Rohini Court, Delhi - Kamini Lau Woman only can claim right on the property of her husband and NOT her Parents-in-laws' Property

Rohini Court, Delhi  - Kamini Lau - Woman only can claim right on the property of her husband and NOT on her Parents-in-laws' Property

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 

JUDGE­II (NORTH­WEST) : ROHINI COURTS: DELHI

CA No. 62/2013

Chetna Kapoor

W/o Dheeraj Kapoor

Permanent Resident of 253, 3rd  Floor

Rajdhani Enclave, Pitampura, Delhi. 

Presently at: 7/11, Tilak Nagar, Delhi.

................. Appellant

Versus

Suman Bala Kapur

W/o Subhash Chander Kapoor

R/o H. No. 253, 3rd  Floor

Rajdhani Enclave, Pitampura, Delhi. 

................. Respondent

6.11.2013

ORDER

Present: Sh. Vivek Aggarwal, Advocate with appellant. 

(1) This appeal under Section 29 of the Protection of Women From Domestic Violence Act, 2005, has been filed against the order of  Ld.  MM  dated   7.10.2013   dismissing   the   application   filed   on behalf of  the appellant   dated   25.6.2013   for   modification   / alteration   of   order   dated   4.6.2013 on the ground   that   the respondent has abused and misused the process of law by making false submissions which are contrary to the pleadings given by the respondent in her petition under Section 12 of DV Act, and obtained the order dated 4.6.2013.  It is pleaded that the Ld. Trial Court   has   totally   ignored   the  report of   the protection   officer holding  that   the appellant  had been  residing at   the above said premises with the respondent which fact was not disclosed by the respondent while obtaining the order dated 4.6.2013. It s further pleaded that the judgment of the Hon'ble Apex Court in the case of  Nitu Mittal Vs. Kanta Mittal & Ors., 152 (2008) DLT 691, was not applicable to the facts and circumstances of the present case since the respondent has no absolute power to throw out the appellant from the share household accommodation and there is no justified and lawful grounds for the withdrawal of the benefits given to her.  It is alleged that by their acts, the respondent have taken away appellant's valuable right to lead her life with dignity, honour and reputation. It is pleaded that the order dated 7.10.2013 is contrary to the letter and spirit and intention of the legislature in Section 2 (s) which defines the share household accommodation and also to the provisions of Section 2 (f) which defines  the domestic relationship. It is submitted that the Ld. Trial Court has failed to exercise its judicial power and discretion judiciously and totally ignored the material facts and the acts of the respondent is sheer misuse and abuse of process of law. It is also submitted that the Ld. Trial Court has failed to appreciate that the respondent in collusion and connivance of her son has dispossessed the appellant from the share household accommodation on 24.5.2013 and when she returned from the job she  saw  the  locks on  the  share household accommodation  i.e. house no. 253, 3rd Floor, Pitampura and hence the dishonest and fraudulent conduct on the part of the respondent totally disentitled her for claiming any release form the court and hence it is prayed that the impugned order dated 7.10.2013 passed by the Ld. Trial Court be set aside.

(2) After going through the impugned order and the grounds raised before me,  no notice has been  issued  to  the  respondent  as no requirement for the same was felt.

(3) At   the very outset  I  may observe  that I may observe  that   the Protection   from Domestic Violence Act,   2005  covers   those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are  related by consanguinity,  marriage or  a relationship in the nature  of  marriage, or adoption; in  addition relationship with family members living  together as a joint family are also included. “Domestic   violence” includes actual abuse or the threat  of abuse  that   is physical, sexual, verbal, emotional and economic. One of the most important features of the Act is the woman’s   right   to   secure   housing. The Act provides for the woman’s right to reside in the matrimonial or shared household. This is an act meant to save a women from destitution. Under these circumstances the Courts of Law are under obligations to ensure that while dealing with the rights of the parties, the rights of daughter ­in­law are equitably balanced with the rights of other women which include the mother-­in-­law, as happened in the present case.

(4) It is not disputed that the property in question is owned by the respondent/ mother-­in-­law who is the owner in possession of the said property bearing No. 253, 3rd  Floor, Rajdhani Enclave, Pitampura, Delhi.   It has not been disputed that the respondent Suman Bala Kapur and her husband i.e. the parents­-in­laws of the appellant  are  the  registered and exclusive owners of  the above said property vide registered sale deed dated 16.6.2010 whereas her husband Dheeraj has no share in the same.

(5) The husband of the appellant i.e. Dr.Dheeraj Kapoor is working and residing separately at Chandigarh for the past several years. The matrimonial house of the appellant under the given circumstances is the place where her husband is working and residing and not where she herself chose to reside of her free will.

(6) It is also not disputed that the appellant Chetna Kapoor is herself a doctor in a Government hospital and is drawing House Rent Allowance. Hence, under the given circumstances the argument of the appellant that by her acts the respondent (mother­-in­-law) has allegedly taken away the constitutional rights of appellant to live with dignity, honour and reputation is devoid of merits.  The Right of a daughter in law does not over­ride the constitutional and statutory rights of her parents­-in-­law to enjoy their self acquired property in the manner they want.  If it is anybody from whom she is entitled to relief, it is her husband  Dr. Dheeraj Kapoor and her parents-­in-­law who are the senior citizens cannot be held liable for any kind of burdens. Here, I totally agree with the view taken by the Ld. MM which is in confirmation with the observations made in the case of Neetu Mittal Vs. Kanta Mittal  & Ors., wherein the Hon'ble Apex Court has observed as under:

“.........  where the house is self acquired house of  parents, son whether married or unmarried has no  legal right to live in that house or he can live in that  only at the mercy of parents upto the time  parents allow. Merely because parents have allowed him to live in house so long as his relations with the parents are cordial, does not mean that the parents have to bear his burden   throughout  the life. The  parents cannot be forced to keep a son or daughter  in law with them nor there is any statutory provision  which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband as sons/daughters. She can assert   her rights, if any, against the property of her husband  but she cannot thrust herself against the wishes of  parents of her husband nor can claim a right to live  in the house of parents of her husband, against their consult and wishes .......”

(7) The Hon'ble Apex Court while being confronted with a similar situation  in the case of  S.R. Batra Vs. Smt. Taruna Batra reported in  AIR 2007 SC 1118(1)  had an occasion to deal with the same wherein  it observed that there was no law in India similar to the law in UK i.e. British Matrimonial Homes Act 1967 and that the Rights available to a woman under any law can only be against the husband and not against the father-in-law and mother-in-law. In the said case the Hon'ble Supreme court had also observed that the house in question belonged to the mother in law and therefore the daughter in law cannot claim any right to live in the said house. In the said case the Hon'ble Apex Court  was of the opinion that the house in question cannot be said to be a shared household within the meaning of Section 2(s) of  Protection of Women from Domestic Violence Act. The Hon'ble Apex Court was also of the view that the Definition  of 'Shared  Household' in Section 2 (s) was not happily worded and appeared to be a result of clumsy drafting and hence an interpretation which is sensible and does not lead to a chaos in the society as to be given.

