Delhi District Court
Pooja Anand vs Sandeep Anand on 30 July, 2015
IN THE COURT OF SH. SANJEEV JAIN:ADDL. SESSIONS
JUDGE /SPECIAL JUDGE: CBI03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:
NEW DELHI
Criminal Appeal no. 07/15
UID No.02406R0105732015
Pooja Anand
W/o Sh. Sandeep Anand
D/o Sh. R.K. Malhotra
permanent r/o village no.13,
first floor, block III, Eros Garden
Charmwood village, Surajkund Road,
Faridabad, Haryana.
Presently residing at :
C16, 4th floor, Malviya Nagar,
New Delhi17 ..........Appellant
Vs.
Sandeep Anand
S/o Sh. Shiv Anand
Langelandsgade 206
8200, Aarhus, Denmark ..... Respondent
Date of filing of appeal : 30.03.2015
Date of allocation : 31.03.2015
Date of arguments : 15.07.2015
Date of order : 30.07.2015
Criminal appeal no. 07/2015 30.07.2015 Page no. 1/17
Appeal u/s 29 of The Protection of Women from Domestic
Violence Act, 2005 against the final order in the matter of CC
no.66/13 decided by Ms. Ankit Lal, Ld. Metropolitan
Magistrate (in short "MM"), Mahila Court, South on
04.3.2015 titled as "Pooja Anand Vs. Sandeep Anand and ors"
thereby dismissing application being not maintainable.
Present: Sh. O.P Gulabari, Ld. Counsel for appellant.
Sh. Pardeep Nawani, Ld. Counsel for respondent.
JUDGMENT
1 In brief, this appeal u/s 29 of The Protection of Women from Domestic Violence Act, 2005 (in short referred as D.V Act) has been filed by appellant Ms. Pooja Anand (hereinafter at some places also referred as "applicant") against her husband i.e respondent Sh. Sandeep Anand (hereinafter at some places also referred as "nonapplicant") to challenge impugned order dated 04.3.2015 passed by Ld. MM, Mahila Court, South, Saket in CC no.66/13. By impugned order the application filed by applicant under D.V Act was dismissed being not maintainable.
2 As per case of applicant she was married to respondent on 30.01.2006. In marriage sufficient dowry including jewellery articles and one swift car was given. Out of said wedlock a male child was born on 17.09.2007. Applicant lived Criminal appeal no. 07/2015 30.07.2015 Page no. 2/17 with respondent and her father in law and mother in law in matrimonial home in India. Thereafter, nonapplicant went to Bangkok in relation with his service. Nonapplicant joined another company and went to Denmark. Applicant also lived with respondent in Denmark. As per allegations of applicant she was continuously harassed by respondent and her in laws for bringing insufficient dowry. She also alleged cruelty on the part of respondent in the form of harassment,taunting and dowry demands. Applicant also alleged that all her istridhan articles including jewellery articles were taken by respondent and his parents. Applicant alleged that on 21.02.2010 respondent and his mother crossed all limits and gave beatings mercilessly and threatened to kill her unless their dowry demands are fulfilled. Applicant was terrified and requested respondent and his mother not to kill her. Respondent forced the applicant to leave the matrimonial home at Denmark and go back to India if she wanted to spare her life. As per case of appellant, on her request, air tickets were booked by her father and she alongwith his minor son came back to India on 23.10.2010. Applicant stated that in order to save her matrimonial life she tried her best to communicate with respondent to resume matrimonial life but no response was received from respondent.
3 As per case of applicant when she did not find any Criminal appeal no. 07/2015 30.07.2015 Page no. 3/17 other alternative, she filed application u/s 12 of D.V. Act against respondent and his relatives on 16.03.2013 in the court of Ld. MM, Mahila Court, Saket and claimed various reliefs. 4 The impugned order dated 04.3.2015 is challenged on various grounds by appellant. During course of arguments in substances the impugned order was challenged by Ld. counsel for appellant on following grounds:
a) That impugned order passed by Ld. MM is contrary to the provisions of D.V Act, settled legal position and the admitted facts.
b) That Ld. MM failed to notice that u/s 2 (a) of D.V Act, "aggrieved person means any women who is or has been in domestic relationship...." Similarly, section 2 (f) of D.V Act provides that "domestic relationship means relationship between two persons who lived or have at any point of time lived together". Section 2 (q) says " respondent means any adult male person who is or has been in domestic relationship". Ld. counsel argued that the abovementioned provisions of D.V Act categorically recognize past relationship between the parties and the same has not been disputed by the respondent. Therefore, Ld. Trial court committed grave error while observing that the application was not maintainable as there was no continuous domestic violence.
