Delhi District Court
Joydeep Banerjee (Minor) vs Preetilata Banerjee on 23 April, 2012
ID No02403R0056162010
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE04
SOUTH EAST: SAKET COURTS: DELHI
Criminal Appeal No. 103/2010
Unique ID No.02403R0056162010
Sandhya Banerjee
w/o late Sh. Biswajeet Banerjee,
d/o Sh. Bibhuti Bhushan Dass,
Priyanka Banerjee (Minor)
d/o late Sh. Biswajeet Banerjee
through Sandhya Banerjee
(being mother and natural guardian)
Joydeep Banerjee (Minor)
s/o late Sh. Biswajeet Banerjee
through Sandhya Banerjee
(being mother and natural guardian)
all r/o F1178, Chitranjan Park, New Delhi ..........Appellants
Versus
Preetilata Banerjee
w/o late Sh. Nirmal Banerjee
r/o Flat no. 8, subhash Khand ,Giri Nagar,
Kalkaji, New Delhi
Ratna Bhattacharya
w/o Sh. Tapas Bhattacharya
r/o 495/5,Govind Puri, Kalkaji, New Delhi
Tapas Bhattacharya
r/o 495/5,Govind Puri, Kalkaji, New Delhi
Sapna Dey
w/o Sh. Deepaul Dey
r/o 266, Bal Mukund Khand,Kalkaji, New Delhi ..........Respondents
Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 1/9
ID No02403R0056162010
Instituted on : 20th February, 2010
Argued on : 13th April, 2012
Decided on : 23rd April, 2012
ORDER
1. This appeal u/s 29 of The Protection of Women from Domestic Violence Act,2005 (herein after, in short referred as 'Act') is directed against the order dated 15.01.2010 passed by Ms. Surya Malik Grover Ld. Metropolitan Magistrate, Saket Courts, whereby an application u/s 12 of 'Act' filed by the appellant/complainant against respondents was dismissed.
2. Briefly stated facts of this case are that appellant/complainant got married with Sh. Biswajeet on 27.11.95. Sh. Biswajeet, husband of appellant/complainant expired on 03.04.2009. Respondent no. 1 is the motherin law. Respondent no. 2 and respondent no. 4 are married sistersinlaw and respondent no. 3 is husband of respondent no. 2 of appellant/complaint. Sh. Nirmal Banerjee, fatherinlaw of appellant had already expired on 24.02.1991. Appellant/complainant resided with her husband and motherinlaw at 158, Subhash Khand, Giri Nagar, Kalkaji. There was one shop at 51, CR Park in the name of fatherinlaw of appellant, where husband of appellant is stated to be running a drycleaning shop. Flat no. 8, Subhash Khand, Kalkaji is stated to be a shared household of the appellant/complainant. A petition u/s 12 of the Act was filed by the appellant/complainant on 15.06.2009 i.e. after two months of the death of Sh. Biswajeet (husband) . On 26.06.2009, Ld. Trial Court passed an Ex parte interim order whereby respondents were restrained to dispose of property i.e. Flat no. 8, Subhash Khand, Kalkaji and shop no. 51, Market no. 1, C. R Park, New Delhi till next date of hearing on which day said property had already been disposed off. On 27.05.2005, husband of the appellant and respondents no. 2 and 4 (sistersinlaw) executed a relinquishment deed whereby shop no. 51 was relinquished in favour of their mother/respondent no. 1. on 03.02.009, Flat no. 8, Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 2/9 ID No02403R0056162010 Subhash Khand , Kalkaji was relinquished by them in favour of respondent no. 1. on 03.04.2009, husband of appellant/complainant had expired two months. Respondent no. 1/motherinlaw of the appellant/complainant sold Flat no. 8, Subhash Khand, Kalkaji to one Ms. Seema Uppal in February 2009 and got purchased property no. 119, Terrace of third floor, Subhash Khand, Giri Nagar, Kalkaji and from Suresh, Satpal singh and Krishan Kumar in the name of appellant/complainant. Flat no. 119, Subhash Khand was purchased by Ms. Sandhya Banerjee/appellant. Copy of cheque book of Preetilata Gupta/respondent no. 1 pertaining to Kangra Cooperative Bank Limited shows that amount of Rs. 50,000/ each was transferred in the name of Kishan Kumar and Satpal Singh, vendor of property no. 119, Subhash Khand.
3. I have heard submissions advanced by Sh. Rajesh Chugh , Learned Counsel for appellant/complainant and Sh. Sanjay Bhaumik , Learned Counsel for the respondents and have perused the trial Court record.
4. Ld. Counsel for the appellant/complainant submits that appellant no. 3, being the minor son of the appellant was also one of the complainant before Ld. MM but Ld. MM dismissed his claim being a male child by stating that the "Act" provides for reliefs only to aggrieved females against Domestic Violence. He submits that Ld. Trial Court did not follow the provisions of law and dismissed the application of appellant/complainant without leading evidence. He submits that respondents filed photocopies purported to be of relinquishment of the rights of the deceased husband of appellant/complainant in the ancestral properties and Ld. Trial Court did not follow the rules under the Act specificaly rule 6 (5) should be dealt with and the order enforced int he same manner laid down u/s 125 Cr P C. Ld. Counsel referred Madhusudan Bhardwaj and ors. Vs Mamta Bhardwaj IV (2009) CCR 102. Ld. Counsel submits that ld. Trial court did not award any compensation to appellant/complainant and nongrant of compensation defeated Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 3/9 ID No02403R0056162010 the purpose of the Act which is to protect the women from the domestic violence. He submits that the residential rights of the appellant could not have been snatched by the respondents by taking help of certain documents which purported to have been the relinquishment deeds of the husband of appellant.
5. On the other hand, Ld. Counsel for the respondents submits that husband of appellant/complainant relinquished his share of ｼ of property no. 51, CR Park, New Delhi vide relinquishment deed dated 27.05.2005 and his share of ｼ of property no. Flat no. 8, Subhash Khand, Giri Nagar, Kalkaji. He submits late Sh. Nirmal Banerjee left ｼ share each to his wife (respondent no. 1), two daughters (respondent no. 2 and 4) and one son(deceased husband of appellant) as per section 8 of Hindu Succession Act. He submits that son of Sh. Nirmal Banerjee, and two daughters (respondent no. 2 and 4) relinquished their share in favour of their mother (respondent no. 1). Ld. Counsel referred Gurdit Singh and another vs Darshan Singh and another AIR 1973 Punjab and Haryana 362, wherein it is held that Sections 8,9, and 10 read with the Schedule to the Hindu Succession Act which governed the succession make no distinction between ancestral or non ancestral nature of the property or as to where from or how the deceased had got it. He submits that since the property in question belonged to respondent no. 1 vide relinquishment deed, no protection order could be passed against her. He relied upon S. R. Batra vs Smt. Tarun Batra, AIR 2007 SC, 1118. Regarding right in the property of appellant or her son and daughters, Ld. Counsel referred Chandrakanta and another vs Ashok Kumar and others 2002 (3) MPLJ 576 in support of his submissions that after coming into force of the Hindu Succession Act, the theory of birthright does not exist and son gets the share in the property only after death of his father. In Master Gaurav Sikri and another vs Smt. Kaushalya Sikri and another AIR 2008 Del 40, it was held that "son's son during the lifetime of the son, would not inherit from the grandfather. This is so because Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 4/9 ID No02403R0056162010 only the son of a predeceased son has been shown as an heir in Class I of the Schedule. In the said decision, the Supreme court has categorically observed that the express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. In this background, I am of the view that the submission made by the learned counsel for the respondents, that the appellant's children would not have any entitlement during the lifetime of their father is well founded".
6. To my mind, this observation of the Ld. Trial Court that no relief could be given to the male child is erroneous and is not in accordance with law. No doubt, aggrieved person means any woman who is , or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent, but several orders like custody order, monetary reliefs and also protection orders can be passed in favour of the children of the aggrieved persons. 'Act' does not distinguishes between the male or female child. In the present case, however, the erroneous view taken by Ld. Trial court in this regard does not affects the final outcome in view of other factual matrix obtaining in this case.
7. Trial Court in the impugned order dated 15.01.2010 while disposing of application u/s 12 of the Act observed that neither appellant/complainant nor her children could seek maintenance from the proceeds or income of the shop no. 51, CR Park and that appellant/complainant could not seek residence order in the other property no. 8, Subhash Khand, Kalkaji which was neither owned by her husband nor it was a joint property. However, respondents were directed to hand over the original documents as well as the keys , if any, of house no. 119, Subhash Khand, Kalkaji to the appellant/complainant. House no. 119 has been admittedly sold by appellant herself.
Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 5/9 ID No02403R0056162010
8. In Adil and ors vs State and another 2011 (1) Crime 1 it was observed that where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughterin law, soninlaw, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase 'at any point of time', say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. It was further observed that it must be kept in mind that resort of Domestic Violence Act cannot be done to enforce property rights. For enforcement of property rights, the parties are supposed to approach civil court. Resort to Domestic Violence Act can be done only where there is urgent requirement of wife to be maintained and provided residence when because of domestic violence, she had been rendered homeless and she had lost Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 6/9 ID No02403R0056162010 source of maintenance. Domestic Violence Act is not meant to enforce the legal rights of property, neither an interim order can be passed without first prima facie coming to conclusion that a domestic relationship existed between the parties and the applicant was an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act". In view of aforesaid position of law, property in question can not be considered to be a shared "household". Neither the appellant/complainant , nor her husband had primafacie any right, title or interest in the same. Property belonged to Respondent No. 1/motherinlaw exclusively after relinquishment of their right therein by respondent no. 2 and 3 as well as deceased husband of appellant. Even otherwise, property rights cannot be enforced in these proceedings. Observations made in Adil's case (supra) are squarely applicable to the facts situation obtaining in the instant case.