(8) By application of the logic and ratio of the Hon'ble Apex Court to the facts of the present case, I hereby hold that the appellant Dr. Chetna Kapoor is only entitled to claim the Right of residence in a shared household  which shared household  as contemplated under Section 2 (s) of  Protection of Women from Domestic Violence Act would mean the house belonging to or taken on rent by her husband or the house which belong to the joint family of which the husband is a member. In the present case, the property in question i.e. 253, 3rd  Floor, Rajdhani Enclave, Pitampura, Delhi is the exclusive property of the respondent who is the mother-in-law of the appellant with the husband Dheeraj Kapoor having no share in the same and hence the property in question in respect of which the appellant is seeking Right of  Residence cannot   be called a shared household within the meaning of Section 2 (s) of Protection of Women from Domestic Violence Act.

(9) Assuming for a moment that the appellant was permitted by her parents-­in­-law to live in the house, it does not create any legal right the violation of which would be actionable rather on the contrary under no circumstances the parents can  be  made to suffer the burdens of their sons and their estranged daughter ­in­ laws. If it is anybody against whom or against whose property she can assert her rights, is the husband but under no circumstances can she thrust herself on the parents of her husband or can claim a right to live on their house against their consult and wishes.

(10) Lastly, keeping in view the problems and the disputes which have arisen between the parties and considering the background that the respondent is herself a working lady and in a position to maintain herself being doctor in Government Hospital, drawing House Rent Allowance, allowing her to reside in the premises of  her parents-­in-­law against their wishes will  only aggravate  the existing domestic problems and create numerous hassles for these senior citizens, which this court will not permit.  

(11) In view of my above discussion, I hereby hold that the impugned order dated  7.10.2013 passed by  Ld. Trial  Court  warrants no interference.The appeal is devoid of  merits and is hereby dismissed. Copy of   this order  be placed before  the Ld.  Trial Court. Appeal file be consigned to Record Room. 

Announced in the open Court        

(Dr. KAMINI LAU)

Dated: 6.11.2013    ASJ (NW)­II: ROHINI

Chetna Kapoor Vs. Suman Bala Kapur, (CA 62/13) Page 8 of 8

Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty. -wife cannot be allowed to advantage of her own wrong-desertion cruelty not proved-Bom HC

Not fulfilling demand of separate home is NOT cruelty. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty | wife cannot be allowed to advantage of her own wrong desertion cruelty not proved - Bombay HC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.77/2003

Mrs.Surbinder Kaur Sandeep Sood,
Age about 36 yrs.Occ.Nil
R/o C/O Shri.Sardulsingh
Re.E.G.55/4,Bhaira Nagar,
Dhanori Road,
Vishrantwadi,
Pune-422 015 Appellant/Ori.Petitioner

Vs.
Sandeep Rajkumar Sood,
Age about 40 yrs.Occ.Business,
Residing at 529/E,Kadamwadi,
Kolhapur 415 003       Respondent/Ori.Respondent
Ms.Ashwini Takalkar i/b Mr.Nitin Deshpande for Appellant
Mr.P.R.Arjunwadkar,for Respondent

Coram- A.M.Khanwilkar and    Mrs.Mridula Bhatkar,JJ

Reserved On-2nd  May,2011.

Pronounced On- 8th  December, 2011.

J U D G M E N T (Per Mrs.Mridula Bhatkar,J.):

1 The judgment and order dated 23/6/2003 passed by the Judge of Family Court, Pune is challenged in this appeal. The appellant/original petitioner had filed petition for divorce on the ground of cruelty and desertion under section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.

2 The appellant and the respondent got married on 12/5/1993 and stayed together for a period of three years at Kolhapur, in the joint family of respondent consisting of parents and three sisters. It is the case of the appellant that she was not given freedom in the house and  was harassed in  number of ways by the mother and sisters of the respondent. She was not allowed to speak to the respondent and was  asked to do domestic work from morning to night. Many restrictions were imposed on her routine and she hardly could step out of the house. She was deprived of company of the respondent and had to obey the instructions/orders of her mother in law and sisters in law. For want of proper care and rest she had miscarriage. So her parents came to Kolhapur and gave her Rs.5,000/-for her own expenses. However, she was not allowed to spend that money for herself. Subsequently she again conceived and gave birth to male twins on 24/4/1996. She was not allowed to take proper rest and sisters of the respondent used to quarrel with her so the children were neglected. It is contended that in July, 1996 she was not allowed to go to the temple of goddess at Kolhapur. On that issue there was a big quarrel in the house. The respondent slapped the appellant, thereafter her sister in law Anju lodged false complaint with the police  that the appellant tried to commit suicide. On enquiry police called her father and she was sent to Pune alongwith her father.  She resided with her parents for 2-3 months. The respondent was supposed to come to her father’s house to take her back. However, he did not come. Therefore, in the month of January,1997 the appellant alongwith her father went to Kolhapur  to reside with the respondent. However, the respondent and his family members quarreled with the appellant and she alongwith her family members was driven out of the house  at odd hours of night. Since then she has been residing with her parents at Pune.It is contended that the respondent did not pay any maintenance to her and her children and did not bother to call her back. She, therefore, on the ground of cruelty and desertion filed petition for divorce in the Family Court at Pune, but it  was dismissed. Hence this appeal.

3 The respondent has denied all the contentions raised and allegations made in the petition and in the appeal.  He filed written statement and contested the petition that the grounds of cruelty and desertion are false and it is a cooked up story.   The petition was based on false averments and petitioner had withdrawn herself from the company of the respondent without any good cause. She has taken away two children and was not interested from the beginning to live with the respondent alongwith his family members. It is contended by the respondent that the petitioner wanted to reside separately only with the respondent and was interested to enjoy the life without taking any responsibility. She is pampered child of her parents. Despite such behaviour of the appellant, the respondent being a responsible and loving husband filed petition for conjugal rights bearing no.95/97 and it was decided in his favour. The petitioner did not come to stay with him. He filed execution proceedings, however, the petitioner did not show any interest and did not come to Kolhapur to live with him. It is contended that the petition was rightly dismissed as the petitioner could not prove her case of either cruelty or desertion.

4 The petitioner examined herself and also three witnesses viz. Nandlal Amarchand Shrishrimal, Sharadsingh Banga, and Captain Deepchandra. The respondent  husband offered himself as a witness and examined Shivaji Sankpal, Vijaya Toraskar and his sister Anju Rajkumar Sood.

