Delhi District Court
Mushrat Jahan vs Gulrez on 10 February, 2025
CNR No. DLNE01-003703-2024
Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura
DLNE010037032024
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT,
KARKARDOOMA COURTS: DELHI
Criminal Appeal No. : 195/2024
Under Section : 29 of the Protection of Women from
Domestic Violence Act, 2005
Police Station : Bhajanpura
CC No. : 48317/2015
CNR No. : DLNE01-003703-2024
In the matter of: -
Smt. Musarrat Jahan
W/o. Sh. Gulrez,
R/o. H.No. B-5/147, Yamuna Vihar,
Delhi-110053.
...Appellant
VERSUS
1. Sh. Gulrez (Husband)
S/o. Sh. Abdul Rauf
2. Sh. Abdul Rauf (Father-in-Law)
3. Smt. Shahana (Mother-in-Law)
W/o. Sh. Abdul Rauf
4. Sh. Shavez (Brother-in-Law)
S/o. Sh. Abdul Rafu
5. Sh. Suhail (Brother-in-Law)
S/o. Sh. Abdul Rafu,
All R/o. H.No. C-198, Gali No.6, Digitally
signed by
PULASTYA
Chauhan Bangar, Brahampuri, Delhi-110053. PULASTYA PRAMACHALA
PRAMACHALA Date:
2025.02.10
14:00:36
6. The State NCT of Delhi +0530
Page 1 of 15 (Pulastya Pramachala)
ASJ-03, North-East District,
Karkardooma Courts, Delhi
CNR No. DLNE01-003703-2024
Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura
...Respondents
Date of Institution : 11.12.2024
Date of reserving Judgment : 03.02.2025
Date of pronouncement : 10.02.2025
Decision : Appeal is partly allowed.
JUDGMENT
1. This is an appeal under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act), directed against order dated 11.11.2024, passed by the trial court in a case titled as Musarrat Jahan v. Gulrez and Ors., bearing CC No. 48317/2015, PS Bhajanpura, on an application under Section 12 of the Act. Vide this order, trial court directed respondents no.1 to 5 herein, not to commit any act of domestic violence upon appellant herein and were prohibited from aiding or abetting in the commission of acts of domestic violence or assault.
2. Vide impugned order dated 11.11.2024, trial court also directed respondent no.1/Sh. Gulrez to pay monthly maintenance at the rate of Rs.2,857/- each to the Smt. Musarrat Jahan (appellant herein) and her minor child, towards their maintenance, from the date of filing of the petition before trial court, till appellant was legally entitled to receive the same and the child attains majority. Trial court also mentioned in the impugned order that maintenance should include provision for food, residence, education and medical expenses etc. of the appellant herein and the child. Payment was to be made by 10 th of every month in cash or same be deposited in the bank account of the petitioner.
Page 2 of 15 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura Arrears as accrued was also directed to be cleared by respondent no.1 within four (4) months from 11.11.2024. Maintenance amount awarded in any other proceedings was also directed to be adjusted.
BRIEF FACTS OF THE CASE
3. Briefly stated the relevant background of this appeal is that Smt. Musarrat Jahan filed an application u/s. 12 of the Act against five respondents before trial court. The appellant sought protection order u/s. 18, residence orders u/s. 19, monetary relief u/s. 20 and compensation u/s. 22 of the Act. Alongwith this application, she also filed an application u/s. 23 (2) of the Act, thereby seeking interim relief of Rs.30,000/- per month as maintenance, however same was not pressed because Family Court had already passed order for interim maintenance in favour of petitioner/applicant.
4. Both the parties filed their respective affidavit of assets and liabilities alongwith relevant documents. Gulrez is husband of applicant herein, who filed reply to aforesaid application. GROUNDS
5. Being aggrieved of the impugned judgment dt. 11.11.2024, as passed by trial court, appellant filed present appeal before this court on the following relevant grounds: -
5.1. That trial court did not apply her judicial mind in accepting unsubstantiated claims regarding second marriage and financial liabilities and passed the impugned judgment mechanically and in hasty and routine manner.Page 3 of 15 (Pulastya Pramachala)
ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura 5.2. That the trial court erred in law by considering the existence of a second marriage and alleged financial liabilities towards the second wife and her children, despite failure of respondent no.1 to prove following claims through legally admissible and corroborative evidence.
Non-Compliance with Rules of Evidence:
5.3. That Nikah Nama relied upon to substantiate the alleged second marriage, was not proven in accordance with the prescribed legal procedure, and its admissibility was rightly objected to by the appellant. That trial court ignored the lack of authenticity and due proof of this document.
