DV case 10 years after the death of husband for property Dismissed

IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE­02 : SOUTH EAST
SAKET COURT : NEW DELHI

IN RE: Criminal Appeal No. 204326/2016
ID No.DLSE01­001169­2016

Babita
W/o Late Vinod
D/o Sh. Phool Chand
R/o 20/116, Dakshinpuri,
Dr. Ambedkar Nagar,
New Delhi­ 110062. . . . . Appellant

Through: Shri Rajiv Ahuja, Advocate.

versus
1. Sh. Jai Kishan
R/o 20/116, Dakshinpuri Extension,
Dr. Ambedkar Nagar,
New Delhi­ 110062.

2. Smt. Rekha
W/o Sh. Jai Kishan
R/o 20/116, Dakshinpuri Extension,
Dr. Ambedkar Nagar,
New Delhi­ 110062. . . . . Respondent No.1 & 2

Through: Shri Vinay Sharma Advocate

Date of Institution : 17.03.2016
Date when arguments were heard : 06.04.2017
Date of Judgment : 05.05.2017 JUDGMENT :

1. Challenge in the present appeal filed by appellant Babita under section 29 of The Protection of Women from Domestic Violence Act, 2005 (in short “DV Act”) is to the judgment dated 19.12.2015 passed by learned Metropolitan Magistrate (MM)­03, Mahila Court, South East District, Saket Courts, New Delhi in CC No. 237/1/15 titled as Babita Vs. Rekha & Another.

2. Appellant had filed application under section 12 of The DV Act against respondents, wherein she prayed for several reliefs. Respondents appeared before the court of learned MM to contest the application filed against them by appellant. They filed written statement in the matter. The parties led evidence in support of their contentions.

3. Finally, vide judgment dated 19.12.15, the application filed by appellant under section 12 of DV Act was dismissed by learned MM.

4. Appellant, feeling aggrieved by the impugned judgment dated 19.12.15, has preferred the present appeal.

5. On notice, respondents appeared with their counsel to contest the appeal. They also filed written reply to the appeal of appellant.

6. I have heard and considered the submissions advanced by Shri Rajiv Ahuja, learned counsel for appellant and Shri Vinay Sharma, learned counsel for respondents and carefully perused the record of the case.

7. Appellant / aggrieved person Babita got married with Vinod on 25.05.1998 as per Hindu Rites and Rituals. Out of their wedlock, three children were born, who are reportedly residing with appellant. Husband of appellant is reported to have expired in the year 2004. Respondent No.1 Jai Kishan is brother of Vinod (husband of appellant) and respondent No.2 Rekha is wife of respondent No.1. They are reportedly residing at House No.20/116, Dakshin Puri, New Delhi (hereinafter referred to as “property in question”). The appellant in her application alleged that after death of her husband, respondents started torturing her.

8. As per appellant / complainant, property in question is in the name of her father in law, who expired intestate. She stated that the aforesaid house is the first place, where she kept her first step after marriage and lived in the said premises. She further alleged that for last two years, respondents have not been allowing her to enter inside the house. They are allegedly telling her that she has no right in the premises as her husband has expired. She further alleged that respondents broke open the lock of room, where she was living and all her articles have been kept on terrace, they put their lock and dispossessed her from the premises. She also alleged that the articles are in the custody of respondents. As per appellant/complainant, respondents have threatened her not to enter the house, otherwise, she will face dire consequences. The complainant further stated that she and her children have no shelter to pass their lives except their share in property in question. The complainant gave complaint to SHO Police Station Ambedkar Nagar, but to no avail. She stated that she alongwith her children is residing with her parents at S­7/10, Jhuggies, Vijay Camp, Jal Vihar, Lajpat Nagar for last two years. In the application, the appellant / aggrieved person sought the relief to permit her to re­enter in property in question.

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9. Respondents contested the application of appellant by way of filing written statement, wherein they stated that the appellant has concealed material facts from the court. They contended that the appellant filed the case after ten years from the date of death of her husband to harass them. They denied to have committed any cruelty upon the appellant. As per respondents, the father of Jai Kishan had made separate arrangement for his three sons. Shri Kishan shifted to House No.20/6, while respondent No.1 and 2 shifted to property in question. The complainant / appellant alongwith her husband is reported to have shifted to Gautam Puri near Badarpur. They alleged that the complainant and her husband after shifting to present house, it was the complainant, who forced her husband to severe all his relationship with mother, father, brothers and sisters. They admitted that the property in question is in the name of father in law of appellant.

