Delhi District Court
Judgment Of Hon'Ble High Court In Gaurav ... vs . Diya Sondhi - 120 Dlt (2005) on 10 May, 2012
IN THE COURT OF MS. POOJA TALWAR,
METROPOLITAN MAGISTRATE
( MAHILA COURT - SOUTH EAST DISTRICT )
SAKET COURT COMPLEX, NEW DELHI
CC NO. 256/03
Sabnam
W/o Sh. Dilnawaz Khan
D/o G16/493, Muradi Road,
Batla House, Jamia Nagar, New Delhi
............................. COMPLAINANT
Versus
1. Dilnawaz Khan (Husband)
S/o Late Mohd. Kadir Khan
2. Shahnawaz @ Guddu (Jeth)
S/o Late Mohd. Kadir Khan.
3. Fakrull Hassan (Nandoi),
S/o Not known.
All R/o 144B, Loco South,
Railway Colony, Kanpur,
Uttar Pradesh
Also at:
CC no. 256/03 Page no. 1
C/o Haj Jamal Khan
R/o 132/559, Arfa Manzil,
Munshipur Dak Khana,
Kanpur, UP.
........................... RESPONDENTS
DATE PF INSTITUTION 31.07.2009
DATE OF JUDGMENT 10.05.2012.
JUDGMENT
1. This is a complaint filed U/S 12 of PWDVA, 2005. Brief narration of facts relevant for the disposal of the complaint are as under.
2. It is stated that complainant was married to respondent no. 1. on 01.12.1996 according to Muslim Customs and Rites. Three female children were born out of the said wedlock. Sufficient dowry was given in the marriage of the parties by the parents of the complainant but the respondents were not satisfied with the same and started teasing and taunting the complainant by saying that they were expecting a maruti car and cash of Rs. 3,00,000/. They used to beat the complainant by kicks and fists. With the passage of time cruelty of the respondents increased towards the complainant. In order to fulfill the demand of respondents, the father of the complainant gave Rs. 50,000/ to the respondent no. 1 but the respondents were not satisfied with this amount. On 01.07.2009 the respondents again mercilessly beat the complainant. As the life of the complainant and her children was in danger in the company of respondents, the complainant came along with her children to Delhi and is residing with her parents.
CC no. 256/03 Page no. 2
3. Reply has been filed by the respondent denying all the allegations levelled in the complaint stating that the complaint filed by the complainant is not maintainable on the ground of jurisdiction. That the complainant has indulged in filing false cases against the respondent. That by doing such acts, complainant is jeopardizing the future studies of the children. That the complainant has not approached the Court with clean hands and has suppressed the material facts. That the respondent is still and always willing to take the complainant along with children.
4. Replication was filed by the complainant to the WS filed by the respondent stating the contents of the WS as wrong and denied and reaffirmed the contents of her complaint.
5. Domestic Incident Report has been filed by the Protection Officer wherein she has reiterated the contents of the complaint.
6. Whether prima facie case of domestic violence is made out?
I've heard the ld counsels for both the parties and perused the DIR and all the records carefully.
Evidence was lead by both the parties. Both of them examined themselves as the only witnesses. Both of them reiterated the contents of their complaint and WS respectively in their affidavits.
Complainant through her evidence has tried to prove that she was subjected to cruelty at the hands of respondent and his family members. She has besides the CC no. 256/03 Page no. 3 other incidents narrated the incident dated 01.07.2009 when she was mercilessly beaten by the respondent and his family members and in order to save her life she had to leave the house of respondent and to come back with her mother to her parental house. Since then she has been residing with them for which she has lodged a complaint in PS Kanpur.
7. Respondent has admitted that an incident occurred on the said date but he has explained that though the injury was caused to the complainant but not by him rather the complainant had inflicted injury on herself hitting her hand on the wall. The injury on the person of the complainant is though admitted.
