Delhi District Court
Pallaivi Sikri vs Amit Sikri on 18 February, 2013
ID No. 02406R0309162012
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE-04
SOUTH EAST: SAKET COURTS: DELHI
Criminal Appeal No. 49/2012
ID No. 02406R0309162012
Pallaivi Sikri,
R/o A-17, 1st Floor,
East of Kailash, New Delhi. ..........Appellant
Versus
Amit Sikri, ..........Respondent No. 1
Vinod Sikri, ..........Respondent No. 2
Beena Sikri ..........Respondent No. 3
(All resident of
A-17, East of Kailash,
New Delhi
Also at
Block No.1, Shop No.39,
Vir Sawarkar Marg,
Lajpat Nagar, Part-II,
New Delhi - 110024)
Instituted on : 13th December, 2012
Argued on : 12th February, 2013
Decided on : 18th February, 2013
ORDER
1. This appeal u/s 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as 'PWDV Act') is preferred against order dated 09.11.2012 in case no. 450/3, passed by Learned Metropolitan Magistrate, Mahila Courts, South East, Delhi whereby an interim application filed by appellant under section 23 (2) of PWDV Act for seeking maintenance for herself and her child has been dismissed.
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2. The back ground facts, leading to the filing of this appeal are that appellant got married with respondent no. 1 on 08.11.2003 and a child was born out of their wedlock on 4th July 2005. It is alleged that appellant was not allowed to take up any work and was not given any money by respondent no. 1 for her own expenses and was made to beg to the respondent no. 3 for every small needs and respondent No.3 would never let the appellant to enter the kitchen . Respondents continued to harass and ridicule her on one pretext or other and respondent No.1 had no interest either in the appellant or in the child and continued with his old behavior of coming home past midnight and ignoring appellant and the child. It is stated that in March 2008, when the appellant and respondent no. 1 were arguing regarding giving her or the child anytime, respondent No.1 was very angry and left the room and sent his Parental uncle to the room at 11:00 p.m, who was in a drunken state. He pushed and abused the appellant and the grand mother of the respondent No1 also joined him and abused the appellant while the respondent No.1, 2 and 3 silently watched the incident. He dragged appellant by her hand and asked her if she had papers of the house property to stay there, otherwise she should be thrown out. Appellant was shocked and decided to keep quite and next day, she called her parents and left for her parental home and stayed there July 2009. She was persuaded to come back by the respondents when the grand mother of the respondent No.1 expired. It is alleged that respondent No.3 did not allow the appellant to use the kitchen and would often offer her and the child stale or improperly cooked food. The appellant had to depend upon the respondents even for the basic need of food. Appellant then, decided to have her own kitchen to which the respondents readily agreed and with the financial help from her parents the appellant made her own kitchen in the upper level of the house in December 2010. Respondent no 1 had started staying separately from the Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 2/22 ID No. 02406R0309162012 appellant since May 2010 and had chosen to stay with his parents.
3. It is stated that respondent no. 1 though had no desire to lead a happy matrimonial life with the appellant, he continued to the pay to the appellant Rs. 90,000/- to 1,00,000/- p.m including the child's school fees and other expenses since May 2010. It is stated that with this monetary support, appellant was running a boutique and she has no independent source of income and is totally dependent upon the respondent no 1 to run the house hold and for the child's education. It is alleged that appellant was enduring humiliation at the hand of the respondents for the sake of her child and for her own financial plights. When she was assaulted by respondent No.1, she had chosen to keep silent and never approached the police for the fear of being thrown out of her residential accommodation and was afraid that if she takes any such steps, she would be denied monthly monetary assistance being given to her. Appellant apprehended that she would not be able to run her boutique because in the past also the respondent No.2 visited her working place many times and shouted at the appellant in front of her workers and threatened her that he would get her work shop closed. She found such behavior humiliating, but chose to keep silence as to run the said place the respondents give the monetary expenses.
