Delhi District Court
Anita Srivastava vs Surabhi Nayak on 22 August, 2024
IN THE COURT OF
ADDITIONAL SESSIONS JUDGE (FTC)
SOUTH-WEST DISTRICT, NEW DELHI
PRESIDED BY : Mr. SHARAD GUPTA
CA No. 2000/2024
CNR no. DLSW01-0060342024
IN THE MATTER OF
1. Anita Srivastava,
W/o Sh. Sunil Kumar Srivastava,
R/o Sector-5, House no. 153,
Chiranjeev Vihar,
Ghaziabad-201002.
2. Sh. Sunil Kumar Srivastava,
S/o Sh. Adya Prasad Srivastava,
R/o Sector-5, House no. 153,
Chiranjeev Vihar,
Ghaziabad-201002. .......APPELLANTS
VERSUS
Surabhi Nayak,
W/o Sh. Kavish Srivastava,
R/o A-1004, NPSC CGHS Ltd.,
Plot no. 5, Sector-2, Dwarka,
New Delhi-110075 ......RESPONDENT
Date of institution : 03.07.2024
Date on reserving orders : 07.08.2024
Date of pronouncement : 22.08.2024
JUDGMENT
Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 1 of 15
1. The present appeal has been preferred against order dated 01.05.2024 passed by the Court of Ms. Surbhi, learned Metropolitan Magistrate (Mahila Court)-02, Dwarka South, New Delhi in MC-927/2023, titled Surbhi Nayak vs. Kavish Srivastava whereby the application of the revisionists seeking their discharge was dismissed.
2. On notice of the appeal having been issued to the respondent, she entered appearance and contested the appeal.
3. During arguments, Ms. Neelima Arora Thakur, learned counsel for the appellants submitted that the impugned order dated 01.05.2024 refusing to discharge the appellants is against law and facts and has been passed with undue haste without appreciation of the material on record. That the averments in the complaint filed by the respondent herein did not make out any case for summoning of the appellant. She further stated that the impugned order is premature and has been passed even prior to taking cognizance of the contents of the DIR dated 17.11.2023. It is further argued that the DIR which was filed subsequent to passing of the summoning order could not be considered for passing the impugned order. That there are no allegations of domestic violence or any violence against appellant no. 1. That the appellant no. 2 has disowned both his son and daughters in law. That the appellants had joined only the ceremonial company of the complainant and did not have any active relationship with her. That the complainant never stayed with the appellants and as such there was no domestic relationship between them. That there was no common kitchen Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 2 of 15 shared between the parties and as such there was no domestic relationship between the parties. It is accordingly argued that the impugned order be set aside.
4. Ld. Counsel for the respondent has vehemently opposed the contentions of the Ld. Counsel for the appellants. It is argued that there are specific allegations against the appellants herein in the complaint filed by the respondent. That the appellants themselves had given various complaints before the concerned authorities dated 24.12.2022 ad 04.01.2023 in which there are assertions that the respondent was living with the appellants herein. Thus there was domestic relationship beteen the parties. That even if the arguments of the appellant are taken at its face value, in view of the assertions of the respondent made in the complaint and the own admissions of the appellants herein in their complaints to the police authorities, the said question would be a mixed question of fact and law and cannot be decided at this preliminary stage without undergoing trial. Reliance is placed on the pronouncement of our own Hon'ble High Delhi in Sanjeev Batra vs. Simranjeet Kaur, Crl. M.C. no. 1794/2020, Crl. M. A. no. 12573/2020 and 17293/2020 decided on 04.09.2023. It is further argued that it is now well settled that where complaint is made by the aggrieved person herself or through counsel, calling of DIR is not mandatory. Reliance is made on the pronouncement in Prabha Tyagi vs. Kamlesh Devi, Crl. Appeal no. 511/2022, decided on 22.05.2022 (Supreme Court). It is thus argued that the present appeal be dismissed.
5. The record has been carefully and thoroughly Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 3 of 15 perused. The respective submissions of learned counsel for appellant and learned counsel for the respondent have been duly considered.
