Delhi District Court
Shabana vs Zahid Khan on 29 February, 2012
IN THE COURT OF SHRI A.K. JAIN: ASJ03: SE: SAKET COURT
COMPLEX : NEW DELHI
C.A. No. 115/12
Shabana
W/o Zahid Khan
D/o Asghar Khan
R/o E185/14, Hari Nagar Extn.
PartII, Badarpur, New Delhi ...... Appellant/ Complainant/Wife
Versus
Zahid khan
S/o Yousuf Saifi
R/o Mohall FatehKhani,
Bilaspur, PS Dankaru,
District Gautam Budh Nagar, UP ......Respondent/Husband
JUDGMENT:
1. By way of present appeal appellant/ complainant has challenged the impugned judgment dated 19.12.2011 passed by the Ld. trial court dismissing her complaint u/s 12 of Domestic Violence Act.
2. Brief facts of the case are that the complainant married respondent Zahid Khan on 30.12.2002 according to Muslim rights and ceremonies at New Delhi and after marriage she resided in matrimonial house at Bilaspur, District Gautam Budh Nagar, UP and further alleged that her parents had spent handsome money in said marriage to fulfill the desires of Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-1) respondent and given various dowry articles like scooter, TV fridge etc. but soon after marriage she was tortured by respondent and in laws on account of insufficient dowry and in laws further demanded Rs. 50,000/ for increasing the business of the respondents and in the month of March 2005 she was turned out of her matrimonial house and lateron matter was tried to be reconciled through the parents and relatives of the complainant but they were not agreed to keep the complainant and persist with demand of Rs.50,000/ . A male child was born out of said marriage on 5.11.2003 and thereafter a female child was also born out of said marriage and she stayed at matrimonial home on 30.03.2005 and thereafter she went to the matrimonial home to reconcile the matter number of times but the respondent and his family members stopped her to enter into the house. Thereafter, she filed a complaint in the year 2005 before the CAW cell and despite that complaint her dowry articles were not handed over back and respondent is not giving any maintenance to her and her minor children.
3. It is further alleged that respondent husband has married again with a girl namely Afsana on 27.05.2006 and in this regard an FIR no. 80/06, u/s 494 IPC, PS Badarpur was registered. She further alleged that her husband is earning more than Rs. 40,000/ pm by running a shoe shop and have a big home and luxury items in his house and prayed to pass Protection order u/s 18, residence order u/s 17 and monetary relief u/s 21 DV Act and further orders as per law under Domestic Violence Act.
Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-2)
4. In written statement respondent denied all the allegations levelled by the complainant and alleged that complainant herself had committed cruelty over her husband and family members and left the company of husband without any rhyme and reason. It is further alleged that respondent husband has also agreed to give her separate accommodation but she refused to live with her husband as she was not agreeing to live separately from her parents and further refused to take dowry articles in CAW cell and went to harass respondent husband and family members. It is further alleged that complainant having sufficient means and income and running a boutique shop and earning around Rs. 5000/ per month. And also running tuition center at her parental home from where she was also earning Rs. 3000/ pm and respondent is the student of LLB.
