Delhi District Court
Smt. Paro Devi vs Sh. Shobha Thakur on 31 May, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 127/2020 (RBT 57/2022)
IN THE MATTER OF:
Smt. Paro Devi
W/o Sh. Shobha Thakur
D/o Late Sh. Karam Thakur
R/o L-58, Humayun Pur,
New Delhi (110029).
............Appellant
Versus
Sh. Shobha Thakur
S/o Late Sh. Kuldeep Thakur
R/o B-4/74, Safdarjung Enclave,
New Delhi (110029).
...........Respondent
Instituted on : 24.11.2020
Reserved on : 26.05.2023
Pronounced on :31.05.2023
JUDGMENT
1. Vide this judgment, I shall dispose of present criminal appeal under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act only) preferred by appellant Paro Devi against the order dated 30.09.2019 passed by Ld. MM-03 (Mahila Court), South District in complaint case no. 461616 titled as "Ms. Paro Devi Vs. CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 1 / 12 Digitally signed SUNIL by SUNIL GUPTA GUPTA 14:04:41 +0530 Date: 2023.05.31 Sh. Shobha Thakur, whereby her application U/s 12 of the Act was dismissed.
2. Briefly stated the facts as per record are as under:-
A complaint U/s 12 of the Act was filed at the instance of the appellant against the respondent herein namely Mr. Shobha Thakur (husband of appellant) on 30.01.2013 praying for issuance of orders U/s 17,18, 19, 20 &22 of the Act. It was alleged in the said application that the appellant got married to respondent around 20 years ago in village Datam, PS Latehar, District Latehar, Jharkhand according to Hindu rites and customs. Two children were born out of said wedlock who were of 18 years and 16 years age on the date of filing of the application. They lived for only one year in the native place of the respondent and after that they shifted to Delhi in a rented accommodation. The respondent was working as a driver here. They remained happily married of 3-4 years however thereafter the respondent started to consume liquor and also started beating the appellant on petty issues. The respondent also allegedly forced the appellant for doing the call girl profession and on her refusal to do so, he forcibly sent his friend circle at his residence. It was alleged that one day the appellant was helplessly used by his friend. The respondent used to take money and used to sent his friends everyday. The appellant took the help of the neighbours and threatened him that she will file a complaint against him with police. On this, he became more cruel towards her and stopped giving even a single penny to her for the household expenses saying that "Tu Apna Kharcha Dhanda Karke Chala". It was further alleged that the respondent was in the habit of coming late night in the house in the state of heavy intoxication and when the appellant used to ask him as to why he is so late, he used to beat her mercilessly. Thereafter, he used to leave the house without intimation to her for a period of 20-25 days and it was also alleged CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 2 / 12 Digitally signed by SUNIL SUNIL GUPTA Date: GUPTA 2023.05.31 14:04:51 +0530 that he was having extra marital relations. The respondent was allegedly paying the rent and raw food for the house but was not paying cash for the household expenses regularly. It was further alleged that one day she caught the respondent with his sister-in-law (bhabi)/wife of his brother Jagdish. When she raised objection, he alongwith his bhabi gave beatings to her. When she complained about the same to her mother-in-law, she (mother-in-law) tried to counsel the respondent and his bhabi but they did not mend their ways. The respondent threatened to kill her 3-4 times. In July, 2010, the appellant visited her parental home at Village Ganeshpur (Jharkhand). The respondent gave beatings to her in front of her parents. Her brother also gave beatings to her as he wanted to grab the property purchased in her name. In September 2010, the appellant asked for salary as she wanted some money for household expenses but she was mercilessly beaten by the respondent by shoes and iron rod whereupon the next day, she took poison to finish her life as she became hopeless in relations with her parents side as well as with her husband/respondent. She was admitted in a hospital by her neighbours and her life was saved. Even thereafter, respondent continued to commit atrocities against her. He used to say that "Tu G.B. Road par jaa kar baith ja aur paise kama kar laa,main tera aur tera bachcho ka kharcha nahi chala sakta". The appellant continued to tolerate the torture, misbehaviour and cruelty of the respondent in order to save her matrimonial life. It was alleged that the respondent asked both their children to stop the study when the son was in 12 th class and the daughter was in 11th class. It was also mentioned that when she filed a complaint to the CAW Cell, Saket, he forced her to withdraw the complaint saying "Agar tune complaint vapis nahi liya to main ghar ka kharcha nahi dunga" whereupon she had withdrawn the same and compromise was written before CAW Cell. With these allegations, following reliefs were sought by the appellant:-CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 3 / 12 Digitally signed
SUNIL by SUNIL GUPTA GUPTA 2023.05.31 Date:
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(i) Directing the respondent not to sell/transfer the house in village Datam, PS Latehar, District Latehar, Jharkhand.
