Delhi District Court
Shiv Prasad vs Manju on 8 September, 2011
IN THE COURT OF SH AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Appeal No. 33/10
ID No: 02403R075082010
Shiv Prasad
S/o Shri Suraj Pal
R/o House No. RZ1/30
Gali No. 4, Tuglakhabad Extension,
New Delhi
..... Appellant
VERSUS
Manju
W/o Shri Shiv Prasad
R/o House No. A147,
Minto Road,
New Delhi110002
..... Respondent
_________________________________________________________
Date of Institution : 11.03.2010
Date when the arguments
were heard. : 02.09.2011
Date of judgment : 08.09.2011
CA No. 33/10 1/16
J U D G M E N T
This Appeal is filed against the judgment dated 04.02.2010 whereby the application of the respondent Ms. Manju under section 12 of the Protection of Woman from Domestic Violence Act 2005 (herein after referred to as the Domestic Violence Act), was disposed off.
2. At the very outset, it may be stated that this Appeal has been filed under section 374 of the Criminal Procedure Code. Section 29 of the Domestic Violence Act provides for filing an Appeal against any order passed under the Domestic Violence Act. Therefore, when the Special law has provided the procedure for filing of an Appeal the general provision of Appeal under the Criminal Procedure Code would not be applicable, but it may be a highly technical approach not to deal with the Appeal on merit simply on this ground. Therefore, this Appeal is being treated as an Appeal under section 29 of the Domestic Violence Act.
3. The facts, as per the allegations in the application under section 12 of the Domestic Violence Act are that the respondent got married with the appellant on 11.05.2006 as per Hindu Rights and Customs, and soon after the marriage the appellant started harassing the CA No. 33/10 2/16 Respondent/wife mentally and physically for not bringing "motorcycle" in the marriage. This demand was fulfilled in August 2006 but again there were regular demands for cash. It was also alleged that at the time of delivery of the child, the Appellant insisted that the expenses of the delivery shall be made by the family of the Respondent/wife. Due to this insistence by the Appellant the delivery could not take place at Holy Family Hospital where the Respondent/wife had registered herself for the said purpose. The delivery took place in Safdarjung Hospital, New Delhi on 09.05.2007. On 10.05.2007 the newly born child caught jaundice and was shifted to Holy Family Hospital where the parents of the Respondent were again physically assaulted by the Appellant. The police had to be called to pacify the situation. It was further alleged in the application under section 12 of the Domestic Violence Act that the Appellant continued with his demand for cash and this treatment led the Respondent/wife to file a complaint before the CAW Cell on 11.07.2007. This matter was, however, compromised but it was alleged that there was no change in the attitude of the Appellant. It was further alleged that on 22.02.2009 the Respondent/wife was sent by the Appellant along with her son to her parents house for treatment and since then she is staying there.
CA No. 33/10 3/16
4. On the basis of these allegations the Respondent sought "Protection Order" under section 18 of the Domestic Violence Act, "Residence Order" under section 19 of the Domestic Violence Act and other "Monetary Relief" under section 20 of the Domestic Violence Act apart from the "Custody Order" under section 21 of the Domestic Violence Act and "Compensation Order" under section 22 of the Domestic Violence Act. However, the main emphasis appears to be was on monetary relief in the form of Maintenance per month and the Residence Order. The dispute appears to be on the house bearing No. RZ1/30, Gali No. 4, Tughlakabad Extension, New Delhi. The Respondent/wife alleges that this house is exclusively owned by the Appellant herein. In the application under section 12 of the Domestic Violence Act she sought an independent floor of the said house to live independently or in alternative she sought accommodation in the same are or in lieu of that rent for the house.
5. The Ld. Magistrate vide order dated 04.02.2010 disposed of the application under section 12 of Domestic Violence Act and passed the order and directed the Appellant to pay Rs 4,000/ as maintenance to the Respondent herein and her child from the date of filing of the complaint till they are legally entitled to receive the same. As regards CA No. 33/10 4/16 the Residence Order, the Trial Court directed the Appellant herein to pay Rs 4,000/ per month to the Respondent and her minor child for taking rental accommodation. No other relief, as sought in application under section 12 of the Domestic Violence Act, was granted. The Respondent/wife has not challenged the said order dated 04.02.2010 nor any such relief, prayed in the application and declined by this order, has been asked or insisted upon in this Appeal by Respondent/wife.
