind of cruelty on them. It is further submitted that father of R1 is aged about 82 years and he has been suffering from Phobia. It is further submitted that family members of complainant always instigated her to not to live peacefully and to get rid of her in laws and due to said instigation of complainant's sister and family members, complainant filed the present case to fetch money, grab the property and to harass the Usha vs Sunil Kumar Page No. 8 of 47 respondent. It is further submitted that complainant wants to get rid of R1 and his family members and that is why she has filed the present petition. It is submitted that petition be dismissed with heavy cost.
5. During the pendency of case interim maintenance to the tune of Rs. 10,000/ p.m. has been awarded to the complainant till the disposal of present case by Ld. Predecessor against which respondent preferred appeal and vide order dated 13.8.13 said appeal was dismissed by Ld. Sessions Court.
6. Complainant has led her evidence by getting herself examined as CW1 alongwith three other witnesses namely Heena (daughter of complainant) as CW2, Sh. Naresh Chander, Medical Record Officer, BSA Hosptial as CW3 and Dr. Deepti Bhalla as CW4.
CW1 is Usha who tendered her evidence by way of affidavit which is Ex.CW1/A. She relied upon the document i.e.
complaint to CAW Cell which is Ex.CW1/1. CW1 reiterated the contents of her petition in her affidavit Ex. CW1/A. During her cross examination by the counsel for respondent, she admitted that she was married on 11.10.1991. she deposed that the date of birth of her son Himanshu is 18.04.1995 and her daughter Heena was born on 11.03.1993. She denied that their marriage was love marriage. She admitted that no list of articles were handed over to respondent family at the time of marriage. She further admitted that she had not specifically mentioned the date of event when respondent no. 2 used to tease her or touch on her private parts. She also admitted Usha vs Sunil Kumar Page No. 9 of 47 that she had not made any police complaint but she voluntarily deposed that she had complained to her husband but he did not pay any heed on her request. She deposed that she do not remember the date when she told/complained to her husband. She admitted that respondent no. 2 took the opportunity to enter her room at night and tried to maintain illicit relationship with her. She further admitted that she had not disclosed the specific date to police and court about the happening of aforesaid incident. She denied the suggestion that respondent no. 5 was having illicit relations with respondent no. 2 she voluntarily deposed that she was having illicit relationship with complainant's husband. She admitted that she had read the contents of her evidence by way of affidavit before signing the same. She admitted that she had not stated specifically day, time or month when respondent no. 5 used to talk with her using shameful words. She voluntarily deposed that it was a matter of routine and that is why she could not mention the specific dates. She admitted that no specific date has been mentioned when respondent no. 2 to 5 used to instigate the respondent no. 1 to treat her with cruelties. She voluntarily deposed that she always complained to her husband and tried to make him understand. She admitted that respondent no. 3 came to their house on 20.08.2008 and stated that her husband will not bear any expenses of her. She admitted that her husband was having illicit relationship with various loose character females and she also admitted that she had not specifically mentioned name of any women. She further Usha vs Sunil Kumar Page No. 10 of 47 volunteered that she do not want to spoil her married life. She admitted that her husband used to beat her mercilessly on very pity matters. She admitted that she had not mentioned any specific date, month or year before any police officials and court when such merciless beatings were given to her. She voluntarily deposed that it was matter of routine so that she could not state the specific time, day or month. She admitted that she never medically examined in this regard. She further admitted that she had not mentioned the specific date when her husband said to her son that she was involved in the business of prostitution. She voluntarily deposed that it was matter of routine and that is why she could not state the specific time, day or month. She admitted that she had not mentioned the specific date when her husband extended threats to eliminate her as she stated in para no. 13 of her evidence. She voluntarily deposed that it was matter of routine and that is why she could not state the specific time, day or month. She admitted that she had not brought any neighbour as witnesses in front of whom she was insulted. She admitted that she had not mentioned the specific date and event when her husband insulted her before the neighbours. She voluntarily deposed that she do not think it necessary to mention that all and its a matter of routine. She admitted that her husband passed comment on her "aapas me ek dusre ko achi tarah dekh lo, kal tum me se kaun gayab ho jaye". She deposed that the same comment was repeated two days ago. She admitted that she had not mentioned specific date of said comment in her affidavit. She Usha vs Sunil Kumar Page No. 11 of 47 admitted that she had stated the said fact to police but police had not recorded the same as they used to receive money from her husband. She denied that she had not mentioned the specific dates of aforesaid events because the same was never happened. She denied the suggestion that her husband was not in illicit relationship with respondent no. 5. (She was confronted with para no. 8 where the fact of illicit relationship between respondent no. 5 and 2 has been given). She admitted that she and her husband are living separately since December, 2009. She admitted that respondent no. 4 and 5 used to reside in Sonepat since long. It is admitted that they are not having visiting terms at her house presently. She admitted that last year in the month of February they visited her house last time, however, she deposed that she do not remember the date. She admitted that the report dt. 28.04.2011 to this Mahila Court is not in her handwriting. She admitted that she had stated specific day, month or year to police and that is why they had recorded the same in para no. 4 of the report (She was confronted with para no. 4 where no specific day is mentioned). She admitted that she was residing in the property of her husband but floors are separated. She was residing at ground floor. She deposed that she do not remember the exact year when she completed her course of beautician. She voluntarily deposed that she had done it before marriage. However, she had completed it before 56 years of her marriage. She deposed that she do not remember if she completed her course in 1998. She had mentioned that her husband is running a printing press in the Usha vs Sunil Kumar Page No. 12 of 47 name of Kala Printers because name of her jeth is Kala and Bala Printers is due to typographical mistake. She had visited on this Kala Printers. She voluntarily deposed that she resided there upto seven years from the day of her marriage. The said kala printers is situated at 57/2, Amba Bagh, Sarai Rohilla. The said address belongs to her matrimonial house at the time of my marriage. She voluntarily deposed that the said factory had been shifted at Anand Parbat, Delhi and her husband's factory has been shifted at Gali No. 3, Padam Nagar, Delhi. However, she deposed that she do not have address of the same. She admitted that she had not filed any documentary proof about the running of aforesaid Kala Printers as well as of the factory that belongs to her husband. She admitted that she was residing with her husband when he got heart attack. She further deposed that even she also accompany him at hospital for three days, when he was admit there. She denied the suggestion that she had not taken care of her husband after his discharge from hospital. She admitted that she had not filed any documentary proof of her husband's income . She admitted that she had mentioned that she was housewife at the time of filing complaint to this Hon'ble Court in the year 2010. She denied that she was running her beauty parlour on the day of filing complaint. She admitted that she had admitted in her application that she was running a beauty parlour in Sector6, Rohini. She voluntarily deposed that now she was not running any parlour. She admitted that the rent of parlour was Rs. 3000 initially in 2011. Later on, it was Usha vs Sunil Kumar Page No. 13 of 47 increased and was Rs. 3500 after the expiry of 11 months. She admitted that she had not filed any rate list of her parlour before this court at any point of time as there was no rate list in her parlour. She admitted that she had not placed on record the aforesaid rent agreement of 11 months before the court. She