(ii) To restrain the respondent by granting an injunction from repeating any of the acts mentioned in terms of earlier paras of the application.
(iii) To issue directions not to repeat, physical, mental, sexual, domestic violence against her and also not to repeat the threat of selling properties and assets.
(iv) In alternative, to direct the respondent to pay a sum of Rs. 4,000/- as rent of rented accommodation.
(v) To pass the maintenance order in her favour by directing the respondent to pay a sum of Rs. 12,000/- per month for herself and for her children for food, clothes, medications, school fees etc.
(vi) To direct the respondent to pay a sum of Rs. 2,00,000/- to her for mental torture and emotional distress caused by him.
3. Said application came for hearing before Ld. Magistrate on 01.02.2013. Notice was issued to respondent vide order dated 29.04.2013. Thereafter, income affidavits in terms of judgment of Hon'ble Delhi High Court in Puneet Kaur Vs. Inderjeet Sawhney were directed to be filed by both the parties vide order dated 30.05.2014. Said order was complied with by the appellant and affidavit was filed on 26.09.2014. The direction to file income affidavits was again given to both the parties vide order dated 15.07.2015, this time in compliance of directions of Hon'ble Delhi High Court in Kusum Sharma Vs. Mahender Kumar Sharma. The affidavits were accordingly filed on 26.09.2015. Thereafter, the interim application for maintenance to the appellant was disposed of as not pressed vide order dated 05.04.2017 as it came on record that an interim maintenance of Rs. 1,000 per month to the appellant and Rs. 2,500/- per month to their daugther was granted by Ld. Principal Judge, Family Courts.
CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 4 / 12 Digitally signedSUNIL by SUNIL GUPTA GUPTA Date:
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4. Thereafter, the matter was fixed for CE. Only one witness i.e., the appellant herself was examined in complainant evidence. She has tendered her evidence by way of affidavit Ex.CW1/A1. She also relied upon medical documents Mark A, CAW Cell complaint dated 13.12.2011 Mark B and copy of registered GPA Mark C (Colly). She was duly cross-examined by Ld. Counsel for respondent on 15.01.2019.
5. Thereafter, the matter was fixed for evidence on behalf of respondent. The respondent examined himself as RW-1. He has tendered his evidence by way of affidavit Ex.RW1/A. His cross-examination was done on 06.04.2019. Thereafter, the matter was fixed for final arguments.
After hearing the arguments from both the sides alongwith material on record, Ld. Trial Court dismissed the application moved on behalf of appellant vide judgment dated 30.09.2019. That judgment is being challenged in these proceedings.
6. Arguments heard.
No oral arguments have been adduced on behalf of appellant and it was submitted that the grounds as mentioned in the appeal may be considered and appeal may be disposed of on that basis. It has been mentioned in the appeal that Ld. Magistrate has failed to properly appreciate the facts and for that reason, the impugned order is liable to be set-aside. It has been further mentioned that the appellant was an illiterate lady and for that reason, she has failed in her cross-examination. It has been also mentioned that she was not having any permanent source of income and was dependent on mercy of others for her day to day need and requirements as respondent was not paying money to her for her maintenance which was his legal and moral duty.
CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 5 / 12SUNIL Digitally signed by SUNIL GUPTA GUPTA Date: 2023.05.31 14:05:21 +0530
7. It was argued by Ld. Counsel for respondent that there is no illegality in the impugned judgment as Ld. Trial Court has considered the material available on record before passing the same. It was submitted that the appellant has miserably failed to show the proof pertaining to commission of domestic violence against her in any manner whatsoever so no ground is made out to interfere with the impugned judgment. He has prayed for dismissal of appeal.