5. A domestic incident report was also filed by Protection officer wherein the contents of complaint were reiterated.
6. While leading evidence complainant examined herself and her father and in her affidavit of evidence she reiterated the averments raised in the petition. In cross examination she deposed that she is 12th class pass and her father is unemployed and she has no knowledge about income of her father and at the time of marriage her father was only earning member in family. She further deposed that she did not annex any receipt regarding purchase of dowry articles and further has not mentioned any date and time regarding harassing and taunting. And also stated that it is correct that she has not mentioned any date or time regarding taking the jewellery Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-3) articles by her mother in law and sister in law. And also not mentioned that who raised the demand of Rs. 50,000/ for increasing the business. She further deposed that she had not made any complaint to authorities regarding demand of Rs. 50,000/ and left the matrimonial home on 30.03.2005. she further deposed that neither on that day, nor prior to that she made any complaint against respondent in any authorities and filed the case on 26.11.2007 and at the time of filing present case she was not residing with the respondent. She further denied suggestion that at CAW cell respondent had put an offer that he is ready to keep her separately from other family members. She stated that she has not filed any suit for conjugal rights however the same was filed by her husband. She further deposed that at the time of first pregnancy she used to reside in matrimonial home and her husband used to bring her to hospital for check up. She further deposed that she was admitted to hospital for delivery by real chachi of her husband. And after discharge from hospital she was brought back at the house of chachi of her husband. She further deposed that after marriage she was not taken for movie or market by her husband and never purchased any valuable items in house and toys for children and not seen any money in pocket of her husband and not visited birth place of her husband. And further not filed any documentary evidence regarding the income of respondent. She further stated that she has not seen any bank account of respondent and denied suggestion she do not want to reside in matrimonial home in Bilaspur and further denied suggestion that Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-4) she got registered the false case u/s 494 IPC against husband and also denied that she was running a tuition center and a beauty parlour.
7. Complainant also examined her father as CW2 who in cross examination stated that he had not produced any document regarding money spent in the marriage or for dowry articles and neither mentioned any specific date etc. for harassment and further stated that he did not know when he had made payment of Rs. 50,000/. and also stated that he had no knowledge about filing of petition of restitution of conjugal rights and further not made any complaint regarding incident of 07.11.07 and denied suggestion that her daughter left matrimonial home herself and do not want to reside at Bilaspur.
8. During defence evidence respondent respondent Zahid examined himself as DW1, Shokeen as DW2 and Sh Ilamuddin as DW3. In affidavit of evidence DW1 Zahid Khan stated that the present complaint is gross abuse of law by the complainant and filed the complaint before various authorities to ruin the life of respondent and his family and further denied all the allegations of demand of Rs.50,000/ and beating and harassment. In cross examination he deposed that it is correct that he has two children out of the marriage but never approached to keep those children. And denied the demand of bike and Rs. 50,000/. he further deposed that complainant left the matrimonial home on 11.12.04 and thereafter he filed the petition for restitution of conjugal rights at Noida court he further deposed that as and when he visited the house of complainant he used to Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-5) given money/ expenses to complainant and children and went to house complainant to bring her back with relatives and a compromise also took place in this regard. And it is also agreed between them that she will keep respondent separately but despite this she refused to stay with him. He further deposed that today he is not ready to keep her and children because he is remarried and complainant is residing separately from him for a considerable period. He further deposed that he is not running any shop and unemployed nowadays.
9. DW2 Shokeen in his affidavit of evidence deposed that Shabana has compelled respondent Zahid Khan to purchase house in Delhi near the house of her parents and she do not want to reside at village Bilaspur, Delhi and this is the cause of quarrel between the two. The same facts were testified by DW3 Alimuddin. In cross examination DW2 deposed that he dow not remember the dates on which he tried to compromise the matter between the parties and he accompanied respondent with Panchayat at house of complainant and at that time Rafiq, Shabir and Shokeen and Zahid also accompanied him and Shabana left matrimonial house in 2004 and denied suggestion that he had not tried to compromise the matter with parties. DW3 Alimuddin in cross examination deposed that the cause of dispute is that Shabana do not want to reside with respondent Zahid in matrimonial home and there is no other dispute between the parties. And he alongwith Panchayat went once or twice and it was agreed that complainant shall reside at matrimonial home but she Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-6) was not sent to the matrimonial home.
10. Ld. trial court vide impugned order observed that complainant unable to explain why she had not resided with respondent and demand of dowry as raised by complainant are all vague and found no prima facie evidence of domestic violence and therefore dismissed the application of the complainant.
11. Ld. counsel for the appellant/complainant submits that there is sufficient evidence on record showing the domestic violence committed by respondent husband. Ld. counsel for the appellant submits that before filing of application, the appellant had already filed FIR case. Appellant has also filed a case u/s 494 IPC against the respondent for remarrying again. Ld. counsel further submitted that appellant is non working and she alongwith her two minor children is dependent upon her parents.