6. This Appeal challenges the impugned order on the grounds, interalia, that the Ld. Trial Court has failed to give any reason and calculation on the basis of which rent of Rs 4,000/ was awarded to the Respondent herein despite the fact that the Appellant has contended that he is unemployed and is still dependent upon his father; that the Respondent herein has herself deserted her matrimonial home without any just and reasonable cause and even on earlier occasion she had left the matrimonial home out of her own sweet will; that the Appellant has been disowned by his parents because of the misbehaviour and aggressive temper of the Respondent/wife; that the Ld Trial Court has erred in coming to the conclusion that being the owner of the motorcycle and the car the Appellant has sound social and economic background. It was contended in the Appeal that since the day of CA No. 33/10 5/16 marriage the Respondent/wife has been treating the Appellant with cruelty. It is stated that the Respondent is a lady of short temper and psychological imbalance and even on trivial issue she would threaten the Appellant and his family members with false allegations and misuse the post of her father who is a Daftary in Supreme Court. It is further stated in the Appeal that the marriage which was solemnized was a simple marriage, there was no demand of any dowry. As regards the articles given at the time of marriage they were all returned to the Respondent when she had made a complaint in the CAW Cell. It is further contended that the Appellant is jobless since 2007 and is totally dependent upon his father for his needs and the intention of moving an application under section 12 of the Domestic Violence Act by the Respondent is to grab the property of the father of the Appellant.
7. Ld. Counsel for both the parties have vehemently argued their respective cases and I have also gone through the averments made in the pleadings of the parties.
8. The object with which the Domestic Violence Act was formulated was to provide effective protection to the rights of a woman who has been subjected to Domestic Violence and thus to provide CA No. 33/10 6/16 urgent and speedy relief to an "aggrieved person". The relief which are provided under the Domestic Violence Act are also available to an "aggrieved woman" under other laws and provisions also. This Domestic Violence Act, however, deals with the situation when an aggrieved woman is in urgent need of a relief. The Domestic Violence Act contains the provisions which empowers the Magistrate to ensure that an aggrieved woman who is subjected to domestic violence does not become destitute. To achieve this object the definition of "Domestic Violence" has been widened and corresponding provisions for relief have been provided in section 18 to section 22 of the Domestic Violence Act whereby an "aggrieved woman" can seek Protection Order, Residence Order, Monetary Relief, Compensation etc. Before granting any of the relief sought in the application under section 12 of the Domestic Violence Act, the Magistrate has to satisfy himself that there is an incident of domestic violence. The domestic violence does not mean only physical or mental abuse, as per the Domestic Violence Act, even depriving of the aggrieved woman of maintenance is a domestic violence. If there are incidents of domestic violence, Magistrate would be justified in passing any order under the Domestic Violence Act keeping in view the urgency and expediency of the case. CA No. 33/10 7/16
9. Coming to the facts of the present case the Ld. Magistrate has taken into account all the averments which were made in the pleadings of the parties and came to the conclusion that the Respondent herein has been subjected to "domestic violence". To arrive at this conclusion the Ld. Magistrate has relied upon the letter dated 18.08.2006 which is signed by the Appellant wherein he has stated that he will not demand money from his inlaws. The Ld. Magistrate also relied upon a note which was put up by the Appellant at the time of discharge of the Respondent from Holy Family Hospital in which he has mentioned that he gives permission to his wife (Respondent herein) to take the child. Further the Ld. Magistrate also relied upon the complaints which were made by the Respondent/wife making allegations of harassment on account of dowry.