4. It is further alleged that on 1.5.2012 at around 11.30 p.m, respondent No.1 came to the section of the property, where appellant along with her son was residing, and assaulted the appellant and tried to spray insecticide in her nostril. She was shocked at such violent behaviour of the respondent No.1 and raised alarm. Respondent No.2 and 3, who were present at the home pretended not to hear anything. When the appellant threatened to call the police, then respondent No.1 let her go. Respondent No.1 threatened that the appellant would have to face serious consequences, if she did not leave their home. Appellant apprehended repetition of Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 3/22 ID No. 02406R0309162012 the acts of domestic violence by the respondents against which she sought relief by filing an application before the Court. It is further stated that respondents refused to pay her any maintenance to run the household and to take care of her basic needs and her child since May 2012, which compelled the appellant to seek monetary assistance from her father, relatives and friends. Appellant was threatened by the respondents to dispossess her from the shared household very soon. It is alleged that on 22.09.2012 at about 8.30 p.m, when the appellant was leaving the house, respondent No.1 caught hold of her, dragged and tried to molest her. Appellant somehow managed to get herself free and ran away from the house and immediately called the protection officer and finding no response, sent a message to the protection officer.
5. Vide order dated 08.05.2012, Learned Trial Court observed that Vijay Sikri (R-4), uncle of husband (R-1) was not in domestic relationship with complainant and was not covered within the definition of relationship as defined under section 2 (F) of PWDV Act and shared household as defined under section 2 (s) of PWDV Act and therefore, he was deleted from the arrays of the parties. Notice of the application was issued to husband (R-1), father-in-law (R-2) and mother-in-law (R-3) and they were directed not to oust the complainant from the shared household without taking due course of law.
6. Protection officer filed Domestic Incident report (DIR) on 09.11.2012. Respondents filed written statement. After hearing the parties, Learned Trial Court dismissed interim application moved on behalf of wife/appellant under section 23 (2) of PWDV Act. Extract of impugned order is as follows:-
"factum of marriage between the parties is not disputed. However, in order to obtain any relief under the Domestic Violence Act,the pre-
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requisite to be prima facie established by the complainant is that some form of domestic violence was committed upon her. As mentioned above, marriage between the parties in the year 2003 and paternity of one child is not in dispute. Now, except for the bald averment that the petition was treated mercilessly and brutally after her marriage by all the respondent and they all used to curse her every day, there is no specific averment of violence being meted out to the complainant. Surprisingly, in the last so many years, almost eight years the complainant never approached the police or any women commission or any other authority with her grievance. None of her family members have taken any steps to seek any help for the complainant from any appropriate authority. No medical document showing any injury to the complainant caused by respondent is on record. No DD entry or call made at 100 number by complainant is on record. Thus, except for the bald averment of the complainant that she was being treated with cruelty, there is nothing to show that any kind of violence was meted out to the complainant. The complainant is a well educated professional degree holder city bred girl. Thus, this Court is not satisfied that the complainant has even prima facie proved any kind of domestic violence meted out to her except for making general , vague and uncorroborated averments. No doubt the husband is under a legal obligation to maintain his wife and minor child but no relief of interim maintenance can be ordered under PWDV Act unless prima facie domestic violence is established, which is not proved here. Accordingly, the interim application is dismissed."
7. Ms. Pragnya Routray, Learned Counsel for appellant argued that Learned Trial Court failed to appreciate that as provided in the 'PWDV Act' not only physical abuses, but also mental, emotional, verbal abuses in the form of threats, abuses and also economic abuses falls within the definition of 'domestic violence' as defined Under Section 3 of the 'PWDV Act'. In the present case though there is no physical injury of such an extent which required medical assistance but appellant has Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 5/22 ID No. 02406R0309162012 deposed about the details of harassment and humiliation she faced. It is argued that Learned Trial Court failed to consider the fact that appellant has enumerated several instances wherein she was humiliated and harassed by the respondents as well as physically assaulted by the respondent No.1. It is submitted that Learned Trial Court failed to take cognizance of the same on the ground that the appellant never approached any women commission or approached the police for redressal of her grievances. Learned counsel for the appellant submits that learned Trial Court failed to appreciate that even today women feel reluctant to go out of their houses to protest against the humiliation and abuses suffered by them in the hands of their husbands and in-laws. In the present case the parents of the appellant and the respondents stay in the same locality and therefore, for the sake of family's prestige and with the hope that things would improve the appellant chose to keep silence. In fact, appellant is financially dependent upon the respondents. It weighed upon the appellant that a police case would make things worse and would have an adverse impact upon their son. It is argued that Learned Trial Court did not appreciate that for more than two years the appellant was forced to stay separately from her husband, but chose to seek intervention of court only when she faced physical violence and threat of dispossession from the shared house hold in May 2012. It is further submitted that learned Trial Court did not appreciate that even city bred girls who are professionally qualified are also victims of violence and education and upbringing of victims do not deter the accused from committing acts of violence.