voluntarily deposed that no agreement was executed between her and her landlord, namely, Sunil. She denied that she was on job to her landlord on salary basis. She deposed that she did not know whether she had filed any counter affidavit before Hon'ble High Court or not. She admitted that she was having PAN number. She admitted that she was not income tax payee as her PAN card is with her husband. She admitted that she never approached to competent authority to allot a duplicate PAN number. She admitted that she was having a Honda Scooty, number she do not remember, She voluntarily deposed that the same has been gifted by her brothers and sisters. The two girls who was in the parlour were wife, namely, Rozy and daughter, namely, Urvashi of landlord. She admitted that she had mentioned in her affidavit dt. September, 2014 that she was getting salary to the tune of Rs. 20002500 per month. She admitted that no letter in the shape of appointment letter has been executed between her and her landlord regarding working in parlour. She denied the suggestion that she was running the beauty parlour and further denied that any two girls were employed under her over there. She admitted that the aforesaid scooty is in her name. She denied the suggestion that she had purchased the said scooty with her own funds. She admitted Usha vs Sunil Kumar Page No. 14 of 47 that she was having a big cooler in her room but its not in working condition. She denied the suggestion that she was leading luxurious life and aforesaid cooler is also working. She denied the suggestion that she was using double bed She voluntarily deposed that she was using single bed. She admitted that her both children had attained majority and residing with me. She denied that her son Himanshu have got job. She voluntarily deposed that he is pursuing B.com first year (correspondence) from DU. She denied the suggestion that her daughter also got job in Fortis Hospital, Shalimar Bagh, Delhi She voluntarily deposed that she is on internship. She admitted that her husband used to bear her expenses before his illness. She voluntarily deposed that he used to pay around Rs. 20003000 per month. She admitted that Demat Account shown to her belongs to her. She voluntarily deposed that her husband used to deal with the same as he had opened the same in her name and she have no knowledge about this. She denied the suggestion that she also deal in shares along with her beauty parlour. She denied the suggestion that she was earning Rs. 50,000 easily per month. She admitted that the receipt of account number 30093384325 of Bhartiya State Bank, Rithala belongs to her. She voluntarily deposed that the said account has been closed. She deposed that she have no knowledge of opening the same as her husband opened the said bank account in her name. She denied that she was operating the said bank account, Demat Account and earning handsome amount from there also. She denied that she had sold any jewellery for a sum of Rs.
Usha vs Sunil Kumar Page No. 15 of 4785,000 to goldsmith. She denied that she had sufficient mean to maintain herself. She voluntarily deposed that she was suffering from migraine since last 19 years. She admitted that she had not placed on record any medical documents regarding the aforesaid migraine disease. She denied that she had filed false complaint before the police, this Hon'ble Court against her husband and in laws family just to grab/extort money from them. She denied that she had filed the said case on the instigation of her brother and family members. She admitted that she was not maintaining any domestic relations with her husband and his family members. She denied that her husband has never neglects her willfully. She denied that the rent of her beauty parlour was Rs. 8000 per month as it is situated in the posh area of Rohini, Delhi. She denied that she had taken two LIC Policies for the sum of Rs. 2 Lacs in the name of her son. She voluntarily deposed that it is taken by R1. She denied that she was deposing falsely.
CW2 is Heena (daughter of complaniant and R1) who tendered her evidence by way of affidavit which is Ex.CW2/A. She relied upon the document i.e. MLC of her brother Himanshu which is marked as Mark A. During her cross examination by the counsel for respondent, she deposed that she is 21 years old. She was pursuing nursing course and at present she is on internship at Fortis Hospital, Shalimar Bagh. She admitted that she had completed her school education till 12th class from Delhi. She was pursuing course from Usha vs Sunil Kumar Page No. 16 of 47 Salokaya College of Nursing, Rithala and since 2011 she was in hostel. She admitted that every student of her college has to remain in hostel. She voluntarily deposed that on weekend they could visit their house as per their desires. She admitted that she had mentioned in affidavit that her father used to torture their mother which means physically torture. She admitted that she had mentioned the exact meaning of torture in her affidavit as she had stated her father used to beat her mother. She admitted that the fact of mental torture to her and her brother is not in her evidence by way of affidavit. She deposed that it was a matter of routine that her father did not provide food to her mother, brother and her and they used to be on starvation. She admitted that she had not given any specific date of starvation. She further deposed that according to her, the basic amenities is food only and her father used to spit on food. She deposed that she do not know who used to arrange ration for them. She voluntarily deposed that her mother only who used to arrange the same. She admitted that she used to come in her house on weekends only. She voluntarily deposed that when she used to be sick, she used to come to her house with due permission of her college. On 20th December, 2009, her father tried to strangulate her mother. She deposed that she did not remember the exact day of said strangulation. Strangulation was done in her presence. That was night time. She admitted that she made PCR call at number 100. She deposed that she do not remember the number from which she made call. She do not remember whether she had made call or her Usha vs Sunil Kumar Page No. 17 of 47 brother made call. She admitted that her father is residing at first floor of their house. She also admitted that stairs towards first floor were passing from their portion. She admitted that their almirah is lying on first floor. She admitted that she and her brother used to visit the portion of her father for using almirah only. She admitted that on 10.10.2012, her father threatened her mother to withdraw the complaint otherwise he will kill all of them. She deposed that she do not remember that day. She was in second year at that time. She was at home on 10.10.2012. That was again night. She admitted that they had made complaint but she do not remember whether she or her brother had made complaint to police. Police arrived at their house on that night. She deposed that she do not remember the name of police official. She had not made any statement to the police at the instance of her mother. She deposed that she do not know whether her brother gave statement to the police. She could not explain exact meaning of grievous injury. She admitted that word "grievous injury" is used in her evidence by way of affidavit at her instance. She admitted that she used to visit various hospitals to complete her internship as a matter of course. She admitted that she had joined the Baba Saheb Ambedkar hospital at Sector6, Rohini. She admitted that the staff of said hospital knows her. Her father, brother, mother were taken by the police officials in PCR and she remained at home. She had never attended any MLC case, therefore, she could not say whether the MLC dt. 10.10.2012 brought by her is a original one or photocopy one. She admitted that her Usha vs Sunil Kumar Page No. 18 of 47 father beaten up her brother and threw hot Maggi upon her brother and he got grievous injuries according to her. She deposed that she do not know when her brother was attended by the medical practitioner in the hospital. She deposed that she do not remember when they came back home. She voluntarily deposed that it was late night. She was waking up when they came back. She admitted that her brother was brought to hospital on 10.10.2012 due to vomiting as it apparent from the MLC seen by her. She know the pulse rate as well as BP of a normal person. The pulse rate should be 7072 and BP should be 120/80 for a normal person. She admitted that she had not mentioned the dates specifically when my bua, fufaji, tau and taiji used to come to their house as she had not noted the exact dates. She admitted that she had not mentioned the specific dates and occasions when her mother was beaten up by her father with bua, fufaji, tau and tai ji. She could not tell the last date of visit of her tauji and taiji who used to reside in Sonepat.