6. The relevant paragraph/portion of the impugned order dated 01.05.2024 reads as under :-
"It is stated in the application that both the respondent no. 2 and 3 are senior citizens having old age ailemnts and respondent no. 1, who is the son of respondent no. 2 and 3 has been living in Canada since many years. It is further stated that the complainant had tied her nuptial knots with the respondent no. 1 on 15.01.2022 in Arya Samaj Mandir. It is further stated that respondent no. 3 had disowned the respondent no. 1 in the year 2023 and also complained to the Ld. Distt. Magistrate, Ghaziabad with regard to the same. It is stated that both the respondents are malafidely implicated in the present matter as there is no domestic relationship between the petitioner and respondent no. 2 and 3 as they never live together in a shared household.
Application perused.
By going through the entire application, it is clear that the said application is filed only on one legal ground that there is no domestic relationship between the petitioner and respondent no. 2 and 3, however, the DIR filed by the protection officer as well as the pleadings taken by the complainant in her petition say otherwise. The DIR specifically stated that the complainant resided with respondent no. 1 to 3 from February, 2022 to 07.05.2022 in a shared household. There are specific allegations made by the complainant against respondent no. 2 and 3 in her petition. Moreover, the respondents have not filed any proof alongwith the said application which proves that there is no domestic relationship between the petitioner and the respondent no. 2 and 3.
This court is of the view that prima facie there appears that there was domestic relationship between the parties and hence the application being devoid of merits is dismissed."
7. For the sake of clarity, the parties are being referred to hereinafter with their respective nomenclature before the Ld. Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 4 of 15 Trial Court.
8. Before proceeding any further, it would be relevant to refer to the brief facts of the case culminating in the present adjudication. Briefly stated, the complainant Ms. Surbhi Nayak had filed application U/s 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act'), against her husband Sh. Kavish Srivastava (hereinafter referred to as R-1), her mother in law Smt. Anita Srivastava (hereinafter referred to as R-2), father in law Sh. Sunil Kumar Srivastava (hereinafter referred to as R-3), sister in law Ms. Anugraha Srivastava (hereinafter referred to as R-4) and brother in law Mr. Rishabh Khetan (hereinafter referred to as R-5). Succinctly stated the contention of the complainant was that she got in touch with R-1 through Jeevansathi.com. There are allegations that R-1 was represented to be a well educated man having stable remuneration and being free from any vices. There are allegations that the complainant was subjected to cruelty even prior to marriage in connection with the dowry demand. There are allegations that the complainant was subjected to verbal, physical and mental harassment and cruelty even after the marriage. Pertinent to the present adjudication, there are allegations that the complainant had joined her matrimonial home after the marriage and R-2 and R-3 had taken away her entire jewellery on the pretext that they would keep it safe. There are allegations that one day, R-1 had thrown a hot cup of tea on her as she got late in preparation of evening tea for R-2 and R-3 and R-2 had also shouted at her. There are allegations that R-2 and R-3 started treating the complainant with cruelty after late Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 5 of 15 March, 2023, after R-1 had left his job in Canada, when the complainant was pregnant. There are allegations that the complainant was made to do all the household works during her pregnancy by R-2 and R-3 and was not given sufficient food by them. There are allegations that when the complainant gave birth to a baby girl on 23.11.2022, respondent nos. 2 and 3 were unhappy and started creating ruckus in the hospital premises stating that they would not accept the baby girl as their grandchild and refused to bear any hospital expenses or expenses related to the girl child. That the respondents also did not host any ceremonies related with the birth of the child. That during the Pooja on 27.11.2022 at complainant's paternal home, R-2 kept taunting and cursing the complainant for giving birth to a girl child and also restricted complainant's movements so that another girl child would not take birth in their home. That respondent no. 2 used to whisper in the ears of the new born baby that 'teri ma or nanu tujhe marte hai, or vo dono hi gande log hai'. That the respondents did not bear any expenses for post natal care of the complainant and her child. That the nurse hired by the complainant was fired by the R-2 on 21.12.2022 after which complainant was forced to do all household chores and take care of the baby even while the complainant was suffering from high fever. That thereafter, R-1, R-2 and R-3 stopped giving any food to the complainant. That in the evening, R-1, R-2 and R-3, started abusing the complainant for not been able to stop the baby for crying. That when the complainant stated that she was unwell, R-2 caught hold of her hair while R-1 banged her head on a wall. That R-2 tried to suffocate the complainant. That R-2 Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 6 of 15 asked R-3 to lock the gates of the house and turn on the TV to the highest volume. That on 23.12.2022, in the early morning hours, R-2 and R-3 turned out the complainant and her baby girl from the matrimonial house.