5 Learned counsel for the appellant argued that cruelty is an aggravated form of harassment and it can be either expressly  proved or it can be inferred. She submitted that the appellant in her examination in chief has stated that the respondent husband had slapped her and the family members, especially the sisters of the respondent used to torture her by not giving food and not allowing her to go out of the house. Learned counsel pointed out that the application for the Restitution of Conjugal Rights though was decreed in favour of the respondent, the appellant never stayed with the respondent, therefore,  if the decree is not implemented till today then itself forms a ground for divorce.  She submitted that the maintenance ordered by the Court to her was  not paid by the respondent.  These aspects ought to have been considered by the Family Court. In support of her submissions she relied upon (Sanghmitra Ghosh Vs.Kalalkumar Ghosh) reported in 2007(2) SCC,220. She submitted that this being a irretrievable breakdown of the marriage the prayer of divorce be granted and the appeal deserves to be allowed.

6 Learned counsel for the respondent submitted that the appellant at the time of evidence could not narrate specific instances of cruelty and failed to bring any evidence to that effect. He pointed out that in her cross examination the petitioner has admitted that she has no grievance against the respondent but she was on inimical  terms and holding grudge against the mother and sisters of the respondent and this cannot be a ground for divorce. Hence the petition is rightly dismissed. 

7 The points framed by the Family Court and findings given are as follows.

POINTS       FINDINGS
1. Whether the petitioner proves thatthe respondent treated her with cruelty after solemnization of marriage ? No
2. Whether the petitioner proves that the respondent deserted her withoutjust and sufficient reason for a period of 2 years preceding the date of petition ?No
3. Is there any legal bar u/s 23 of  H.M.Act ?Not survive
4. Is petitioner entitled to decree of divorce? No
5. What about permanent alimony of petitioner and maintenance of children ?Not survive
6.   Is petitioner entitled to continue the permanent custody of children with her ?Yes,presently.

7. What order ?      As per final order

8 Issue nos.1 and 2 are  the ground for divorce i.e. cruelty and desertion. We have carefully gone through the evidence and judgment of the Trial Court. On the point of mental and physical cruelty, following incidents are stated by the appellant. 

Physical Cruelty-
1. Slapping the petitioner in the month of July,1996  when the appellant expressed her desire to
go to the temple.
2. She was driven out of the house at night in July,1997 alongwith her father.
3. Not giving food
4. Asking her to do the domestic work
 
Mental Cruelty-
1. Not allowing to talk to her husband.
2. Not allowing to go out3. Husband was not accepting her wish of separate residence and not to stay with sisters.
4. Not to give her Rs.5,000/- to spend.

9 The petitioner in her evidence, except giving slap and not giving food did not narrate any specific incident of physical cruelty against the respondent. It is oral uncorroborated evidence.  In fact she gave admission and showed readiness to stay  with the respondent and his mother. She did not like the company  of his sisters. House of the respondent is of 12 rooms. Thus, separate residence for the appellant and respondent could be possible,  if the respondent had accepted the offer. At any rate, as the  demand of separate residence cannot be considered as cause of cruelty,  for the same reason, non-acceptance of such demand by the husband also cannot be a cruelty. These are choices given by the spouses to each other and expression of choice and refusal of the choice itself is not a cruelty.   In the evidence of Anju, sister of the respondent, she has stated that she leaves home at 9 a.m. and returns at 6 p.m. Further, the appellant gave admission in her evidence that the mother of the respondent has taken her care during pregnancy. This shows that the appellant did not have any complaint against the mother of the respondent. It appears that the root cause of the dispute was due to stay of the sisters in the house,  an ego problem.

10 On the point of cruelty one Captain Deepchandra was examined by the appellant. He is maternal uncle of the respondent. He has produced one letter, Exh.25, written by the father of the respondent to him. He deposed that in that letter father of the respondent has written that , “ Surbinder was kicked out to Pune”. On reading the said letter the words “kicked out” appear to be added subsequently. However, further it is mentioned in the letter that the family was spending Rs.30,000/- per year on the appellant. Thus, her evidence that she was not given food, cannot be believed on the basis of the letter which is proved and relied by the appellant herself.

11   On 25/7/1996 a police complaint  was lodged by the sister of the respondent alleging that the appellant was trying to commit suicide by pouring kerosene on her body. This shows that the sister had diligently  reported the police station so that the police would take preventive measures and no untoward incident should happen. However, the attempt of the appellant to commit suicide when she was mother of 2-3 months old infants cannot be justified.  The evidence of police officer is on record which supports this and that cannot be doubted.  After going through this evidence we are of the opinion that the Judge of the  Family Court has properly appreciated the evidence of the witnesses of both the sides and has correctly arrived at the conclusion. It is settled position of law that a routine bickerrings  or petty quarrels cannot be labelled as cruelty under the Hindu Marriage Act.

12 The respondent though denied that amount of Rs.5000/- was received from the father of the appellant, he admitted that he  kept that amount in the Fix Deposit in the name of the appellant and he did not spend that money for himself. Further, the record shows that he had filed application for Restitution of Conjugal Rights which was decreed as the appellant failed to prove that she had withdrawn from the society of the husband with good and satisfactory cause.  Even in those proceedings the appellant had asserted cruelly caused by the respondent and his family members. However, that plea was negatived.  The said decree was not challenged by the appellant in appeal. Though the execution was taken out, she did not respond and the decree could not be executed.

13 It is admitted that on that day i.e. 25/7/1996 father of the appellant was called by the police. With a view to get the things settled she was sent to Pune at her father’s residence for 2-3 months. After two months the respondent did not bring back the appellant, so her father came to Kolhapur. The respondent told him to bring back the appellant to Kolhapur. On 25/1/1997 she came alongwith her father and some family members, out of which one is examined as a witness. There are two versions of the parties before the Family Court  that she was driven out of the house and secondly the father and other member who had gone there,  fought and put stringent condition which were not acceptable to the respondent, therefore, they took their daughter back to Pune. Be that as it may, the fact remains that  the appellant did not go back and continued to stay away from the respondent from July,1996. Any version of either of the parties if accepted, it is not a good ground to stay away from each other and to untie a nuptial knot.

14 Considering the nature of the dispute and the reasons given by the appellant, the separation cannot be justified.  It cannot be held that the respondent has deserted the appellant without any good cause. It appears that the appellant herself opted to stay with her parents at Pune and not to cohabit with the respondent. She did not respond to the decree of Restitution of Conjugal Rights and therefore, the findings given by the Family Court that animus deserendi was absent and so the divorce cannot be granted under the ground of desertion is correct. Minor disputes, difference of opinion which are to be adjusted and tolerated, cannot be treated as cruelty.