12. Ld. counsel for the respondent submitted that the appellant Shabana herself had left the matrimonial home and residing separately since 30.03.2005 and all the allegations are vague and general in nature having no truth at all. Ld. counsel further submits that the appellant is self dependent and earning handsomely from boutique and despite the petition for restitution of conjugal rights and compromise in CAW cell proceedings she not opted to join the company of the respondent and all efforts of the respondent in this regard failed. Ld. counsel further submits that the main cause of dispute is that appellant do not want to reside in matrimonial house in Bilaspur and wants to reside in Delhi only that is Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-7) why she left the matrimonial home and company of respondent. And no case of domestic violence is made out and application was rightly dismissed by trial court.
13. Arguments heard. Record perused.
14. The main issue of domestic violence as raised by the complainant is the harassment, cruelty and demand of money by the respondent husband and his family members and further the non payment of maintenance. Complainant in her affidavit of evidence stated that accused and his family members tortured the complainant on account of insufficient dowry and further her in laws demanded Rs.50,000/ for increasing the business of the respondents. Complainant in her cross examination deposed that she has no receipt of purchase of any dowry articles and further also not mentioned the date and time regarding harassment and taunting and also not mentioned the date and time regarding taking of jewellery by mother in law and sister in law and also not mentioned who raised demand of Rs.50,000/ for increasing the business. These allegations of insufficient dowry and demand of Rs. 50,000/ are devoid of any particulars and all vague.
15. Complainant in her affidavit of evidence stated that she was turned out of matrimonial home in year 2005 and lateron matter was tried to be reconciled by parents and relatives of complainant but they were not agreed to keep the complainant and persisted the demand of Rs. 50,000/. In cross examination she stated that she had not made any complaint Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-8) regarding demand of money of Rs.50,000/ and further left the home on 30.03.05 and in cross examination she had not stated that she was thrown out of matrimonial house. In cross examination respondent husband has denied the allegations of demand of any money and further stated that she herself has left the matrimonial home.
16. As per the evidence of the complainant she left the matrimonial home either in December 2004 or in March 2005 and from cumulative reading of the deposition of both parties it cannot be inferred that she was turned out of matrimonial home.
17. The main defence of the respondent husband that she left the matrimonial home at Bilaspur Noida UP because she do not want to reside there, even in CAW cell proceedings and as per the various meetings of Panchayat at house of complainant he offered her to take separate residence at Bilaspur, Noida but she did not join the company of respondent husband. Respondent in this regard has also examined DW2 shokeen and DW 3 Alimuddin and as per the testimony of both these witnesses the main dispute between the parties is that complainant do not want to reside with respondent at matrimonial home in Bilaspur, Noida and only wants to reside in Delhi.
18. The respondent has also initiated steps by filing petition for conjugal rights. CW2 father of the complainant stated that he has no knowledge of this petition whereas complainant herself in her cross examination stated that the same was filed by her husband. Complainant in her cross Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-9) examination denied suggestion that she do not want to reside with the respondent at a separate house from his family members. Whereas as per the CAW cell proceedings annexed with the record she completely denied to reside with the respondent at his place in Noida. On considering in entirety the CAW cell proceedings, defence evidence as well as complainant evidence, defence version that complainant left matrimonial home because she do not want to reside at Bilaspur appear to be more probable.
19. Complainant testified that a male child was born from said marriage on 5.11.03 and thereafter female child was born out of said marriage on 23.03.2005, the factum of children from the said marriage is not in dispute. Complainant in cross examination stated that she resides at matrimonial home at the time of first pregnancy and her husband used to bring her for check up at Delhi. Therefore, it cannot be inferred that respondent not cared the complainant.