9. Pertinent to the present adjudication, there are thus specific allegations on record against R-2 and R-3. There are also specific allegations that the complainant was staying with R-2 and R-3 in her matrimonial home during which stay she was subjected to harassment and cruelty inter alia by R-2 and R-3.
10. The sum and substance of the arguments of the Ld. Counsel for the appellants is that there was no domestic relationship between them and the complainant (respondent herein). It is argued that the complainant was living separately with her husband while the appellants were living alone in a separate house in Ghaziabad. Per contra, assertion of Ld. Counsel for the complainant is that there are specific allegations in the complaint that the complainant had resided in the matrimonial home inter alia with the appellants when she was subjected to cruelty and harassment. Ld. Counsel for the complainant has drawn attention of the court to complaints dated 24.12.2022 and 04.01.2023 made by the appellant no. 1.
11. Complaint dated 24.12.2022 contains allegations that the behavior of the complainant was bad towards the appellants, their family and their son and she had started creating ruckus in the house. That after returning from Jaipur and Shimla, she had started giving commands in the house. There are allegations that for one month prior to 24.12.2022, the Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 7 of 15 complainant was creating a ruckus in the house and was abusing under influence of alcohol. There are allegations in complaint dated 04.01.2023 that the complainant was a quarrelsome lady and was creating fights every day in the house of the appellant. It is not the case of the appellants that they had not made the said complaints. Rather the complaint dated 04.01.2023 was annexed by the complainant alongwith their application seeking discharge. The tone and tenor of the said complaints would imply that the complainant was living with the appellants in their house.
12. Furthermore, Ld. Counsel for the complainant has rightly placed reliance on the pronouncement in Sanjeev Batra (supra). The relevant paragraph of the said pronouncement is reproduced hereinunder :-
18. As regards the contention that petitioners had shifted to the first floor of property after their marriage in the year 2005 and thus, there could be no shared household between the respondents and petitioners is concerned, this Court notes that firstly, the allegations of domestic violence including sexual, physical and emotional abuse against the petitioner no. 1 relates to year 2004-2005 also i.e. period before his marriage, when he, admittedly, used to stay on the same floor with his elder brother and respondent no. 1. Secondly, the respondent no. 1 in her complaint has categorically stated that even though the present petitioners had started residing on the first floor of property, they all used to live as a joint family, share a common kitchen and used to eat together. Whether Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 8 of 15 such allegations and averments made in the complaint by respondent no. 1 are correct or not can only be decided by the learned Trial Court after hearing both the parties and taking the evidence on record and such disputed questions of facts cannot be decided by this Court in the present petition.
13. In the facts of the present case, the veracity of the assertions of the complainant in the complaint would be a matter of trial, however, the dismissal of application of appellants for their deletion by the Ld. Trial Court cannot be said to be illegal or improper or perverse in the facts of the present case, especially in face of specific allegations against the appellants herein in the complaint, specific allegations in the complaint that the complainant had resided with the appellants and her husband in the matrimonial house and the complaints filed by the appellants themselves, the tone and tenor whereof implies that the parties were living together in the same house.