15 The respondent had filed petition for custody of children. However, it was rejected. He could not succeed in the appeal. The twins were born  in 1996 and now they are around 15 years old. Since childhood they are staying with mother and taking education. So the issue of permanent custody was rightly held in favour of the appellant. Indeed, after attaining majority, it would be open to the children to stay with parent of their choice i.e., continue to stay with the mother or reside with the father (respondent)

16 A demand of permanent alimony was made by the appellant. Our attention was drawn to the orders passed by the Trial Court and this Court in the maintenance petition filed by the appellant. The appellant had filed a petition for maintenance bearing number 218/97 and maintenance of Rs.400/- p.m. to the appellant and Rs.300/- p.m. to each child was granted. It was enhanced to Rs.800/- p.m. for the appellant and Rs.500/- p.m. to each child. The respondent filed an application for cancellation of maintenance, however, it was dismissed. Again the maintenance amount was enhanced by the Family Court to Rs.1,200/-p.m. to the appellant and Rs.1,000/-p.m. to each child. The respondent preferred Revision Applications before this Court bearing nos.654/2007 and 512/2008. The Revision Applications were dismissed by this Court on 18/7/2009. The respondent preferred Special Leave to Appeal (Criminal) 7870-7871/2009 and the same was dismissed by the Supreme Court. We do not wish to interfere with finding recorded by the Family Court on issue No.5. We also agree with the Family Court that the appellant is free to resort to other legal
remedies. 

17 It is necessary to note that when the appeal was taken up for hearing, we, in the first place, tried to persuade the parties to arrive at some amicable settlement.  However, we found that the parties were still holding grudge against each other and were not in a mood to adjust. Instead, the learned counsel for the appellant has advanced her submission that such a long separation amounts to irretrievable break down of the marriage and so the decree of divorce be granted. In the case of  Sanghmitra Ghosh (supra) the parties were residing separately since January, 2001. In a transfer petition before the Supreme Court to transfer the pending matrimonial petition to some other State;  they filed joint petition for a decree of divorce praying that the Court may grant decree of divorce by mutual consent. The Supreme Court accepted the plea of irretrievable break down of marriage and exercised its extraordinary jurisdiction under Article 142 of the Constitution and granted decree of divorce. In the present matter, having recorded finding on merits on the relevant points/issues raised by the rival side and thus upheld the decree passed by the Family Court which is impugned in this Appeal, we would follow the dictum of our High Court in the case of Ravindra M.Shelar v. Kalpana R.Shelar reported in 2002 (3) MLJ 746.(http://www.indiankanoon.org/doc/1343342/) The same applies on all fours to the facts of the present case. Inasmuch as, even in this case we have found that the appellant was responsible for non-compliance of decree of restitution of conjugal rights and had committed positive wrong. She cannot be allowed to take advantage of her own wrong as the legal bar in granting the decree of divorce was not lifted. 

18 We, therefore, do not wish to interfere with the judgment and order passed by the Family Court.

19. Hence the Appeal is dismissed with no order as to costs

.
(Mrs.Mridula Bhatkar,J.) (A.M.Khanwilkar,J.)

http://bombayhighcourt.nic.in/data/judgements/2011/CFCA3090503.pdf

Wearing revealing dress is cruel and ground for divorce: Delhi court

Feb 11, 2011, 21:16 IST

Wearing a revealing dress during her honeymoon proved costly for a woman as a court granted divorce to her husband saying improper dressing by the woman brought mental cruelty to the man.

"Cruelty includes not only physical but mental cruelty as well. Ostensibly, she (wife) has indulged in bloating falsehood beyond proportions," additional district judge Manmohan Sharma ruled, accepting the husband's plea that he suffered mental agony due to his wife wearing 'vulgar' dresses regularly since their honeymoon.

The court allowed the husband's divorce plea saying "mere living under one roof without the necessary ingredients of love and faith, which are the hallmark of a fruitful matrimonial relationship, is nothing but animal existence."

The husband, in his petition seeking divorece on the ground of having been subjected to cruelty, had contended that his wife wore vulgar clothes during their honeymoon.

"During their honeymoon, she dressed herself in a very vulgar manner and when he asked her to change the dress she retorted that she had dressed herself that way to be noticed by at least 50 people," the husband had said in his plea.

The court gave divorce decree to the husband after hearing some audio recordings, played by the woman's father-in-law, proving that she had conspired with her parents to torture her husband and in-laws.

"She (wife) has gone to the extent of conspiring with her parents to teach the petitioner (husband) and his family a lesson," the court held in its ruling.

"The nature of cruelty suffered by the petitioner (husband) is partly physical and predominantly mental. So, it is held that he has been treated with cruelty by respondent (wife) after solemnisation of their marriage," the court said.

The couple had married in August 2007.

The court allowed the man's divorce plea rejecting the woman's contentions that her husband and in-laws had levelled frivolous and baseless allegations against her as her parnets failed to meet their demand for dowry.

"The respondent (wife) crossed another milestone by making reckless allegations of demand of dowry and illicit relationship against her husband, which she could not prove," the court said.

http://www.dnaindia.com/india/report_wearing-revealing-dress-is-cruel-and-ground-for-divorce-delhi-court_1506527

Delhi HC- PWDVA-an aggrieved person does not have liberty to make every relative of the husband as a respondent. Prerequisite considerations for Magistrate to follow. Analysis of Domestic incident report and form 1 of the schedule 2 of Domestic violence Rules must before summoning

 

Crl.MC No. 1766/10 & 1773/10             

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve:   September 24, 2010 Date of Order: 8th  October, 2010 

  Bhupender Singh Mehra          ... Petitioner
        Through: Mr. Brajesh Kumar, Advocate

Versus

  State  NCT of Delhi & Anr.        ... Respondent
        Through: Mr. Anurag, Advocate for R-2

  Diwan Singh Mehra          ... Petitioner
        Through: Mr. Brajesh Kumar, Advocate
Versus

  State  NCT of Delhi & Anr.        ... Respondent
        Through: Mr. Anurag, Advocate for R-2

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?

JUDGMENT

By the present petition, the petitioners have assailed order dated 5th   November, 2009 passed by the learned Metropolitan  Magistrate  on an application under Section 12 of  The Protection of Women from Domestic Violence Act, 2005  (in short  Domestic Violence Act)  made by the respondent.  Petitioners are father-in-law and brother-in-law (elder brother of husband) of respondent.  The husband in this case was working in New  Zealand and had come to India for marriage.  It seems that the marriage did not take off at all.  The allegations made by the parties against each other are not relevant for deciding these petitions.  

2.    The respondent in her application under Section 12 of Domestic Violence Act  made husband, father-in-law and brother-in-law  (jeth) and another brother-in-law (nandoi) as respondents giving  a common address.  On making of  this application,  the learned  Metropolitan Magistrate,  on the very first day,  passed the impugned order directing that the complaint be checked and registered as per  rules  and  issued  notice to the  Protection
Officer for filing DIB and directed respondents to be served through Protection Officer with or without help of police/Nazarat branch.

3.    Section 12 of the Domestic Violence Act reads as under:

  12. Application to Magistrate.-

(1) An aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person may
present an application to the Magistrate seeking one or
more reliefs under this Act:
Provided that before passing any order on such
application, the Magistrate shall take into consideration any
domestic incident report received by him from the
Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include
a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of
such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic
violence committed by the respondent:
Provided that where a decree for any amount  as
compensation or damages has been passed by any court
in favour of the aggrieved person, the amount, if any, paid
or payable in pursuance of the order made by the
Magistrate under this Act shall be set off against the 
amount payable under such decree and  the decree shall,
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or any other law for the time
being in force, be executable for the balance amount, if
any, left after such set off.

