Delhi District Court
Durga vs . Mahesh, Cc No. 162/1 on 5 September, 2012
Page 1 of 9
IN THE COURT OF MS. PRIYA MAHENDRA: METROPOLITAN MAGISTRATE :
SOUTH DELHI: SAKET COURT: NEW DELHI.
CC No:162/1 ( Date of filing 05.05.2010)
Jurisdiction of Police Station : Saket
Smt. Durga Kainthola
W/o Sh. Mahesh Chandra
R/o J212, IIIrd Floor, Saket
New Delhi ..........complainant
Versus
Sh. Mahesh Chandra
R/o J212, IIIrd Floor, Saket
New Delhi ..........Respondent
PETITION U/S 12 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 EXPARTE JUDGMENT
1. By this judgment, I shall decide the petition filed by the aggrieved person u/s 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as "Act") interalia seeking reliefs U/s 18, 19, 20 & 22 of the Act.
2. The brief facts as disclosed in the complaint of the aggrieved person are that the marriage of the aggrieved person was solemnized with the respondent on DURGA VS. MAHESH, CC NO. 162/1 Page 2 of 9 26.10.1992 at Arya Smaj Mandir, Basant Vihar, New Delhi according to Hindu Rights & Ceremonies. Out of this wedlock three children were born i.e. two daughters and one son. In the marriage of the aggrieved person, her parents gave dowry & Istridhan more than their means and capacity. After some time of marriage, the respondent started harassing the complainant physically as well as mentally. He is a drunkard and a gambler. He spends huge amount of money on his liquor and on internet gambling. Despite having sufficient means, he never gave sufficient amount to the aggrieved person for household expenses and maintenance of aggrieved persons and her children. He insults the complainant in front of her children and also insults the complainant at public places. He also beats the complainant mercilessly and even went to the extent of tearing her clothes. In view of the conduct of the respondent, she was constrained to lodge complaint in CAW Cell, New Delhi on 14.03.2002. After some time, the respondent has repeated the same kind of activities and the aggrieved person again filed a complaint to police post Saket on 30.10.2002. However, the respondent did not mend his behaviour and she again filed a written complaint to CAW Cell, South on 31.10.2002. The conduct of the respondent is detrimental to the interest of children of the parties, and they are continuously living in an atmosphere not conducing to their well being. The son of the complainant is a Dyslexic child and the respondent is causing interference in the education of his son and even threatened his tuition teacher. The DURGA VS. MAHESH, CC NO. 162/1 Page 3 of 9 difficulties of the complainant increased when her father in law came to the shared household in September, 2009. Instead of counseling his son for not indulging in such activities and behaviour, the father in law provoked the respondent to give beatings to the complainant and to take divorce from her. The respondent is also maintaining illicit relationship with one lady Marta and he is in regular touch with her on internet through sending and receiving Emails. The aggrieved person has also come to know, while she searching some documents at her house and found a letter, that the respondent is already married to one Ms. Anjali from America. The complainant has also narrated several incidents when she was subjected to physical and verbal abuse by the respondent.
3. With regard to the financial status, the complainant has stated that the respondent is a highly trained M.D. (Medicine) with specialization in Psychiatrist and was earlier also doing his practice in U.S.A. Since December, 1991 he is not in practice.
4. The respondent opted not to appear even once in the court despite receipt of notice of the present petition Therefore, he was proceeded exparte vide order dated 18.08.2010.
DURGA VS. MAHESH, CC NO. 162/1 Page 4 of 9
5. The complainant filed her evidence by way of affidavit reiterating and affirming on oath her version as disclosed in the complaint. She also relied on the documents i.e. police complaint dated 14.03.2002 made to CAW Cell, New Delhi as Ex. CW1/A, police complaint dated 30.10.02 to Police Post Saket as Ex.CW1/B, police complaint dated 31.10.02 to CAW Cell, South District as Ex. CW1/C, HDFC Bank account details of applicant as Ex. CW1/D, police complaint dated 13.12.08 to Police Station Saket as Ex. CW1/E, written complaint dated 02.12.09 to Local Police Authority as Ex. CW1/F, Email dated 18.12.07 which was sent by the respondent to Marta by Gmail as Ex. CW1/G, A letter dated 27.07.84 to respondent which was written by Ms. Anjali as Ex. CW1/H.
6. The complainant has also filed her additional evidence by way of affidavit with a view to place on record the documents reflecting financial status of the respondent. She relied on the documents i.e. police complaint dated 23.6.2010 to the Saket Police Station as Ex.CW1/I, complaint dated 8.7.2010 to the police station as the respondent has forced to sign the paper of the account of the City Bank and HDFC Bank as Ex.CW1/J to J1 (Colly), account statement of respondent as Ex.CW1/K to K19 (colly), photocopy of cheque of dated 7.12.2010 of amount Rs. 3 Lacs as Mark A, The American Express Banking Group, City Bank by which the respondent is using for gambling purpose by way of Internet DURGA VS. MAHESH, CC NO. 162/1 Page 5 of 9 as Ex.CW1/L to L13 (colly), The BSES electricity bill of the residence which was not paid by the respondent as Ex.CW1/M, loan amount to pay the school fees of the children as Ex.CW1/N to N4 (colly), bank statement of the respondent showing many high level transaction in the account of the respondent as Ex.CW1/O to O18 (colly), document showing respondent continuing gambling on the Internet as Ex.CW1/P to P14 (colly), the respondent being continuously in touch with a lady called Marta and sending and receiving the EMails from her. The EMails as Ex.CW1/Q. Then she closed her evidence.
