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Compensation Under Section 22 of DV Act Dismissed

IN THE COURT OF MS. POOJA AGGARWAL: METROPOLITAN
MAGISTRATE­02 (MAHILA COURT) : SOUTH DISTRICT: SAKET COURTS:
NEW DELHI

CC No.239/1
Unique Case ID No. 02406R0188672013
Jurisdiction of Police Station: Sangam Vihar

In the matter of:
Smt. Radha Devi,
W/o Sh. Satish Kumar,
D/o Sh. Shyam Lal,
R/o H.No. 309, L­6,Shani Bazar, Sangam Vihar,New Delhi …………………..Aggrieved

Versus
1. Sh. Satish Kumar (Husband)
S/o Sh.Ramesh Kumar

2. Sh.Ramesh Kumar (Father­ in law)
S/o Late Sh. Jangli

3. Smt Sheela (Mother in law)
W/o Sh.Ramesh Kumar
All R/o: T­90, Ward No.6,Islam Colony, Mehrauli,New Delhi.

4. Ms. Sarvesh (Sister in Law) (not summoned)
W/o Sh.Gopi,
R/o: Village Nados,Distt. Badayun,Uttar Pradesh. …………………..Respondents

Date of Institution : 19.07.2013
Date of Arguments : 21.09.2015
Date of Judgment : 24.09.2015

EX­PARTE JUDGMENT

1. By way of the present application filed by Smt. Radha Devi (hereinafter referred to as “the aggrieved”) under Section 12, 17,18,19,20 and 22 of Protection of Women from Domestic Violence Act, 2005 against her husband and other in laws (hereinafter referred as “the respondents”), the aggrieved has sought stay order under Section 17; protection order under Section 18; residence orders under Section 19; monetary relief under Section 20 and compensation/ damages under Section 22 of the Act.

2. Briefly stated it is the grievance of the aggrieved that after her marriage to the respondent no. 1 on 18.05.1998, according to Hindu rites and ceremonies at village Devarkanchan, Distt. Badayun, U. P., despite her parents spending beyond their means for the marriage, the respondents were unhappy and respondent no.3 used to taunt the aggrieved. It has been averred that ten­eleven years after marriage were spent peacefully but subsequently the respondents 2 of 12 started to harass, humiliate, torture the aggrieved on petty issues and that the respondent no. 1 being habitual drunkard, on the instigation of the respondent no. 3 and 4 used to beat aggrieved every day after consuming liqour and also beat her when she tried to stop him from consuming the liquor.

3. It has been further averred that five children, namely (1) Nitish (Son) (born on 11.01.2001), (2) Neha (daughter) (born on 18.05.2002), (3) Chander Shekhar (Son) (born on 28.02.2004), (4) Soni (daughter) (born on 19.05.2007) and (5) Moni (daughter) (born on 20.11.2011) were born out of the wedlock and that when the first girl child was born, the respondent no. 1 tried to kill her by pressing her stomach by his feet by saying that “Main isko kaise palunga aur iski shadi ke liye kahan se paise laaunga”. It has been further averred that at the time of birth of second daughter, the respondent no. 3 used to taunt and harass the aggrieved in presence of the respondent no. 2 saying ” Roj ladki janke baith jati hai, ladka to paid kar nhi sakti” and it has been further averred that after birth of the girl child, the respondent no. 3 did not provide and care or proper food etc.

4. It has been averred that the aggrieved tolerated the torture and threats in the hope that the respondents will mend their ways and her matrimonial life will run peacefully even though the respondent no. 1 did not pay for the house hold expenses and the parents of the aggrieved used to help her. 3 of 12

5. It has been further averred that in October, 2011 when the aggrieved was pregnant at 7 ½ months, on 25.10.2011 on ‘Dhan­Teras’ the respondent no. 1 came home drunk at 10.30 p.m. and said “Aaj saali ke kaam tamam kar deta hun, roj­roj ka jhanjhat Khatam ho jayega” and poured kerosin oil on the aggrieved and set her on fire. It has been averred that hearing the aggrieved cry for help, respondent no. 1 ran away and the neighbourers came for help and poured water over the aggrieved, police was called and she was taken to Safdarjung Hospital, New Delhi where it was diagnosed that she had suffered 40% burns and its treatment took about one year.

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6. It has been further averred that when respondent no. 4 came to see the aggrieved, she threatened her “Mere bhai ka nam mat lena, nahit to tere bachon ko marungi” and for the sake of her matrimonial life and future of her children, the aggrieved did not give the statement against the respondent No. 1.

