Delhi District Court
Dr. Ram Chandra vs Ms. Nutan on 23 September, 2017
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Appeal No.204489/2016
ID No. DLSE010031702015
1. Dr. Ram Chandra
S/o Mr. Ram Shankar @ Ram Singh Thekedar
2. Mr. Ram Shankar @ Ram Singh Thekedar
S/o Late Mathuni Prasad
3. Ms. Raj Kumari
W/o Ram Shankar @ Ram Singh Thekedar
4. Ms. Jyoti Kumari
D/o Ram Shankar @ Ram Singh Thekedar
All R/o H. No. 907A/8, Govindpuri
Kalkaji, New Delhi110019. . . . . Appellants
versus
Ms. Nutan
D/o Shri Bijender Singh
R/o H. No. 1341 A/8,
Govindpuri, Kalkaji,
New Delhi - 110019. .... Respondent
__________________________________________________________ Date of Institution : 23.11.2015 Date when arguments were heard : 04.09.2017 Date of Judgment : 23.09.2017 JUDGMENT :
1. This criminal appeal under section 29 of The Protection of CA No.204489/2016 1 of 11 Women from Domestic Violence Act, 2005 (hereinafter referred as "DV Act") has been preferred against the order dated 05.10.2015, which was passed by Ms. Vandana Jain, learned Metropolitan Magistrate (in short "MM") in CC No. 350/1/15 titled as Nutan Vs. Ram Chandra & Others. Vide the impugned order, Ld. MM has decided the maintainability of the petition u/s 12 of the DV Act and has held that the petition is maintainable.
2. Notice of the appeal was issued to the respondent and arguments were heard. Trial court record was summoned for perusal.
3. In brief, the facts of the case are that respondent herein was married to the appellant no. 1 Dr. Ram Chander, marriage being solemnized on 23.02.2009. The respondent wife, however, levelled allegations of demand of dowry even on the date of marriage and subsequent thereto as well. It was alleged that there was a demand for an Innova car. She also alleged that in February 2010, the complainant wife along with the appellant no. 1 husband had gone to Dehradun, where he gave a very indecent proposal to her saying that if she has to arrange money for Innova car, she can have physical relation with some tourist there. There is also an allegation that the inlaws of the complainant wife was also harassing her for want of sufficient dowry. On 27.05.2010, she was forced to leave the matrimonial home. She preferred petition u/s 125 Cr.P.C. However, she came to know that the appellant no. 1 husband was already married before solemnizing marriage with her on 23.02.2009. It transpired that he had CA No.204489/2016 2 of 11 married with one Ms. Lalita Gautam and this fact was not known to her at the time of marriage. She withdrew the petition u/s 125 Cr.P.C. but preferred the petition u/s 11 of Hindu Marriage Act, 1955 (in short "HMA") for declaring the marriage as null and void. The Family Court Saket dissolved the marriage by the Decree dated 13.07.2012 on the ground that marriage was null and void ab initio. The appellant no. 1 husband had also filed a petition u/s 9 of HMA, which was however withdrawn later on. The complainant wife also filed a FIR no. 173/11 u/s 498 A/406/34 IPC at PS Govindpuri which is still pending trial. She had also moved a petition u/s 12 of the DV Act under the impression of valid marriage with the appellant no. 1 but she withdrew the same on 06.08.2013 with liberty from the court to file fresh petition as per the law.
4. The complainant wife had also filed a complaint for the offences u/s 376/417/419/494/495/496 read with section 120B IPC, which is still pending in court.
5. The complainant wife claimed in the petition that on account of mental, physical torture and harassment by the in laws, she could not continue her study and vocational course at NVTI, D1, Sector1, Noida and also a B.A. course from Delhi University.
6. On the basis of these allegations, she filed a petition claiming the relief, inter alia, u/s 18 of the Act for return of her assets and stridhan; monetary relief u/s 20(1)(c) and 20(1)(d) and also for a compensation of Rs.50 lacs on account of physical CA No.204489/2016 3 of 11 injury, mental torture, emotional distress and removal of stridhan.
7. When the notice was issued to the respondents in the said petition u/s 12 of the DV Act, a question arose about the maintainability of the petition itself as a plea was taken that the marriage had subsisted only for one year i.e. till 27.05.2010, which fact was not even disputed. It was also claimed that the marriage has already been declared as null and void by a competent court on 13.07.2012, therefore the petition under DV Act was not maintainable. The respondent appellant had relied upon a judgment in the case of Inderjit Singh Grewal Vs. State of Punjab & Anr. 2011 (12) SCC 588 stating that even otherwise the petition was barred by limitation.