5.4. That Aadhar Card of alleged second wife (Ex. RW-1/3) and Aadhar Cards of the alleged children (Ex. RW-1/4 and RW-1/5) were submitted without proper authentication or verification of their content and origin. These documents, being self-serving and unauthenticated, could not be treated as conclusive proof of respondent no.1's claims.
Absence of Corroborative Evidence 5.5. That no corroborative evidence was produced by respondent no.1 to substantiate the existence of the alleged second marriage or to establish any financial liability.
Failure to Consider Crucial Admissions by Respondent No. 1 During Cross-Examination 5.6. That trial court did not appreciate significant admissions made by Respondent No. 1 (husband) during his cross-examination, which Page 4 of 15 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura directly supported the claims of the appellant. These admissions include as under: -
Lack of Knowledge and Awareness of His Own Affidavits 5.7. That respondent No. 1 admitted that he did not know how many affidavits he had filed in his evidence and was unaware of the dates on which these affidavits were prepared. This demonstrates a lack of credibility and diligence in his testimony. Residential Admission 5.8. That respondent no.1 admitted that all his brothers resided in the property bearing No. C-198, Chauhan Bangar, Delhi, and that he resided on the second floor of the said property. Admission of Fees Receipt for Child 5.9. That respondent no. 1 admitted the authenticity of the fees receipt (Ex. RW-1/A1) related to the educational expenses of the minor child. Despite this, no relief was granted for the child's educational expenses.
Admission of Retention of Dowry Articles 5.10. That respondent no.1 admitted that he had not returned the dowry articles of the appellant, except the car. He further stated that all remaining dowry articles of the appellant were kept on the second floor of the property, which is the house of his father. This established his liability to return the dowry articles or compensate the appellant.
5.11. That trial court disregarded critical admissions and improperly considered unproven liabilities, leading to an erroneous judgment that deprived the appellant of her rightful entitlements.Page 5 of 15 (Pulastya Pramachala)
ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura Failure to Grant Reliefs Despite Established Findings of Abuse 5.12. That trial court in Para 2 of the impugned judgment, unequivocally found that the appellant was subjected to domestic violence, including mental, emotional, and economic abuse, by the respondents. The Court observed that: - (a) The appellant faced mental domestic violence and emotional abuse, supported by categorical incidents detailed in the petition; (b) The appellant was subjected to economic abuse as she was deprived of all household expenses; (c) testimony of CW-1 (the appellant) was credible and remained unshaken during cross- examination; (d) appellant was residing separately due to the conduct of the respondents, and no sincere efforts were made by the respondents to reconcile or bring her back to the matrimonial home. 5.13. That despite above-said findings, trial court failed to grant essential reliefs mandated under the Act. That the omission to grant these reliefs constitutes a grave error, leaving the appellant and her minor child deprived of their rightful entitlements under the law, and necessitates intervention of appellate to ensure justice.
Error in Computation of Maintenance Amount:
5.14. That trial court erred in computing maintenance by dividing the income of respondent no.1 into seven parts, including liabilities of a second wife and two children, which were neither proven nor substantiated. That trial court did not appreciate that under Section 20 of the Act, maintenance must be reasonable and adequate to meet the needs of the aggrieved person and her child.Page 6 of 15 (Pulastya Pramachala)
ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura The inclusion of unverified liabilities unjustly reduced the maintenance granted to the complainant and her minor child. Non-consideration of Financial Status and Legal Obligations 5.15. That trial court ignored the well- established legal principle that maintenance was based on the husband's income and standard of living. The respondent earned approximately Rs.2,00,000/- per month through his business running in the name and style of "M/s Gulrez Iron Works". Despite this, the maintenance awarded was grossly inadequate to meet the monthly expenses of the complainant/appellant herein and her daughter, particularly education costs, which are 10,000 per month. Reference was made to case of Rajnesh v. Neha (2020), wherein Hon'ble Supreme Court held that maintenance should ensure a reasonable standard of living, including education and medical expenses for children.
Failure to Pass Residence or Rent Order 5.16. That trial court failed to pass an order under Section 19 of the Act, directing either residence rights or rent for accommodation of a similar standard as the matrimonial home. The appellant had been residing at her parental house since being forced out of her matrimonial home by the respondents. It is no longer feasible for the appellant to continue living at her parental house, and the failure of the trial court to address this aspect had resulted in grave prejudice to the appellant and her minor child. Failure to Order Return or Compensation for Dowry Articles Page 7 of 15 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura 5.17. That trial court failed to issue any direction to the respondents for the return of the dowry articles, which the husband had admitted being in his possession during his cross-examination. 5.18. That failure was in direct contravention of Section 19(8) of the Act, which expressly empowered the appellate court to order for return of stridhan and other belongings of the aggrieved person. 5.19. That since for 10 years respondents had retained the dowry articles in their illegal possession and used them without the appellant's permission or consent. Given the prolonged period, it was evident that these articles were no longer in a condition suitable for use. Therefore, the respondents should have been directed to pay Rs. 5,00,000/- as compensation in lieu of returning the dowry articles and stridhan. However, trial court failed to address this aspect, leading to a grave miscarriage of justice.