(3) Every application under sub-section (1) shall be in such
form and contain such particulars as may be prescribed or
as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which
shall not ordinarily be beyond three days from the date of
receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every
application made under sub-section (1) within a period of
sixty days from the date of its first hearing.

4.    It is apparent from the above provision of Domestic Violence Act that before passing an order on application,  the magistrate has  to take  into consideration the domestic incident report received from him by  Protection Officer or Service Provider.   The order dated 5th November, 2009 of learned MM shows that before serving notice to the respondent,  the learned MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent under Section 2(q) of Domestic Violence Act. 

Section 2(q) reads as under:

2(q)  “respondent” means any adult male person who is or
has been in a domestic relationship with the aggrieved
person and against whom the aggrieved person has sought
any relief under this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a
complaint against a relative of the husband or the male
partner. 

5.    An application under Section 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence Act.  Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules.  This proforma is in detailed analytical form wherein the details of each incident of domestic violence are  to be entered with date, time and place of violence and person who caused domestic violence.  The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of  violence and when it was committed.  The proforma specifies different  heads  of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence.  The proforma also provides for filing of documents in support of the application like medico-legal certificate,  list of  istridhan  and other documents.  This domestic incident report has to be signed by the aggrieved person.  The application under Section 12 is required to be made in form 2 of the  Rules wherein the details of various  kinds of reliefs  and expenses are to be given.  Section 27 of the Domestic Violence Act provides which  judicial magistrate Court  can have jurisdiction to  entertain  an application under Section 12 of the Act.  Where marriage took place outside Delhi and the  parties have lived  outside Delhi,  it is incumbent upon the applicant invoking jurisdiction of Delhi Court to specify how jurisdiction of Delhi Court was made out.  No doubt Section 28(2) gives power to the MM of
laying down its own procedure for disposal of an application under Section 12  or under Sub-Section 23(2) but the procedure  an MM can adopt cannot be violative of the Act itself  or violative of principles of natural justice.   The procedure  adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned,  is contrary to the Act.    Only those persons can be summoned who have been in domestic relationship with aggrieved person.  Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent.

6.    The order dated 5th November, 2009 passed by the learned MM is therefore set aside.  The learned MM is directed to consider the domestic incident report and  consider the contents of the application and  find out whether the respondents  (petitioners herein)  had any domestic relationship with the applicant and could be fitted in the definition of the  “respondent” as given in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 and then only issue notice to them.  

September , 2010       SHIV NARAYAN DHINGRA, J.
vn

http://lobis.nic.in/dhc/SND/judgement/08-10-2010/SND08102010CRLMM17732010.pdf

Delhi Court-PWDVA misuse- Wild allegation by DIL is domestic violence against MIL SIL. Husband’s Women relatives equally protected under PWDVA (against Bahu)

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS

JUDGE-II (NORTH-WEST) ROHINI COURTS: DELHI

Crl. Revision No. 367/2010

1.  Santosh Kaur
W/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.
2. Ms. Ritu Kashyap
D/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.
3. Mrs. Sarika Mehta
W/o Sh. Kamal Mehta
R/o F-8, 2nd
Floor,
Kamla Nagar,
Delhi
............ Revisionists

Versus

Smt. Nidhi Kashyap
W/o Sh. Gaurav Kashyap
D/o Sh. K.C. Ahuja
R/o C-4/428, Lawrence Road,
Delhi – 110035
............ Respondent

Date of institution: 29.5.2010
Arguments heard on: 16.8.2010
Date of Decision: 28.8.2010

ORDER:

This revision has been filed against the summoning orders dated 24.2.2010, 25.3.2010 and 23.4.2010 passed by the Ld. Trial Court in the petition filed by the respondent Nidhi Kashyap under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The revisionist no.1 Smt.Santosh Kaur is the mother-in-law of the respondent whereas the revisionist no.2 Ms. Ritu Kashyap is her unmarried sister-in-law (Nanand) and respondent no.3 Mrs. Sarika Mehta is her married sister-in-law (Nanand).

Briefly the case of the respondent Nidhi Kashyap/ applicant before the Trial Court is that she was the class mate of revisionist no.2 Ritu Kashyap who is the real sister of Gaurav Kashyap (respondent no.1 before the Ld. Trial Court) and had friendly relations with him. According to Nidhi Kashyap, her father is a property dealer and mother is a bank employee and they have strong a financial background. It is pleaded that they are only two sisters and therefore as a part of well planned conspiracy, the revisionists before this court induced her to enter into a matrimonial relationship with Gaurav Kashyap despite the fact that both belonged to different communities. According to the respondent, her marriage with Gaurav Kashyap was solemnized secretly on 29.7.2008 at Arya Samaj Mandir, Birla Line, Kamla Nagar, Delhi according to Hindu rites and ceremonies after which she left for her parental home as she was asked to disclose the factum of her marriage to them only after 45 days. It is further pleaded by Nidhi Kashyap that on 12.9.2008 when she entered into her matrimonial home at 6-D, Janta Flats, Satyawati Colony, behind Laxmi Bai College, Ashok Vihar, Phase-III, Delhi the revisionists before this court, under a well planned design conspiracy and in a pre planned manner, called her parents at their home and disclosed the factum of the marriage of their son with the present respondent (Nidhi Kashyap) on which her parents received a serious shock but finding no alternative they ultimately gave their consent and approval to the matrimonial ties and on 12.10.2008 as per the demands of her in-laws, her parents organized a joint reception where they gave a large amount of gold and jewellery and domestic articles and cash to her. According to Nidhi Kashyap, the respondent before this court court, the revisionists are in domestic relationship with her due to her matrimonial relationship with Gaurav Kashyap (respondent no. 1 before the Ld. Trial Court). She has alleged that on 13.10.2008 after she entered into her matrimonial home, her Nanand the revisionist no.2 Ritu Kashyap raised a demand of Hundai i10 car and it was made clear to her that in case if she wants to live peacefully she would have to ask her parents to satisfy their demands.  Again on 13.10.2008, her mother-in-law Smt. Santosh Kashyap the revisionist no.1 before this court took a sum of Rs.20,000/- from her purse against her will and consent and in the evening the revisionists no.2 and 3 took away entire gold and diamond jewelleries except one Mangal Sutra, one gold ring, nose pin and ear rings and thereafter did not return the same to her despite her repeated requests and demands. The present respondent Nidhi Kashyap has also mentioned numerous other occasions alleging that the revisionists before this court had been disclosing their intent and expectations for cash and other articles from time to time and she had been subjected to harassment, torture and violence on account of the repeated dowry demands made by the revisionists before this court including her married sister-in-law Sarika Mehta. According to Nidhi Kashyap, her entire jewellery is lying with her in-laws. A petition under Section 9 of the Hindu Marriage Act filed by Gaurav Kashyap the husband of the present respondent is also pending adjudication before the Ld. ADJ, Rohini. She has alleged that she has been compelled to make a complaint before the Crime Against Women Cell, Pitam Pura, Delhi on account of the callous conduct on the part of her in-laws including the present revisionists. She has further alleged that her husband Gaurav Kashyap is the owner of property bearing no. 6-D, Janta Flats, Satyawati Colony, Behind Laxmi Bai College, Ashok Vihar, Phase-III, Delhi and he and his parents are owning and possessing 100 sq. plot as Samaipur Badli, Delhi. Further, she has alleged that her husband Gaurav Kashyap and his parents are owning and possessing the HIG Flat in TDI Sonepat having a market value to the tune of Rs.22 lacs and are running a factory under the name and style of MCO Chemical, Samaypur, Delhi and are owning and possessing two godowns at Samaypur and Swaroop Nagar and her husband Gaurav Kashyap is having one house at Sri Nagar, Bharat Nagar, Delhi. It is also alleged by the respondent before this court that her husband and his parents are owning and possessing a Maruti 800 car bearing no. DL-6019 and are also owning a truck Tata-407 and two victor bikes. She has now demanded that her husband Gaurav Kashyap i.e. the respondent no.1 before the Ld. Trial Court is under a legal obligation to maintain her and she requires independent residential accommodation which is available at the rental value of Rs.10,000/- per month excluding the water and electricity charges and also requires Rs.30,000/- per month for her maintenance and Rs. 5 lacs on account of mental torture, pain and agony suffered by her. According to the present respondent she cannot remain dependent upon her parents for her shelter and therefore, her husband Gaurav Kashyap is required to make the arrangements for separate residential accommodation. In her petition, the present respondent Nidhi Kashyap has further demanded that her husband and her in-laws including the present revisionists should be restrained from entering into her parental home and from making any kind of communication to her and from committing any act of Domestic Violence and aiding or abetting in the commission of acts of domestic violence. Further, she has demanded that they be restrained from alienating and parting with her istridhan articles and also from creating any third part interest and parting with the possession of the property bearing No. D-6, Janta Flats, Satyawati Colony, Behind Laxmi Bai College, Ashok Vihar, Delhi and property bearing no. 77, Bharat Nagar Delhi till her husband make the provisions for her independent residential accommodation. She has also claimed Rs.3,000/- from her in-laws including the present revisionists as litigation expenses.