Criminal appeal no. 07/2015 30.07.2015 Page no. 4/17
c) Ld. MM committed an error by not recognizing para 4 (1) of the "statement of objections and reasons" of D.V Act which clearly states that " it covers those women who are or have been in relationship with the abuser where both parties have lived together". Thereby implying that person who have been in domestic relationship in past are covered under the Act.
d) Ld. Counsel argued that statement of "objections and reasons" of D.V Act clearly provides that remedy under D.V Act is civil remedy and offence u/s 31 of D.V Act comes in picture only when there is violation of "protection order" passed by the court u/s 18 of D.V Act. Ld. Counsel submitted that Ld. MM misconstrued the provisions while observing that petition was filed after gap of about three years. Section 468 Cr.PC which deals with the "limitation period" pertaining to criminal trials comes in picture only when cognizance is taken by the court u/s 31 of the D.V Act and that situation may be only in case of violation of "protection order" passed u/s 18 of D.V Act. For filing of application, no limitation period has been provided under D.V Act and therefore, Ld. MM committed error in observing that applicant has filed petition after considerable period and therefore, she has not come to the court with clean hands.
e) Ld. MM failed to appreciate that being an Hindu wife, for applicant, marriage is sacrosanct and like any other Criminal appeal no. 07/2015 30.07.2015 Page no. 5/17 Hindu wife she tried her best to save her marriage and did not approach the court or any other authority in a hope that it may further complicate the prospects of normal matrimonial life.
f) That Ld. MM failed to appreciate that provisions of D.V. Act has been legislated for protection of women against domestic violence and the remedies provided under D.V Act are in addition to other legal remedies like maintenance u/s 125 Cr.PC or criminal prosecution u/s 498 A IPC.
g) That Ld. MM has wrongly relied on the judgment of Harbans Lal Malik Vs. Payal Malik. In case of Harbans Lal Malik, prior to marriage husband was working in USA and immediately after marriage the husband and wife went to USA. However, court in USA after sending notice to wife granted divorce to husband on 04.12.2008 and the application under D.V Act was filed by wife on 13.01.2009 after grant of divorce and therefore, the fact of present case are just opposite to the Harbans Lal Malik case.
h) Ld. Counsel also submitted that Ld. MM has wrongly relied on the case of State Vs. Vinay Verma as the facts of the case were totally differernt from the facts of present case. In the case of Vinay Verma, petitioner was permanent resident of USA and applicant was living there since 2000. Applicant came to India on 15.09.2008 and levelled some allegations against her Criminal appeal no. 07/2015 30.07.2015 Page no. 6/17 relatives.
i) That Ld. MM ignored the reasons explained by the applicant for delay in approaching the court for seeking relief in her reply dated 14.08.2014.
j) That applicant approached the court bonafidely u/s 12 of D.V Act without suppressing or distorting any material fact. The fact of marriage, minor son etc were not disputed even by respondent and therefore, Ld. MM has wrongly observed that applicant has not approached the court with clean hands.
k) That as per the admitted facts respondent is residing in Denmark and applicant is residing with his minor son in India since year 2010. There is nothing on record that nonapplicant has given any financial aid to applicant and her son to maintain themselves which itself is a domestic violence within the meaning of D.V Act and is a continues act of domestic violence. Ld. MM ignored the admitted facts that respondent has ignored the legally wedded wife and minor son and even did not care to maintain them.
5 In support of his contentions, Ld. counsel for petitioner relied on several judgments mainly on:
i) Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori Crl.