10. Respondents further stated that father in law of appellant had three sons and four daughters and all of them were married at the time of marriage of appellant with Vinod. They contended that after marriage, appellant came to House No.J­46, J.J. Colony, Dakshin Puri being matrimonial house. They stated that at that time, father in law of appellant purchased three plots bearing No.26/6, property in question and one plot in Gautam Puri near Badarpur. Respondents are reportedly residing at the property in question. They alleged that the application filed by appellant under DV Act is after thought as she filed the application after the death of her mother in law on 09.07.13. They stated that appellant never visited their house when he mother in law was alive and she never claimed any right over the property in question at that time.

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11. Respondents stated that after death of her husband, appellant sold the house of Gautam Puri, which was purchased by her father in law and was given to her husband. They denied to have committed any act of violence upon the appellant. They stated that the appellant has been residing separately for about eight years and therefore, no question of any interference arises. They denied to have broke open the lock of the room, where appellant was residing, put their lock and dispossessed her from the premises. They stated that since the appellant was residing separately at Gautam Puri, therefore, no question of opening the lock of her room arise. They stated that appellant has not specified as to what was the size of the room, on which floor, she used to reside and what articles were kept by her in that room. They prayed to dismiss the application of appellant.

12. Relevant portion of impugned judgment is reproduced hereunder for ready reference: ­ “Applicant has failed to file any site plan of the property bearing No.20/116, Dakshinpuri showing portion wherein she was staying. She has further not proved list of articles which were kept in her room. Though she has filed photocopy of Election ID bearing address 20/116, Dakshinpuri but the same was issued to her in the year 2002 i.e. before the death of her husband. She has not filed any documents to show that she was residing in the aforesaid house after the death of her husband and till filing of this case. Further, the complainant has not proved any act of domestic violence committed upon her by the respondents. It is not proved that she was forcibly thrown out from the property, therefore, she has failed to prove that she is aggrieved person herein and is entitled to any relief under this Act. The application filed by the complainant is dismissed.”

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13. I have gone through the testimony of witnesses and documents proved by them during their deposition. Admittedly, husband of appellant died on 04.05.2004. The appellant has filed only one document i.e. photocopy of election I­card Ex. CW­1/B to prove that she was residing at the property in question. The election I­card was reportedly issued to appellant in the year 2002. There is no material on record except her bald testimony to suggest that appellant ever resided at the property in question after death of her husband.

14. The complainant / appellant did not lodge any complaint against respondents when she was allegedly thrown out of the house. She never called the police at 100 number nor lodged any written complaint against them. The document Ex. CW­1/D i.e. the complaint made by complainant to SHO Police Station Ambedkar Nagar, shows that the same was received at Police Station on 29.08.03. This complaint itself was given to police at the time when her husband was alive. No other document has been placed and proved on record by appellant to show that she was residing at property in question after demise of her husband.

15. There is nothing on record to suggest that the appellant was having her belongings at the property in question. She was in possession of any portion of the property in question. The lock of her room being broken by the respondents as alleged. The appellant has examined herself to prove her case. No other independent witness has been examined to corroborate the version of appellant. The appellant miserably failed to prove on record that she was forcibly thrown out from the property in question.

16. For the reasons discussed above, in my view, learned MM has rightly dismissed the application of appellant filed under section 12 of DV Act. The reasoning given by learned MM in para no.11 at page no.8 of the impugned judgment is sound and correct. The same has been arrived on correct appreciation of documents and material available on record. There is no illegality, infirmity or impropriety in the impugned judgment. No ground for interference in the impugned judgment is made out. Appeal preferred by appellant lacks merit. Same is hereby dismissed accordingly.

17. A true copy of judgment along with TCR be sent back to learned trial court concerned.

18. Appeal file be consigned to record room.

Announced in the open

(RAJ KUMAR TRIPATHI)
court today i.e. 05.05.2017
Addl. Sessions Judge­02 South­East, Saket Courts, New Delhi

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