14. Further argument of the appellants is that the Ld. Trial Court did not consider the Domestic Incident Report before summoning the appellants. In this context, it is well settled having been held in Prabha Tyagi (Supra) by the Hon'ble Apex Court, that the consideration of the Domestic Incident Report was not mandatory before initiating proceedings under the DV Act. The ratio in Ajay Kumar vs. Uma, 2024 SCC OnLine, Delhi 148 can also be fruitfully adverted to in this regard wherein it was held as under :
19. The issue whether consideration of DIR (Domestic Incident Report) is mandatory before initiating proceedings under the DV Act, in Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 9 of 15 order to invoke substantive provisions of Sections 18 to 20 and 22 of the DV Act came up for consideration before Hon'ble Supreme Court in Prabha Tyagi v. Kamlesh Devi (supra) wherein the difference of opinion expressed by different High Courts on the issue was noticed.
Hon'ble Apex Court observed that on a conjoint reading of the provisions of the DV Act, an 'aggrieved person' on her own or any other person on behalf of the aggrieved person may represent an application before the Magistrate seeking one or more reliefs under the DV Act. However, in terms of the proviso, when a DIR is received by the Magistrate from the Protection Officer or Service Provider, in such a case, same shall be taken into consideration. As such, when an aggrieved person files an application herself or with the assistance of an Advocate and not with the assistance of a Protection Officer or Service Provider, in such a case, the role of Protection Officer or Service Provider is not envisaged. As such, it was held that the expression "shall" used in proviso to Section 12(1) of the DV Act is restricted only to those cases where a Protection Officer files any DIR or, as the case may be, Service Provider files such a report. Consequently, when a DIR is filed by a Protection Officer or Service Provider, in such a case, the Magistrate has to take into consideration the said report received by him. However, if such report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Accordingly, it was concluded that High Court was not right in holding that the Magistrate had no authority to issue any directions in favour of the appellant under proviso to SubSection (1) of Section 12 of Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 10 of 15 the DV Act since the application filed by the appellant therein was not accompanied by a DIR. Diversion of opinion between different High Courts was accordingly settled as observed in paragraph 49 as under:
"49. ....... On an analysis of the aforesaid judgments from various High Courts, we find that the High Courts of Andhra Pradesh, Bombay, Delhi, Gauhati, Himachal Pradesh, Jammu & Kashmir, Karnataka, and Madhya Pradesh, are right in holding that if Domestic Incident Report has been received by the Magistrate either from the Protection Officer or the service provider then it becomes obligatory on the part of the Magistrate to take note of the said report before passing an order on the application filed by the aggrieved party, but if no complaint or application of domestic violence is received by the Magistrate from the Protection Officer or the service provider, the question of considering such a report does not arise at all. As already discussed, the D.V. Act does not make it mandatory for an aggrieved person to make an application before a Magistrate only through the Protection Officer or a service provider. An aggrieved person can directly make an application to the jurisdictional Magistrate by herself or by engaging the services of an Advocate. In such a case, the filing of a Domestic Incident Report by a Protection Officer or service provider does not arise. In such circumstances, it cannot be held that the Magistrate is not empowered to make any order interim or final, under the provisions of the D.V. Act, granting reliefs to the aggrieved persons. The Magistrate can take cognizance of the complaint or application filed by the Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 11 of 15 aggrieved person and issue notice to the respondent under Section 12 of the D.V. Act even in the absence of Domestic Incident Report under Rule 5. Thus, the Magistrate has jurisdiction to take cognizance of the complaint under Section 12 of the D.V. Act in the absence of a Domestic Incident Report under Rule 5 when the complaint is not filed on behalf of the aggrieved person through a Protection Officer or service provider. Such a purposeful interpretation has to be given bearing in mind the fact that the immediate relief would have to be given to an aggrieved person and hence the proviso cannot be interpreted in a manner which would be contrary to the object of the D.V. Act which renders Section 12 bereft of its object and purpose."