She admitted that her father got heart attack in 2010. She also admitted that her mother brought her today in the court. Her mama is running a cosmetic shop near Pratap Nagar Metro Station and on basement, he is running a parlour also. She denied that she came before the court to give false evidence on the instigation of her mother. She also denied suggest that she could not recollect the exact day, dates, occasions as alleged by her in her affidavit because the same were never happened.
She deposed that she do not know about her college Usha vs Sunil Kumar Page No. 19 of 47 fees and hostel fees as well, however, its combined. She deposed that her mama used to pay my college as well as hostel fee. She deposed that she do not know about her school fee of class XIth and XIIth. She denied that her father used to pay her school fee, college fee and hostel charges and her mama never pay her fee. She admitted that she cannot produce my fee receipts. She deposed that she is not getting consideration from Fortis Hospital. She denied that she is getting good amount for her internship and she has sufficient means to maintain herself. She further denied that she is deposing falsely.
CW 3 is Naresh Chander, MRO, BSA Hospital who proved the MLC No. B5161/12, E No. 111360/12 dt. 10.10.2012 of patient Himanshu s/o Sh. Sunil Kumar 17 years male which was marked as Mark X. He was not cross examined by the counsel for respondent.
CW4 is Dr. Deepti Bhalla who deposed that on 10.10.2012, she was posted at BSA Hospital, Sector6, Rohini, Delhi as CMO and on that day, one patient, namely, Himanshu, s/o Sunil Kumar was brought in the casualty at about 10 pm for medical examination by the police with the alleged history of physical assault on that day at about 8 pm (as told by the patient himself). She deposed that she examined the said patient and opined, there were small sized abrasions present over both the hands (dorsal aspect) of the patient. The said MLC bearing number B5161/12, already marked as Mark X was exhibited as Ex.CW4/A bearing her signatures at point A1. The nature of injury is given simple at point B. The said patient was fit for statement.
Usha vs Sunil Kumar Page No. 20 of 47During her cross examination, she deposed that she had filled up the MLC Form in her own handwriting. On that day, her duty was from 8 pm to 9 am. She further deposed that she do not have any knowledge that sister of the patient/injured was working as a trainee nurse in that hospital on the day of incident. She denied the suggestion that false MLC was prepared by her at the instigation of sister of injured.
She deposed that she do not remember whether injured has told her that he was physically assaulted by his father. She denied the suggestion that she deliberately did not mention the said fact in the MLC.
7. Thereafter respondent has examined four witnesses namely Sunil Kumar (respondent no. 1) as RW1, Sh. Prem Pal Shreedhar (respondent no. 4) as RW2, Sh Triloki Bhushan (respondent no. 2) as RW3, Sh. Sachdev Singh (acquantance of respondent no. 1) as RW4.
RW 1 is Sunil Kumar (respondent no. 1) who tendered her evidence by way of affidavit which is exhibited as Ex.RW1/A. He relied upon the documents which are Ex. RW1/1 to Ex.RW1/4 and Mark A to D. 1)Medical records as RW1/1
2)Copy of deposit slip of bank A/c of complainant as Ex. RW1/2
3)Photograph of scooty of complainant as Ex RW1/3.
4)Copy of newspaper whereby respondent debarred his son as Ex. RW1/4.
Usha vs Sunil Kumar Page No. 21 of 475) Photographs of beauty parlour as mark A and photographs of products used in beauty parlour as mark B. In his evidence by way of affidavit RW1 deposed that since 2009 he was unwell being heart patient and was taking medical treatment for which he furnished medical records on record. He deposed that complainant was in business of share market and he was having handsome balance in her account for which he has filed on record copy of deposit slips. He further deposed that complainant is owner and in physical possession of two wheeler scoooty / Activa and photograph of same placed on record. He further deposed that complainant is running a beauty parlour since 2008 and she is earning Rs. 2535000/ p.m. approximately at present and at present she is paying rent of Rs. 8000/ p.m. for the said parlour. He has also placed on record photographs of said parlour wherein it is reflected the complainant is working over there. He further deposed that complainant is a quarrelsome lady who never gave respect to respondents and when he was ill, complainant never helped him in washing clothes and preparing food for him and he used to take breakfast, lunch and dinner in some hotel or dhaba. He further deposed that when he tried to bring the food at his home, his son at the instigation of the complainant threw his food on the road and extended threats to call police in order to defame the respondent. Respondent categorically deposed that he is jobless at present and a patient of heart attack and a surgery has been advised by the doctor of his right leg but due to insufficiency fo funds he is Usha vs Sunil Kumar Page No. 22 of 47 unable to get the treatment of his right leg done. He further deposed that at present his elder brother supporting him financially and his father also used to help him in his treatment and he has paid Rs. 50,000/ to the complainant on 11.2.15. He further deposed that complainant influenced the hospital where his daughter used to do job and work and after influencing doctor complainant used to extend threats to send the respondent alongwith his family behind bars.