8. The other allegations of the complainant is that she was harassed for demand of dowry and in order to fulfill the said demand, a cheque of Rs. 50,000/ was given by her father to the respondent. Respondent has admitted receiving the cheque however, he has tried to explain that the same was given by the father of complainant in return of money borrowed by the father of complainant from him at the time of marriage of sister of complainant. In his reply as well as in his affidavit, the respondent has stated that the said money was given by him to his father in law ie the father of complainant however, in his cross examination he has stated that he h ad got the said money from one Chanderkant Verma and given to his father in law. The name of Chanderkant Verma had never appeared before this either in his reply or his examination in chief. He has also not been able to explain that in case the money was taken from Chanderkant Verma then why the cheque was issue by father of complainant in the name of respondent.
CC no. 256/03 Page no. 4
9. His further defence is that he had started demanding money back from father of complainant, the complainant filed this false case. The defence of respondent is not credible. Since he has stated that the cheque was credited in his account and thereafter he paid money in installments to Chanderkant Verma. Even if assuming that the money was against the loan taken by father in law of the respondent the same could have been encashed and handed over to Chanderkant Verma but it is the case of respondent that he returned the same money in installments to Chanderkant Verma.
10. I think the complainant by appearing in the witness box and stating on oath has been able to prove that she has been a victim of domestic violence as the respondent has not been able to explain as to why the complainant would leave the shared household along with three minor daughters without any rhyme or reason. Although the respondent had filed a case for restitution of conjugal rights but later the same was dismissed in default as he did not pursue the case. The respondent has also now remarried and leading his own life. The respondent has also taken a stand that he has also divorced the complainant however, in his cross examination the counsel for complainant has been able to prove that the divorce if any pronounced by the respondent is not a valid one since the same was sent through registered post without signatures of witnesses which is required for a valid talaq.
I feel that respondent has not been able to disprove the charges levelled against him. In these circumstances, a case of domestic violence is made out against the respondent.
As far as the other respondents are concerned, the complainant has not been CC no. 256/03 Page no. 5 able to prove her case against the said respondents. Therefore no case of domestic violence is made out against the other respondents.
11. Relief.
As far as relief is concerned, the complainant has stated that respondent is working as a contractor of advertising for different marketing and trading companies and is earning more than Rs. 50,000/ per month. The same has been denied by the respondent stating that he is a small time painter and paints on the wall for which he has employed 45 workers and he pays Rs. 100/ to Rs. 150/ per day to them. So even on an average, he works for 20 days that means he is paying at least Rs. 2,000/ to Rs. 2,500/ per worker which is around Rs. 10,000/. He has filed his ITRs only for the year 2009 and has stated that he cannot produce the ITRs after that. An adverse inference is being drawn against the respondent for not disclosing his true income however, from the facts and circumstances, income of respondent is assessed at least Rs. 20,000/ per month. Accordingly, I am inclined to grant Rs. 4,500/ per month to the complainant and Rs. 1,500/ per month to each daughter of the parties from filing of the complaint till they are legally entitled to receive the same.
12. Further, Rs. 5,000/ as litigation expenses be also given to the complainant by the respondent.
13. Respondent no. 1 is directed to clear the arrears of maintenance within 3 months from today in equal installments and to furnish the monthly maintenance after the date of order, by way of money order or by deposit in the bank account of the complainant on furnishing of account number of the same, by or before 10th day CC no. 256/03 Page no. 6 of each English calender month. The default shall be viewed in terms of the judgment of Hon'ble High Court in Gaurav Sondhi Vs. Diya Sondhi - 120 DLT (2005)
426.
14. Interim order, if any stands vacated.
15. Complaint stands disposed of accordingly.
16. File be consigned to record room.
Announced in open Court (POOJA TALWAR)
today i.e. 10.05.2012 MahilaCourt/MM/ SED/Saket/
ND/10.05.2012
CC no. 256/03 Page no. 7