Pursuant to the aforesaid petition, the Ld. Trial Court sought a Domestic Incident Report from the Protection Officer. The said report was duly filed which I have duly perused. The said report clearly reflects that Smt. Sarika Mehta the revisionist no.3 before this court is not a member of the shared household and is separately residing at her matrimonial home residing at F- 8, 2nd Floor, Kamla Nagar, Delhi with her husband Sh. Kamal Mehta whereas Smt. Santosh Kaur the mother-in-law and Ritu Kashyap the unmarried sister-in-law are all residing at 6-D, Janta Flats, Satyawati Colony, Behind Laxmi Bai College, Delhi. The report further shows that only one incident of domestic violence on 3.7.2009 by the husband has been reported on which day the present respondent was beaten by her husband and was asked to leave the house. The report further reflects that the only incident of verbal and emotional abuse are of insults for not having brought dowry, demeaning, humiliating, undermining, ridicule and name calling by her husband and her in-laws and preventing her from meeting a particular person. She has also alleged economic violence upon her by her husband by not providing her money, food, clothes, medicine etc. and forcing her out of the matrimonial house and has alleged that her in-laws including the present revisionists have disposed off her istridhan articles by selling or pawing the same without her consent and forcibly taken away her salary, income or wages etc.

The revisionists before this court have alleged that the orders of summoning are also bad as they have been passed without calling upon the respondent to furnish and establish the material facts necessitated for passing such orders. It is submitted that no domestic violence has ever been committed by the revisionists upon the respondent before this court (complainant before the Ld. Trial Court) and the petitioner under the Domestic Violence Act has been filed on false and frivolous grounds and the complaint filed by the present respondents against them before Crime Against Women Cell, Pitam Pura has been filed only to harass, humiliate and to extort money from them. The revisionists have pointed out that the marriage of Gaurav Kashyap with the present respondent was a simple one without any demand and was an outcome of the love affair. They have pointed out that the parents of the present respondent were against her marriage and therefore, they secretly got married without informing their family members at Arya Samaj Mandir which was a dowry less marriage and the respondent had come in wearing clothes and it is in this background that the parents of Gaurav Kashyap including the revisionists organized a reception on 12.10.2008 at Janak Vatika, Bharat Nagar. The revisionists have further pointed out that on 3.7.2009 the present respondent Nidhi Kashyap picked up a quarrel with her husband Gaurav Kashyap and called her father with 5-6 other people who beaten up Gaurav Kashyap and even shouted on road and use abusive language for Gaurav Kashyap. Thereafter the present respondent went to her parent's house by saying that she would not live nor would maintain any relations with them and Gaurav Kashyap made umpteen efforts to bring her back but she refused. According to the revisionists they are themselves aggrieved and victim of the violence inflicted upon them by the present respondent. It is further stated that all the properties mentioned by the present respondent does not belong to the husband of the respondent. The revisionists have placed their reliance on the following authorities:

1. S.R. Batra & Anr. vs. Smt. Taruna Batra reported in 1 (2007) SLT 1.
2. Shumita Didi Sandhu Vs. Sanjay Singh Sandhu reported in 2007 (96) DRJ 697.
3. Mohd. Maqeenuddin Ahmed & Ors. Vs. The State of Andhra Pradesh & Anr. reported in 2008 (1) JCC 85.

The Protection of Women from Domestic Violence Act, 2005 is a special legislation in favour of women. It is the duty of the court to ensure that this special legislation reaches out to the effected lot but at the same time is not allowed to be misused by anyone.

Wikipedia defines domestic relationship between two individuals as a legal or personal relationship to live together or share one domestic life but are neither joined by marriage nor the civil union.

The Indian law i.e. Protection of Women from Domestic Violence Act, 2005 does not define family but it defines Domestic 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. Domestic relations are meant to cover sisters, widows, mothers and daughters and single women. The Indian law does not specify separate relationship and mentions members in a joint family.

The intent of Protection of Women from Domestic Violence Act, 2005 is to protect the value system and institution  of family and save it from destruction. This being so, the provisions of the Protection of Women from Domestic Violence Act, 2005 have to be so interpreted to ensure that the existing family system is preserved.  The misuse and abuse of the Act is a matter of serious concern for the courts who are required to be careful and ensure that a woman petitioner is not made a puppet or pawn in the hands of her male relatives so as to manipulate the Protection of Women from Domestic Violence Act, 2005 and use it for ulterior motives.