8. Learned counsel for appellant submitted that appellant is professionally qualified, but she was never permitted to take up a job by the respondents and finally when she insisted to take up a job, the respondents allowed her to start tailoring unit for about two years which was run only with the financial support of the respondents Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 6/22 ID No. 02406R0309162012 and since May 2010, respondents stopped all financial support the appellant is finding it extremely difficult to run the unit. In any case, appellant was unable to make any substantial profit from running the said work as she was not able to give full attention to the same as she had to be at home to take care of her small child. It is stated that appellant was under a lot of financial distress as to run the household and her unit and to meet the expenses for herself and for the child appellant requires at least Rs. one lacs per month. Respondents had a retailing fabrics and dress materials in Lajpat Nagar and besides that respondent No.1 had his own business of handicraft and accessories. It is stated that from the business, the respondents earning was more than Rs.6-7 lacs per month, whereas, appellant had no other independent source to income to meet her own expenses and those of the child and after the respondents stopped to support her, the tailoring unit is also about to be closed. It is argued that impugned order was illegal and arbitrary and contrary to the provision of PWDV Act. Appellant prayed for residence order under section 19 ; monetary relief under section 20 and compensation order under section 22 of PWDV Act.
9. Learned counsel for the appellant relied upon following cases, Vijay Verma V State of NCT in Crl.Misc 3878/2009; Adil V State Crl.MC no 4159/2009; V. D. Bhanot vs Savita Bhanot (2012) 3 SCC 183; Savita Bhanot vs Lt. Col. V. D. Bhanot (768) (2010) DLT 68; Sou. Sandhya Manoj Wankhade vs Manoj Bhimrao Wankhade JT 2011 (3) SC 364; Varsha Kapoor vs UOI 2010 (VI) AD Del 472; Karam Chand and ors. Vs GNCT of Delhi 2011 IV AD DEL 1; and Eveneet Singh vs Prashant Chaudhari 177 (2011) DLT 124.
10. Per contra, Sh. Vashwa Bhushan Arya Learned counsel for respondents argued that complaint/appellant did not disclose any act of domestic violence or likelihood of respondents committing any act of domestic violence so as to Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 7/22 ID No. 02406R0309162012 get any relief under section 23 (2) of the 'PWDV Act'. It is submitted that respondent No.2 and 3 were not 'respondents' within the meaning of Section 2(q) of the 'PWDV Act' as 'respondents' means only male adult persons only. Though respondent no. 2 was an adult male person he had never lived together with the appellant at any point of time in any shared household as required under Section 2(f) of the 'PWDV Act'. Learned counsel for respondents submitted that there was no 'domestic relationship' between respondent No.2 and 3 and the complainant/appellant, as they had never stayed together either jointly or separately with the appellant at any point of time. It is argued that appellant was not the 'aggrieved person' as defined under Section 2(a) of the 'PWDV Act' as there was no 'domestic violence' committed on her by the respondents. It is submitted that there was no 'shared house hold' as the said house property belongs to the respondent No.3 only and though the appellant was staying under the same roof she had never lived with the respondent No.2 and 3 in the said house. It is submitted that respondents did not have any family business, in fact, respondent No. 2 was running a tailoring unit which exclusively belonged to him and that complainant/appellant was running a boutique with the monetary support of respondent No.2 from which she was earning more than Rs.2 lac p.m and respondent No.2 was under no obligation to extend such support to the appellant. Learned counsel relied upon S.R Batra 136(2007) DLT 1(SC) on the point that appellant had no right to residence under Section 17 of the 'PWDV Act' . Learned counsel for respondents placed reliance upon Vijay Verma vs State of Nct 2010 (VII) AD Del 401; Adil and ors vs State and anr. In 2010 (VIII) AD Del. 297 ; S. R. Batra and anr. Vs Smt. Taruna Batra 136 (2007) DLT 1 (SC); Harbans Lal Malik vs Payal Malik (Criminal Revision No.253/2010, decided on 29.07.2010) and Viimlaben Ajitbhai Patel vs Vatslabeen Ashokbhai Patel and others 2008 V AD (SC ) 406.
