Delhi District Court
Kulwant Singh vs Manjeet Kaur on 12 May, 2008
IN THE COURT OF Ms. ANU MALHOTRA, ASJ,
PATIALA HOUSE COURTS, NEW DELHI
Date of Institution: 29.10.2007
Judgment reserved on: 08.04.2008
Date of pronouncement: 12.05.2008
Criminal Appeal No. 2/07
Kulwant Singh
S/o. Late Sh. Chanan Singh
R/o. WZ-96A, Gali No. 2,
Vashist Park, Pankha Road,
New Delhi. ............... Petitioner
Versus
Manjeet Kaur
W/o. Sh. Kulwant Singh
R/o. RZ-1/44-A, Gali No. 3,
Tughlakabad Extension,
New Delhi. .......... Respondent
& in Criminal Appeal No. 23/07
Date of Institution: 05.11.2007
Judgment reserved on: 08.04.2008
Date of pronouncement: 12.05.2008
Manjeet Kaur
W/o. Sh. Kulwant Singh
R/o. RZ-1/44-A, Gali No. 3,
Tughlakabad Extension,
New Delhi. ............... Petitioner
Versus
Kulwant Singh
S/o. Late Sh. Chanan Singh
R/o. WZ-96A, Gali No. 2,
Vashist Park, Pankha Road,
New Delhi .......... Respondent
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JUDGMENT:-
This judgment shall dispose of an appeal instituted on 29.10.2007 by the appellant against the impugned order dated 16.10.2007of the Ld. Trial Court in complaint case No. 1990/01 U/s. 12 of the Protection of Women from Domestic Violence Act, 2005. Vide the impugned order dated 16.10.2007, the Ld. Trial Court directed the respondent No. 1 i.e. the husband of the complainant (i.e. the petitioner herein) to pay a monetary relief of Rs.2,000/- per month to his wife to meet the expenses incurred and losses suffered by her and monetary relief of maintenance of Rs.1,000/- for each child of the petitioner w.e.f. 01.06.2007 with further directions that the monetary relief of Rs.1,000/- per month for each child would be paid till the custody of the children was decided by the Court of law. Against this very impugned order there is another appeal i.e. CA No. 9/07 which has been filed by Manjeet Kaur, the complainant of the complaint case No. 1990/01 i.e. wife of the appellant Kulwant Singh through which Manjeet Kaur has sought certain reliefs. As both the appeals CA Nos. 2/07 and 23/07 arise out of the same impugned order, it is considered appropriate that both these appeals are disposed of by this very single judgment.
Through the complaint, Manjeet Kaur, the wife had through an application U/s. 12 of the Protection of Women from Domestic Violence Act, 2005 prayed as follows : -
"It is prayed that the Hon'ble Court may take cognizance of the complaint/domestic incident report and pass all or any of the orders deemed 2 necessary in the circumstances of the case:-
a) pass protection orders U/s. 18 b) pass residence orders U/s. 19 and; c) direct the respondents to grant compensation or damages U/s. 22 and; d) pass such interim orders as the Court deem just and proper; e) pass any orders deemed fit in the circumstances of the case. ORDERS REQUIRED : - a) Protection Order U/s. 18 prohibiting the acts of the domestic violence
by granting an injunction against the accused/respondents from repeating any of the acts mentioned in the complaint. As well as restraining them to visit the house of the complainant and School of the minor children.
RESIDENCE ORDER UNDER SECTION 19
a) An order restraining the respondents again dispossessing or throwing the complainant from matrimonial home.
b) pass an order for re-possession of the house. c) Giving dowry articles / stridhan to the complainant. MONETARY RELIEF UNDER SECTION 20 a) Directing the respondents to pay the monetary expenses of food,
clothes, medications and other basis necessities for minor children and complainant herself for the sum of Rs.50,000/-
b) pass an order for maintenance of the minor child and complainant herself.
c) any other expenses i.e. education of the minor child about Rs.5,000/- 3 COMPENSATION ORDER UNDER SECTION 22
a) pass an order directing the respondents to pay compensation and damages for the injuries including mental torture and emotional distress caused by the acts of domestic violence committed by the respondents of Rs.1,00,000/-
DETAILS OF PREVIOUS LITIGATIONS : -
a) The complainant filed a complaint before the Women Cell on the abovesaid complaint a case FIR No. 378/07 U/s. 498-A/34 of the IPC, 1860, PS, Okhla Industrial Area was registered against the respondents.
b) The complainant also filed a case for the maintenance of herself and her minor children the same is pending before the Ld. MM of the Patial House Court, New Delhi. No other case is pending against the respondents and complainant."