In the present case it is an admitted case of the parties before this court that the respondent Nidhi Kashyap who is the wife of Gaurav Kashyap (respondent no.1 before the Ld. Trial Court) has filed the complaint under special legislation (Protection of Women from Domestic Violence Act, 2005) wherein she has spared none and roped the entire family including the young unmarried sister-in-law who was her friend and class-mate even before her marriage and also her married sister-in-law who is residing separately with her own family. It is admitted that the marriage between the present respondent Nidhi Kashyap with Gaurav Kashyap was solemnized secretly and was an outcome of a love affair as Nidhi Kashyap was known to Gaurav Kashyap through the revisionist no.2 Ritu Kashyap who was the batch mate of Nidhi Kashyap and was studying with her. It is also an admitted case of the parties that on having come to know of marriage a reception had been organized after which the present respondent Nidhi Kashyap started staying with her husband and her in-laws. It appears that unfortunately the said marriage is not worked out resulting into spade of litigation between the parties and Gaurav Kashyap even filed a petition under Section 9 of the Hindu Marriage act which is still pending adjudication and the present respondent Nidhi Kashyap has filed a case in Crime Against Women Cell alleging dowry demands and harassment against one and all.  

The provisions of the Protection of Women from  Domestic Violence Act, 2005 have been invoked by the respondent Nidhi Kashyap not only against her husband Gaurav Kashyap but also against her aged father-in-law Mohan Lal Kashyap (respondent no.2 before the Ld. Trial Court), mother- in-law Smt. Santosh Kaur (present revisionist no.1 before this court), unmarried sister Ritu Kashyap (revisionist no.2 before this court with whom Nidhi Kashyap was previously studying and through whom she came to know Gaurav Kashyap and had a love affair), married sister Smt. Sarika Mehta and her husband Sh. Kamal Mehta who both are residing at F-8, 2nd Floor, Kala Nagar, Delhi.  

At the very outset I may observe that merely because the revisionist no.3 Smt. Sarika Mehta happen to be the real sister of the husband of present respondent would not ipso-facto imply a domestic relationship to the extent as contemplated under the Protection of Women from Domestic Violence Act,2005 as she is residing separately with her own husband and cannot be deemed to be a member of the shared household as a joint family. The revisionist no.2 Ritu Kashyap is a young girl of 22 years who had been the classmate of the present respondent and through whom the present respondent had came into contact with Gaurav Kashyap and had an affair culminating into the marriage. The revisionist no.1 is the aged mother-in-law. The allegations against her are general and non specific. 

Daughters married or unmarried cannot be terrorized into abandoning their parental family under the fear of their involvement into litigations connected with Domestic Violence. Married sisters residing in their own matrimonial houses are not a part of the shared household or joint family as contemplated under the Protection of Women from Domestic Violence Act, 2005 but at the same time they have certain rights in their parental home which cannot be denied to them. Even an unmarried sister of the husband residing in the shared household with her parents has certain rights which cannot be taken away. Making wild allegations against an unmarried sister-in-law of a tender marriageable age by an estranged wife of brother tentamounts to inflicting violence upon her and it is the duty of the court to ensure that she is protected from the same. Violence can also be inflicted by an estranged wife or daughter-in-law or sister-in-law upon other members of the husband's family to gain and secure personal points and financial control or for separating her husband from his parents and other family members. In the zeal and endeavour to implement the rights of one woman (daughter-in-law) it is necessary for the courts to ensure that the rights of another woman (in her capacity as mother-in-law or sister-in-law married or unmarried) are not taken away or infringed in any manner. The Protection of Women from Domestic Violence Act, 2005 protects the mothers, sisters and daughters from any kind of physical and mental abuse or violence in as much as it does the daughter-in-law. The court as a protector and implementor of rights, is required to perform a balancing act. It is necessary to ensure that it does not get swayed by the astute legal drafting of the counsels and is equired to get at the truth of the allegations by examining the pleadings on the touch-stone of reasonableness and probabilities. Where a complaint appears to have been filed on filmsy grounds only to humiliate the family members, the same is required to be thrown out at the earliest opportunity. Mother-in-law or sister's- in-law (married or unmarried) cannot be permitted to be subjected to harassment only because they happen to be related to the estranged husband of the woman (complainant).

In the present case firstly I have considered the allegations reflected in the Domestic Incidence Report and the allegations so made by the complainant Nidhi Kashyap before the court which do not inspire confidence and appears to have been made in routine. The respondent has alleged that the present revisionists had forcibly taken away her salary and wages which allegations on the face of it are false and incorrect since it is an admitted case of the respondent before this court that she is not working. The question of her husband or in-laws taking away her salary, income, wages etc. under these circumstances does not arise.  

Secondly the report of the Protection Officer also show that the dowry related harassment pertains to the demand of car and cash of Rs.3 lacs. The respondent Nidhi Kashyap has also attached the list of Stridhan articles alongwith the petition to support and substantiate her allegations regarding misappropriation of her Stridhan articles which I have perused. I may observe that the said list so attached along with the petition is not a duly authenticated list signed by both the parties as required under the Dowry Prohibition Act. This is the list of articles which only the respondent Nidhi Kashyap claims were her stridhan which list does not bear the signatures of the respondent. Under the given circumstances as the list is not signed by both parties, it was necessary for the complainant Nidhi Kashyap to have attached alongwith her list the receipts/bills showing purchase of these articles which has not been done. Therefore, the above allegations also do not appear to be credible and truth-full particularly keeping in view the background that the marriage between the respondent and Gaurav Kashyap  was a secret, runaway marriage as an outcome of a love affair which marriage was kept secret for many days and ultimately when the same was disclosed to the parents of the respondent by her in- laws a joint reception was organized.

Thirdly the present respondent Nidhi Kashyap has not placed on record any document to show that her husband is the owner of any of the aforesaid properties or have any independent right over the same. The allegations are non specific and general. It is settled law that the claim for alternative accommodation can only be made by a women against her husband and not against in-laws or other relatives nor can she claim any right to stay in the said house (Ref: S.R. Batra & Anr. Vs. Smt. Taruna Batra reported in 1 (2007) SLT 1 and Shumita Didi Sandhu Vs. Sanjay Singh reported in 2007 (96) DRJ 697). The present respondent has not placed on record any document to show that the properties in the present case belonging to her husband Gaurav Kashyap and the complaint in Crime Against Women Cell.  