During his cross examination by counsel for complainant he deposed that he went to sign the affidavit on 01.04.2015 at about 3 pm at Tis Hazari Courts. The affidavit was prepared at his instance by his counsel. He also put his signatures in the register of oath commissioner.
He deposed that he met the complainant for the first time on 25.02.1990 at her kiryana shop. Their courtship remained upto 1.5 years before marriage. Once they went to Alaska Restaurant situated in Kamla Nagar in evening.
At the time of his marriage, his father in law used to remain sick as he was a patient of TB. His father in law was tailor in 1990. He was running a shop of tailor. The complainant was having five sisters and one brother. At the time of his marriage, four sisters were married at that time. She do not know the age of her brother. The marriage was performed outside the house of complainant in a small tent. The same was recorded in video cassette. He was not having that cassette. No gifts and dowry articles were given to him Usha vs Sunil Kumar Page No. 23 of 47 or his family members. He voluntarily deposed that he brought her in three wearing clothes. He denied that the complainant's family had given dowry articles as well as gifts to him and his family members. He admitted that complainant had sold gold jewellery including two bangles/kara of five tolas of complainant, three rings of four tolas out of which, two rings are of him and one ring of complainant, one chain of three tola which was of him. He deposed that he do not remember in which year, those items were sold but the same were sold after 1012 years of marriage. The aforesaid articles were got purchased from Khandelwal Jewellers, in street no. 8, Padam Nagar, Kishan Ganj, Delhi. The aforesaid gold articles were purchased in respective period of time. He deposed that he do not remember in which particular year what particular ornament was purchased. The first gold article was ring which was gifted by him to complainant on her birthday in the year 1992. The bill of the same is in the possession of complainant being his wife.
He was operating box cutting machine at 57/2, Amba Bagh, Delhi at the time of their marriage. At the time of marriage, he was earning Rs. 12,00015,000. At the time of marriage, the kiryana shop of complainant was not running good. He denied that the kiryana shop of complainant as well as her father were performing good and generated good income. He denied that the aforesaid recorded cassette is with him and he was not producing that before court. He denied the suggestion that he was not showing bill of aforesaid jewellery articles as they were not purchased by him and Usha vs Sunil Kumar Page No. 24 of 47 gifted by complainant's father. He deposed that he do not remember that when he visited the PTM of his children. He deposed that his son is 12th class pass at present as per his knowledge. He deposed that he have no knowledge if he has taken admission in any other course at present. He deposed that two years back, he have the knowledge that he has passed 12th pass. He voluntarily deposed that he came to know that he is doing job at Sehyog Pharmacy at Nangloi, Delhi. The aforesaid fact was told to him by his son two years back. He voluntarily deposed that he also told to him that he was earning Rs. 10,000 per month. He deposed that he do not remember the day, date and month when the said fact was told to him by his son. He deposed that he do not remember what was the school fees of his children before 20 years back. He deposed that he along with his wife deposited the school fee of his children till their schooling. He deposed that he do not remember the amount and period of depositing the fees. He voluntarily deposed that the school fee was used to increase every year. He deposed that he do not know how much fee was used to be increase annually. He denied that he never deposited the school fees of his children with his own funds. He further admitted that both the children have completed their education with the financial help of their mama. His daughter course was of about 3.5 years and same has been completed 23 months ago. He deposed that he do not know the date of her admission in college and he cannot recollect the exact year of her admission. He deposed that he do not know the name of the college Usha vs Sunil Kumar Page No. 25 of 47 of his daughter. He deposed that he do not know what is the fee of his daughter in college. He denied the suggestion that he is not paying any single penny to his children for their education. He denied the suggestion that the college fees is also deposited by her mama. He denied the suggestion that he used to come at home under the influence of liquor. He denied that he used to beat his wife as well as children and extended threats to oust them from his house. His daughter is going to Fortis Hospital. He deposed that he do not know whether she is going over there for the purpose of job or for the purpose of continuing her course.
He deposed that he got health problem first time in 2009. He got admitted in Jeevan Mala Hospital which is a private hospital. He was admitted there for fivesix days. He admitted there in the month of March but he do not remember the date. He got heart attack at that time. He was sixth class pass from the Village Rathdhana, Sonepat, Haryana. He deposed that he do not know whether the fact of heart attack is mentioned in his reports. He further deposed that he do not know that his medical reports are against high consumption of liquor and the same are relates to anxiety and BP. At the time of discharge, the bill was around Rs. 60,000 to 70,000/. The said bill was paid by his parents and brother. He deposed that he do not know who paid cashwhether brother or father because he was on bed. He had not asked from his family as to who paid the bill. His brother accompanied him in hospital. His wife accompanied him only for a day. He denied the suggestion that Usha vs Sunil Kumar Page No. 26 of 47 his wife accompanied him for three days in hospital because of her affection towards him. He denied that his behaviour towards his wife is harsh or that he used to beat her. After 2009, he got another problem in the year 2011 and he admitted again in Jeevan Mala Hospital. He admitted that he was a heart patient and now there is also a blockage in the nerves of his legs. In the year 2013, Jeevan Mala Hospital suggested him to take surgery of right leg due to aforesaid blockage. He denied that he was not a heart patient or that his legs problem is also due to high consumption of liquor and bad habits i.e. violence with wife and children.
He had one joint account with complainant. He had no other individual bank account. He deposed that he do not know how many accounts in the name of complainant. He denied the suggestion that he used to operate Dmat account in the name of complainant and complainant has no knowledge. He voluntarily deposed that complainant used to operate this Dmat account with the help of her brother. He was not having PAN number. He was not income tax payee. He denied that he used to do business in the name of complainant just to evade taxes.