No Compensation for Physical and Emotional Abuse 5.20. That trial court failed to award compensation under Section 22 of the Act, despite clear evidence of physical and emotional abuse substantiated by the MLC (Ex. CW-1/9) and the Domestic Incident Report (Ex. CW- 1/17). Reliance was placed upon the case of Kushalbhai Ratanbhai Rohit v. State of Gujarat (2014), wherein Hon'ble High Court of Delhi emphasized that "compensation is an integral part of justice in cases of domestic violence."
Inadequate Consideration of Evidence Page 8 of 15 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura 5.21. That trial court failed to appreciate critical evidence, including: -
(i) Kalandara (Ex. CW-1/8) and MLC (Ex. CW-1/9), which established physical violence; (ii) FIR No. 1627/2014 (Ex. CW-1/14), corroborating allegations of dowry harassment and
(iii) Fee receipts for Anam's education (Ex. CW- 1/16), proving financial burden borne by the complainant. That non-
consideration of these evidence constituted a grave miscarriage of justice.
Denial of Litigation Costs 5.22. That trial court erred in not awarding litigation costs, despite the complainant incurring significant expenses to pursue her case. Section 20(2) of the Act, provides for reimbursement of litigation costs to ensure access to justice for aggrieved persons. Violation of Principles of Natural Justice 5.23. That impugned judgment as passed by the trial court reflected lack of due consideration of the complainant's submissions and evidence. Reliance was placed upon the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh (2014), wherein Hon'ble Supreme Court reiterated that principles of natural justice must be adhered to while deciding matters affecting the rights of parties.
Non-adherence to Guidelines on Maintenance 5.24. That the maintenance awarded failed to meet the guidelines laid down in Rajnesh (supra) which mandated that maintenance be sufficient to secure the dignity and basic needs of the aggrieved person and her child.
Page 9 of 15 (Pulastya Pramachala)ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura Through present appeal, appellant prayed under various heads, as under: -
5.25. Revision of Maintenance Amount: That the maintenance amount awarded by the trial court be enhanced to 30,000/- per month, in line with the respondent no.1's actual financial capacity and the needs of the appellant and her minor child.
5.26. Residence or Rent for Alternate Accommodation: That respondents be directed under Section 19 of the Act: - (a) Provide residence to the appellant and her minor child of the same standard as the matrimonial home, or (b) Pay rent @ Rs.10,000/- PM for alternate accommodation of an equivalent standard. 5.27. Return or Compensation for Dowry Articles: - That, respondents be directed u/s 19(8) of DV Act to either: (a) Return the dowry articles listed in Mark P-2, or (b) Pay Rs.5,00,000/- as compensation in lieu of the dowry articles and stridhan that are no longer usable due to prolonged illegal possession. 5.28. Award of Compensation: - That, respondents be ordered to pay Rs.10,00,000/- as compensation for the physical, emotional, and financial abuse suffered by the appellant, under Section 22 of the Act.
5.29. Award of Litigation Costs: - That, respondents be directed to pay Rs.25,000/- towards litigation costs incurred by the appellant to pursue her case.
5.30. Any Other Relief: - That the appellate court may kindly grant any other relief deemed just and proper in the interest of justice, equity, and fairness.Page 10 of 15 (Pulastya Pramachala)
ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura Arguments on behalf of Appellant
6. Sh. Z. Zafar, ld. counsel for appellant argued on the lines of grounds taken in the appeal. He submitted that standard of respondents can be said to be rich enough, taking clue from the fact that admittedly a car was given in this marriage. He further submitted that trial court did not grant any compensation for committing domestic violence. He also submitted that though a nikahnama was placed on the record, but same was not proved. Hence, second marriage of respondent-1, was not proved. Still, trial court accepted that liability of the respondent-1. He also submitted that dowry articles were admittedly not returned to the appellant, still no order of compensation in lieu of the same was passed.
Arguments on behalf of Respondents
7. Sh. A.T. Khan, ld. counsel for respondents no.1 to 5 argued that Aadhar Cards of second wife and two other daughters were proved on the record, hence there is no merit in such objection of the appellant. Ld. counsel otherwise did not make any particular submission on other points.
