Delhi District Court
V.No. 9/2008 Vaishali Gaur vs Sagar Gaur on 30 August, 2012
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IN THE COURT OF MS. VANDANA JAIN,
METROPOLITAN MAGISTRATE, MAHILA COURT (E)
KARKARDOOMA COURT: DELHI.
V. No. 9/2008
Smt. Vaishali Gaur,
W/o Sh. Sagar Gaur,
R/o D-10, East Arjun Nagar,
Delhi - 110051. .........Complainant.
Versus
Sh. Sagar Gaur,
R/o D-10, East Arjun Nagar,
Delhi - 110051. .......... Respondent.
Nature of petition : U/s 12r.P.C
Date of Institution : 31.3.2008
Reserved for judgment : 21.8.2012
Date of judgement : 30.8.2012
JUDGMENT:
1. Vide this judgment, I shall decide the present petition U/s 12 of Protection of Women from Domestic Violence Act, 2005, filed by Vaishali Gaur (hereinafter referred to as complainant) against Sagar Gaur (herein after referred to as respondent).
2. The brief facts of the present application are that the complainant was married to respondent Sagar Gaur who has been harassing and humiliating her by way of giving her beatings invariably on everyday and directed her and her two children born out of the said wedlock, to leave the matrimonial home. It is further stated that on 9.3.2008 in the evening the complainant was given beatings and was asked to leave her matrimonial home alongwith children and when she did not leave the house, in the morning of 10.3.2008 she was again V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 2 mercilessly beaten up upon which a call at 100 number was made and police reached there and took the complainant to Dr. Hedgewar Hospital for medical treatment and her medical examination report was prepared. A kalandra U/s 107/191 Cr.P.C. was registered vide DD No. 28B.
3. It is further stated that even thereafter the husband has not stopped himself from giving beatings and the complainant was repeatedly threatened to be killed if she failed to leave the matrimonial home immediately. It is prayed in the application that the respondent be directed not to ask the complainant and her children to leave the matrimonial home and compensation to the tune of Rs. 5 lacs for the damages for the injuries caused by the acts of domestic violence committed by the respondent.
4. Reply to the said application was filed wherein it was stated that it is a false and frivolous application which has been filed just to harass and humiliate and black mail the respondent and his family in order to extort money from the respondent. It is further stated that marriage of the complainant was solemnized in 1991 and since 1999 respondent has been living separately from her so the question of giving her beatings does not arise. Respondent has denied that the incident of 9.3.2008 with respect to the beatings of the complainant had ever occurred. He has further stated that the complainant is not entitled to any relief as she is an able bodied lady and is doing her tuition work and she also partly deals in ladies garments and is working as a teacher in a reputed school and is earning about Rs. 15000/- per month.
5. Replication to the reply was filed wherein the complainant has stated that the allegations made by the respondent are false. She has also stated in paragraph 3 of the replication to the preliminary objection of respondent that she is interested in peace at home for the sake of her children, one of whom has to appear in Xth Standard. She V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 3 has also stated that she does not want any kind of support from her husband and simply seeks that she should not be unnecessarily made a victim of domestic violence and should not be kicked out of the matrimonial home. Apart from the aforesaid averments she has reaffirmed the contents of her application. Thereafter the matter was listed for petitioner's evidence.
6. Petitioner tendered her evidence by way of affidavit wherein she reiterated the contents of petition and she was cross examined by Ld. Counsel for respondent wherein she stated that her marriage with the respondent was solemnized in the year 1999. She admitted that the respondent is residing with her. She further stated that she had given a written statement once against the respondent at Anand Vihar Police Station before 8/9 years prior to the present complaint. She admitted that they were residing separately for the last 8-9 years. She further stated that the house no. D-10, East Arjun Nagar, Delhi - 110051 in which she was residing consisted of ground floor and first floor. She further admitted that as per the wish of her husband his food was cooked by his mother. She further stated that she had no quarrel with her in laws. She further stated that she did not know whether the house in which she was residing belonged to her mother in law. She denied the suggestion that she wanted to take the house of her in laws. She further denied that she was running a garment business in said house and she only gave tuitions to children in said house and at that time she was giving tuitions to only five children.