20. As far as financial status of the respondent is concerned complainant in her testimony stated that her husband is earning more than Rs.40,000/ by running a shoe shop and have a big home and luxury items in his house whereas in cross examination she stated that she had not seen any money in pocket of her husband after the marriage and further he has not purchased any valuable items in the house and toys for the children and also not taken her for any movie or in the market. She further could not place any document regarding the income of the respondent and also Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-10) stated that she do not know about any bank account of the respondent husband. Thus from her testimony it cannot be inferred that respondent husband is earning handsomely. However, on the other hand respondent husband submitted that complainant is earning sufficiently and running a boutique shop and earning Rs. 5000/ from that shop and running a tuition center and from tuition center earning around Rs. 3000/pm. In cross examination complainant counsel himself asked respondent about the running of boutique and the same is stated by the respondent that it is correct that she is running a boutique however, respondent also could not file any documents regarding her income. Though, from this only one thing can be inferred that the complainant is atleast earning something however quantum cannot be guessed from the record.
21. The complainant in her affidavit of evidence stated that she is uneducated and unemployed lady and living at mercy of relatives whereas in cross examination she stated that she is 12th passed and it appears that she is running a boutique shop also. She further deposed that she is depending on mercy of relatives but not stated the particulars of relatives etc. and also in cross examination she stated that her father is unemployed and cannot tell the income of father at the time of marriage. From this version of complainant it cannot be inferred that she is not earning anything and completely unemployed.
22. As per record both the parties are residing separately since 2004 and 2005 and efforts of reconciliation also failed and admittedly the respondent Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-11) husband has performed the second marriage and in cross examination specifically denied to keep complainant and children alongwith him as they were residing separately from considerable time. Complainant also submitted that she has filed a criminal case through CAW cell and also a case u/s 494 IPC but nothing is placed on record what happened to these cases. From mere filing of the cases, any kind of cruelty or harassment cannot be inferred however, from considering the evidence in the present case, complainant unable to prove harassment and cruelty on account of demand of money or otherwise.
23. It also appears from record as already discussed that the complainant herself has left the matrimonial home and despite efforts has not joined the respondent company. And further it cannot be inferred that she is not earning.
24. However, it is an admitted fact that out of their wedlock two children were born in the year 2003 and 2005. it is well settled law that it is marital obligation of husband to maintain unearning wife and minor children. However, in the present case it cannot be inferred that complainant /appellant is not earning therefore, it is the duty of both husband and wife to maintain the children. Children admittedly residing with the complainant wife and she is upbringing the children without any financial help from respondent. Respondent candidly deposed in cross examination he do not want to keep complainant and children presently as they are residing separately since considerable time.
Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-12)
25. The respondent cannot be absolved from his obligation of maintenance of children on the ground that they are not residing with him . Further himself stated that he do not want to keep the children. Respondent surely has not disclosed his sources of income but it cannot be inferred that he is not earning anything because admittedly remarried and further stated in cross examination that he used to give Rs. 500/ or Rs.1000/ to complainant and children when used to meet them. Thus, keeping in view the present day expenses he is directed to pay the maintenance to each child for an amount of Rs. 1500/ per month i.e, a total amount of Rs. 3000/ for both children till the age of their majority. The said amount be paid to the complainant wife on 10th day of each month w.e.f date of filing present appeal. However, appellant/complainant is not precluded from realising the previous amount of interim maintenance as passed by trial court in accordance to law if not paid.
26. Ld. counsel for the respondent vehemently argued that no case of domestic violence is made out. But the term 'domestic violence' is not restricted term, it do not mean only mental or physical cruelty. It is very wide and exhaustive term and includes breach of marital obligations, right to maintenance and all kind of abuses as mentioned in section 3 of D.V. Act.
27. The complainant unable to prove any kind of harassment and cruelty, and left the matrimonial home in the year 2004/2005 and not made efforts to go back to the matrimonial home i.e, at Bilaspur, Noida, hence, she is not Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-13) entitled for any residence order in relation to the matrimonial home. However, the maintenance as decided above be paid to complainant by the respondent husband. Hence, appeal partly allowed and disposed off accordingly. Copy of this judgment alongwith TCR be sent back to trial court. File be consigned to Record Room.
Announced in the open court (AJAY KUMAR JAIN) on 29th February, 2012 ASJ03/SE/New Delhi
Shabana Vs. Zahid Khan, CA No. 115/12, (Contd.. pg-14)