Lastly it is an admitted case of the parties including that of the complainant Nidhi Kashyap that her marriage with Gaurav Kashyap is an outcome of the long standing love affair between them. She was a classmate of the revisionist no.2 Ritu Kashyap through whom she was introduced to Gaurav Kashyap (her real brother) with whom she developed love affair culminating into a secret marriage which was disclosed to her parents much later. This being the background of the case, the allegations made by the complainant against one and all family members of her husband where none have been spared do not appear probable. It is apparent on the face of the pleadings that they have been so drafted so as to involved all the family members of the husband sparing none including the present revisionists who are the aged mother-in-law, unmarried sister-in- law of marriageable age and married sister-in-law residing separately. This, it appears has been done for the purpose of harassing the entire family of the husband with a sinister motive and design to harass and humiliate them. Given the background of the case, the allegations made against the Revisionists on the face of it do not appear to be truthful and probable warranting any interference from the court under this Special Legislation.  

In view of the above  background and in the interest of  justice, I hereby set aside the orders of dated 24.2.2010,
25.3.2010 and 23.4.2010 passed by the Ld. Trial Court thereby summoning the present revisionists i.e. Smt. Santosh Kaur, Ms. Ritu Kashyap and Smt. Sarika Mehta since there does not exist sufficient material on record to summon them and to proceed against them under the Protection of Women from Domestic Violence Act, 2005.

Revision is accordingly allowed. Trial court record be sent back along with the copy of this order. Revision file be
consigned to Record Room.

Announced in the open court             

(Dr. KAMINI LAU)
Dated: 28.8.2010              ASJ-II(NW): Rohini

Santosh Kaur   Vs.   Nidhi Kashyap
CR No. 367/2010 28.8.2010
Present: None for the Revisionists.
None for the respondent.
Vide my separate detailed order dictated and announced in the open court, I set aside the orders of dated
24.2.2010, 25.3.2010 and 23.4.2010 passed by the Ld. Trial Court thereby summoning the present revisionists i.e. Smt. Santosh Kaur, Ms. Ritu Kashyap and Smt. Sarika Mehta since there does not exist sufficient material on record to summon them and to proceed against them under the Protection of Women from Domestic Violence Act, 2005.

Revision is accordingly allowed.

Trial court record be sent back along with the copy of this order.

Revision file be consigned to Record Room.
(Dr. Kamini Lau)
ASJ-II (NW)/ 28.8.2010

Source - http://judis.nic.in/dist_judis/pdf_retrieval_main.asp

Status of parents of Husband NOT to be considered for Wife’s MAINTENANCE- Delhi HC

 

CM(M) No.1045/2008                                                                

* IN THE HIGH COURT  OF  DELHI  AT  NEW  DELHI
+     CM(M) No.1045/2008 & CM No.13003/2008
                Date of Decision : July 02, 2010

  SMT. SUSHILA DEVI         ..... Petitioner
        Through:      Mr.K.Sunil,  Advocate
             with Petitioner in person.

      versus

  SHRI JOGINDER KUMAR           ..... Respondent
        Through:  Mr.Saurabh Tiwari,  
             Advocate with Respondent
             in person.
 
  CORAM:
  HON’BLE MS. JUSTICE ARUNA SURESH

(1)    Whether reporters of local paper may be
           allowed to see the judgment?
(2)     To be referred to the reporter or not?    Yes
(3)     Whether the judgment should be reported   
          in the Digest ?          Yes  

J U D G M E N T
ARUNA SURESH, J. 

1.     Impugned in this petition is the order of the Trial  Court dated 8th  August  2008, whereby while allowing application of the petitioner (respondent in the main petition) filed under Section 24 of  the Hindu Marriage Act  (hereinafter referred  to  as  ‘the Act’),  it awarded her maintenance @ Rs.3,000/-per month, besides litigation  expenses of Rs.5,100/-.Being dissatisfied by the said order, she has filed this petition.

2.    Mr.K. Sunil, counsel appearing on behalf of the petitioner has submitted that the court awarded meagre amount of maintenance without considering income of the respondent (petitioner in the main petition) in the correct perspective as he is a man of means and therefore, she should have been awarded maintenance as claimed by her i.e. at least Rs.8,000/- to Rs.10,000/- per month.  He further submitted that respondent-husband owns agricultural land measuring 12  Bighas    and 17  Biswas  in village Nizampur, Delhi and the total annual income of the parents of the petitioner is about Rs.8,60,000/-.  Besides, he owns two residential houses in the name of his father in old Lal Dora Mundaka, in which
there is a  godown  and a factory and he has income from the said business.

3.    Mr.Saurabh Tiwari, counsel appearing on behalf of the respondent has submitted that the entire properties, as detailed by the petitioner, are owned by parents of the  respondent and there is no property in his name.  He has no right in the properties of his parents and is presently unemployed and  has  no earnings.  He further submitted that petitioner is earning Rs.10,000/-  per month from  tailoring and embroidery work and she is living in her matrimonial home.  Despite differences,  she is being provided with all  comforts and her necessary expenses including her medical needs which  are being taken care of by the respondent.

4.    It is an admitted fact that petitioner is residing in her matrimonial home.  Therefore, she  is being provided with a residential accommodation and she is not to bear any expenses for her residence.  Petitioner has denied that she has any independent income from tailoring and embroidery work.  Court, therefore,
rightly did not believe the submissions of the respondent that petitioner was earning about Rs.10,000/- per month.  Petitioner has not disclosed any source of income of the respondent.  She has only referred to the immovable properties including  the agricultural land, which, admittedly, are in the name of  the parents of the respondent.  Nothing was placed on record to show that respondent owned any property  in his name independent of the immovable assets of his parents.  Being a son, may be that he is living with his parents, the fact remains that he can be made liable to pay maintenance only from his earnings and not from the properties, unless these properties give him some rental income.  In this case, neither respondent owned any property nor has any rental income. 

5.    Disbelieving the respondent that he was unemployed, Court awarded maintenance of Rs.3,000/- per month to the petitioner keeping in view the financial status of both the parties. In  ‘Smt. Jasbir Kaur  Sehgal  Vs. District   Judge,  Dehradun and Ors., MANU/SC/0835/1997,  it was observed that no set formula can be laid for fixing the amount of maintenance.  It has,  in very nature of things, to depend on the facts and circumstances of each case.  While fixing the maintenance, Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but not voluntary payments or deductions.  While awarding maintenance, Court also has to consider that amount fixed for the wife is such that she  can have reasonable comfort in her life considering her status and living style which she maintained while living with her husband.  

6.  In this case, since  Trial Court was not provided with any specific information regarding source of income of the respondent.  It had to adopt a probable formula to award maintenance to the wife. Status of the parents of the husband, in no manner, can be considered by the Court while awarding maintenance to his wife.   It is the duty of the husband to maintain the wife and not of his parents. 

7.    In view of my discussion as above, I find no reason to interfere in the impugned order of the Trial Court dated 8th  August, 2008.  

Hence, petition is accordingly dismissed. 
CM No.13003/2008 (for stay)

8.    With dismissal of the petition itself, this application has become infructuous.  It is accordingly dismissed. 

ARUNA SURESH
           (JUDGE)
JULY  02, 2010
sb

http://lobis.nic.in/dhc/AS/judgement/03-07-2010/AS02072010CMM10452008.pdf