IN THE COURT OF SHRI VIDYA PRAKASH:
ADDL. SESSIONS JUDGE04 (NORTH):
ROHINI COURTS: DELHI
Criminal Appeal No. 38/14
Unique Case ID: 02404R0418572014
Smt. Kanta
W/o Late Sh. Ram Gopal
R/o Flat No. A2, Baba Banda Bahadur Apartment
Sector14, Rohini, Delhi. …Appellant
Versus
1. Sh. Pawan Kumar
S/o Late Sh. Ram Gopal
R/o Flat No. A2, Baba Banda Bahadur Apartment,
Sector14, Rohini, Delhi110085.
2. Smt. Madhu
W/o Sh. Pawan Kumar
R/o Flat No. A2, Baba Banda Bahadur Apartment,
Sector14, Rohini, Delhi110085. …Respondents
Date of Institution : 20.12.2014
Date on which Order was reserved: 05.11.2015
Date on which Order pronounced : 10.11.2015
Crl. Appeal No. 38/14 D.O.D.: 10.11.2015
JUDGMENT:
The present appeal is directed against the order dated 21.11.2014 ( hereinafter called the impugned order) passed by Ld. MM (Mahila Court), Rohini Court, Delhi, whereby the interim reliefs sought by appellant/complainant by way of application U/s 12 of the Protection of Women From the Domestic Violence Act, 2005 (hereinafter called as D.V Act), have been declined.
Brief facts relevant for deciding the present appeal are that appellant who is mother of respondent no. 1 and mother in law of respondent no. 2, claimed in the proceedings filed before Ld. trial Court that she was owner in possession of flat no. A2, Baba Banda Bahadur Apartment, Sector 14, Rohini, Delhi 110085 (hereinafter called the property in question). She was residing alongwith both the respondents in domestic relationship in the property in question till 02.07.2012 when both the respondents committed acts of domestic violence against her and turned her out from the property in question. She further claimed that the respondents had been committing acts of domestic violence against her for the last 56 years prior to 02.07.2012. She further claimed that she was beaten up by respondents even on 04.09.2013 and she had been got medically examined vide MLC no. 9400/13 at BSA hospital, Rohini.
Based on aforesaid averments, she sought various interim reliefs in the form of protection order as stipulated U/s 18, Residence Order as provided U/s 19, Monetary Compensation as provided U/s 20 and Damages as provided U/s 22 of Domestic Violence Act before the trial Court.
The petition was contested tooth and nail by both the respondents who also filed their detailed reply before the trial Court. After hearing rival submissions made on behalf of both the sides, Ld. trial Court passed the impugned order which is under challenge in the present appeal.
The impugned order has been assailed by appellant mainly on the grounds that Ld. trial Court failed to consider Domestic Incident Report (DIR) and Status Report filed by concerned SHO, while passing the impugned order; Ld. MM fell into grave error by ignoring the fact that she was badly beaten up by the respondents on 04.09.2013 as is quite apparent from MLC dt. 04.09.13 of BSA hospital filed on record and Ld. MM failed to exercise the jurisdiction vested in her while declining to grant interim relief in her favour.
During the course of arguments, Ld. counsel of appellant submitted before the Court that appellant is confining interim reliefs sought in petition moved U/s 12 of Domestic Violence Act to the extent of grant of residence order in her favour appellant and protection order against respondents from committing any act of domestic violence against her during pendency of proceedings before trial Court.
Ld. counsel of appellant also referred to Domestic Incident Report filed by Protection Officer as also to the status report filed by SHO concerned before the trial Court, in support of his submission that there is sufficient material showing that respondents had committed acts of domestic violence against the appellant. He, therefore, urged that the impugned order is liable to be set aside.
In support of of his submissions, Ld counsel of appellant also placed reliance upon the judgment in the matter titled as ” Sheetal Vs. Hitesh” reported at 2013 (1) Crimes 168 (Bom.) delivered by Hon’ble Bombay High Court.
Per contra, Ld counsel of respondents supported the impugned order by submitting that Ld. trial Court has passed just and reasoned order after taking into consideration all the relevant facts of the case and the material placed before it. Ld. counsel vehemently argued that the reliefs as claimed by appellant in petition filed U/s 12 of the D.V. Act were mainly in respect of monetary compensation/damages. He argued that respondents have already given undertaking in the trial Court that they are ready to give proper care, food, clothes and medicines to the appellant as per her requirement. He pointed out that respondents have also filed separate case of Domestic Violence against the appellant and the appellant has levelled counter allegations against the respondents as counter blast to the said proceedings. He further argued that appellant had also caused physical assault to respondent no. 2 with sharp edged weapon and she was also medically examined in that regard. He also referred to the relevant documents filed alongwith written statement available on trial Court, in support of said submissions. He further argued that appellant filed false affidavit U/s 23(2) of Act, before trial Court and it was only when respondents filed petition U/s 340 Cr.PC against appellant for making false statement by concealing her bank account maintained by her with State Bank of Patiala, she choose to file the bank statement before the Court. He, therefore, urged that the present appeal is liable to be dismissed under the law.