7. PW-1 admitted that her father was in Delhi Police. She denied the suggestion that on the behest of her father she used to lodge the complaint against her husband. She further denied that her husband did not quarrel with her. She admitted that respondent started his computer business on the ground floor of the matrimonial home before 8/9 years. She further denied the suggestion that due to the matrimonial disputes respondent lost his business of computer. She V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 4 further denied the suggestion that the respondent bears all the expenses of her children. She further denied that she is deposing falsely and has filed a false complaint at the instance of her father. She further denied that respondent is jobless and is not doing any work. She further denied the suggestion that she had created a scene at the work place of respondent due to which respondent had to close the said business. She further denied the suggestion that she is deposing falsely. Thereafter, complainant's evidence was closed.
8. Respondent examined himself to prove his case. Respondent tendered his evidence by way of affidavit Ex. RW-1/A. RW-1, was cross examined by Ld. Counsel for complainant, wherein he stated that on 9.3.2008 his father was not taken to the hospital. He further stated that he did not know as to who had taken his father to Ram Manohar Lohia Hospital in the month of February 2008 as he had gone to Ludhiana for business purpose. RW-1 was asked the question that since he was out of station in February 2008, he was not aware as to how his father was being treated in RML Hospital and on whose instance he was being treated to which he stated that he was out of station during the time his father was admitted in the hospital. However, he received a call from his mother that the doctor has given the time of two hours for operating him to save his life.
9. RW-1 in his cross examination further stated that he returned to Delhi in the evening itself by bus, however he did not remember the date when he returned back to Delhi and it might be 18.2.2008. He further stated that he provides IT services including website designing and data processing. He denied the suggestion that he had told his wife in August 2011 that he alongwith his family members were planning to construct flats at the matrimonial home and asked her to shift from the matrimonial home to the rented premises for the time being. He admitted that he alongwith complainant and his parents and children shifted to a rented accommodation in month of August V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 5 2010. RW-1 was asked a question whether he can tell as to why he had shifted from house bearing no. D-10, East Arjun Nagar, Delhi to a rented accommodation in August 2010 to which he answered that his parents had given the house to some builder for construction of flats and that is why they had shifted to a rental accommodation.
10. RW-1 admitted that he is the only son of his parents. He further admitted that before shifting he alongwith his family and his parents were residing at the H.No. D-10, East Arjun Nagar, Delhi. He again said that he alongwith his parents were residing on the ground floor of the property before shifting and complainant alongwith her children was residing on the first floor of the property separately. He further stated that the kitchen for both the floors was common and the same was located at ground floor. He further admitted that all the eight flats were ready just before Diwali in the year 2011. He voluntarily stated that four flats belonged to the builder as agreed upon at the time of construction. He denied the suggestion that he alongwith his parents shifted back from the rental accommodation to the newly constructed flats and left complainant and her children at the rental accommodation only. He admitted that his parents had shifted back from the rental accommodation to the newly constructed flats. He further stated that the complainant used to threaten his parents to involve them in a false case and also used to ask that three flats should be transferred in her name and that is why she was not taken to the newly constructed flats. He admitted that complainant had not made any complaint against his parents till the time they shifted back to the flats. He voluntary stated that she used to abuse them in filthy language at home. He denied the suggestion that complainant never used any kind of unparliamentary language against his parents and she always behaved with them respectfully and properly. He admitted that he had told the complainant at the time of shifting that his parents had disowned him and that is why he was not taking her V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 6 alongwith children back to the matrimonial home in the constructed flats. He voluntarily stated that his parents told this fact of disowning on the day of shifting only. He further stated that at present he is residing in his office which is located at the ground floor of the same constructed flats. He voluntarily stated that he is residing in a small enclosed space measuring 10"x7 in the parking space and not in a flat. He further stated that he is not aware as to how many flats are vacant. He further stated that his parents have given some flats on rent of which he do not have any personal knowledge. He further stated that he is not aware whether the flats which were not occupied by his parents are either given on rent or have been sold. He further stated that the complainant alongwith local henchmen came at the flats and used abusive language and forcibly tried to enter into the flats but his parents called the police at 1.00am in the night and with the intervention of the police she was stopped from illegally tresspassing the property. He further stated that he was present at the time when this incident took place. He further stated that he did not accompany his wife at the time when she tried to enter into the flat. He voluntarily stated that he asked her to accompany him and reside in the rental accommodation with him. He denied the suggestion that the complainant was not accompanied by henchmen and they were people of locality who had come to get the matter settled. He further stated that he was not aware where the complainant is residing presently. He voluntarily stated that the complainant had left his company at her own free will. He further denied the suggestion that he was not aware of the fact that the complainant alongwith her children is residing at her parental home. He further stated that he had not visited the parental home of the complainant to enquire where the complainant is living. He admitted that the expenses of children are not borne by him. He voluntarily stated that he always asked the complainant to take the expenses but she always denied the same.