10. So far as the question of domestic violence is concerned, the depriving a woman of her right to stay in the matrimonial home and not providing maintenance as per law is definitely an act of domestic violence because section 3 of the Domestic Violence Act says that "deprivation of economic and financial resources, to which an aggrieved person is entitled under any law and customs, would amount to an economic abuse which falls in the definition of the domestic CA No. 33/10 8/16 violence as per section 2 (g) of the Domestic Violence Act". The contention of the Appellant was that the Respondent herself had left the matrimonial house while the contention of the Respondent was that she along with her child was sent by the Appellant to her parents home on 22.02.009. The fact remains that till today the Respondent/wife is staying at her parents house. The Appellant being the husband of the Respondent and father of the child, therefore, cannot escape from his liability to maintain them. However, what should be the maintenance amount to be awarded to the Respondent and the child would depend upon the earning capacity of the Appellant. The Appellant herein has argued that he is jobless since the year 2007 and has no earning capacity. The contention of the Respondent on the other hand is that the Appellant is employed in Tata Steal at Okhla and is earning about Rs 20,000/ per month apart from that he is also receiving rent of Rs 40,000/ from the ground floor, second Floor and third floor of the property No. WZ1/30 Gali No. 4, Tughlakabad Extension, New Delhi.
11. The Respondent had also contended that the Appellant herein maintains a maruti car bearing registration No. DL 3CR 9869 and a motorcycle. He also have bank accounts and the FDR to the tune of Rs 10 lacs and, thus, having income from the interest as well. CA No. 33/10 9/16
12. At the outset, it may be stated that none of these averments have been established and proved on record by the Respondent herein before the Ld. Magistrate. Simply making the averments in the pleadings regarding income without there being any proof about the same, it is not safe to rely on the contention of an aggrieved person regarding the income of the Appellant.
13. Ld. Counsel for the Appellant relied upon the judgment in Amit Khanna And Ors. Vs. Priyanka Khanna & Ors. 2010 VII AD (Delhi) 897 wherein the Hon'ble High Court observed that the man's own income has to be the basis for fixing maintenance for his dependents whether wife, parents or children. Ld. Counsel for the Appellant has also relied upon in judgment of Sanjay Bhardwaj & Ors. Vs. State & Anr. 171 (2010) DLT 644 wherein the court has observed that no law provides that the husband has to maintain the wife, living separately from him, irrespective of the fact whether he earns or not. The court further observed that the court cannot tell the husband that he should beg, borrow or steal to give maintenance to the wife more so when the husband and wife are equally qualified and almost equally capable of earning.
CA No. 33/10 10/16
14. The Appellant in this case claims to be jobless since the year 2007. In this Appeal he had claimed that he is dependent upon his father who is supporting him for all his needs but at the same time he has also stated in the Appeal that his father has debarred him from claiming any share in his property and in this regard copy of the newspaper of "Punjab Kesari' has been filed on the record. Both these pleas are contradictory. On the one hand the Appellant claims that he has been debarred by his father from the share in his property, on the other, the Appellant claim that he is still dependent on his father for all his needs. These contradictory pleas of the Appellant would go to show that this act of his father debarring the Appellant from his share in his property by virtue of publication in the newspaper is nothing but an attempt to escape the liability qua the Respondent /wife.
15. The Respondent in her application under section 12 of the Act has stated that the house in question is RZ1/30, Gali No.4, Tughlakabad Extension, New Delhi is owned by the Appellant. The Appellant, on the contrary, has claimed that this property has been bequeathed by his father in the name of his daughter by way of Registered Will dated 04.09.2009. Even if it is accepted to be correct submission on behalf of the Appellant, even then so long as father is CA No. 33/10 11/16 there the property remains with him. The Respondent has claimed that father of the Appellant has transferred the house in question in the name of the Appellant. Whether the documents executed in favour of the Appellant by his father like General Power of Attorney, Agreement to Sell, Affidavit and receipt have conveyed any title of the property in favour of the Appellant was not decided by the Trial Court, considering this to be an issue of title of the property to be decided by a Civil Court.