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11. Before hearing argument advanced by Learned Counsels, this Court had heard the parties in person with a view to explore the possibility of reconciliation between them. Parties were impressed upon to talk to each other with a view of sort out the differences, which they did but failed to resolve their differences. During hearing, respondent no. 1/husband expressed willingness to sort out differences and assured to pay maintenance to the appellant and the child and also obtained bank account number of appellant but despite giving opportunities, failed to translate his expression of intention into action. Thereafter, I heard arguments advanced by Learned counsels and have gone through the material on record.
12. This Court finds that Tarun Batra's case (Supra) referred by Learned Counsel for respondent is not applicable to the present case in view of the view expressed by the Hon'ble High Court in case of "Evneet Singh Vs Prashant Chaudhary reported in 177 (2011) DLT 124" wherein it was observed that :
"12. the Domestic Violence Act is a secular legislation, akin to Section 125 of the Code of Criminal Procedure,1973. It was enacted to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family". The introduction of the remedy of right to residence is a revolutionary and part breaking step, taken to further the object of the Act, and any attempt at restricting the scope of the remedy would reduce the effectiveness of the Act itself. Therefore, it would be contrary to the scheme and the objects of the Act to restrict its application to only such cases where the husband owns some property or has a share in it, as the mother-in-law can also be a respondent in the proceedings under the Domestic Violence Act and remedies available under the same Act would necessarily need to be enforced against her.
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16. It would not be out of place to notice here that the use of the term "respondent" is unqualified in the definition nor is there any qualification to it under Section 12,17 or 19. Therefore, there is no reason to conclude that the definition does not extend to a house which is owned by a mother-in-law or any other female relative, since they are encompassed under the definition of, respondent, under section 2 (q)
17. Decisions of the Supreme Court are authorative, more so when High Courts have to deal with the same statute. Equally, it is settled law that a decision is authority for what it says, and the contextual setting , as well as the statutory provisions, and their interpretation, as emerging from the ruling , which invests it with precedential value. For this reason, it has been ruled by the Supreme Court, in several judgments, that a judgment is not to be read as a statute, since the factual matrix is also important (ref. To P. S. Sathappan vs Andhra Bank Ltd., VI (2004) 11 SCC 672). In Batra, the dispute did not emerge or emanate form any provisions of the Domestic Violence Act; indeed the cause of action preceded the coming into force of the enactment. Secondly, the wife was not in possession or an occupant of the property, which is a crucial factual aspect that distinguishes it from the facts of this case. Thirdly, the Court did not have the benefit (or the occasion) to consider the definition of "respondent";"domestic relationship" and explore the link between those two vital concepts, on the one hand, and the definition of "shared household", as well as remedy under section 19 - both of which reinforce the irrelevance of the respondent's title or interest in the shared household property {in Section 2 (s)}, it is "irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household...."; in Section 19 , it is articulated as "whether or not the respondent has a legal or equitable interest in the shared household....."
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18. This Court notices further that Batra has been distinguished by the Madras High Court in P. Basu Venkatesh vs Rani (Crl. R. C .Nos 48 and 148 of 2008 and M. P. Nos. 1 of 2008, decided on 25.03.2008, Madras High Court); the petitioner there alienated his property, in which the aggrieved person had sought residence, in favour of his mother, in order to fall within the ambit of the Batra dictum.
19. In the present case, Eveneet and Prashant were living together. No doubt, the suit premises are not owned by either of them; the documents on record prima-facie disclose that exclusive title and right is of Kavita, the mother-in-law. Yet, having regard to the previous discussion, Kavita is undoubtedly a "respondent" in whose household, the couple here cannot be oblivious of the circumstance that Prashant moved out when the relationship became stormy; the possibility of the eviction suit having been filed as a pre-emotive move, to bring it within the Batra formulation cannot be ruled out at this stage. In the context, the Court holds that what cannot be done directly, cannot be achieved indirectly through stratagem. If the Court can look beyond the facts, and in a given case, conclude that the overall conspectus of circumstances, suggests manipulation by the husband or his relatives, to defeat a right inhering in the wife, to any order under section 19 , such "lifting of the veil" should be restored. Therefore, the plaintiff indeed has a right of residence under the Domestic Violence Act."