A. 2069/2014.
ii) Vidaywati Vs. Kishan, 28/12, Calcutta HC, 2013 Criminal appeal no. 07/2015 30.07.2015 Page no. 7/17 Crl.L.J.4469.
iii) Shaikh Ishaq Budhanbhai Vs. Shayeen Ishaq Shaikh, Bombay HC, 310/2012 , 2012, Crl.L.J. 4518
iv) Ritesh Ratilal Jain Vs. Sandhya, Bombay HC, 631/11, 2013 Crl. L.J 3909.
v) Maroti Dewaji Lande Vs. Sau. Gandubai Maroti, Bombay HC, 542/2010, 2012 Crl.L.J 87
vi) Priya Vs. Shibu, Kerla HC 2524/2007, 20083KLT1
vii)Kanchan VS. Vikramjeet Setiya, Raj HC, 123/2010, 2013, Crl. L.J85
viii)A.T.G Srinivas Rao Vs. Pushkarini, Andhra HC, 3176/2012
ix) B.K Aggarwal Vs. Renu Aggarwal, Punjab & Haryana HC,6806/2014
x) Geeta Kapoor & Anr. Vs. State of Haryana & Anr., Punjab & Haryana HC, 37116/2012
xi) Khushi Mohd. & Ors. vs. Anisha, Raj HC, 882/2009 (approved by DB vide no.2014 Crl. L. J 866)
xii)M.D Nidhi Kaushik Vs. UOI & Ors. LPA 736/13 Delhi HC (DB) 2014 (212) DLT 5.
Criminal appeal no. 07/2015 30.07.2015 Page no. 8/17
xiii)Sabana @ Chand Bai Vs. Mohd. Talib Ali & Anr. Cr.R.P 362/2011, Raj HC (DB), 2014, Crl. L.J 866.
xiv)Savita Bhanot Vs. Lt. Col. V. D. Bhanot, Crl. MC 3959/2009 Delhi HC, 2011 Crl.L.J 2963.
6 Ld. Counsel for respondent contested the contentions of ld. counsel for petitioner mainly on the grounds that no domestic relationship existed between the parties; the applicant failed to approach the court with clean hands; applicant could not explain for delay in filing the application under D.V Act; the applicant herself deserted the company of respondent from Denmark; and applicant has failed to establish her case for any relief under D.V Act.
6.1 In support of his contentions Ld. Counsel for respondent relied on case of Vijay Verma Vs. State of NCT of Delhi 2010(118) DRJ 520 by Delhi High Court; Harbans Lal Malik Vs. Payal Malik 171 (2010) Delhi Law Times 67, Delhi; Dalip Singh Vs. State of UP and another IX (2009)SLT 167. 7 I have carefully considered the trial court record, the impugned order, written submissions filed by ld. counsels and arguments advanced at bar.
8 In impugned order, Ld. MM observed that " In the facts of the present case, prima facie Criminal appeal no. 07/2015 30.07.2015 Page no. 9/17 there are specific allegations of domestic violence committed upon the aggrieved since the marriage of the parties, which took place on 30.01.2006. In view of the admitted marriage, there is also no dispute as regards the domestic relationship between aggrieved and respondent no.1. It is also a matter of record that one child was also born out of the wedlock on 17.09.2007. Further, it has been alleged by the aggrieved that on 21.10.2010, she was thrown out of her matrimonial home after being mercilessly beaten by the respondents who also tried to kill her by giving electrical shocks. Thereafter, on 23.10.2010, the father of the aggrieved had sent two tickets to her i.e for herself and for her minor son to ask her to return to her parental home from Denmark, where the parties were last residing. From the record,it is however, not clear as to whether the aggrieved had, thereafter, contacted the respondent for either resuming their matrimonial life or the respondent had made any attempts to call the aggrieved back in her matrimonial home. The aggrieved has also not quoted any incidents of domestic violence committed upon her between the said period i.e from 23.10.2010 until filing of the present petition in the year 2013".