8. The Ld. MM thereafter giving hearing to both the parties, passed the impugned order on 05.10.2015 and relying upon a judgment of the Hon'ble Supreme Court, held that the complaint was maintainable.
9. In the appeal, the appellant have taken various ground to challenge the very maintainability of the petition under DV Act. It is stated in the appeal that the respondent wife was in illicit relationship with one Dinesh Kumar much prior to the marriage and even after marriage, she continued with the same relationship. The appellant have the audio recording of the conversation between respondent wife and said Dinesh Kumar. He filed transcript with appeal. It is stated that on 27.04.2010, respondent wife was caught red handed with her paramour for CA No.204489/2016 4 of 11 which there is a video recording and thereafter, she left the matrimonial home on 27.05.2010 along with all her jewellery. It is submitted that she made a complaint with CAW Cell which culminated in registration of FIR u/s 498A/406 IPC. It is stated that the respondent wife has committed perjury because on the one hand, she claimed maintenance u/s 125 Cr.P.C. claiming to be legally wedded wife of appellant no. 1 while on the other hand, she filed a petition for annulment of the marriage before the Family Court.
10. From the pleadings before the trial court and in the appeal, some uncontroverted facts, which are admitted by the parties can be culled out. It is admitted that the marriage between the appellant no. 1 and the respondent wife was solemnized on 23.02.2009 as per Hindu rites and customs. It is also an admitted fact that presently a FIR u/s 498A/406 IPC is registered against all the appellants. Another admitted fact is that a petition u/s 12 of the DV Act was filed by the respondent wife, which was later on withdrawn with liberty to file fresh petition as per law. It is also admitted that a petition u/s 9 of HMA was filed by appellant no. 1, which was also dismissed. It is admitted fact that in August 2011, a petition was filed u/s 11 of HMA for annulment of the marriage on the ground that the husband was already legally married and the degree of annulment of marriage was passed in July 2012. Thereafter, the petition u/s 12 of the DV Act was withdrawn in 2013 and it was filed again in January 2015.
11. Another admitted fact is that the respondent wife has CA No.204489/2016 5 of 11 remarried in year 2013 and she has a child out of the said wedlock. For confirmation of this fact, the statement of the respondent Ms. Nutan was recorded on 04.09.2017 in the court, wherein she admits that she got married with Mr. Sandeep in September 2013 and she has a daughter out of this wedlock and she is presently residing with her husband Mr. Sandeep.
12. The counsel for the appellants had vehemently argued that not only that petition u/s 12 of DV Act was hopelessly barred by limitation, the allegations levelled in the petition itself are false and fabricated. The intention of the respondent wife is to just harass the appellants and there was no justification for filing the present petition again when the earlier petition was withdrawn in August 2013 without assigning any reason. Ld. Counsel for the appellants has filed certain transcript of the telephonic conversation between Dinesh and Nutan i.e. respondent herein to support his argument that they were having relationship even prior to the marriage, which continued post marriage as well. The counsel for the appellants has argued that it is the respondent wife who has left the matrimonial home on her own and she had falsely concocted the allegations of harassment on account of dowry.
13. The counsel for the respondent however had submitted that the merit of the case need not be considered at this stage, as only the question of maintainability of the petition has arisen and the impugned order has decided only the question of maintainability of the petition u/s 12 of the DV Act. I am also of the view that in CA No.204489/2016 6 of 11 the present appeal, a very short question has arisen for determination whether the petition u/s 12 of the DV Act was maintainable or not in view of the annulment of the marriage between the parties in July 2012?
14. Under the DV Act, an 'aggrieved person' has been defined in section 2 (a) as 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. Thus, the aggrieved person would be a woman, who is or "has been" in domestic relationship and has been subjected to domestic violence.
15. 'Domestic violence' has been defined in section 3 of the DV Act, which not only talks of mental and physical hurt, injury or endangerment but also of physical abuse, sexual abuse, economic abuse, verbal and emotional abuse etc.
16. To invoke the provisions of DV Act, the aggrieved person must also show that she was in a 'domestic relationship' with the respondent. The dispute in the present appeal is confined to this relationship. Section 2(f) of the DV Act defines 'domestic relationship' as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when 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.