16. The Appellant although claims to be jobless person but he still maintenance the credit cards, although he has not come out with his source of income. It has been seen in such cases that none of the parties come out with the real facts. The aggrieved woman exaggerate the income of the Respondent/husband who in turn claim to be penniless and thus, unable to support the aggrieved woman. The court, therefore, has to consider the averments in the pleadings and in the affidavits to come to a reasonable conclusion about the income of the husband.
17. In the present case the Respondent wife claims that her husband (the Appellant) is working in Tata Steel but no document has been placed in support of this contention. She claims that the Appellant CA No. 33/10 12/16 is having FDR of Rs 10 lacs, no particulars thereof has been mentioned. She claims that Appellant is having rental income of about Rs 40,000/ but no proof has been placed on record in this regard. On the contrary the Appellant claims that he is jobless since the year 2007 but no justified reason is given why he is jobless. Admittedly he is staying with his parents at H. No. RZ1/30, Gali No. 4, Tughlakabad Extension, New Delhi. During the course of arguments it was informed to the court that it is a four storey house. Admittedly, the Appellant is not residing in the entire house, therefore, the rental income out of this property cannot be ruled out. The plea by the Appellant that he has no source of income cannot be accepted by the court. Therefore, he cannot escape from his liability to maintain his wife and the child. So far as the amount of Rs 2,000/ for wife and child each is concerned, the same is reasonable. The Respondent has to look after her child as well. Keeping in view the social and economic background of the parties, the amount of Rs 4,000/ as maintenance for wife who has the responsibility of the child as well, cannot be considered exorbitant.
18. The Ld. Magistrate has awarded maintenance even to the male child vide the order dated 04.02.2010 which however, cannot be granted under the Domestic Violence Act because the said male child does not CA No. 33/10 13/16 fall within the definition of an aggrieved person as defined in section 2
(a) of the Domestic Violence Act. The maintenance for the child could be claimed under section 125 of the Criminal Procedure Code. So far as the extent of maintenance awarded is concerned, it cannot be considered exorbitant keeping in view the financial status of the family of the Appellant of which he is still a part and parcel. However, the court has some reservation about the amount of rent of Rs 4,000/ per month awarded to the Respondent.
19. The Appellant contended that the Respondent is having a Diploma in Nursing and is also a trained Home Guard. This submission was not disputed by the Respondent/wife. This is also not disputed by the Respondent that she is also capable to earn herself. She took the plea that since she has to take care of the child, therefore, she is not taking up any job. This cannot be considered a genuine reason for not taking up employment as there are lot of women who have small children but still work for earning. A woman who has the capacity to earn should rise to occasion and stand on her own legs instead of depending upon the mercy of her husband. The time has come that the woman shun this mentality of seeking pittance from her husband when she can stand on her own legs and earn for herself. At the same time the CA No. 33/10 14/16 husband can also not be granted immunity from his liability to maintain his wife and the family.
20. The Respondent is presently residing with her parents. She is not spending anything on her residence as of now. The impugned order is silent as to on what basis the rental amount of Rs 4,000/ has been fixed by the Trial Court. It would have been more appropriate if the Respondent had been allowed to take a house on rent as per her genuine requirement and then direct the Appellant to pay the rent of the house, so taken on rent.
21. Thus, taking into account all the facts and circumstances of the case, the impugned order awarding maintenance of Rs 2,000/ to wife and Rs 2,000/ to the child is modified to the extent that the Appellant shall pay Rs 4,000/ as maintenance to his wife, as she is also looking after the child, from the date of the complaint till she is legally entitled to receive the same. So far as the amount of rent is concerned, the order is modified to the extent that as and when the Respondent reside in a rented house as per her requirement he shall pay the rent of the said house but this rent shall not exceed a sum of Rs 4,000/.
CA No. 33/10 15/16
22. With the above modifications in the impugned order regarding the maintenance and the amount of rent fixed by the Trial Court, the Appeal stands disposed off. Trial Court Record be sent back along with the copy of judgment. Appeal file be consigned to Record Room.
Announced in the open court (AJAY KUMAR KUHAR)
on 08th September 2011 ASJ02/SE/ SAKET COURT
NEW DELHI
CA No. 33/10 16/16