IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Appeal No. 204326/2016
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.
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 listened : 06.04.2017
Date of Judgment : 05.05.2017 JUDGMENT :
1. Challenge in a benefaction interest filed by appellant Babita underneath territory 29 of The Protection of Women from Domestic Violence Act, 2005 (in brief “DV Act”) is to a visualisation antiquated 19.12.2015 upheld by schooled Metropolitan Magistrate (MM)03, Mahila Court, South East District, Saket Courts, New Delhi in CC No. 237/1/15 patrician as Babita Vs. Rekha & Another.
2. Appellant had filed focus underneath territory 12 of The DV Act opposite respondents, wherein she prayed for several reliefs. Respondents seemed before a justice of schooled MM to competition a focus filed opposite them by appellant. They filed created matter in a matter. The parties led justification in support of their contentions.
3. Finally, vide visualisation antiquated 19.12.15, a focus filed by appellant underneath territory 12 of DV Act was discharged by schooled MM.
4. Appellant, feeling depressed by a impugned visualisation antiquated 19.12.15, has elite a benefaction appeal.
5. On notice, respondents seemed with their warn to competition a appeal. They also filed created respond to a interest of appellant.
6. we have listened and deliberate a submissions modernized by Shri Rajiv Ahuja, schooled warn for appellant and Shri Vinay Sharma, schooled warn for respondents and delicately perused a record of a case.
7. Appellant / depressed chairman Babita got married with Vinod on 25.05.1998 as per Hindu Rites and Rituals. Out of their wedlock, 3 children were born, who are reportedly staying with appellant. Husband of appellant is reported to have lapsed in a year 2004. Respondent No.1 Jai Kishan is hermit of Vinod (husband of appellant) and respondent No.2 Rekha is mom of respondent No.1. They are reportedly staying during House No.20/116, Dakshin Puri, New Delhi (hereinafter referred to as “property in question”). The appellant in her focus purported that after genocide of her husband, respondents started torturing her.
8. As per appellant / complainant, skill in doubt is in a name of her father in law, who lapsed intestate. She settled that a aforesaid residence is a initial place, where she kept her initial step after matrimony and lived in a pronounced premises. She serve purported that for final dual years, respondents have not been permitting her to enter inside a house. They are allegedly revelation her that she has no right in a premises as her father has expired. She serve purported that respondents pennyless open a close of room, where she was vital and all her articles have been kept on terrace, they put their close and dispossessed her from a premises. She also purported that a articles are in a control of respondents. As per appellant/complainant, respondents have threatened her not to enter a house, otherwise, she will face apocalyptic consequences. The complainant serve settled that she and her children have no preserve to pass their lives solely their share in skill in question. The complainant gave censure to SHO Police Station Ambedkar Nagar, though to no avail. She settled that she alongwith her children is staying with her relatives during S7/10, Jhuggies, Vijay Camp, Jal Vihar, Lajpat Nagar for final dual years. In a application, a appellant / depressed chairman sought a service to assent her to reenter in skill in question.
9. Respondents contested a focus of appellant by approach of filing created statement, wherein they settled that a appellant has secluded element contribution from a court. They contended that a appellant filed a box after 10 years from a date of genocide of her father to harass them. They denied to have committed any cruelty on a appellant. As per respondents, a father of Jai Kishan had done apart arrangement for his 3 sons. Shri Kishan shifted to House No.20/6, while respondent No.1 and 2 shifted to skill in question. The complainant / appellant alongwith her father is reported to have shifted to Gautam Puri nearby Badarpur. They purported that a complainant and her father after changeable to benefaction house, it was a complainant, who forced her father to serious all his attribute with mother, father, brothers and sisters. They certified that a skill in doubt is in a name of father in law of appellant.
