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No Documentary evidence – No DV, No Mainatenance

IN THE COURT OF MS. PRIYA MAHENDRA
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.

CC No.418/1 of ( Date of filing:1.10­2009)

IN THE MATTER OF:

Mrs. Bhagwan Devi W/o Shri Ram Prakash Joshi,
R/o House No. B­183B,
Durga Vihar, Khanpur Devli,New Delhi. …….Aggrieved person

Versus

1. Ram Prakash Joshi,
2. Om Prakash, Both sons of Sh. Roshan Lal,
3. Ajay,
4. Subhash,
5. Anil,
6. Chandra Kant All sons of Om Parkash,
All resident of VPO Jawar (via Mursan),District Aligarh (UP). …..Respondents

JUDGMENT

1. The complainant has filed a petition u/s 12 of Protection of Woman from Domestic Violence Act 2005 (hereinafter referred to as ‘Act’) interalia seeking reliefs under Section 18, 19, 20 & 22 of the Act.

2. The brief facts as disclosed in the petition stated by the aggrieved person are that she was married to respondent no.1 in the month of June, 1980 at Village .

Jawar, Distt. Aligarh (U.P.). No issue was born out of wedlock. The respondent no.2 is her brother in law and respondent no. 3 to 6 are sons of her brother in law. Immediately, after her marriage, the respondent no.1 & 2 subjected her to mental as well as physical cruelty. She was tortured and harassed for bringing insufficient dowry. The respondent no.2 at the behest of respondent no.1 used to molest her in the presence of respondent no.1. She was thrown out of her matrimonial house and was compelled to stay first at Faridabad and thereafter at Delhi. On 15.06.2006 in the absence of respondent no.1, the respondent no.2 assaulted her and took her signature on some stamp papers. The respondent no.4 to 6 also joined the respondent no.2 and ousted her from matrimonial house after beating her mercilessly. Having no other option, she reached her sister’s house at Faridabad (Haryana). She has not been allowed to enter her matrimonial house. Her entire Istridahn and Jwellery articles have not been returned by the respondents. Thereafter, the complainant has set out the income and financial status of the respondent no.1.

3. The respondents filed the reply. In the reply, the respondent no.1 stated that the complainant is complete stranger to him and she has filed the present complaint at the instance of some unscrupulous person having enmity with him. The complainant has filed the present complaint with an ulterior motive to grab his property. He has further stated that he was married to one Smt. Angoori Devi, around 50 years ago and two children/daughters were born out of the wedlock. But later on, his wife Angoori Devi and both his daughters expired. He never remarried and has never seen the complainant. He never stayed or lived with the complainant in his entire life.

4. The respondent no.2 to 6 have stated in their reply that the respondents are residing separately from the respondent no.1 from last 50 years. The complainant is not known to the respondent no.1 and the present complaint is mischievous and motivated.

5. The complainant has filed the rejoinder to the reply filed by the respondent controverting the stand taken by the respondents and reaffirming the averment mentioned in the petition.

6. Thereafter, the complainant filed her evidence by way of affidavit which was duly tendered by her. In the said affidavit, she deposed on the same lines as in her petition. She was cross examined at length on 27.09.2011 and thereafter her further cross examination was deferred. Thereafter, she failed to appear in the witness box for her further cross examination despite availing sufficient opportunities for the said purpose. Consequently, CE was closed on 08.11.2012.

7. The respondents opted not to examine any witness in their defence on account of failure of the complainant to complete her evidence and to produce any other witness.

8. It is vehemently argued by the counsel for the respondents that the falsity of the complainant is apparent from the fact that the complainant in a mid­way stopped appearing in the matter at the time of recording her evidence. The respondents have no relation with the complainant. The complainant has failed to prove her case and is not entitled to any relief.

9. Arguments heard and record carefully perused.

10.It is a well settled law that the evidence of any witness cannot be read unless it is tested on the anvil of cross examination. The complainant failed to appear in witness box after partial recording of her cross examination and her evidence, thus, remained inconclusive and incomplete. Therefore, the same cannot be read in support of her case. No other witness has been examined by the complainant to substantiate her case. The respondents have denied having any relationship with the complainant. Even, the factum of marriage between the complainant & respondent no.1 is in dispute. Her evidence also reveals that she has not filed any documentary evidence to prove her marriage with the respondent no.1. There are also inherent inconsistencies between her evidence and the cross examination. In her cross examination, she has admitted leaving her matrimonial house in 1980 itself after 5­6 months of marriage. She also stated that after leaving her matrimonial house she never visited her matrimonial house again. But in her evidence by way of affidavit, she has cited about the incident of 2006 when she was molested by the respondent no.1 and assaulted by the respondent no. 2 to 6 in the matrimonial house. The respondent was deprived of an opportunity to fully cross examine her on such vital points as she stopped appearing in the matter. Having considered the entire circumstances and material on record, I am of the considered view that the complainant has miserably failed to prove existence of domestic relationship between her and the respondent no.2 to 6 which is sine qua non for entitling her to any relief under the Act and consequently, is not entitled to any relief. The present petition is disposed off in the aforesaid terms.

11. File be consigned to record room.

Announced in open court On 21th January 2013.

(PRIYA MAHENDRA)
Metropolitan Magistrate:
Mahila Court­ South Delhi,
Saket Court Complex,New Delhi

CC No:418/1 Smt. Bhagwan Devi vs. Ram Prakash & Ors.

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