13. Vijay Verma's case and Adil's case (supra) are also not applicable as factual matrix of this case is different. In Vijay Verma's case, the complainant was a permanent resident of US, who along with her husband was staying in US for 10 years before filing the application had sought residence rights upon parental house and the Hon'ble Court rightly observed that it was a property dispute and therefore, provisions of 'PWDV Act' cannot be invoked to settle property rights. In Adil's case complainant had never stayed in the property in question which belonged to the Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 11/22 ID No. 02406R0309162012 mother-in-law. In fact the complainant along with her husband was staying in another house for 8 years and was separated from rest of the family. Therefore, in those circumstances, Court observed that it was a property dispute and therefore, provisions of 'PWDV Act' are not meant to enforce of legal rights of property. This court finds no merits in the contention of learned counsel for the appellant and that appellant is not an aggrieved person as contemplated under section 2 (a) PWDV Act or that respondent no. 2 and 3 are not the respondents as contemplated under section 2 (q) of PWDV Act or that there is no shared household where the appellant lives or she has no right to residence as contemplated under section 17 of PWDV Act. 9.
14. Complainant/appellant cited several specific instances which falls within the definition of 'domestic violence' as defined under Section 3 of the 'PWDV Act'. Not only she was threatened with immediate dispossession from her matrimonial home but, she was denied maintenance for herself and for her son since May 2012. Section 23 of 'PWDV Act', no where makes it mandatory for the complainant to lead evidence. Only on the affidavit filed by the complainant/appellant, she could be granted interim relief. Not only adult males, but the female relatives can be impleaded as respondents as observed by the superior courts in number of cases. Therefore, both the respondent No.2 and 3 are 'respondents' within the meaning of the 'PWDV Act', In this regard observations made in the cases reported as Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade & ors JT 2011(3) SC 264 and Varsha Kapoor Vs. UOI 2010 VI AD(DELHI) 472 are relevant.
15. Perusal of record reveals that Learned Trial Court failed to note that in para 31 of her affidavit dated 09.05.2012, appellant/petitioner has made specific averment to the effect that on 01.05.2012 at around 11:30pm, for no apparent reason, Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 12/22 ID No. 02406R0309162012 the respondent no. 1 came to the section of the property where the appellant/petitioner was residing alongwith her son and assaulted the appellant/petitioner and tried to spray insecticide in her nostril and that appellant/petitioner was shocked at such violent behaviour of the respondent No. 1/husband. She raised alarm and that respondent No.2 and 3 (her in-laws) were present at the home they pretended not to hear anything and when the appellant/petitioner threatened that she would call the police then the respondent No. 1 let her go and thereafter, respondent No.1 threatened that the appellant/petitioner would have to face serious consequences, if she did not leave their home. It is stated therein that appellant/petitioner had no clue as to why respondent No.1 was insisting her to leave the home and therefore, she had no alternative but to seek intervention of this Court. Furthermore, in para 28 of the affidavit, it has been stated that respondent no. 3/mother-in-law did not allow petitioner to use the kitchen and used to offer her stale and improper food and that the appellant had to depend upon the respondents even for the basic need of food. The appellant then, decided to have her own kitchen in the upper level of the house in December 2010. However, respondent no 1 had started staying separately from the appellant since May 2010 and had chosen to stay with his parents.
16. It is also pertinent to note that Learned Trial Court ignored the domestic incident report (DIR) dated 14.06.2012 , in which not only the incident noted above, occurred on 01.05.2012 has been noted, but also other incident dated 06.05.2012 that respondent no. 2/father in law of the appellant tried to disturb her working place . This fact is also noted in para 32 of the affidavit dated 09.05.2012 filed by the appellant/ petitioner, wherein it was mentioned that respondent no. 2/father-in-law visited the boutique of the appellant/ petitioner and told her employees to leave the Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 13/22 ID No. 02406R0309162012 work and offered them to join him. DIR filed by protection officer notes allegations of abusive language by father-in-law and husband. Learned Trial Court was required to consider averment made by appellant as a whole in the application under section 12 of PWDV Act as well as affidavit under section 23 (2) of PWDV Act and also the DIR filed by the protection officer.