He deposed that he do not have any rent receipt of the beauty parlour premises run by his wife/complainant. He deposed that he do not know the name of owner of beauty parlour. He voluntarily deposed that his wife told his name as Sunil. He met the owner of the premises once i.e. 23 months ago. He denied the suggestion that complainant is not running any beauty parlour and Usha vs Sunil Kumar Page No. 27 of 47 he had not visited the alleged parlour and never met with the owner of the premises. He told to his counsel that his wife/complainant did not fulfilling her domestic duties i.e. prepare meal for him and washing clothes etc. He admitted that he told to his counsel that he was taking meals or diets from the hotels or dhabas. His counsel prepared his reply on his instance. He told about the following allegations that complainant never helped him in washing clothes and cooking food and he used to eat the breakfast, lunch and dinner in dhaba and also when he tried to bring to food in his room, the complainant used to instigate his son to throw his food on the road to his counsel but he do not know whether the same is mentioned in his reply or not. He admitted that the contents of his reply was read over to him in vernacular by his counsel. He admitted that females are fond of cosmetics. He denied that he had placed on record the photographs i.e. Mark B of his wife and daughter's cosmetics lying in the house. He admitted that the complainant spoil his life and the life of his children on the instigation of her brother. Approximately 34 years back, his son Himanshu started beating him for the first time. Thereafter, approximately 56 times, he has beaten him up. He had not lodged any police complaint for the said beatings in order to save the life of his son. He denied that his son never beat him. He denied that he taken the said plea just to save himself. He deposed that he do not remember the date of publication vide which he had debarred his son. He admitted that such publication was issued by him during the pendency of present litigation. He denied Usha vs Sunil Kumar Page No. 28 of 47 that in order to save himself from the occasion of 10.10.2012 regarding the MLC of Himanshu which was the result of his beatings, he had published this notification of debar his son in newspaper. He denied that his relatives i.e. my brother, sister, jija and bhabhi were the regular visitors to his house and on their instigation, he used to quarrel with his wife and children. He denied that he had levelled false allegations against complainant. He had denied the suggestion that he behaved harshly with his wife and children. He used to supervise his brother's business as he was not capable to do any work due to problem in his heart and legs. He denied that he was not having any heart and leg problem. He denied that he was having factory adjacent to his brother's factory. His brother used to give me Rs. 8,000 10,000 per month approximately according to my needs. His brother is having a business of packaging material and he is having four family members including him. He is having 24 years approx old daughter and 23 years old son. They both are unmarried. He deposed that he do not know about my brother's income. He was not sure whether my brother is a income tax payer or not. His father had given me Rs. 50,000 in the form of cheque on 11.02.2015. His father is 8485 years old. He is not medically fit. His father is mentally fit to take decisions (confronted with para no. 16 of reply Ex.CW1/R1 wherein it is recorded that father of respondent is suffering from phobia and tired badly from his mind and also lost the pickup powers).
He denied that that his relatives are regularly coming to Usha vs Sunil Kumar Page No. 29 of 47 him at present at his home and he had beaten up his wife and children at the instance of said relatives in the past. He denied the suggestion that he was running a factory at gali no. 8, Padam Nagar and six employees are working under me. He denied that he was earning Rs. 50,00060,000 at present. He denied that he was deposing falsely.
RW2 Prempal Shridhar (respondent no. 4/Jeth of complainant) who has tendered his evidence by way of affidavit which is exhibited as Ex.RW2/A. In his evidence by way of affidavit RW 2 deposed that complainant and respondent no. 1 are in physical possession of hous of R1 in Rohini and R1 supported his family carefully and complainant is running a beauty parlour since many years. He further deposed that he is doing small business of packaging material at Amba Bagh Delhi and supporting R1 since year 2011 as R1 is suffering from heart problem and therefore he and his father are bearing expenses of his treatment in private hospital. He further deposed that his father also gave a cheque of Rs. 50,000/ to the complainant 11.2.15 in Hon'ble High Court. He further deposed that complainant is a quarrelsome lady who used to level false allegations on the family members and that is why family members are not having visiting terms with the complainant. He further deposed that he is residing peacefully for many years at Sonepat, Haryana and he lastly visited the house of complainant to see her children on 15.8.09 being a holiday and thereafter he never visited the house of complainant. He further deposed that Usha vs Sunil Kumar Page No. 30 of 47 respondent no. 1 is a hearty patient under going treatment in Jevan Mala Hospital and he is doing the work of supervision of business of R2 while sitting on the workshop as he is a heart patient and now blockage in the nerve of his right leg is also diagnosed. He further deposed that he used to provide him daily expenses i.e. medical expenses, diet expenses, treatment expenses etc. since year 2011 by way of Rs. 10,000/p.m. During cross examination R2 deposed that he has not received any notice from the court. He admitted that he come to depose before the court at the instance of her brother. He further deposed that he is residing at the address i.e. 57/2, Amba Bagh and he is having a factory in that premises and at said premises he manufacture the packaging material. He deposed that it is a small scale production unit and only 23 men are employed there. He paid Rs. 600/ daily to these worker and it is called Colour King. He deposed that he is earning approximately Rs. 25000/ p.m. from the said business. He deposed that he do not remember when he went to the court for the preparation of affidavit and affidavit was prepared at his instance. He denied that he is having any other factory at any other location apart from the one at Amba Bagh. He denied that he is running one more factory with the name of Kala Printers at F118/6, Moti Bagh and the other at 223/A Gali No. 8, Padam Nagar is running by Sunil He denied that he is having six and four people working in these factories respectively. He deposed that he file ITR and show all his expenses and salaries in ITR and admitted that his returns are upto date. He deposed that they are Usha vs Sunil Kumar Page No. 31 of 47 four members in his family i.e. he, his wife and two children and his father is also residing with him. HE deposed that he is working in the above said address from the last 2025 years. He admitted that he joined the marriage of her brother Sunil. He admitted that marriage took place at Amba Bagh in a tent outside the house of the complainant. He admitted that there were 150200 members in the said wedding. He deposed that from his side there were 11 members and there were approximately 25 members from the side of complainant. He denied that he and his wife received a gold chain of 1.5 tola each. He voluntarily deposed that he received nothing. He denied that one gold chain of three tolas and a ring were given to Sunil or that his sister and brother in law received the gold ornaments. He deposed that his marriage took place three years before the marriage of Sunil He denied that gifts received in his marriage and in the marriage of his brother were equal. He voluntarily deposed that he had not received any gifts in his marriage or in the marriage of his brother Sunil. It is objected by the counsel for respondent that the complaint filed by the complainant does not contain any submission as regards the jewellery. He admitted that father of the complainant was running the shop of grocery. He denied that in the marriage, dowry was supplied and the gifts were given. He deposed that at the time of marriage, his brother was working as a tailor and he is not doing anything at present. He deposed that after 23 years of marriage, her brother changed his line and started the business in his line itself i.e. the Usha vs Sunil Kumar Page No. 32 of 47 packaging business. He deposed that there are tow and a half floor in the premises ie. 57/2 Amba Bagh. He denied that there are four floor in the aforesaid premises. He admitted that the bed which was gifted to the complainant by her parents was placed on the first floor of the said premises. He admitted that business of packaging material includes the printing lamination and cutting. He deposed that he do not know the address where the complainant is running beauty parlor. He deposed that he never went inside the parlour. He denied that complainant is not running any parlour or that he in lieing at the instance of her brother.