9 Despite abovementioned observations in respect of admitted facts and allegations of domestic violence, Ld. MM observed that petition is not maintainable mainly on following grounds:
i) That applicant has not filed any complaint before any authority after returning from her matrimonial home in Denmark in year 2010 until the filing of present petition. Criminal appeal no. 07/2015 30.07.2015 Page no. 10/17
ii) Applicant has not quoted any incident of domestic violence committed upon her from 23.10.2010 till the filing of petition.
iii) Applicant is an educated and qualified female but she was not vigilant enough and had slept over her rights for atleast 2&1/2 years without assigning any reason.
iv) That parties have not been residing together for last many years and respondent is settled in Denmark, therefore, any protection order will be infructuous.
v) As regard the monetary relief, the aggrieved is well within her right to claim u/s 125 Cr.PC which may also include the rent for alternative accommodation.
vi) For the act of Domestic Violence, the aggrieved has relief under appropriate provisions of Indian Penal Code (in short IPC).
vii)That applicant could not show any incident of domestic violation upon her during the said period of two and half years and it cannot be assumed that domestic violence is of continuing nature.
viii)That the domestic relationship between parties had already seized on 23.10.2010 when applicant came back from the Denmark.
ix) That applicant has failed to show any prima facie ground Criminal appeal no. 07/2015 30.07.2015 Page no. 11/17 for non filing of present petition or any other complaint of harassment and cruelty right after the relationship between her and respondent seized.
x) Because there is considerable delay in filing application under D.V Act without explanation, therefore, the aggrieved had not approached the court with clean hands and petition is not maintainable.
10 Though, number of judgments have been cited by the ld. counsel for parties but the various provision of D.V Act have been dealt with and interpreted by Hon'ble Supreme Court of India in case titled as Juveria Abdul Masid Patni Vs. Atif Iqbal Mansoori 2014 (10) SCC 736. In this judgment Hon'ble Supreme Court has considered almost each and every provisions of D.V Act. In this case, a muslim wife took divorce (khula) from her husband which was challenged by the respondent in the court. The wife claimed various relief under D.V. Act and Hon'ble Supreme Court held that application under D.V Act was maintainable and directed the respondent to pay the amount directed by the court of Ld. ACMM, Mumbai. From careful perusal of the judgment following principles have emerged about the interpretation and meaning of various provisions of D.V Act:
i) U/S 2 (a) of D.V Act, it is clear that apart from the women who is in domestic relationship, any women who has been Criminal appeal no. 07/2015 30.07.2015 Page no. 12/17 in a domestic relationship with respondent, if alleges to have been subjected to the act of domestic violence by respondent comes within the meaning of "aggrieved person".
ii) That the aggrieved person who at any point of time has lived with husband in a shared household is also covered by the meaning of domestic relationship defined u/s 2 (f) of the Act.
iii) U/S 3 apart from "physical abuse" and "sexual abuse", "verbal and emotional abuse" and "economic abuse" also constitute domestic violence.
iv) The monetary relief as defined u/s 20 of D.V Act is different from maintenance which can be in addition to an order of maintenance u/s 125 Cr.PC or any other law. Such monetary relief can be granted to meet the expenses incurred and loss suffered by the aggrieved person and child of aggrieved person as a result of domestic violence which is not dependent on the question whether the aggrieved person, on the date of filing of application u/s 12 of Domestic Violence Act is in domestic relationship with the respondent.
v) The wife who had shared household in the past but was not residing with her husband can file petition u/s 12 if Criminal appeal no. 07/2015 30.07.2015 Page no. 13/17 subjected to any domestic violence.
vi) Act of domestic violence once committed, subsequent decree of divorce will not absolve liability of respondent from the offence committed or to deny the benefit which which aggrieved person is entitled under D.V Act including monetary relief u/s 20, child custody u/s 11 , compensation u/s 22 and interim and exparte order u/s 23 of the Act.
11 In view of the law settled by Hon'ble Supreme Court of India in Juveria Abdul Masid Patni case, I have no doubt that Ld.MM has committed a grave error in observing that because no domestic relationship existed between the parties and no act of domestic violence was committed after 2010, the petition was not maintainable. In my view, unfortunately, Ld. MM failed to appreciate the provisions of D.V Act in correct prospective.