The Ld. Trial Court though it awarded the monetary relief of Rs.2,000/- per month to the wife to meet the expenses incurred and losses suffered by her and monetary relief of maintenance of Rs.1,000/- per month for each child w.e.f. 01.06.2007, the Ld. Trial Court inter alia observed as follows :-
"Having heard the arguments advanced by the Counsel for the parties and after gone through the contents of the application as well as the reply being filed by the respondents and after gone throughout the report being submitted by the Protection Officer, I am of the considered view that the 4 marriage of the petitioner with the respondent No. 1 is not disputed and two male child were born from the co-habitation of the petitioner and the respondent No. 1 is also not disputed. It is admitted that the petitioner is not residing with the shared house of respondent No. 1 or the other respondents and residing at her parents house from 0108.2006.
There are so many reliefs which has been sought by the petitioner in the aforesaid application and having gone through the case file and after hearing the argument advanced by the Ld. Counsel of both the parties the petitioner is not entitled for all the relief as claimed.
As per the provisions of law the petitioner is admittedly not residing at her matrimonial home for the last more than 8-9 month but the respondent No. 1 who is the husband of the petitioner is duty bound and responsible to look after his legally wedded wife and his two children and also responsible to provide them maintenance."
The Trial Court also vide the said impugned order consigned the file to Record Room.
Inter alia it was observed by the Ld. Trial Court that a notice of the application (i.e. of the wife) was issued to the respondent there to and a report was called from the Protection Officer, perusal of which report brought the Ld. Trial Court to the conclusion that the accused fell under the provisions of the Protection of Women from Domestic Violence Act, 2005 and a reply had been called for from the respondents which was submitted by them denying the allegations levelled against them.
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Through appeal No. CA 2/07, the husband Kulwant Singh has submitted that he had in no manner committed any domestic violence against his wife and that it was his wife who ever since on 01.08.2006 was living along with her children at her parental home without any just and sufficient cause and was refusing to live with him despite his requests and had not joined his company at the matrimonial home and that she had already taken back her articles / belongings from the matrimonial home. Inter alia the husband / appellant contended that the Ld. Trial Court had failed to appreciate that the wife had an income of Rs.7,000/- from tailoring and was fully capable of maintaining her and children and that there was a petition U/s. 125 of the Cr.P.C., 1973, that the wife had filed for amount of maintenance to herself and for two children which were pending judicial determination and there was no emergency for grant of any maintenance U/s. 12 of the Protection of Women from Domestic Violence Act, 2005 in the petition which had been filed 9 months thereafter.
Inter alia it was submitted by the husband that the Ld. Trial Court had directed a monthly amount to be paid by him to his wife which is extremely exorbitant and was without any basis and that the Ld. Trial Court had failed to appreciate that he the husband, was a TSR Driver whose monthly income was approximately Rs.5,000/- and from this income he had to spend for medicines and medical treatment of his ailing mother aged 71 years and for maintaining the household expenses and for meeting day to day expenditures on consumables like milk, groceries, pulses, flour, etc and that the Ld. Trial 6 Court had not specified as to how the wife would has incurring expenses and there is no evidence on record to substantiate how she had suffered any loss.
In CA 23/07 instituted by the wife Manjeet Kaur on 05.11.2007, it was submitted inter alia that despite her prayers made in her application U/s. 12 of the Protection of Women from Domestic Violence Act, 2005, the Ld. Trial Court failed to consider that she and her children had no accommodation for their residence when they were dispossessed and at the time of dispossession she was residing at in a house No. WZ-96A, Gali No. 2, Vashisht Park, Pankha Road, Delhi which was about 250 square yards and a duly constructed structure and was enjoying the same as a shared household and that she was entitled for re-possession of the same or to secure the same level of accommodation that had been enjoyed by her in the shared house or for rent of a similar type of accommodation.