8. I have considered the submissions alongwith record.
Though none of the parties has touched the point of limitation, however record reveals that there is a delay in filing this appeal and application U/s 5 of the Limitation Act praying for condonation of delay is pending disposal. As mentioned earlier, impugned judgment was passed on 30.09.2019 and the appeal has been filed on 23.11.2020. As per the application, the reason for delay in filing the appeal is the fact that the appellant being a poor lady was availing the services of a Legal Aid Counsel before Ld. Trial Court and she was under the wrong impression that earlier counsel will do the needful for filing the appeal whereas nothing of that sort was done as earlier LAC did not get any instructions in this regard. It has been mentioned therein that the appellant approached the office of DLSA again and present LAC was appointed on 17.01.2019 (the date should have been 17.01.2020 and same has been wrongly mentioned as 17.01.2019). Since he was not having the copy of appeal so he applied for certified copy and after obtaining the same on 28.09.2020, the appeal was drafted and filed. It has been prayed that the application may be allowed and delay may be condoned.
9. As mentioned earlier, no arguments have been adduced by either party on this application. On the issue of condonation of delay in filing the CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 6 / 12 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date:
2023.05.31 14:05:30 +0530 appeal, this Court is guided by the judgment of Hon'ble Apex Court in Collector Land Acquisition, Anantnag & Anr Vs. Mst. Katiji & Ors. 1987 SCC (2) 107 in which it was held as under:-
"1.Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2.Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
10. There is no dispute to the fact that the appellant was being represented by a Legal Aid Counsel on the date when the impugned judgment was delivered by Ld. Magistrate. Trial Court record reveals that Mr. Samaksh Sharma, Ld. LAC was representing her on 30.09.2019 and his presence has been recorded as such in the ordersheet. There is also no CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 7 / 12 Digitally signed by SUNIL SUNIL GUPTA Date:
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dispute to the fact that present appeal has been filed through another Legal Aid Counsel Sh. Bijan Kumar Singh who was so authorized/appointed by South DLSA to do the needful vide authority letter dated 17.01.2020. Certified copy of the impugned judgment placed on record shows that same has been attested by the examiner on 21.08.2020 meaning thereby that same was delivered to Ld. LAC on or after 21.08.2020. Considering this factual background alongwith order dated 23.09.2021 of Hon'ble Apex Court in Suo Moto Writ Petition (Civil) No. 3/2020, I am of the view that the delay has been sufficiently explained and same ought to be condoned.
11. Accordingly, the application for condonation of delay moved on behalf of appellant stands allowed hereby.
12. On merits, relevant portion of impugned judgment is being reproduced below for ready reference:-
"11. Now, coming to the allegations of domestic violence, it is pertinent to note at the outset that the aggrieved miserably failed to support her case in her cross-examination, wherein she stated that she was illiterate; did not know about the contents of affidiavit Ex.CW1/A-1 and the said affidavit was not prepared at her instance. Thereafter, Ld. LAC for aggrieved sought opportunity to refresh her memory but in vain as she stated that she did not remember in respondent to all the specific questions put to her.
12. On the Contrary, the respondent in his affidavit Ex.RW1/A stated that the aggrieved left the matrimonial house in the year 2013 out of her own will and volition and also took the children with her. In the cross-examination of the respondent, nothing contrary could be brought on record by the Ld. LAC for the aggrieved.CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 8 / 12 Digitally signed
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13. Interestingly, the aggrieved has filed two income affidavits in the present case, one dt. 26.09.2014 and the order dt. 26.09.2015. While in the former, she has declared that she was working as a maid and also receiving a salary of Rs. 5,000/- per month; that she had an FDR of Rs. 2,70,000/- in her name and a plot at her parental home, in the latter none of the said income and assets have been declared and no explanation is also given this regard. The said contradiction in the in the income affidavit filed by aggrieved also raise doubts on the truthfulness of the case put forth by the aggrieved in her complaint.
14. In view of the afore-said, it is clear that neither the aggrieved has disclosed true and correct facts to the court nor has she been able to withstand the test of cross-examination to support her case. Thus, it cannot be said that the aggrieved had suffered any kind of domestic violence at the hands of the respondent. Thus, aggrieved is not entitled to any relief under Section 17, 18, 20 and 22 of PWDV Act."
13. As mentioned earlier, the appellant has leveled several allegations of domestic violence in her complaint U/s 12 of the Act filed before Ld. Trial Court. Same included allegations of being beaten by the respondent under influence of liquor, being forced into prostitution and respondent having extra marital relations with several other women including wife of his brother. It was also alleged that she was not being paid money for regular household expenses.