The term ‘aggrieved person’ as defined in Section 2(a) of the Protection of Women From the Domestic Violence Act, 2005 reads as under:
(a) ” aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”
It is quite evident from bare perusal of the aforesaid provision that there are two necessary ingredients to be satisfied before a person can be termed as an aggrieved person within the meaning thereof. The said two ingredients are that aggrieved person must be in domestic relationship with the respondent and secondly, the aggrieved person alleges to have been subjected to domestic violence while she was in domestic relationship with the respondent.
Now, adverting back to the facts of the present case. It is not in dispute that appellant and respondents were in domestic relationship. The said fact has also been acknowledged by the trial Court in the impugned order. However, Ld. trial Court has declined to grant interim reliefs in favour of appellant on the premise that second ingredient that appellant was subjected to domestic violence at the hands of respondents, cannot be established at this stage as both the parties were levelling allegations of commission of domestic violence against each other and had filed cross cases of domestic violence against each other. The said approach adopted by trial Court does not seem to be in conformity with the provisions of law and the object for which Domestic Violence Act was brought into force by the legislature.
No doubt, the appellant had sought various interim reliefs in petition U/s 12 of the Act and some of them like payment of compensation/damages stipulated U/s 22 of the said Act could not have been granted at this stage but nevertheless, the other interim reliefs in the form of protection order as provided U/s 18 of the Act, residence order as provided U/s 19 of the Act and interim maintenance as envisaged by Section 20 of the Act, ought to have been considered by the Court below. Having failed to do so, it becomes the duty of this Court being Appellate Court, to pass necessary order so that justice may not become casualty at the hands of wrong doer.
In Sheetal’s case (Supra) relied by Ld. counsel of appellant, Hon’ble Bombay High Court has observed that the object of Domestic Violence Act is to provide more effective protection to helpless and shelter less victims and to ensure the rights of women granted under the Constitution and whenever any victim of domestic violence approaches the Court, it is necessary for the Court to pass an expeditious order at the interim stage U/s 23 of the said Act.
In the case in hand, it is an undisputed fact that the appellant is the registered owner of property in question. It is also an admitted case of both the sides that the appellant had been in domestic relationship with the respondents while she was residing with them in the property in question, before she was turned out therefrom.
It is also not in dispute that appellant is presently out of possession of the property in question. She is shown to be an old lady aged about 80 years or so. During the course of arguments, Ld. counsel of appellant had placed on record copy of order dated 10.09.15 passed by Maintenance Tribunal for Welfare of Parents And Senior Citizen, NorthWest District, Kanjhawala, Delhi81 in favour of appellant and against the respondents, whereby concerned SHO has been directed for peaceful entry and living of appellant in the property in question with further direction to the respondents to maintain peace at the house and not to disturb the appellant in day to day activities. Ld counsel of appellant had informed this Court that said order has also not been complied with till date.
During pendency of present appeal, both the parties were also referred to Mediation Center for exploring the possibility of settlement but unfortunately, matter has been returned back as unsettled before the Court.
What emerges from the above discussion is that appellant who is an old lady, is out of possession of her own property and despite approaching the Competent Court of Law, no interim reliefs have been granted to her by the Court below. The view taken by trial Court while declining to grant interim reliefs, is not sustainable under the law for the reasons already mentioned herein above in the preceedings paras. This is more so when the averments made by appellant regarding acts of domestic violence committed by respondents, got prima facie supported from DIR, status report filed by SHO and MLC placed on record.
Resultantly, the present appeal is accepted and the impugned order dt. 21.11.2014 passed by Ld. MM (Mahila Court) (North) Rohini Courts , Delhi is hereby set aside. Matter is remanded back to the Court below with direction to pass speaking order on the petition U/s 12 of D.V. Act, 2005 filed by appellant/complainant, after hearing both the parties in accordance with law and without being swayed by any observation made by this Court in the present judgment. Trial Court record be sent back alongwith copy of this judgment, as per rules. Appeal file be consigned to Record Room.
Announced in open Court today On 10.11.2015
(Vidya Prakash)
Additional Sessions Judge 04 (North)
Rohini Courts, Delhi