17. The crucial words relevant for the present dispute are 'through relationship in the nature of marriage'. If there is a valid CA No.204489/2016 7 of 11 and subsisting marriage, there will not be any dispute qua maintainability of petition under the DV Act. Dispute may arise when a man and woman are sharing a relationship which is in the nature of a marriage. Coming to the facts of the present case, it is the admitted case that the appellant no. 1 and the respondent got married under Hindu rites and customs on 23.02.2009 and they lived together as husband and wife till she left the matrimonial home on 27.05.2010. The fact that the appellant husband was already married was not in the knowledge of the respondent, though it is a disputed fact because the appellant has relied upon some documents and telephonic conversations to show that respondent wife was aware about the subsisting marriage of the appellant no. 1. Notwithstanding this dispute with regard to the knowledge of the previous marriage, the facts remain that for one year, appellant no. 1 and respondent had lived in a marriage, though the said marriage was thereafter declared as null and void. The relationship which the appellant no. 1 and respondent shared for one year was nothing less or more than the relationship of marriage. So there is no doubt in holding that they had shared a "domestic relationship".
18. So far as the question of perpetration of domestic violence upon the respondent wife, it is a question of fact which only the trial court will consider. The issue which arise here is whether after the annulment of the marriage, the petition could have been filed or not?
19. The appellant has placed reliance upon the judgment of CA No.204489/2016 8 of 11 Inderjit Singh Grewal (supra) to argue that so much time has passed and the limitation has also lapsed, therefore the petition was not maintainable. I have gone through the judgment in Inderjit Singh Grewal's case (supra). The facts of the case were a bit different. In the said case, the husband and the wife had obtained mutual divorce. After sometime, wife filed a petition u/s 12 of the DV Act claiming custody of the child and for maintenance and also claimed that the divorce obtained by mutual consent was in fact obtained by fraud. The matter went up to the Hon'ble Supreme Court and the Hon'ble Supreme Court was of the view that the petition u/s 12 of the DV Act was not maintainable because there was a valid decree of divorce and the relief under the DV Act sought by the petitioner therein were subsequent to the period of dissolution of the marriage. It was also observed that even if the married was dissolved by fraud, still the marriage has been dissolved as per law and only a competent court can set aside the decree of dissolution of marriage and the Magistrate dealing with the petition under the DV Act was not competent to entertain such plea. Although, a passing reference was also made to the fact that petition was filed after more than one year of the dissolution of marriage but there was no authoritative pronouncement by the Hon'ble Supreme Court on the issue of limitation. The DV Act has nowhere provided about the limitation. The law as enshrine in DV Act does not provide for any limitation to approach the court for any act of domestic violence on an aggrieved person.
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20. I have also gone through the judgment on which the Ld. MM has relied which is Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori & Anr. 2014 (8) LRC 36 (SC) decided on 18.09.2014. In this case, a similar question had arisen and the Hon'ble Supreme Court has given a very categorical finding in Para 31 which reads as under : "31. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, Child Custody under Section 21, Compensation under Section 22 and interim or exparte order under Section 23 of the Domestic Violence Act, 2005."
21. In view of the authoritative pronouncement of the Supreme Court with regard to the maintainability of the petition under DV Act even after dissolution of marriage, there is no other option but to hold that the petition u/s 12 of the DV Act in the present case was maintainable and the impugned order of the Ld. MM therefore does not suffer from any illegality.
22. However, it must be considered that maintainability of a petition as per law is one thing and the entitlement for the relief under the DV Act by the petitioner is another thing. Simply because a petition is maintainable as per law, by itself does not entitle the petitioner for a relief under the DV Act. No doubt petition under DV Act initially filed was withdrawn in 2013 without assigning any reason although by reserving the right to file a fresh petition and the respondent wife had exercised the CA No.204489/2016 10 of 11 discretion and filed the fresh petition u/s 12 of the DV Act. Presently, she is married having children, living separately and apparently has no nexus with the appellant. There is no incident of domestic violence subsequent to their separation in 2010. These are factors which may have bearing on the entitlement of respondent wife for relief claimed. But I am of the considered view that these are the questions which are to be considered by the trial court while considering the prayer of the petitioner under the DV Act. The claim of the appellant that respondent wife was in adultery will be taken care of by the trial court and this issue cannot be raised here when there is no finding on the issue by the trial court. The only question involved in the appeal was about the maintainability of the petition u/s 12 of the DV Act and the impugned order holding that the petition was maintainable is found to be justified in view of the case law on which reliance was placed by Ld. MM. In view of the above, the appeal stands dismissed.
23. A true copy of judgment along with TCR be sent back to learned trial court concerned.
24. Appeal file be consigned to record room.
Announced in the open (AJAY KUMAR KUHAR)
court today i.e. 23.09.2017 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
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