10. Respondents serve settled that father in law of appellant had 3 sons and 4 daughters and all of them were married during a time of matrimony of appellant with Vinod. They contended that after marriage, appellant came to House No.J46, J.J. Colony, Dakshin Puri being matrimonial house. They settled that during that time, father in law of appellant purchased 3 plots temperament No.26/6, skill in doubt and one tract in Gautam Puri nearby Badarpur. Respondents are reportedly staying during a skill in question. They purported that a focus filed by appellant underneath DV Act is after suspicion as she filed a focus after a genocide of her mom in law on 09.07.13. They settled that appellant never visited their residence when he mom in law was alive and she never claimed any right over a skill in doubt during that time.
11. Respondents settled that after genocide of her husband, appellant sole a residence of Gautam Puri, that was purchased by her father in law and was given to her husband. They denied to have committed any act of assault on a appellant. They settled that a appellant has been staying alone for about 8 years and therefore, no doubt of any division arises. They denied to have pennyless open a close of a room, where appellant was residing, put their close and dispossessed her from a premises. They settled that given a appellant was staying alone during Gautam Puri, therefore, no doubt of opening a close of her room arise. They settled that appellant has not specified as to what was a distance of a room, on that floor, she used to reside and what articles were kept by her in that room. They prayed to boot a focus of appellant.
12. Relevant apportionment of impugned visualisation is reproduced hereunder for prepared reference: “Applicant has unsuccessful to record any site devise of a skill temperament No.20/116, Dakshinpuri display apportionment wherein she was staying. She has serve not valid list of articles that were kept in her room. Though she has filed photocopy of Election ID temperament residence 20/116, Dakshinpuri though a same was released to her in a year 2002 i.e. before a genocide of her husband. She has not filed any papers to uncover that she was staying in a aforesaid residence after a genocide of her father and compartment filing of this case. Further, a complainant has not valid any act of domestic assault committed on her by a respondents. It is not valid that she was forcibly thrown out from a property, therefore, she has unsuccessful to infer that she is depressed chairman herein and is entitled to any service underneath this Act. The focus filed by a complainant is dismissed.”
13. we have left by a testimony of witnesses and papers valid by them during their deposition. Admittedly, father of appellant died on 04.05.2004. The appellant has filed usually one request i.e. photocopy of choosing Icard Ex. CW1/B to infer that she was staying during a skill in question. The choosing Icard was reportedly released to appellant in a year 2002. There is no element on record solely her bald testimony to advise that appellant ever resided during a skill in doubt after genocide of her husband.
14. The complainant / appellant did not board any censure opposite respondents when she was allegedly thrown out of a house. She never called a military during 100 series nor lodged any created censure opposite them. The request Ex. CW1/D i.e. a censure done by complainant to SHO Police Station Ambedkar Nagar, shows that a same was perceived during Police Station on 29.08.03. This censure itself was given to military during a time when her father was alive. No other request has been placed and valid on record by appellant to uncover that she was staying during skill in doubt after passing of her husband.
15. There is zero on record to advise that a appellant was carrying her effects during a skill in question. She was in possession of any apportionment of a skill in question. The close of her room being damaged by a respondents as alleged. The appellant has examined herself to infer her case. No other eccentric declare has been examined to uphold a chronicle of appellant. The appellant miserably unsuccessful to infer on record that she was forcibly thrown out from a skill in question.
16. For a reasons discussed above, in my view, schooled MM has righteously discharged a focus of appellant filed underneath territory 12 of DV Act. The logic given by schooled MM in para no.11 during page no.8 of a impugned visualisation is sound and correct. The same has been arrived on scold appreciation of papers and element accessible on record. There is no illegality, feebleness or impropriety in a impugned judgment. No belligerent for division in a impugned visualisation is done out. Appeal elite by appellant lacks merit. Same is hereby discharged accordingly.
17. A loyal duplicate of visualisation along with TCR be sent behind to schooled hearing justice concerned.
18. Appeal record be consigned to record room.
Announced in a open
(RAJ KUMAR TRIPATHI)
court currently i.e. 05.05.2017
Addl. Sessions Judge02 SouthEast, Saket Courts, New Delhi