During the cross examination by the counsel for complainant, he deposed that his father is 8485 years old. They had incurred total medical expenditure approximately Rs. 1 Lakh on the sickness of his brother. He deposed that he do not remember how much expenses were incurred by him and how much by his father. He deposed that he do not remember whether he withdraw the said amount from bank or was lying in his home. He denied that he and his father had not incurred any amount in the treatment of his brother Sunil. He admitted that his brother is having mediclaim policy. He denied that Sunil had paid the treatment expenses out of his mediclaim policy and he further denied that he was earning very handsome amount or that he was running a factory with the name of Kala Printers at 223A, Gali No. 8, Padam Nagar. He denied that his brother had employed six persons in his alleged factory. He admitted that his father had not gone to the Hon'ble High Court on Usha vs Sunil Kumar Page No. 33 of 47 11.02.2015, when the matter was pending and the cheque was given to the complainant. He deposed that he do not remember to whom his father has handed over the said cheque. He denied that his father is not in condition to given cheque to anybody and said cheque was arranged by respondent Sunil. He admitted that after the marriage, the complainant and her husband reside at 57/2, Amba Bagh, Delhi for some time. He used to remain in his shop on the above said address from 9/9:30 am to 5/5:30 pm. He denied the suggestion that he was regular visitor in the house of Sunil. He do not know whether there were regular quarrels between Usha and Sunil. His brother has not come to me in drunken condition even once. Usha has never called him about drunken condition of his brother as well as never reported about any quarrel. He further deposed that Usha never called him, therefore, the question about the alleged incident never occurred at all.
He admitted that his brother in law used to visit him my shop/premises occasionally. He denied that his brother in law is a loose character person or that he used to ignore him due to the relationship. He admitted that his relations with his brothers and sisters are good. He admitted that on occasions, we all brothers and sisters used to get together. No champions and beers are offered in aforesaid family get together. The mean of supervision of his work is to take care i.e. to check the work done by labour, to care about goods lying in workshop. He do not know whether the fact of salary of Rs. 10,000 is shown in his income tax returns or not. He denied Usha vs Sunil Kumar Page No. 34 of 47 the suggestion that his brother used to do his own business that is why he do not know whether the fact of salary of Rs. 10,000 is mentioned in his ITRs or not. He admitted that he had no personal knowledge about the quarrels in the family of his brother and his brother told him about the same. It is correct that he came to court to depose at the instance of his brother. He do not remember the exact date when the matter was referred to mediation. Matter was not settled in the mediation cell. He voluntarily deposed that complainant and her family members had not agreed for settlement. He had no knowledge about the quarrels took place between respondent no. 1 and complainant when they resided together after mediation proceedings. He had not seen my nephew Himanshu ever beating my brother i.e. respondent no. 1. He voluntarily deposed that his brother told me the said fact. He have no personal knowledge about that the complainant is having a scooty, cooler and she is leading a luxurious life. He admitted that he has no knowedge about any Dmat account in her name. His brother had told me that Usha is running a beauty parlour and earning a handsome income. He admitted that he have never visited the parlour of the complainant and have no personal knowledge about her income. He denied that he was deposing falsely.
RW3 is Triloki Bhushan (respondent no. 2/Nandoi of complainant) who tendered his evidence by way of affidavit which is exhibited as Ex.RW3/A. RW3 has deposed in his evidence by way of affidavit that R1 are jointly in physical possession of house of R1 Usha vs Sunil Kumar Page No. 35 of 47 and complainant is running a beauty parlour since many years. He further deposed that he was a conductor in DTC in te year 1993 and he is not having any visiting terms with the family of complainant because complainant is a quarrelsome lady who never give respect to family members of her in laws and their relatives. He further deposed that in the year 1997 on the occasion of birthday of child Heena, complainant quarreled with them and thereafter they never visited the house of complainant. He further deposed that R1 is a house patient since 2009 who had undergone treatment from Jeevan Mala Hospital and he is doing work of supervision of business of his brother by way of sitting in his workshop as he is a heart patient.
During the cross examination by the counsel for complainant, RW3 admitted that no summon have been received to him from the court. He came to court as his name is in the category of respondent. He admitted that he had attended the marriage of complainant. He denied that there was gathering of 200 members in the marriage and the marriage was performed with pomp and show. He voluntarily deposed that only 11 members from our family were present and 2025 members were present from the family of complainant. He denied that he and his wife have received any gold chain weighing about 2 tolas in the marriage from the side of Usha family. He denied that the marriage was performed with pomp and show and gifts including gold jewellery and furniture were given in the marriage. He never visited the parlour of Usha. He had heard from relatives that Usha is running a beauty parlour. He voluntarily Usha vs Sunil Kumar Page No. 36 of 47 says that there are no visiting terms between his family and Usha. He admitted that he used to visit occasionally at 57/2, Amba Bagh to her brother in law, namely, Prempal. He occasionally visited the aforesaid premises after the marriage of Usha. He voluntarily deposed that he was employed in DTC. He denied the suggestion that he used to stay at factory after my service hours. He admitted that complainant Usha along with her husband came to his home at the time of birth of his child and remained there upto 1 or 2 hours. He denied that complainant stayed at his home for 78 days at the time of delivery of his wife and he further denied that he took advantage of her loneliness in her room and tried to touch her. He voluntarily says that he was residing in a joint family. He denied that after retirement, he used to visit regularly in the house of Sunil. He voluntarily deposed that he never visited the house of Sunil after the year 1997. He denied the suggestion that he used to instigate Sunil to put quarrel in his family. His brother in law Prempal is only having a shop i.e. 57/2, Amba Bagh where he used to run his business. After marriage, Sunil used to work in 57/2, Amba Bagh. He admitted that Sunil got sick in the year 2009. He deposed that he do not know uptil what time Sunil was having joint business. Sunil checks the material and goods in the factory. The factory deals in the trade of dye cutting. He denied that Sunil is earning handsome amount and doing his own business. He denied that he was deposing falsely at the instance of his brother in law Sunil.