7. Exparte final arguments heard.
8. I have bestowed my careful consideration to the arguments of the counsel for the aggrieved person and perused the entire records.
9. In order to grant any relief to aggrieved person qua any respondent, it is essential for aggrieved person to establish that she shared "domestic relationship" with the person arraigned as respondent and was subjected to domestic violence by the said respondent.
Whether it is established that complainant shared domestic relationship DURGA VS. MAHESH, CC NO. 162/1 Page 6 of 9 with the respondent.
10.The complainant is the wife of the respondent and it is stated by the complainant that she is still living with the respondent in the same house. Thus, it is established that complainant is in domestic relationship with the respondent. Whether prima facie in establishing "domestic violence" on the aggrieved person.
11. The complainant has narrated several incidents in her evidence when she was subjected to verbal, physical, emotional and economic abuse by the respondent . The respondent has not appeared to controvert the testimony of complainant and thus the testimony of complainant remained unassailed and uncontroverted. The respondent neither assailed the testimony of the complainant nor proved his defence by leading evidence. The averments made by the complainant in her affidavit are thus deemed to be admitted by the respondent. Thus, it is prima facie established that the respondent subjected the complainant to domestic violence.
Relief U/s 18 of the Act.
12.Considering the material on record, protection order is passed U/s. 18 of the Domestic Violence Act in favour of the aggrieved person and against the DURGA VS. MAHESH, CC NO. 162/1 Page 7 of 9 respondent. The respondent is restrained from committing any domestic violence on the complainant.
U/s 19 of the Act
13.The complainant has not filed any documents which expressly establish the monthly earning of the respondent. But, such documents are in possession and custody of the respondent who opted not to contest the present petition. Therefore, adverse interference is drawn against the respondent for not appearing in the court and withholding the said documents.. Nevertheless, the documents filed on record by the complainant show that the respondent is a man of means as his bank statements on record [Ex. CW1/O to Ex. CW1/O18 (colly)] reflect frequent high level transactions in his account. But it is important to note that the complainant has filed the document of the respondent pertaining to the year 2010 and no recent documents have been filed. Even the electricity bill (Ex. CW1/M) shows the arrears of electricity bill in the year 2009 and recent bill has not been filed. Even fees receipt of three children are of the year 2010 and recent fees receipts are not filed by the complainant.
14.The Supreme Court of India in the case of Jasbir Kaur Sehgal (smt.) Vs. District Judge, Dehradun & others, reported at V (1998) SLT 551 III (1997) CLT 398 (SC) II (1997) DMC 338 (SC) - (1997) 7 SCC 7, has recognized the fact that DURGA VS. MAHESH, CC NO. 162/1 Page 8 of 9 spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore, some guesswork on the part of the court is permissible. Further the Supreme Court has also observed that 'considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guesswork does enter for arriving at the income of the husband. It cannot be done by any mathematical precision.'
15. Considering the facts and circumstances of the present case, the income of the respondent in the present case can be reasonably assessed as Rs.40,000/ per month for the purpose of disposal of the present petition. He has no liability except to maintain the aggrieved person and her three school going children. Considering the income of respondent no.1 and needs of aggrieved person and her three children, the respondent no.1 is directed to deposit the fees of his school going children directly in the school in which they are studying. He shall also borne all the medical expenses of his Dyslexic son namely Karan and education expenses of all three children like tuition fees, dress etc. The respondent is also directed to bear all household expenses including water & electricity charges, phone bills etc. In addition to this, the respondent is also directed to pay a sum of Rs.10,000/ per month to the aggrieved person towards her maintenance and other expenses of the children from the date of filing of petition i.e. 05.05.2010 till till they are entitled to receive the same. DURGA VS. MAHESH, CC NO. 162/1 Page 9 of 9
16.The respondent is directed to clear the arrears of maintenance within 6 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 th aggrieved person on furnishing of account number of the same, by or before 10 day of each English calender month. The default shall be viewed in terms of the judgment of Hon'ble High Court in Gaurav Sodhi Vs. Divya Sodhi - 120 DLT (2005) 426.
17. The aggrieved person is at liberty to recover the maintenance amount by filing execution if no other recovery proceedings are pending before any court of law, for the same period. Interim maintenance, already paid, shall stand adjusted in the final maintenance awarded by virtue of this judgment.
18.No ground made out to grant any other relief to the aggrieved person.
19.Petition stands disposed of in the said terms. File be consigned to record room. Announced in open court On 5 of September, 2012.
th (PRIYA MAHENDRA) METROPOLITAN MAGISTRATE, MAHILA COURT(SOUTH), SAKET COURTS, NEW DELHI DURGA VS. MAHESH, CC NO. 162/1