Inter alia, the wife submitted that she had sought the return of her articles of dowry / stridhan which were with her husband and his family and had been illegally retained and had sought that in the alternative, a sum of Rs.3,50,000/- be paid to her. Inter alia the wife submitted that the impugned order granting Rs.2,000/- per month as being monetary relief and Rs.1,000/- each for her two minor children i.e. Rs.4,000/- per month was not adequate nor fair nor reasonable nor consistent with her standard of living especially as the monthly income of her spouse was more than Rs.15,000/- per month and that she and her children were entitled to Rs.3,000/- per month each from the date of desertion / separation i.e. from 01.08.2006. Inter alia the 7 appellant wife submitted that the Ld. Trial Court failed to direct her husband and his relatives to pay Rs.5,000/- per month for the education of the minor child Jaspreet who was school going and that she was not in a position to bear his educational expenses. Inter alia the appellant wife submitted that due to cruelties committed by her spouse and her relatives, a case U/s. 498A/34 of the IPC, 1860 vide FIR No. 378/07 had been registered with the Police Station OIA and that she had suffered mental torture and emotional distress but the Ld. Trial Court failed to award any compensation to her and claimed that she was entitled to compensation to the tune of Rs.5,00,000/-.
Though her appeal No. CA 23/07, the appellant wife sought the enhancement of the monthly maintenance to the amount of Rs.3,000/- per month for herself and her two children each from the date of desertion / separation i.e. 01.08.2006 and sought that the respondents i.e. her spouse and his relatives give her re-possession of the shared household or that she may be paid rent for the same. Inter alia the appellant wife also prayed for the return of her remaining articles of stridhan for their value amounting to Rs.3,50,000/-. The appellant wife also prayed for a direction of a sum of Rs.5,000/- per month being paid by her spouse and his relatives towards the minor schooling going child and further Rs.5,00,000/- being paid to her towards mental torture and emotional distress caused by the act of domestic violence by her husband and his relatives.
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The records of Ld. Trial Court have been requisitioned and perused. Arguments have been addressed on behalf of either side by their Ld. Counsel. The records of the Ld. Trial Court bring forth that the wife had sought reliefs U/s. 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 and had also sought interim relief as the Court deemed proper and just. Section 28 of the Protection of Women from Domestic Violence Act, 2005 reads as follows : -
"Section 28 : - (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23."
Though undoubtedly, Sub-section (2) to Section 28 of the Protection of Women from Domestic Violence Act, 2005 lays down that nothing in sub-section (1) of Section 28 would prevent the Court from laying down its own procedure for disposal of an application under sub Section (2) of Section 23 of the said enactment, the factum that Section 12, 18, 19, 20, 21, 22, 23 and 31 are Sections qua which the proceedings U/s. 28 (1) have been directed to be governed by the provisions of the Code of Criminal Procedure Code, 1973, cannot be over looked. Section 31 of the Protection of Women from Domestic Violence Act, 2005 makes breach of a protection order or of an interim order by the respondent an offence with punishable 9 imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.20,000/- or with both.
Rule 6 (5) of the Protection of Women from Domestic Violence Rules, 2006, lays down that the applications U/s. 12 of the said enactment shall be dealt with and the orders enforced in the same manner laid down U/s. 125 of the Code of Criminal Procedure, 1973. Section 125 (I) of the Cr.P.C., 1973 provides for the passing of a monetary maintenance allowance by the Magistrate on 'proof' of neglect or refusal by a person bound to maintain an applicant as detailed in the said section. Section 126 (2) of the Cr.P.C., 1973, provides that all evidence in the proceedings U/s. 125 of the Cr.P.C., 1973, shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal presence is dispensed with in the presence of his pleader and is recorded in the manner provided for the summons cases" Chapter XX, through Section 251 to 259 of the Cr.P.C., 1973 provides for the procedure of trial in a summons case which indicates prima facie the taking of evidence for final adjudication of claims.