RW4 is Sachdev Singh (acquintance of R1) who Usha vs Sunil Kumar Page No. 37 of 47 tendered his evidence by way of affidavit which is exhibited as Ex.RW4/A. In his evidence by way of affidavit Ex. PW4/A, he deposed that R1 is taking care of shop of his younger brother namely Prempal as he is incapable to do any hard work because of his heart problem and nerve blockage in leg. He further deposed that he has R1 from last 56 years eating from Tandoor or Dhaba as his wife do not provide him meal. He further deposed that R1 used to wash and press his clothes himself as his wife / complainant is not fulfilling her domestic duties.
During his cross examination, he deposed that he was leading retired life and before this, he was in the business of printing of cardboard at Anand Parbat. He met Sunil for the first time in Jeevan Mala Hospital around 56 years back when he was informed by Prempal Singh when he visited in his factory. He deposed that he do not remember the day, month and year of my visit to Jeevan Mala Hospital. Sunil was admitted in emergency ward of hospital at that time. He visited 23 times in the Jeevan Mala Hospital in a gap of a day. Later on, Sunil was shifted to general ward and he also met him there. He deposed that he do not remember the exact date of shifting to general ward. He deposed that he do not know the ward number. He did not have a discussion with the doctor with regard to the ailment of Sunil as he did not feel it necessary. He was informed by Sunil that on account of the blockage of the nerves he cannot keep on standing for a long time. Sunil was running a factory at Padam Nagar before his illness. He voluntarily deposed that it may Usha vs Sunil Kumar Page No. 38 of 47 be around year 2009, he had visited the said factory 24 times. The address of his factory was 29Q/8A, Gali No. 4, Anand Parbat Ind. Area, Delhi. He do not know as to who paid the hospital bills. He deposed that he could not tell the exact name of dhabha but the dhaba is situated closer to the factory of Sunil. Even as on date, he was informed by Sunil that he takes his meal on dhabha. He had seen himself Sunil taking his meal on dhabha. It is not possible for him to remain with him on each and every occasion when he takes the meal. Last time, he saw Sunil taking his meal on dhabha on last Monday when he was taking lunch.
8. Vide separate statement of Ld. counsel for respondents, RE was closed and matter was fixed for final arguments.
9. Written final arguments filed on behalf of both the parties. Record perused.
10. Complainant has pressed for relief of maintenance to the tune of Rs. 25000/, residence order, protection order, compensation of Rs. 5 lacs, hence, I will deal with these reliefs only.
11. It is well settled that prior to give any relief under DV Act complainant is under mandate to prove herself as aggrieved person.
12. Now, it is essential that prior to give any relief under DV Act, it has to be looked into that whether some conditions are satisfied or not. Hence the first question that arises for determination is as to whether the applicant is an aggrieved person?
Aggrieved person is defined in Section 2(a) of D V Act which reads as under: Usha vs Sunil Kumar Page No. 39 of 47
(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent"
A perusal of this section shows that two ingredients needs to be satisfied before a person can be said to be an aggrieved person: (1) Aggrieved person must be in domestic relationship with the respondent; and (2) Aggrieved person must have been subjected to domestic violence while she was in domestic relationship with the respondent.
Section 2 (f) defines domestic relationship as under:
(f) "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, where they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family."
It is clear from the perusal of section 2 (f) that the aggrieved person must establish that she was in relationship with the respondent by way of blood, adoption or marriage and was residing with him in a shared household.
13. Domestic violence has been defined in section 3 which reads as under: Usha vs Sunil Kumar Page No. 40 of 47
1. "Definition of domestic violence - For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it"
(a) harms of injuries or endangers the health, safety, life, limp or well being, whether mental or physical, of the aggrieved person or tends to do so and included causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse: or
(b) Harasses, harms, injuries or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injuries or causes harm, whether physical or mental, to the aggrieved person."
If the aggrieved person is able to show domestic violence in any form as per section 3 of D.V. Act, she is entitled to orders u/s 18, 19, 20 and 22 of D.V. Act.
12. Now, coming back to the present case, in this case, both the parties have led their evidences. Complainant has led her evidence and alleged that she has been subjected to cruelty and Usha vs Sunil Kumar Page No. 41 of 47 domestic violence by the respondents she deposed in her evidence that she married to respondent on 11.10.91 and two children namely Heena and Himanshu born out of said wedlock. She further deposed that R2 who is her Nandoi used to pass teasing and sarcastic comments to complainant and even tried to touch her private parts. She has also alleged that R2 forced the complainant to maintain physical relationship with him and R5 namely Smt. Sunita (Jethani of complainant) is also having illicit relationship with R2 (Nandoi of complainant). However in the cross examination CW1/complainant categorically admitted that she has not specifically mentioned any date or event when respondent no. 2 tease her or touch her private parts. She also not lodged any police complainant however she deposed that she complained to her husband about the said act of R2 but again she do not remember the date when she made a complaint about R2 to her husband. She also admitted that she has not disclosed the specific date to police and court about the happening of aforesaid event of teasing R2. In view of aforesaid categorically deposition and admissions made by complainant herself it is clear that allegations of teasing levelled against R2 are bald allegations without mentioning any specific particulars of the incident like day, date, month, year and time. In the absence of specific allegations it cannot be held by any stretch of imagination that R2 has committed any act of teasing / domestic violence with the complainant.
13. So far as second allegations of respondent no. 2 having Usha vs Sunil Kumar Page No. 42 of 47 illicit relationship with R5 is concerned, CW1/complainant has categorically denied in her cross examination dated 09.3.15 that respondent no 5 was having illicit relationship with R2, thereby falsifying her own version. Furthermore she voluntarily deposed that R5 is having illicit relationship with her husband / R1, thereby introducing a new allegation on the character of R1 and R5.