17. In the case in hand, perusal of the complaint makes it very clear that from the date of her marriage on 9.11.2003 till May 2010 the appellant as well as all the respondents were staying together in the said house, the house being a duplex unit with 2 bed rooms and a kitchen and a small lobby at the lower level and one bedroom , one balcony, kitchen and a drawing cum dinning room. Admittedly, the appellant was staying in the upper level and the respondent No.2 and 3 stayed in the lower level and since, May 2010 the respondent No.1 was residing with his parents at lower level. The Kitchen was stated to be separated in December 2010. Before that, it seems that there used to be one kitchen. On asking, during arguments, this fact was not disputed by respondent no. 1/husband.
18. In Savita Bhanot vs Lt. Col V. D. Bhanot 168(2010) DLT 68, it was held that it is a historical reality that the women in our society have been subjected to discrimination, misbehavior and ill-treatment, not only outside but, also inside their house, the main cause for their plight being (i) illiteracy (ii) economic dependence on men and (iii) insensitivity to their rights and their dignity. Even a working woman, whether she be a construction worker who works side by side with her husband or a well-educated and a suitably employed professional is not always accorded the dignity and respect, which ought to be given to her on the home front. Despite concept of equality of sex in all respects being a hallmark of our Constitution, having been recognized in Articles 14, 15, 21, 39 and 51(A), it is a harsh reality that the Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 14/22 ID No. 02406R0309162012 women in our Country continue to be subjected to what we generally term as domestic violence. The relief under the 'PWDV Act' as provided under section 20 for granting monetary assistance to a victim in the form of maintenance is in addition to the maintenance sought under section 125 of Cr.P.C.
19. Prima facie, appellant is an 'aggrieved person' as she is alleged to be subjected to emotional abuse, and physically assaulted and denied maintenance which she used to get since May 2010. In arriving at the conclusions that appellant had not shown a prima-facie case of domestic violence, reasoning given by the Trial Court that "appellant had not approached the police or the Women Commission or the other authority or had not placed any medical record or the DD entry and that she was a well education professional, degree holder city bred girl" indicates that the Trial Court has construed the meaning of violence "in a narrow sense", as if, only an act of criminal or physical use of force only, would attract domestic violence and only if a complaint is lodged with the police or other authority or when injuries were caused calling intervention of a doctor, only then, prima-facie, case of domestic violence shall be made out. The purpose with which PWDV Act has been enacted is to provide for effective protection of the women guaranteed under the Constitution. The statue is a benevolent piece of legislation. Domestic violence is undoubtedly a human rights issue and domestic violence as defined under the Act includes not only use of physical force but also exploitation, creation of atmosphere of terror, threat as well as economic abuse including not providing adequate means of maintenance for wife or for the children. Respondents have given a reply in a totally denial mode. It seems that respondents have not put forth with true and the correct facts .
20. On considering totality of material on record and on appreciation of the material on record, this Court finds that the view of the trial Court that "except for the Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 15/22 ID No. 02406R0309162012 bald averment of the complainant that she was being treated with cruelty or there is nothing to show that any kind of violence was meted out to the complainant or that complainant has even prima facie not proved any kind of domestic violence meted out to her except for making general, vague and uncorroborated averments." is not correct and this Court is an agreement with the submissions advanced by Learned Counsel for the appellant/wife that the Learned Trial Court committed error in understanding the correct scope and import of Domestic Violence as defined in Section 3 of PWDV Act. This Court finds that views of Learned Trial Court are erroneous and therefore, cannot be sustained. Factual matrix clearly makes out a prima-facie case of domestic violence upon appellant/wife by respondentno. 1/husband and other respondents.
21. Now, the next point to be considered is what interim reliefs can be granted to the appellant/wife in the facts and circumstances of the case.
22. According to respondents, house no. A-17, First Floor, East of Kailash, New Delhi belonged to respondent no-3 but the fact remains that since the date of her marriage in 2003 and till date appellant was staying in the said house. It appears that till December 2010, there was only one kitchen and lateron, wooden partition at the entrance was made. This fact was admitted by the respondent No.1, who was present in the court at the time of argument. It was submitted that there was only one gas as well as water connection. Thus, Appellant has a right to residence in the house no. A-17, First Floor, East of Kailash, New Delhi, as per the provision of the 'PWDV Act'. The definition of 'shared house hold' include the house owned by the mother-in- law or any other female relatives and therefore, Appellant was entitled to residence order as prayed by her. In her affidavit dated 07.02.2013 filed before this Court, appellant stated that she was residing in the 'shared household' at A-17, 1st Floor, Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 16/22 ID No. 02406R0309162012 East of Kailash, New Delhi alongwith her Master Vinayak. She had been living int he shared household since the date of her marriage with respondent no. 1. However, since May 2010, appellant/deponent were living separately. Appellant/deponent alongwith her son was staying at the upper level at aforementioned property. In this regard, already an interim order was passed by Learned Trial Court dated 18.05.2012, whereby respondents were directed not to oust the appellant from the aforesaid shared household. The said order shall continue to operate during the pendency of the case before the Learned Trial Court.