14. Perusal of the complaint reveals that all the allegations leveled by the appellant are general in nature in the sense that no specifics thereof have been provided. No date, month or year when she was so beaten by the respondent has been mentioned in the complaint. Similarly, no date, month or year when she was allegedly forced into prostitution has been stated. No specific details have been given for other allegations also. The evidence by CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 9 / 12 Digitally signed SUNIL by SUNIL GUPTA GUPTA Date:
2023.05.31 14:06:00 +0530 way of affidavit of the appellant is exactly similar to the complaint meaning thereby that same is also bereft of details. In the complaint as well as her evidence by way of affidavit, she has relied upon discharge summary dated 14.09.2010 pertaining to Max Hospital, Saket showing that she was admitted there as she had consumed phenol. She has admitted that she herself had consumed poison to finish her life because she was hopeless in her parental relations as well as in relation with her husband. She has also referred to a letter addressed to ACP, CAW Cell, Saket which was received by his office on 13.12.2011 in which she has leveled various allegations (again without any specific detail) against the respondent and has requested him to call the respondent and counsel him so that her matrimonial life can run smoothly.
15. As mentioned by Ld. Trial Court in the impugned judgment, the appellant in her cross-examination stated that she was illiterate and she did not know the contents of her affidavit. Record reveals that on 15.01.2019, during her cross-examination, the appellant also stated that the affidavit Ex.CW1/A1 was not even prepared at her instance. Her memory was refreshed by Ld. LAC after seeking permission of the Court however, she was still unable to tell anything in her cross-examination. She stated that she was unable to recollect the date when the respondent sent her in the profession of prostitution. She volunteered to say that she was so sent after two years of her marriage. She also stated that she was unable to recollect about the incidents of July 2010 and September 2010. She also could not tell the date when she was harassed or tortured by respondent in the matrimonial home. Thereafter, certain suggestions were given to her regarding the complaint being false and frivolous which were denied by her.CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 10 / 12 Digitally signed
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16. The respondent also led his evidence by way of affidavit Ex.RW1/A wherein he stated that after their marriage in the year 1990, two children were born and they both were major as on that date. It was also stated by him that he alongwith the appellant had started living in Delhi after the marriage and got a job. It was also mentioned that they were happily residing in Delhi for around 16-17 years and that he invested a sum of Rs. 1 lac each in the name of children by way of insurance policy and also purchased the property in the name of appellant at his native place. He further stated that the appellant used to harass him and abuse him on petty issues. He alleged that in the year 2013, the appellant alongwith their children left the matrimonial home and since then they were residing separately. He also stated that he never harassed the appellant or the children and that the allegations as mentioned in the complaint were baseless. He was duly cross-examined by Ld. LAC, however, nothing material came on record which could have been of any help to the case of appellant.
17. So it is clear from above that the appellant miserably failed to prove her case. As mentioned earlier, no specific details pertaining to alleged incidents in the form of date, month or year was written either in the complaint or in her evidence by way of affidavit. No such thing came on record in her cross-examination also rather in a way, she disowned her entire case as she stated that her evidence by way of affidavit was not prepared at her instance. For almost all the questions, she replied that she was unable to recollect. Although, she denied the suggestions to the effect that she was never subjected to domestic violence or that the case was baseless and illegal however, that is not sufficient to prove her allegations of domestic violence against the respondent.CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 11 / 12 Digitally signed
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18. Considering the above discussion, this Court is of the view that the appellant has miserably failed to prove her case against the respondent as she has neither provided specific details qua her allegations in the complaint and her evidence by way of affidavit, nor she could state anything in support of her case in her cross-examination. Accordingly, it is held that Ld. Trial Court has rightly dismissed her application/complaint U/s 12 of the Act.
Present appeal stands dismissed in above terms being devoid of merits.
Digitally signed by SUNILSUNIL GUPTA Date: GUPTA 2023.05.31 14:06:31 +0530 Announced in the open (Sunil Gupta) Court on 31st May, 2023 Additional Sessions Judge-06, South, Saket Courts, New Delhi CA No. 127/2020 Paro Devi Vs. Shobha Thakur Page 12 / 12