20. The conclusion in paragraph 52(i) may be further beneficially quoted:
"52. In view of the above discussion, the three questions raised in this appeal as answered as under: (i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act. It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the DV Act. It is clarified that even the balance of a Domestic Incident Report, a Magistrate is empowered to pass both ex-parte or interim as well as a final order under the provisions of the DV Act."
Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 12 of 15
21. Reverting back to the facts of the case, it may be noticed that vide order dated 31.07.2021, the complaint under Section 12 of the DV Act preferred by the respondent was registered and it was observed that there are clear allegations, as to the 'domestic violence' inflicted upon the complainant by the respondent No. 1. Also DIR was called through the Protection Officer for the next date of hearing i.e. 03.08.2021. The order dated 09.08.2021 passed by learned MM further takes into consideration the DIR and takes note of the fact that the respondent had shifted to her rented accommodation with the complainant and her minor daughters and thereafter left the complainant and also stopped paying rent of the premises. It was further observed that the respondent had appeared once but thereafter neither the respondent nor his counsel appeared and also failed to file reply. In the aforesaid circumstances, vide order dated 09.08.2021 the respondent was observed to have committed economic violence upon the complainant and was directed to pay rent of Rs. 6,500/- per month to the complainant from May, 2021 till further orders by depositing the same into her bank account and also clear the arrears of the said amount within a month. The complainant was thereafter directed to file income and assets affidavit in terms of Rajneesh v. Neha, (2021) 2 SCC 324 for consideration of the arguments on interim maintenance application. Finally, impugned order on interim maintenance was passed on 15.09.2021. 22. On the face of record, since the complaint under Section 12 of the DV Act was filed by the respondent on her own through counsel, there could not have been any Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 13 of 15 occasion for filing the DIR by the Protection Officer or Service Provider at the said stage. However, the same was duly called for by the learned MM vide order dated 31.07.2021 and is duly reflected to have been considered while passing the interim direction for payment of rent and clearance of arrears. In the facts and circumstances, reliance placed upon Ravi Dutta v. Kiran Dutta (supra) by the learned counsel for the petitioner which already stands overruled in Prabha Tyagi v. Kamlesh Devi (supra) is misplaced. The DIR appears to have been duly considered by the learned trial court though reference of the same has not been made in specific in the impugned order dated 15.09.2021.
23. On the face of record, the contentions raised by the petitioner for quashing of the proceedings under Section 12 of the DV Act are without any merit.
15. Reverting to the facts of the present case, the complainant under DV Act having been filed by the complainant with the assistance of her counsel, calling of DIR was not mandatory in view of the ratio in Prabha Tyagi and Ajay Kumar (Supra). Furthermore, as per record, the Ld. Trial Court had rightly called the DIR vide order dated 18.11.2023 which was received in the Ld. Trial Court as noted in ordersheet dated 03.01.2024. Thereafter, the impugned order dated 01.05.2024 came to be passed. Thus, admittedly, the DIR was already on record as on the said date and the same was duly considered by the Ld. Trial Court. Thus, there is no infirmity in the order of the Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 14 of 15 Ld. Trial Court in this regard.
16. To my mind, the Ld. Trial Court has rightly observed that there is nothing on record to show that there was no domestic relationship between the complainant and the appellants and the Ld. Trial Court also rightly observed that there was prima facie domestic relationship between the parties.
17. In view of the aforesaid, this court finds no infirmity in the impugned order dated 01.05.2024 passed by the learned Trial Court. Consequently, the appeal stands dismissed.
18. Nothing expressed hereinabove shall tantamount to an expression on the merits of the case.
19. The present appeal is disposed off accordingly.
20. Copy of this judgment be sent along with the Trial Court Record.
21. The appeal file be consigned to Record Room.
Announced in the open court on: 22nd August, 2024 (SHARAD GUPTA) Additional Sessions Judge (FTC) Digitally South-West District, Dwarka signed by Courts,New Delhi.
SHARAD SHARAD GUPTA GUPTA Date:
2024.08.22 17:09:25 +0530 Anita Srivastava vs. Surabhi Nayak CA No. 2000/2024 Page 15 of 15