V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 7 He further stated that he did not wish to reside with the complainant now. He further stated that he is residing away from his children since last six months. He denied the suggestion that he does not wish to reside even with his children. He denied the suggestion that since he did not wish to reside with his children, he did not enquire about them even from the parents of the complainant as to where they are staying. He denied the suggestion that the complainant has not filed the present case just to harass him and his parents. He denied the suggestion that all the allegations made in his affidavit Ex. RW-1/A are false and concocted or that he is deposing falsely. Thereafter, respondent's evidence was closed
11. It is pertinent to mention here that application U/s 12 DV Act was moved by the complainant and thereafter she only pressed her application for right of residence and remaining application were withdrawn.
12. The matter was listed for final arguments and again an application was moved for grant of maintenance on behalf of complainant. Final arguments as well as arguments on the application for right to residence as well on maintenance application were heard.
13. It is pertinent to mention here that in the main application under DV Act the complainant has sought a relief of restraining the respondent from kicking her out from the matrimonial home and compensation to the tune of Rs. 5 lacs. During the course of arguments it was revealed that she was thrown out of the matrimonial home though in a different manner by making false assurance and therefore, she had moved an application for passing residence order. She had also moved an application for maintenance. In the application for residence order, she has stated that respondent has filed a divorce petition against her and she is living with her two children who are 18 and 15 years of age and bringing them up out of her own income which she is earning by teaching in a Private School and complainant's V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 8 husband and her in laws asked her to vacate the matrimonial home and on the pretext that they were having collaboration with property dealer, who would be constructing four floors in the matrimonial home and each floor would be comprising of two bed room flats facing each other. First floor and fourth floor will remain with them and one flat on the first floor would be given to her. On this assurance complainant agreed to shift to a rented accommodation alongwith her husband and in laws. At this assurance complainant agreed to shift at a rented accommodation alongwith her husband and in laws. Respondent took a u-turn from his promise and did not adhere to the oral agreement between them. It is further stated that earlier the parents of the respondent were not made parties but now lot of wanter has flown down and complainant and her children are being humiliated and harassed consistently. She has stated that D-10, East Arjun Nagar, Delhi - 110051 is her share household and therefore, she cannot be deprived from residing in the same in any manner and therefore, she be given right of residence there in some alternative accommodation or to pay rent for the same.
14. She has further stated that the respondent be restrained from changing the share household and be directed to permit the complainant and her children to stay in the flat situated at the first floor or to provide alternative accommodation to the complainant and her children.
15. An application for grant of interim maintenance stating that DV Act is a social welfare legislature meant for the welfare of Women in confirmity and the technicalities and strict rules of pleadings ought not apply in such kind of social welfare legislations and in the absence of specific pleadings also courts are not powerless to grant relief. She has further stated that the respondent is earning Rs. 50,000/- per month by providing IT services including website designing and data processing as admitted by him in the cross examination and therefore, V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 9 she be given maintenance @ Rs. 30000/- for herself and school going children.
16. Heard. Record perused.
17. By this order I shall dispose of both the applications alongwith the present case simultaneously. Counsel for respondent has argued that respondent has never committed any act of domestic violence upon the complainant or her children and she is not an aggrieved person within the meaning of this Act and is not entitled to any maintenance. He has further argued that the complainant herself in her replication stated that she does not need any kind of support from her husband meaning thereby she did not need any maintenance and she be only protected from not being kicked out from the matrimonial home and therefore she is not entitled to any maintenance. He has further argued that the application under DV Act has not been filed in accordance with the rules of DV Act and no affidavit has been filed U/s 18 and 23 of DV Act and therefore, she is not entitled to any relief. He has further stated that complainant cannot be granted any relief of residence in share household bearing no. D-10, East Arjun Nagar, Delhi
- 110051 which admittedly belongs to mother in law and in view of judgment titled as S.R. BATRA & ANR. VERSUS SMT. TARUN BATRA in 1 (2007) DMC 1 (S.C.) 2006 13 scale 652, she does not have a right to claim residence therein. He has further stated that the relief can be sought against the husband only, but her husband himself is living in a small enclosed space measuring 10"x7 in the parking space and not in the newly constructed flats and therefore she cannot claim any right of residence qua the parents in law (relative of the husband).