12 In view of Vidaywati Vs. Kishan, 28/12, Calcutta HC, 2013 Crl.L.J.4469; Shaikh Ishaq Budhanbhai Vs. Shayeen Ishaq Shaikh, Bombay HC, 310/2012 , 2012, Crl.L.J. 4518; Ritesh Ratilal Jain Vs. Sandhya, Bombay HC, 631/11, 2013 Crl. L.J 3909; Maroti Dewaji Lande Vs. Sau. Gandubai Maroti, Bombay HC, 542/2010, 2012 Crl.L.J 87; Priya Vs. Criminal appeal no. 07/2015 30.07.2015 Page no. 14/17 Shibu, Kerla HC 2524/2007, 20083KLT1 ; Kanchan VS. Vikramjeet Setiya, Raj HC, 123/2010, 2013, Crl. L.J85; A.T.G Srinivas Rao Vs. Pushkarini, Andhra HC, 3176/2012; B.K Aggarwal Vs. Renu Aggarwal, Punjab & Haryana HC, 6806/2014; Geeta Kapoor & Anr. Vs. State of Haryana & Anr., Punjab & Haryana HC, 37116/2012 ; and Khushi Mohd. & Ors. vs. Anisha, Raj HC, 882/2009 (approved by DB vide no.2014 Crl. L. J 866) , it may be said that settled legal position is that no limitation period has been prescribed for a application u/s 12 of D.V Act. The applicability of limitation period u/s 468 Cr.PC comes into the picture only when there is violation of protection order passed u/s 18 of D.V Act and consequently offence is committed u/s 31 of D.V Act. In view of settled legal position, in my view, Ld. MM has fell in error in observing that applicant has not approached the court with clean hands as the delay in filing application has not been explained. 13 The "object and reasons" of Domestic Violence Act clearly provides that the remedy under this Act is substantially a civil remedy and provisions have been legislated to provide immediate relief to the victims of Domestic Violence in respect of residence, custody of child and monetary relief. Court cannot ignore the fact that normally parties (particularly wives in Indian Criminal appeal no. 07/2015 30.07.2015 Page no. 15/17 context) tries to save their marriage despite domestic violence, cruelties and differences. In order to save the matrimonial life, generally women does not lodge complaints to the police or the courts due to fear that it may further spoil the chances of a normal matrimonial life. It can not be said that applicant in this case while living in India waited for 2 & ½ years and tried to contact the respondent with a hope to resume the normal matrimonial life.
14 As per the admitted facts observed by Ld. MM in impugned order, the applicant is legally married wife of respondent; there is minor son born out of said wedlock; respondent is settled in Denmark; applicant with her minor son is residing in India since 2010 and there are specific allegations of domestic violence by the applicant. There is nothing on record to prima facie show that respondent has ever tried to resume matrimonial relationship with applicant or provide any financial assistance for the maintenance. The applicant and her son were residing in India only with the help of parents and relatives. In these circumstances, in view of provisions of D.V Act and law laid down by superior courts, application u/s 12 of D.V Act is maintainable and deserves decision by the court on merits. 15 In view of above observations, in my opinion, the impugned order dated 04.03.2015 passed by Ld. MM about the Criminal appeal no. 07/2015 30.07.2015 Page no. 16/17 dismissal of application u/s 12 of D.V Act on the ground of maintainability suffers from grave error and is contrary to the facts and law which resulted in miscarriage of justice. Therefore, the impugned order dated 04.03.2015 is set aside. Ld. Trial court is directed to decide the application u/s 12 of D.V Act filed by applicant for various reliefs on its merits in accordance with law. It is clarified that any observation or expression used in this order shall not effect the merits of the case before Ld. Trial court. Accordingly, appeal is allowed.
16 Copy of order be sent to the Court of ld. Trial Court alongwith trial Court record for information and record. 17 Parties/Ld. Counsel for parties to appear before ld. Trial Court on 04.08.2015.
18 File be consigned to record room after due compliance.
Announced in the open court
on 30.07.2015 (Sanjeev Jain)
ASJ/Special Judge (PC Act)
(CBI3), South, Saket Court
New Delhi
Criminal appeal no. 07/2015 30.07.2015 Page no. 17/17