7. It has been further averred that on 20.11.2011 the daughter Mohini was born at home during the treatment of the aggrieved and that the respondents did not give any financial help for the treatment of aggrieved for which the parents of the aggrieved took loan and her father also sold his 5 bigha agriculture land.

8. It has also been averred that on 29.12.2011 the respondent no. 1, 2 and 3 threw out the aggrieved along with her three daughters without any articles and that all the dowry articles, birth certificate of girls, election I/card of aggrieved 4 of 12 are in the custody of respondents and that since then the aggrieved along with her daughters are living at her parental house on the mercy of her old parents. It has been averred that the deponent filed a complaint before the SHO, PS Mehrauli vide DD No. 38B dated 08.03.2013 against the respondent no. 1 and 3 but no action was taken on it. Being aggrieved with the atrocities of the respondents, the aggrieved has filed the present case.

9. Upon filing of the complaint, the summons were issued to the respondent no.1 to 3 while summoning qua the respondent no.4 was declined vide order dated 03.08.2013 as she was not sharing a common household with the aggrieved person. Domestic Incident Report was called for by the Ld Predecessor of this Court which was duly filed by the Protection Officer. Appearance was entered by all three respondents.

10. Written Statement was filed only by the respondent no.1 as per which it has been alleged that the complaint was misuse of law and was liable to be dismissed being false and frivolous. It has also been alleged therein that it was the aggrieved herself who was guilty of matrimonial wrongs and she could not be permitted to take advantage of her own wrongs and asserted that no acts of domestic violence had been committed against her by the respondents. The marriage between the aggrieved and respondent no.1 has not been denied. It has been asserted that it was due to the negligence of the aggrieved herself that she 5 of 12 received burn injuries during household work. It has also been asserted that the aggrieved had left the matrimonial home in November 2011 itself alongwith minor daughters and jewellery/stridhan. It has also been has asserted that respondent no.1 is working as a daily labourer earning Rs. 250/­ per day for monthly income of Rs. 5000/­ as he did not get work every day. He has further asserted that the house T­90, Mehrauli was owned by the father of the respondent no.1. It has been further asserted that he had made payment of Rs. 10,000/­ to the aggrieved on 19.03.2012 and 30.03.2012. Rest of the averments have been denied on merits.

11. In the rejoinder, the aggrieved denied the avermetns of the respondent no. 1 and reiterated the averments made in her application.

12. To prove her case, the aggrieved led ex­parte complainant evidence and examined only herself as CW1 and tendered her evidence by way of affidavit (Ex. CW1/1) on similar lines as her application and also proved the documents i.e. copy of her election I card (Mark CW1/A); copy of medical documents (Mark CW1/B); copy of complaint dated 08.03.2013 (Ex. CW1/B) and copy of adhar card (Ex. CW1/C).

13. Final arguments were advanced by Ms. Renu Bala Arora, Ld. Legal Aid Counsel for the aggrieved on behalf of the aggrieved.

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14. Upon submission by the aggrieved that the respondent no.1 had already 6 of 12 disposed off property T­90, Ward No.6, Islam Colony, Mehrauli, New Delhi, her statement was recorded separately and in view of the same, the reliefs under Section 17 of Protection of Women from Domestic Violence Act seeking to restrain the respondents from selling the said property and under Section 19 of the Act regarding renouncing of the rights of the respondent no.1 in the said property were dropped.

15. I have given my thoughtful consideration to the submissions made by Ld Counsel for the aggrieved during the course of final arguments and have carefully perused the entire evidence on record.

16. By virtue of Section 2(a), the reliefs under the Protection of Women From Domestic Violence Act, 2005 can be availed by a woman only if she is in a domestic relationship with the respondent and was subjected to domestic violence by the respondent.

17. From her oral testimony as also in view of the admission by the respondent no.1 in his written statement, the marriage of the aggrieved to the respondent no.1 on 13.03.2013 as per Vedic Hindu Rites and that the fact that thereafter she was residing at her matrimonial home stands proved. As the respondents were proceeded ex­parte, they failed to defend their case and to lead any evidence in support of their defence. No rebuttal has come against the claims of the aggrieved. The oral testimony of CW1 has gone un­rebutted and 7 of 12 unchallenged. No reason has been brought on record to disbelieve the unrebutted and un­controverted evidence led by the aggrieved. Hence the factum of domestic relationship between the aggrieved and the respondents has been duly proved.