18. I would deal with the contentions of Ld. Counsel for respondent one by one. Relationship between the parties and paternity of children are not disputed by both the parties. Respondent is the husband of the complainant and is father of children of complainant and therefore V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 10 he is the respondent within the meaning of term respondent as defined in DV Act. In order to seek relief under the domestic violence Act, complainant should fall within the definition of aggrieved person which is proved U/s 2 (a) of DV Act as under:-
"2(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent who alleges to have been subjected to any act of domestic violence of the respondent."
19..................................DV Act .
20. Respondent in his cross examination has admitted the fact that he is not aware as to where the complainant is residing. He has also admitted that expenses of the children are not borne by him and he is away from the children since last 6 months. In view of the fact that the respondent is not taking care of the children it can well be gathered that complainant was subjected to economic abuse and therefore she falls within the definition of aggrieved person and is entitled to claim reliefs.
21. She has sought relief of right to residence in matrimonial home i.e. D-10, East Arjun Nagar, Delhi - 110051 as well as relief of maintenance. She has also sought compensation of Rs. 5 lacs for the acts of domestic violence.
22. It is an admitted fact that the marriage between the parties was solemnized in the year 1990 and since 1999 the complainant started residing separately with her children on the first floor and respondent alongwith his parents was residing on the ground floor of the house. It is also not disputed that complainant was working at that time.
Complainant has stated that she did not know whether the
V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur
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matrimonial home belongs to her mother in law. It is further an
admitted fact that when the present complaint was filed the complainant was residing in her matrimonial home i.e. D-10, East Arjun Nagar, Delhi - 110051. Even at the time of cross examination of complainant she was residing there only as she has stated that house no. D-10, East Arjun Nagar, Delhi - 110051 consists of ground floor and first floor and this is the reason that at the time of filing of present application she had sought only two reliefs that she should not be kicked out from the matrimonial home, and of compensation but she was cleverly brought out of the matrimonial home under a pre- conceived plan.
23. The respondent in his cross examination has admitted that he alongwith the complainant and his parents and children shifted to a rented accommodation in the month of August 2010. He was even put a question as to why he had shifted to a rented accommodation to which he replied that the house was given to the builders for construction of flats and that is why they had to shift to a rented accommodation. He has further admitted that he is the only son of his parents. He has also admitted that before shifting to a rented accommodation he alongwith his family and parents were residing at the matrimonial home and then he again explained that he alongwith his parents were residing at the ground floor and the complainant and her children were residing at the first floor of the house though the kitchen was common which was situated at the ground floor, meaning thereby that there was some dispute between the complainant and respondent before shifting to the rental accommodation. Thereafter, he admitted that 8 flats were constructed before Diwali in the year 2011 and four flats belonged to builder as was agreed at the time of construction. Meaning thereby that four floors were left at the disposal of family members of respondent. He has denied the suggestion that he alongwith his parents shifted back from the rental accommodation V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 12 to the newly constructed flats and left the complainant alongwith her children at the rental accommodation only. Though he admitted that his parents had shifted back from the rental accommodation to newly constructed flats. Yet he has denied that he is living in those flats but has admitted this fact that he is residing in his office which is located at the ground floor of the same constructed flats and he has voluntarily stated that he is residing in a small enclosed space measuring 10"x7 in the parking space and not in a flat. He has admitted that complainant and her children have not been shifted back to the newly constructed flats. He has further admitted that he had told the complainant at the time of shifting that his parents have disowned him and that is why he is not taking her children alongwith him in the newly constructed flats. He voluntarily stated that this fact of disowning him by his parents was told to the complainant at the time of shifting only. .
24. From the aforesaid evidence of the respondent it is crystal clear that the complainant alongwith her children were made to go out of the matrimonial home with a pre-conceived plan. She was assured that she would be given a flat in the newly constructed flats as alleged by her. However, fraudulently she alongwith her children were left at the rental accommodation and was not allowed to re-enter into the matrimonial home which is now in the nature of flats. The conduct of the respondent and his family members is very much clear from cross examination of respondent himself who has admitted each and every part of his conspiracy. He has admitted this fact that when they shifted to the newly constructed flats from the rented accommodation, the complainant alongwith her children was not taken back.