14. Complainant has also alleged in her evidence by way of affidavit that R5 used to talk to R1 in very open and shameful language in the presence of other family members, relatives and neighbours and when complainant raised objections for the same, R2 to R5 instigated and induced R1 to harass and maltreat the complainant. Again in the cross examination CW1 categorically deposed that she had not given any day, date, time and month when the shameful words were used and when R2 to R5 instigated the respondent. She also admitted that she has not brought any neighbour in whose presence aforesaid act was done as a witness to prove the alleged allegations. Therefore these allegations are also bald / general in nature without providing any specific particulars of the alleged incident and hence cannot be relied upon. She has also alleged that R3 namely Kanta Devi Nagpal (Nand of complainant) visited the house of complainant in the month of June 2008 and stated that R1 will not bear expenses complainant and her children. It is pertinent to mention here that complaint herself deposed in her cross examination that her husband used to bear her expenses before her illness that uptil year 2009. she voluntarily deposed that Usha vs Sunil Kumar Page No. 43 of 47 her husband used to pay Rs.20003000/ p.m. Therefore aforesaid allegation of year 2008 holds no water. Complainant further alleged that R1 is having illicit relationship with various loose character women and spent all his earning on his bad habits and did not give anything to the complainant. This is again in contradiction of her own admissions during cross examination that R1 used to pay her Rs. 20003000/ p.m. before his illness. So far as allegations of R1 having illicit relationship with various loose character women is concerned CW1 admitted in her cross examination that she has not specifically mentioned any name of such women. Levelling allegations on the character of any person vaguely and baldly without providing any specific particulars for the same is a cruelty committed against R1 only and therefore this allegations of characterlessness is also baseless.
15. Complainant has also alleged that R1 has inflicted cruelty upon her and used to give merciless beatings to the complainant and her children. It is pertinent to mention that no date, time, year and month of alleged beatings have been given by the complainant either in her complaint or in her evidence. Furthermore not even a single MLC has been produced and complainant has categorically admitted in her cross examination that she had never been medically examined for the aforesaid merciless beatings. On the contrary she admitted in her cross examination that she is living separately from her husband since 2009. Only medical record of her son Himanshu has been produced but the concerned doctor who Usha vs Sunil Kumar Page No. 44 of 47 prepared the MLC after examining her son categorically deposed in her cross examination that it was not disclosed to her that the injuries on Himanshu were inflicted by his father. It is pertinent to note that Himanshu has not been examined as complainant's witness in order to substantiate the allegations of beating and therefore allegations of merciless beatings also goes unproved.
16. Complainant has also alleged that respondent no. 1 used to extend threats to eliminate the complainant and her children. However in her cross examination, she admitted that she had not mentioned any specific date when R1 extended threats to eliminate. She admitted that she had not mentioned any specific date in her evidence by way of affidavit for the comments "aapas mai ek dusre ko achi tarah dekh lo kal tum mai se kaun gayab ho jaye". Therefore these allegations are also general in nature without providing any specific day, date, time, month and year of the alleged incident. Complainant also levelled allegations of bad treatment and insult caused to her by the respondents in the presence of neighbours, however it is worthwhile to note that she has not named even a single neighbour and has not examined any of the neighbours in order to substantiate her allegations and she categorically admitted in her cross examination that she has not brought any neighbour as a witness in front of whom she was insulted and she further admitted that she had not given any specific date and event when her husband insulted her before her neighbours. Therefore these allegations are also not proved in Usha vs Sunil Kumar Page No. 45 of 47 accordance with law. She further deposed that she used to cook food for R1 and after eating sufficient amount R1 used to throw the balance food in dustbin. However perusal of testimony of RW1, RW2, RW3 and RW4 reveals that complainant was not cooking food for R1 and he used to eat food at Dhaba as seen by RW4 himself. She had also alleged that R1 tried to strangulate her on 20.12.09 in the night time under the influence of liquor but somehow she managed to save herself. Again there is no police complaint lodged with the concerned PS by the complainant for the alleged strangulation and mere oral allegations of strangulation cannot proved the guilt of respondent. She has also alleged that R3 dragged the complainant from her hair and R2 and R4 gave kick blows and R5 shouted 'aaj isko jaan se mar dalo'. Again she has not given any specific day, date, time of the alleged incident and no MLC and police complaint have been filed on record for the alleged beatings. Had there been any instance of Domestic Violence, complainant could have lodged any other complaint except the present one but admittedly she did not lodged any criminal complaint with the concerned PS regarding the alleged beatings. Furthermore there are no allegations of any kind of dowry demand being made by respondents from the complainant and complainant miserably failed to prove specific allegations of domestic violence as discussed above in appreciation of evidence and on the contrary she admitted in her cross examination that she is living separately from her husband since December 2009 and R4 and R5 are residing in Usha vs Sunil Kumar Page No. 46 of 47 Sonepat since long and are not having visiting terms with her. Complainant got married in the year 1990 and present complaint filed in the year 2011 and as per complainant's own admissions she is residing separately from respondent since 2009. Therefore allegations are otherwise also not tenable considering time gap. Complainant has not established that she suffered any domestic violence and she falls within the scope of aggrieved person under domestic violence act. In view of aforesaid reasons and appreciation of evidence, complainant has failed to prove herself as aggrieved person and hence not entitled to any relief under PWDV Act.
17. Furthermore, admittedly complainant is residing separately from respondent/husband since 2009 as admitted by her in her cross examination and other respondents are also residing separately and not having visiting terms with her since long and thereby have not shared domestic relationship with the complainant for a long time and present complaint has been filed in the year 2011 i.e. after two years of the sharing of domestic relationship and accordingly present complaint is highly time barred. In view of judgment of Supreme court of India titled 'Inderjit Singh Grewal vs State of Punjab and Anr. 2011 (4) RCR Crl. 1 (SC)' wherein it is held that "the complaint could be filed only within a period of one year from the date of incident in view of provision of section 28 & 32 of the Act 2005 R/w Rule 15 clause (6) of Protection of women from domestic violence rules 2006 which make the provision of Cr.P.C. applicable."
Usha vs Sunil Kumar Page No. 47 of 47In view of aforesaid discussion present complaint is barred by limitation and furthermore complainant is not covered within this scope of definition of aggrieved person and accordingly not entitled to any relief claimed in the present petition. Petition stands dismissed accordingly. File be consigned to Record Room. Dasti be given.
(SHILPI JAIN) MM (MAHILA COURT)/ROHINI DELHI Announced in the open court today i.e . 05.05.2015.