18. PW1 has also deposed in respect of the infliction of the domestic violence by the respodents. Despite opportunities the respondents for reasons best known to them chose not to join the present proceedings nor to controvert any evidence led by the aggrieved. Thus the averments of the aggrieved as also her testimony in her evidence by way of affidavit are deemed to be admitted by the respondents as it has remained unchallenged and unrebutted. Further, no reason has been brought on record to disbelieve the uncontroverted evidence led by the aggrieved. Accordingly, by unrebutted testimony, the aggrieved has been able to prove that the respondents have committed certain acts of physical and economic violence and thus she is entitled to claim reliefs under the Protection of Women From Domestic Violence Act, 2005 against the respondents. Reliefs

19. Protection Order Under Section 18 of Protection of Women From Domestic Violence Act: Aggrieved has prayed for protection order seeking an injunction against respondents from repeating any acts of domestic violence. As it is an admitted fact that the aggrieved and the respondents are residing 8 of 12 separately no fruitful purpose would be served by passing injunction order as prayed. Hence, the relief for said protection orders is declined.

20. Residence Order Under Section 19 of Protection of Women From Domestic Violence Act: The aggrieved has prayed for Rs. 5000/­ towards rent of the alternate accommodation.

21. As per the evidence led by the aggrieved herself it has been proved that the aggrieved is not residing at her matrimonial/shared household since November 2011 despite having a right to reside therein being the wife of the respondent no.1. Thus, keeping in view that the aggrieved is living separately and that she would require certain monetary relief for paying rent for alternate accommodation, therefore, I deem it fit to award a sum of Rs.1000/­ per month as rent payable to the aggrieved by the respondent husband for arranging an alternate accommodation. The said amount shall be payable from the date of this order until further orders.

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22. Maintenance Order Under Section 20 of Protection of Women From Domestic Violence Act: The aggrieved has prayed for a sum of Rs. 7,000/­ per month as monetary relief including maintenance, medical and household expenses etc. She has also claimed a sum of Rs 2,50,000/­ towards loss incurred due to damage/destruction or removal of property under her control.

23. As per the settled law, the aggrieved is entitled to get monetary 9 of 12 relief which is adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed. In her evidence the aggrieved has deposed that the respondent no.1 earns about Rs. 10,000/­ per month being a labourer with agricultural income of Rs. 80,000/­ per annum. However, no details of the said agricultural land has been placed on record by the aggrieved and hence the alleged agricultural income remains unproved. Thus, in the absence of any documentary or other evidence to prove the said agricultural income, as the respondent no.1 is not alleged to be differently abled he is assumed to be able bodied man and in the absence of disclosure of educational qualification of the respondent no.1, he is assumed to be unskilled labourer. As the aggrieved is the wife of the respondent no.1 without any means of sustaining herself, as also keeping in view that it is the legal duty of the respondent no.1 being the husband to maintain her as well as the minor children out of whom three minor children are stated to be in custody of the mother, assuming the income of the respondent no.1 as per the Minimum Wages Act, to be Rs.9,000/­ per month. Therefore, on the scale of balance of convenience, I deem it fit to award a sum of Rs. 5000/­ per month to the aggrieved by the respondent no.1 as maintenance for herself as well as the three minor children. The amount shall be payable from the date of filing of the petition till further orders.

24. Since no evidence has been led as to the loss of Rs. 2.5 Lakh, no monetary relief regarding the same can be granted and is accordingly declined.

25. Respondent no.1 shall pay the said amount directly into the account of the aggrieved upon supplying the details of the bank account within one week from today to the respondent and filing a copy on record. The amount shall be payable by 10th day of every English calendar month starting from the next month. The arrears be cleared within the period of six months.

26. The default shall be viewed in terms of the judgment of Hon’ble High Court in “Gaurav Sondhi Vs. Divya Sondhi” 120 DLT (2005) 426. Any maintenance that may have already been paid or has been awarded by any other forum, shall be accordingly adjusted.

27. Compensation Under Section 22 of Protection of Women From Domestic Violence Act: The aggrieved has sought compensation of Rs. 2.5 lakh for the emotional distress and physical violence due to the acts of respondent. However, the aggrieved has not led any specific evidence to prove loss of the Rs. 2,50,000/­ to her, hence, the relief as claimed is denied.

28. No grounds exist for granting any other relief in favour of the aggrieved.

29. Application of the aggrieved under Section 12 of the Protection of Women From Domestic Violence Act, 2005 is accordingly disposed off in the said terms.

30. Copy of this order be given dasti to the aggrieved and be also sent to the local service provider if any. As the respondents are ex­parte, a copy of this order be served upon them through the Protection Officer.

31. File be consigned to the record room after necessary compliance.

Pronounced in the open Court
on 24.09.2015 (POOJA AGGARWAL)
Metropolitan Magistrate­02(Mahila Court),
South / Saket / New Delhi.

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