23. 'PWDV Act 2005' is a legislation aimed at strengthening the economic independence of a woman and therefore, aspect of financial deprivation of woman is included in the category of economic abuse. This economic abuse can manifest in many ways. 'PWDV Act' envisages that an aggrieved woman needs economic support in view of domestic violence perpetrated upon her by a person who is in domestic relationship with her. Enactment being beneficial, approach of the Court always is to uphold the legislative intention and give it a liberal interpretation, rather than confining it, which would inevitably lead to defeat the object of law. Thus, the maintenance to be awarded under the (PWDV Act) act has to be reasonable and fair. It is the social and legal obligation of the husband to make arrangement for the maintenance of the wife and children who are not able to maintain themselves with their own source of income. A wife or the children can not be forced to face starvation till they are granted maintenance by the court in appropriate proceeding. It is well settled that maintenance, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 17/22 ID No. 02406R0309162012 (Mangat Mai Vs Punni Devi AIR 1996SC172). Maintenance varies according to the position and status of a person. It does not only mean food and clothing (Maharani Kesarkunverba Vs. I.T. Commissioner (1960)39ITR283(SC)). Purpose of providing maintenance, is meant to secure to a wife claiming maintenance, as far as possible, the status and facilities enjoyed by her prior to her separation from her husband when her maintenance claim is finally determined. The determination of maintenance is not governed by any rigid or inflexible rule and it gives wide discretion to the Court to do justice. Hon'ble Supreme Court in Smt. Jasbir Kaur Sehgal vs The District Judge Dehradun & Ors AIR 1997 SC 3397, held that Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions. Amount of of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case.
24. During argument, Ms.Pragnya Routray, Learned Counsel for the appellant submitted that at this stage, appellant is further praying only for an interim maintenance order. In the affidavit, appellant/deponent has stated that now she has no source of income. In the affidavit, it is stated that respondent no. 1 continued to pay the appellant/petitioner since May 2010 Rs.90,000/- to Rs.1,00,000/- per month including the child's school fees and other expenses. It is stated that appellant/deponent was running a tailoring unit/boutique for about two years with the monetary support from the respondents. Since May 2012, respondents are stated to have stopped all monetary support to the appellant/deponent including assistance in running the said unit. It was stated that respondent no. 1 had paid only the school fee Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 18/22 ID No. 02406R0309162012 of the child till October 2012. Therefore, after struggling hard for more than six months, appellant/deponent was forced to close down the tailoring unit as she was not able to meet the running cost of the said unit. Now, the appellant/deponent is stated to be complete mercy of her parents and friends and she has no other independent source of income to maintain herself and also to meet the expenses of her child. It is stated that respondent no. 1/husband was involved in the family's business and respondents own a shop of high end retailing fabrics and dress materials and high end tailoring shop in Lajpat Nagar. Apart from this business, it is stated that respondent no. 1/husband has business of his own involving handicrafts, accessories etc. Respondent no. 1 has his own export business as well. It is submitted that to run the household as well as to meet the expenses of the child and his education, appellant/deponent needs monetary assistance from the respondent and appellant is incurring following monthly expenses i.e. LIC for child Rs.14363/- (per annum); Quarterly School Fee Rs.16,050/-; School Transportation Rs.1500/- per month; Tuition Rs.2500/- per month; Maintenance (food, clothes, medicine Entertainment etc) Rs15,000/- per month and Household expenses Rs.40,000/- per month.