In these circumstances, the observations of the Ld. Trial Court observing to the effect that on a perusal of the petition and after hearing the arguments addressed on behalf of both sides, it was held that the wife was not entitled to all the reliefs as claimed by her without affording to either side an opportunity to lead evidence to bring on record 'proof', cannot be held to 10 be correct. Undoubtedly, interim relief can be granted or disallowed in terms of Section 23 of the Protection of Women from Domestic Violence Act, 2005, without final proof, but undoubtedly interim relief under that Section can be granted only to the extent that the Ld. Trial Court thinks appropriate in terms of Section 23 (2).
Thus, if in a case, the Ld. Trial Court is of the considered view that the interim orders as prayed by an aggrieved person are not required to be passed, the same would necessarily not be passed, but that cannot suffice for non compliance of the procedure U/s 28 (1) of the Protection of Women from Domestic Violence Act, 2005 qua prayers made U/s 12, 18, 19, 20, 21, 22 and Section 23 and qua offences punishable U/s 31 of the said enactment which, necessarily in terms of rule 6 of the Protection of Women from Domestic Violence Rule, 2006 ordains the following of the procedure U/s 125 of the Cr.P.C. 1973, which in turn through Section 126 of the Cr. P.C, 1973 , ordains the following of the procedure of a summon trial case detailed in Chapter XX of the Cr.P.C. 1973.
Thus, the impugned order of the Ld. Trial Court dated 16.10.2007 to the extent that it gives no reasons for not granting the reliefs other than monetary reliefs prayed for and which does not follow the procedure prescribed by law, is set aside, and the matter remanded to the Ld. Trial Court to follow the procedure prescribed by law in terms of Rule 6 of the Protection of Women from Domestic Violence Act, 2006 11 by affording either side an opportunity to lead evidence qua the reliefs prayed for by the appellant / wife for a final adjudication of the matter.
However, as regards the relief granted by the Ld. Trial Court as monetary relief, the impugned order is sustained only qua the aspect that it shall be considered as monetary relief till the disposal of the petition, on an analysis of evidence to be led by either side to the extent as directed herein now. Thus qua the quantum of monetary relief granted by the impugned order dated 16.10.2007 which also as directed herein above is sustained only to the extent that it shall operate as an interim measure till disposal of the complaint before the Ld. Trial Court, - on a perusal of the entire record, taking into account the factum that there is no document placed on record by the husband in support of his contentions as made in the appeal and there is no document placed by the wife in support of her contentions qua the earnings of her husband, and taking into account the documents issued by the Dhasmesh Public School for the schooling of the minor child named Jaspreet Singh, it is considered appropriate to direct the payment of monetary relief to the appellant wife Smt. Manjeet Kaur by the husband Sh. Kulwant Singh to the extent of Rs.1,500/- p.m. in place of Rs.2,000/- p.m. w.e.f. 01.06.2007 till disposal of the petition and further more a sum of Rs.1,200/- p.m. for the minor child Jaspreet Singh and Rs.1,000/- for minor child Akshay Deep Singh w.e.f. 01.06.2007, till disposal of the complaint before the Ld. Trial Court. The impugned order dated 16.10.2007 qua the quantum of monetary relief of the Ld. Trial Court in complaint case No. 1990/01 is thus modified 12 to this extent. The appeal of the appellant, husband Kulwant Singh in CA 2/07 is disposed of accordingly, and so is the appeal of the appellant Manjeet Kaur in CA No. 23./07 as directed herein above. The parties are directed to appear before the Ld. Trial Court on 27.05.2008. Copy of the judgment be sent to the Ld. Trial Court along with Trial Court Record. The arrears of monetary relief payable by the husband Kulwant Singh and father of the two minor children, in view of the order dated 12.11.2007 of this Court which also now stands modified by this judgment, are directed to be paid by Sh. Kulwant Singh to the appellant before the Ld. Trial Court within two months of the date of this order. Copy of this order be placed on the records of CA No. 2/07 and in CA 23/07. The records of CA No. 2/07 and CA No. 23/07 be consigned to the Record Room.
Announced in the open Court (ANU MALHOTRA)
today this the 12th day of May, 2008 ASJ/NEW DELHI
12.05.2008
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