Conclusion & Findings
8. I shall first deal with the arguments related to maintenance. The second marriage of respondent-1 has been challenged by the appellant. It is true that appellant took objection to mode of proof against the nikahnama as well as Aadhar cards in the name of Gulnaz, Inaya and Arishfa. Respondent-1 did not prove nikahnama, by calling the witnesses to the same. However, it also Page 11 of 15 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura has to be seen that in his affidavit dt 13.02.2023, respondent-1 affirmed about his second marriage and two daughters from the second marriage. In his cross examination by appellant, though general suggestions were given regarding falsehood of the affidavits, but neither any question was asked in respect of the second marriage nor any suggestion was given to challenge the factum of second marriage or birth of two daughters from the second marriage of respondent-1. Evidence is strictly required when a fact is disputed. When a fact has not been disputed specifically, then proving that fact does not become necessary. Moreover, record mentions that original Aadhar Cards were produced before the court. No plea was taken during cross examination of respondent-1, that those were false or fabricated Aadhar Cards. In that situation, reliance over those Aadhar Cards by ld. Magistrate, does not become objectionable. It has to be considered that in such proceedings, there was no requirement of conclusive proof as such.
9. Ld. Magistrate relied upon those Aadhar Cards to presume correctness of the plea taken by respondent-1, in order to count seven persons in the family cake and to decide the maintenance accordingly. I do not find any good reason to interfere with such approach of ld. Magistrate.
10. Next issue relates to demand of Rs. 30,000/- as maintenance from the appellant. Record shows that neither appellant produced any material to show monthly income of respondent-1 as Rs. 2 lacs, nor respondent-1 produced any material to show his Page 12 of 15 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura monthly income as Rs. 8000/-. Ld. Magistrate noted this fact and went on to presume monthly income of respondent-1 on the basis of Minimum Wages Act. I find that at least after availing opportunity to prove the plea taken by her and failing to prove projected income of respondent-1, appellant does not have any basis to claim monthly maintenance of Rs. 30,000/-. The settled legal principles require to fix maintenance as per life standard being maintained by the spouse. When trial court was compelled to raise presumption of income of respondent-1 on the basis of Minimum Wages Act, then there could not be any basis of awarding maintenance @ Rs. 30,000/-.
11. I am in agreement with reasons given by trial court for not passing residence order in the shared household and opting to provide alternate residence/rent. Trial court included rent in the maintenance. Maintenance has been fixed as per financial capacity of respondent-1. No one can be expected to pay more than his capacity. Hence, same does not require to be disturbed.
12. Trial court also noted that appellant did not prove any damage caused due to alleged domestic violence. Probably that was the reason for not awarding any compensation for mental and physical injury. Apparently, there is no material on the record to show any kind of expenses incurred by appellant, on account of physical injury. There cannot be any formula to compensate for mental injury. It remains a matter of notional compensation. Keeping in view the given financial condition of respondent-1 (against whom evidence of assault in the form of Kalandara and Page 13 of 15 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura MLC were proved), I deem it fit to direct respondent-1 to pay a compensation of Rs. 5000/- to appellant towards mental injury caused to appellant.
13. Appellant did not even mention the particulars of her dowry articles lying in the shared household. She straight away demanded return of her dowry articles or compensation of Rs. 5 lacs in lieu thereof. One thing must be appreciated by all, that compensation is never meant for enrichment. It is meant to make good a loss. In that situation, even without proving the particulars of her dowry articles and value thereof, appellant cannot be entitled for any compensation. Besides that, respondent-1 fairly conceded that dowry articles of appellant are lying at second floor of the shared household. He also took plea that appellant herself left this house and did not take away her articles. Court cannot pass any order in uncertainty. Therefore, for want of proof of any description of such dowry articles, no order can be passed for return of any particular item. However, appellant has already launched other litigation related to such dowry articles in a separate criminal case. It shall be better that on the basis of concrete proof of such dowry articles, court passes any order for their return. That course can be looked for by the appellant in that criminal case.
14. Lastly, it is grievance of appellant that trial court did not award any litigation charge in her favour. Once again though such charges should be paid when court finds merit in the case of any applicant, but quantum of the same cannot be anything as asked Page 14 of 15 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-003703-2024 Musarrat Jahan v. Gulrez & Ors.
Crl. Appl. No. 195/2024, CC No. 48317/2015, PS Bhajanpura for. In the given facts and circumstances of this case, amount of Rs. 5000/- is awarded to appellant as litigation charges.
15. Appeal is accordingly partly allowed.
File of appeal be consigned to record room, as per rules.
Digitally signed by PULASTYAPULASTYA PRAMACHALA PRAMACHALA Date:
2025.02.10 14:00:44 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 10.02.2025 ASJ-03(North East) (This order contains 15 pages) Karkardooma Courts/Delhi Page 15 of 15 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi