Delhi District Court
Vide This Judgment vs Unknown on 17 April, 2018
IN THE COURT OF METROPOLITAN MAGISTRATE
(MAHILA COURT) -02 CENTRAL DISTRICT, TIS HAZARI
COURT, DELHI
Presided by : Ms. Sonam Singh
CC No. 217/1/14
PS: Lahori Gate
U/s: 12 of DV Act
CIS No. 513135/16
UID No. 02401R-0510162014
IN THE MATTER OF
Ms. Ruhi Ikra
W/o Mohd Asif
D/o Sh. Fahimuddin
R/o H. No. 1138,5th Floor Gali Samosan,
Farash Khana,
Delhi -110006. ...... Complainant
Versus
1. Mohd Asif
s/o Sh. Wasi Ahmed
2. Sh. Wasi Ahmad
s/o Not known.
3. Smt Zakia Begum
w/o Sh. Wasi Ahmed.
All r/o 12-A/53, Gali no. 2,
Vijay Mohalla,
Maujpur,
Delhi.
4. Sh. Sabbi Hasan
D/o Not known.
R/o House no. 1319,
Gali no. 44, Jafrabad,
CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 1/13
PS Jafrabad,
Seelampur, Delhi. .............Respondents
Date of institution : 13.10.2014 Date of judgment : 17.04.2018 BRIEF REASONS FOR JUST DECISION OF THE CASE
1. Vide this judgment, I shall dispose of the present application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short "DV Act") by the complainant against the respondents.
APPLICATION FILED UNDER SECTION 12 OF DV ACT
2. As per the application filed under Section 12 of DV Act, the complainant has made the following averments:-
a. The respondent no. 1 is the husband, respondent no.2 is the father in law, , respondent no.3 is the mother in law and respondent no. 4 is the grandfather of the complainant.
b. The Nikah/marriage was performed between the complainant and the respondent no.1 according to Muslim rites, customs and ceremonies on 17.02.2012 at Delhi with great pomp and show in the presence of the respectable persons of both the sides. Out of the said wedlock, one male child was born on 08.01.2013.
c. In the marriage, the parents of the complainant provided the respondents of all the gifts and dowry articles more than of their capacity as per ritual of the family of the respondents and the parents of the complainant spent the amount in all the CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 2/13 ceremonies relating to the marriage beyond their capacity.
d. After passing one week of the marriage, the respondent no. 2 to 4 in connivance with the respondent no.1 have taken all the gifts / jewlellery articles , which were given by the relatives, friends and well wishers and all above said articles are in the possession of the respondent no.4.
e. Immediately after the said marriage, the respondent no.1 and other respondents started taunting the complainant about bringing less dowry articles. Even though in their community (Biradari) lot of dowry articles are given in the marriage of the daughters and the parents of the complainant also spent beyond their capacity in the said marriage but still the respondents were not satisfied with the dowry articles.
f. After 3-4 months passing, the respondent no. 1 to 4 started quarreling with the complainant on one pretext or other and taunting the complainant every now and then that the complainant has not brought the sufficient dowry articles as per their status and the respondents were not given lavish treatment in the marriage, as the respondents were expecting a motorcycle.
g. The respondents very often taunted the complainant that they were expecting a car and also a luxurious marriage and the father of the complainant had not given the same and he is a miser, so the complainant should go back to her parental house and bring the cash alongwith a motorcycle.
h. It is further stated that a male child was born on 08.01.2013 out of the said wedlock of the petitioner and the respondent no. 1 at private nursing home and all the expenses were borne by the parents of the complainant and the respondents have not cared about the health of the complainant as well as her child and did not provide the CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 3/13 proper food and comforts and thereafter, the respondents have taken the complainant with them and asked not to repeat the above-said cruel acts with the complainant.
I. On 01.03.2013, the respondents have started to beat with the complainant without any rhyme and reason and asked to go back to her parental house and to take a motorcycle from the parents after that they will allow her to enter into the matrimonial home . When the complainant had refused the same, then they had given merciless beatings to her and the respondent no.1 after taking the knife in hand run away from the complainant's house thereafter, the complainant have saved from the clutches of the respondents and came into the parental house and explained all the entire story before her parents and since the complainant is living with her parents.
j. Thereafter, the father of the complainant had lodged a complaint against the respondents on 05.03.2013 vide DD no. 41B but no action was taken against them.
k. The complainant kept on bearing all the atrocities of the respondents under the pretext that one day with the passage of time everything will be all right but the respondents did not mend their ways. It is pertinent to mention here that whatsoever has been told for the respondent no.1 to the complainant's parents proved false as the respondent no. 1 is a habitual drinker and womanizer. The respondent no.1 used to bring girls at the accommodation in the absence of the complainant.
l. The complainant has given enough chance to the respondent no.1 and other respondents to settle the issues as the complainant wants to live a dutiful wife and for the sake of keeping intact the marriage tie but now the complainant has been left no other option but to file this complaint for the ill treatment, harassment and demand of dowry made by the respondent no.1 as well as other respondents from time to time.CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 4/13
m. The complainant had lodged a complaint dated 03.04.2013 to the SHO, CAW Cell, Central District. New Delhi against the respondents.
n. The complainant is not working anywhere and has no source of income of her own. However, the complainant is dependent upon the mercy of the respondent no.1 for the maintenance of herself and day to day expenses.
o. The complainant has suffered a lot of torture and harassment from the hands of the respondents and the complainant is entitled for the compensation for all the injuries including mental torture and emotional distress caused by the violence committed by the respondents.
p. Respondent no.1 is a well bodied and young aged person and he is working by profession as property dealer and earns approximately Rs. 40,000/- per month and is also running a private business and from which he earns approximately Rs. 20,000/-. The respondent no.1 also has huge bank balance in his account.
q. The complainant has sought the following reliefs:
Protection Order under Section 18 of DV Act i. In favour of the complainant and against the respondent by granting an injunction against the respondents by granting an injunction against the respondents from repeating threatening criminal acts as mentioned in the petition lodged by the complainant.CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 5/13
Residence Order under Section 19 of DV Act i. Directing the respondents not to interfere in the life of the complainant and also to restore the possession in the house.
ii Restraining the respondents from disturbing the possession of the complainant in the said house or provide an alternate rented accommodation for surviving Monetary Relief under Section 21 of DV Act.
i. Direct the respondents to pay a sum of Rs. 20,000/- per month as maintenance of the complainant and Rs. 10,000/- per month for the maintenance of her child.
Compensation Order under Section 22 of DV Act i. Directing the respondents to pay Rs. 10,00,000/- as compensation for all the harassment and ill-treatment for dowry demands given by them to the complainant.
Custody Order under Section 21 of DV Act i. Pass the direction to the respondents not to disturb the custody of the child from the petitioner.
3. On 13.10.2014, domestic incident report (in short "DIR") was called. On 28.10.2014, DIR was filed. As per the DIR, all the respondents were residing at the CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 6/13 shared household and there were allegations of domestic violence inflicted upon the complainant by respondents.
Ex-parte proceedings against the Respondent no.1
4. Vide order dated 04.07.2015, the respondent no. 4 was deleted from the array of parties on the submission of complainant, as he had expired. On 08.01.2016, since, the respondents had been given sufficient opportunities, and they neither appeared nor filed their written statement, their right to file written statement was closed and their defence was struck off. On 04.06.2016, they were proceeded ex-parte.
5. Vide separate statement dated 08.03.2018, the complainant stated that she does not wish to press on the first part of the relief (b) in the prayer clause of the present petition, with respect to directing the respondents not to interfere in the life of the complainant, restoring the possession in the house and with regard to restraining the respondents from disturbing the possession of the complainant in the said house. Further, she stated that she only prayed for alternative accommodation or rental money in lieu of alternative accommodation, which is the second part of the relief.
Evidence led on behalf of the complainant
6. In support of her case, the complainant had examined herself as CW1 and tendered her evidence by way of affidavit, which is Ex.CW1/A and relied upon following documents:-
Sr. Exhibits/ Nature of documents
No Marks
1. Ex. CW 1/1 ( OSR) Copy of Nikahnama
2. Mark A Copy of the list of dowry articles.
CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 7/13
3. Ex.CW1/2 ( OSR) Copy of complaint dated
05.03.2013 addressed to SHO PS
Jafrabad ( OSR)
4. Ex.CW1/3 Copy of complaints dated
03.04.2013 addressed to ACP,
CAW Cell, Central District, New
Delhi.
5. Mark B Joint Photograph of complainant
and respondent no.1
6. Ex. CW 1/4 ( OSR) Copy of the discharge document
of the complainant of Rehmani
Nursing Home.
Ex-Parte Final arguments
7. Subsequent thereto, the matter was fixed for final arguments. Final arguments were heard by the court on 08.03.2018.
8. I have heard the Ld. Counsel for the complainant and perused the entire record with his assistance.
Analysis and Findings
9. At the very outset, it is pertinent to mention that complainant in order to be entitled to the relief under the DV Act is required to establish, that complainant is an aggrieved person within the definition as prescribed under the Act. Same has been defined under Section 2(a) of the Act, which reads as under:
"aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 8/13 been subjected to any act of domestic violence by the respondent"
10. Perusal of the said section demonstrates that two essential ingredients needs to be fulfilled before a person can be said to be an aggrieved person:
(1) Aggrieved person must be a woman who is or had been in domestic relationship with the respondent; and (2) Aggrieved person must have been subjected to any act of domestic violence while she was in domestic relationship with the respondent.
11. Further, since, we are dealing with a quasi criminal proceeding, the proof test required is of preponderance of probabilities.
12. Domestic relationship has been defined under the Act in Section 2(f) as under : -
"Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family."
13. In view of the said provision, the complainant is required to prove that she was in relationship with the respondent no.1 by way of blood, adoption or marriage and was residing with him in a shared household. The complainant in her petition has alleged that she is the lawfully wedded wife of respondent no.1 and had got married to him on 17.02.2012, as per Muslim rites and ceremonies. Further, she has alleged that she resided with him in the matrimonial house. The complainant has reiterated this fact on oath in her affidavit in lieu of evidence, Ex. CW1/A and when she stepped into the witness box as CW1. She has also relief on the Nikahnama which CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 9/13 is Ex.CW1/1. It is pertinent to note that till date, neither respondent no.1 has appeared in the court nor filed his reply or income affidavit. No such plea has been ever taken by the respondent no.1 that the complainant is not his wife. Thus, considering the facts and circumstances, the Court is of the opinion that factum of their marriage and her residing with the respondent no.1 have gone unrebutted and hence, it is established that the complainant is the wife of respondent no.1. In view of the same, the domestic relationship between the parties stands proved.
14. Further, the complainant must prove that she had been subjected to domestic violence at the hands of the respondent no.1. In her affidavit Ex.CW1/1, the complainant has alleged various instances of violence inflicted upon her, including physical, mental and economical harassed by the respondent no.1 at the shared household. Further, she has also deposed that the respondent No. 1 has neglected to maintain her and her minor child. All her allegations have gone unrebutted and unchallenged as she was not cross-examined. Hence,it stands proved that the complainant was subjected to domestic violence by the respondent.
15. The question that now arises is whether the complainant is entitled to the reliefs sought.
PROTECTION ORDER U/S 18 OF THE ACT
16. Firstly, the Complainant has sought that the respondents may be restrained from repeating the criminal acts, as mentioned by the complainant in her petition. She has failed to mention as to which specific criminal acts are to be restrained .In view of the fact that the relief being sought is vague, the same cannot be granted and stands disallowed.
CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 10/13Residence Order under Section 19 of DV Act
17. The complainant has sought that the respondents be directed to provide an alternative accommodation. Same shall be dealt with alongwith the maintenance relief.
Monetary Relief under Section 21 of DV Act.
18. The complainant has prayed for the relief that the respondent no.1 be directed to pay a sum of Rs. 20,000/- per month as maintenance of the complainant and her minor child. In her testimony from the court and also in the petition, she has alleged that respondent no.1 is working as a property dealer and earns approximately Rs. 40,000/- per month and is also running a private business from which he earns approximately Rs. 20,000/-. Further, she has stated that the respondent no.1 also has huge bank balance in his account. She has averred that she is unemployed having no source of income and is unable to maintain herself and her child. Per contra, the respondent no. 1 did not file his reply and Income Affidavit. Therefore, adverse inference against him has to be drawn. Since, the complainant has not substantiated the earning of the respondent no.1 with any documents, a reasonable assumption only can be drawn. In view of the material available on record, this Court finds that the complainant is unable to maintain herself and therefore, the respondent no.1 cannot shy away from his responsibility in maintaining the complainant, if she is unable to maintain herself and that towards their minor child. Thus, the relief is granted in favour of the complainant. As per Govt of NCT notification w.e.f. 03.03.2017, the minimum wages fixed by Govt. of NCT for unskilled labour is Rs. 13,350/- per month. In the absence of any cogent evidence, the income of respondent is assessed to be about Rs. 10,000/- per month as he is not expected to earn less than the aforesaid rate of minimum wages fixed for unskilled labour.
CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 11/1319. In Annurita Vohra v. Sandeep Vohra : 2004 (3) AD 252, it has been held that the family income should be divided equally between all the family members entitled to maintenance with one extra portion/ share being allotted to the earning spouse since extra expenses would necessarily occur. In view of the said position of law, Rs. 10,000/- is divided into four portions, out of which two portions are to be retained by respondent no.1 for himself and remaining two portions i.e. Rs. 5,000/- per month shall be paid to the complainant for her maintenance and that of her minor child from the date of filing of the complaint till they are entitled to it by the 10th day of each English Calendar month. Arrears be cleared within six months from today. The said maintenance also includes the rent in lieu of alternative accommodation.
Compensation Order under Section 22 of DV Act
20. The complainant has claimed monetary compensation of Rs.10,00,000/ for all the harassment and ill treatment for dowry demands. In order to substantiate this claim, the complainant has not produced any documents or any other evidence. Hence, since no cogent evidence to this effect has been adduced by as to how the said compensation is quantified as Rs.10,00,000/-, the relief cannot be granted and stands declined.
Custody order under Section 21 of DV Act
21. The complainant has prayed that the respondents be restrained from disturbing the custody of the child from the complainant. Considering that the minor child is with the complainant and also the welfare of the child, the Respondents are restrained from taking minor child out of the care and custody of Complainant without the permission of the court or order if any, of learned court under Guardianship and Wards Act Court CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 12/13 in this regard.
22. Copy of the judgment be given dasti to the complainant. No order as to costs.
23. Petition is accordingly disposed of.
24. File be consigned to record room after completion of necessary formalities.
Digitally signed ANNOUNCED IN OPEN COURT SONAM by SONAM
SINGH
ON 17.04.2018 SINGH Date: 2018.04.17
16:59:24 +0530
(SONAM SINGH)
Metropolitan Magistrate (Mahila Court)-02,
Central District, Tis Hazari Courts, Delhi
17.04.2018
CC No. 217/1/14 PS: Lahori Gate Ruhi Ikra v Mohd Asif & others Page 13/13