25. On asking, respondent no. 1 filed affidavit dated 11.02.2013. In his affidavit, he stated that he was proprietor of M/s Grace International and his income from the said business in the year 2009-2010 was 1,98,830/-; 2010-2011 was 1,90,103 and 2011-2012 was Rs. 1,88,924/-.In their reply, respondent have stated that appellant/wife was earning a decent income from the boutique which she saved for herself and never shared it with the respondents, inspite of the fact that business expenditure was being met by respondent no. 2/father-in-law, who refused to meet the expenses including the boutique expenses. It is stated to be matter of record that Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 19/22 ID No. 02406R0309162012 with this monetary support only, the appellant/petitioner was running the boutique. The revenue generated from the boutique was retained by the appellant/petitioner. It was stated that respondent no. 2/father-in-law reserved his right to seek accounts of the boutique business and claim his share. At another point, it is stated that appellant/petitioner has income, directly or indirectly, more than Rs. 2,00,000/- per month from the boutique. How, it was Rs. Two lacs is not described. No document in this regard is shown or filed. Admittedly, Respondent No.1 is residing with his parents (Respondent No. 2 and 3).
26. No doubt, it is true as argued by Sh. Arya, Ld. Counsel for respondents that right to maintenance claimed by the wife cannot be extended to a right to seek contribution or monetary support to run a business or a boutique or a tailoring unit, which is stated to have run by appellant with the financial assistance and support of respondent, but perusal of record shows that Para 29 of affidavit has not been specifically disputed by respondents in their reply. Almost every averment made by the appellant has been denied by the respondents, but what are true facts, details of the business and the income have not been stated at all by respondents. During arguments, to clarify the position in this regard, when this Court put some queries to the respondent no. 1/husband, Learned Counsel for respondents raised objection to this. He was apprised that the appellate Court, which steps into the shoes of the Trial Court, has power to put queries and under the 'PWDV Act', Court can evolve its own procedure and even otherwise, in order to do substantial justice between the parties, the Court can always ask the parties and examine them or put queries to furnish better and correct particulars or to cull out details of any avernment made by them. Court has to find out status of the parties and their family. It is a common knowledge that now-a-days the income tax returns do not reflect the true income and the status Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 20/22 ID No. 02406R0309162012 of living of the parties and the Court can use its experience of common course of human conduct and business in relation to the facts of the particular case. Court can always examine facts in this regard, to find out true state of affairs, and look into not only avernment made by them, but also the manner in which they make their claims and respond after hearing the parties and can make out and do guess work about the status of life enjoyed by the parties and can always lift the veil.
27. Suffice it to note here that, in reply to the para no 29 of the affidavit filed by the appellant/wife under section 23 (2) of 'PWDV Act' , it is stated that respondent no. 1 is the only son of respondent no. 2 and 3 and it has been specifically stated therein that respondent no. 2/father-in-law was meeting the entire expenses and this fact has not been specifically denied that respondent no. 1 and no. 2 were paying Rs.90,000/- to Rs. One lac per month, which included expenses, child fees and other expenses and monetary support for running boutique/tailoring unit, as stated by appellant/wife. On asking, during arguments, respondent no. 1/husband had not disputed that the said maintenance was stopped since July 2012, however, as per appellant, she was denied maintenance since may 2012. In the circumstances noticed above, the income and the expenses of the parties are required to be assessed in detail by the trial Court after examining the parties, and giving them an opportunity to adduce evidence in this regard. Since, delay in granting interim monetary relief to appellant, shall defeat the objectives for which interim relief are envisaged under 'PWDV Act', which have already been noticed above, therefore, keeping in view the totality of aforesaid facts and circumstances obtaining on record, it is ordered that, in the meantime, respondent no. 1/husband shall pay Rs. 45,000/- (Rupees Forty Five Thousand) per month to the appellant w.e.f 1 st December 2013 towards maintenance of appellant and child. Respondent no. 1 shall clear the dues Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 21/22 ID No. 02406R0309162012 and pay arrears of maintenance to the appellant within two weeks from today and thereafter, shall continue to pay to the appellant or deposit in her bank account on or before of 10th of every month w.e.f. March, 2013. In the result, impugned order dated 09.11.2012 is set aside. Appeal filed by the appellant/wife stands allowed, accordingly. Copy of this order alongwith TCR be sent back to Learned Trial Court.
28. Appeal file be consigned to Record Room.
announced in the
open court on (VINAY KUMAR KHANNA)
18 February, 2013 Additional Sessions Judge04
th
(SouthEast) Saket/New Delhi
Pallavi Sikri Vs. Amit Sikri and ors. - CA No. 49 of 2012 22/22