9. Perusal of the record clearly shows that property no. 8, Subhash Khand in question had already been sold before filing of petition by respondent no.1/motherinlaw of the appellant/complainant regarding which the husband of appellant and two sistersinlaw had already relinquishment deed in favour of their mother. Admittedly, appellant/complainant is stated to be earning Rs. 7000/ per month and is residing with her parents at F118, CR Park of her own choice. Record shows that there are sale proceeds of house no. 119, Subhash Khand , Kalkaji was got purchased by the respondent no. 1/motherinlaw of the appellant after the death of appellant's husband. During arguments, appellant/complainant , who appeared in person, had not disputed this fact. On asking, appellant stated that she had sold the said flat in the sum of Rs. 18 Lacs. Therefore, it is not one of those cases where appellant/complainant, who was a widow was thrown out of house by her motherinlaw. Flat no. 119, Subhhash Khand, Kalkaji was got purchased for her where she could have stayed but rather, she chose to sell it.
Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 7/9 ID No02403R0056162010
10. On perusal of material on record and submissions advanced at Bar, I do not find any merit in the submissions advanced by Ld. Counsel for the appellant/complainant that Trial Court ought to have been given an opportunity to the appellant/complainant to adduce evidence. It has already been noticed above that the provisions of Domestic Violence Act cannot be used to enforce property rights. For enforcement of property rights, the parties are required to approach civil court. Resort to Domestic Violence Act can be had where there is urgent requirement of wife to be maintained and to provide residence when because of domestic violence, she had been rendered homeless and had no source of maintenance. There is no dispute that under rule 6 (5) of the 'Act' that applications u/s 12 of the Act have to be dealt with and the order enforced in the manner as laid down u/s 125 Cr. P. C but u/s 28 (2) of the 'Act', nothing in the Act prevents the Court from laying down from its procedure for disposal of application u/s 12 of the Act or u/s 23 (2) of the Act. In the present case, application was filed by the appellant/complainant on 15.06.2009. Detailed para wise reply was filed by the respondents supported by their affidavits. Thereafter, Court heard arguments on 12.10.2009 and passed impugned order on 15.01.2010. Ld. Trial Court observed that appellant/complainant had filed several complaints in CAW Cell against respondent no. 1. Thereafter, she was of the opinion that primafacie case of DV Act was made out against her.
11. Now, shop no. 51, CR Park, admittedly, is in the name of respondent no.1/motherinlaw regarding which the deceased husband of the appellant had already relinquished his rights and primafacie neither the appellant nor her children have any right in the said property. As noticed above, Flat no. 8, Subhash Khand, Kalkaji, was already disposed of even on the date of the filing of application u/s 12 of the Act on 26.04.2009, husband of appellant had already relinquished his right therein on 03.02.2009 and few days thereafter i.e. on Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 8/9 ID No02403R0056162010 19.02.2009 a Flat no. 119, Subhash Khand, Kalkaji was purchased by respondent no. 1 for the appellant and the children. The said flat No. 119, Subhash Khand admittedly has been disposed off by the appellant herself. In the circumstances, appellant cannot, now claim any residence right against her motherinlaw and she cannot seek enforcement of property rights, if any, in these proceeding. It is only in that property in which the husband had a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband whereas, in this case, admittedly, appellant/wife was provided with a residence at 119, Subhash Khand, Giri Nagar, Kalkaji, New Delhi, by her motherinlaw/respondent no. 1. In the result, this Court finds no fault in the impugned order. No interference, thus, is called for by this Court. Appeal is dismissed. Copy of this order alongwith TCR be sent back to Ld. Trial Court. Appeal file be consigned to Record Room.
announced in the (VINAY KUMAR KHANNA)
open court on Additional Sessions Judge04
23 April 2012
rd
(SouthEast) Saket/New Delhi
Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 9/9
ID No02403R0056162010
CA NO. 103/2010
Sandhya Banerjee vs Preetilata Banerjee and ors.
23.04.2012
Present: Sh. Rajesh Chugh Ld. Counsel for the appellants.
Sh. Sanjay Bhaumik Ld. Counsel for the respondents.
Vide separate order appeal is dismissed. A copy of this order be sent back along with TCR. Appeal file be consigned to record room.
(Vinay Kumar Khanna) Additional Sessions Judge04(SE) Saket Court/New Delhi:23.04.2012 Sandhya Banerjee vs Preetilata Banerjee CA No. 103/10 10/9