25. Though the respondent has stated that his parents have disowned him. However, no proof of disowning the respondent by his parents from all their movable and immovable properties, have been proved on record. It has come on record that he is the only son of his V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 13 parents. The aforesaid testimony clearly shows that the ill will and malafide intention of the respondent and his family member by which complainant was made to move out of the matrimonial home and thereafter she was not allowed to come back. Though it is well settled law that the wife does not have right in the properties of her in laws and neither can claim any right of residence therein. However, in the present case the fact that the property belongs mother in law has not been proved. It has further not been proved that the respondent has been disowned by his parents. Even otherwise the in present case the judgment namely S.R. Batra (Supra) is not applicable to the present case as the complainant alongwith her children had not moved out of the matrimonial home with her husband while living in a cordial relationship. It was the husband who conceived an idea of throwing the complainant alongwith her children out of the matrimonial home fraudulently, though peacefully. In this regard reliance is placed on Eveneet Singh VS Prashant Chaudhary 2011 (177) DLT wherein it has been held by Hon'ble High Court of Delhi as follows:-
"The circumstances that the husband moved out when the relationship became stormy, suggest a manipulation by the husband to defeat the right of wife. The plaintiff has therefore the right to residence under this Act".
26. Dometic Violence is explained as under:
"............. (iv) "economic abuse" includes:-
(a) Deprivation of all or any economic or financial resources to which the the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 14 necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any property jointed or separately held by the aggrieved person: and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of domestic relationship including access to the shared household.
27. This judgment is squarely applicable to the facts of the present case as as admittedly the relations hip of the complainant and husband were not cordial and the husband was living with his parents at the ground floor and the wife alongwith her children was living at the first floor of the house. Hence in order to kick her out from the matrimonial home a plan was made and in pursuance of said plans he was made to come out from the matrimonial house and thereafter, the husband and his parents came back and she was left at the rental accommodation alongwith her children. In these circumstances she has right to residence in the shared household and cannot be removed without following due process of law. I am of the considered view that the purpose of this act is not to support the fraudulent persons for achieving their illegal objective, but the purpose is to prevent the victim from being victimised. Since the respondent has played fraud upon the complainant to oust her from the matrimonial home, she is V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur 15 well within her rights to re-enter the same house. Accordingly, this relief of right to residence is allowed to the complainant and the respondent is directed to allow the complainant and her children to reside in one of the floors which has been newly constructed at D-10, East Arjun Nagar, Delhi - 110051. However, it is also stated that at the same time that the share household does not mean any particular property, therefore respondent is at liberty to give possession of any of the flats as per his own convenience to the complainant.
28. As regards the right of maintenance, it is admitted that the complainant was working earlier. However, the fact remains that no proof regarding the income of the parties have been placed on record. At the same time fact remains the the respondent has not disclosed his earning anywhere either in his written statement or in his affidavit. He has admitted that presently he is residing in his office which is located at the ground floor of the same constructed house meaning thereby he is having some business. He has also admitted in his cross examination that he is providing IT services and web designing and data processing. It can be imagined that a person who is staying in office and is providing IT services and web designing and data processing would be earning handsomely. Since he has not disclosed his income, there is no straight jacket formula for assessing the income of respondent. However keeping in view the nature of business which respondent is doing, his income is assessed to be Rs. 25,000/- per month. Since, it is admitted that the complainant is working maintenance is declined to the complainant. Respondent has admitted that all the expenses of children are being borne by the complainant and not by him, It is a well settled proposition that father is legally bound to maintain his children. Accordingly in the present facts and circumstances, maintenance @ Rs. 10000/- is awarded to the children from the date of order till they attain majority or till the law otherwise permits.
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29. As regards the compensation, it has been duly proved that she has been made a victim of domestic violence of respondent as she has been falsely thrown out of the matrimonial home alongwith her children whose carrier would be ruined. Being, a mother complainant has done every effort to bring them up and is bearing the expenses of her children since long time. Accordingly compensation to the tune of Rs. 20,000/- is awarded to the complainant.
30. Application is disposed of accordingly. Let file be consigned to record room.
Announced in the Open Court (Vandana Jain)
On 30.8.2012 MM/Mahila Court (E)
V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur
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V.No. 9/2008 Vaishali Gaur Vs Sagar Gaur