In the court of Sh. Rajinder Singh Nagpal, PCS,
Judicial Magistrate Ist Class, Ludhiana.
Criminal Complaint No. 23
Date of Institution: 28.04.2012
Computer I.D. No. COMA/41794/2013
Date of Order: 17.09.2015
Neetu Jain daughter of Sh. Sat Pal Jain wife of Sh. Vikas Jain,
resident of 4036, Street No. 7, New Madhopuri, Ludhiana………Applicant/Aggrieved person
1. Vikas Jain son of Sh. Vinod Kumar Jain,
2. Vinod Kumar Jain son of Not Known,
3. Veena Jain wife of Sh. Vinod Kumar Jain,
4. Varun Jain son of Sh. Vinod Kumar Jain, all residents of 1016-8A, Akashpuri, Civil Lines, Ludhiana………Respondents
(Application U/S 12, 17, 18, 19, 20, 21, 22 of the Protection of Women from Domestic Violence Act, 2005)
Present: Sh. Surinderpal Singh Gupta Advocate for the applicant.
Sh. Munish Gupta Advocate for the respondents
1. The present application for protection of woman from Domestic Violence Act 2005 has been filed by the applicant Neetu Jain on the allegations that the applicant has been got married with respondent no. 1 on 28.04.2011 at Ludhiana according to Hindu Rites and Ceremonies at Ludhiana. After the marriage, both the parties started residing in House No. 1016-8A, Akash Puri, Civil Lines, Ludhiana. It is pertinent to mention here that at the time of marriage, all the respondents had demanded huge dowry articles and as such her parents spent huge amount in the marriage and gave huge dowry and Istridhan articles at the time of marriage, which a hope that their daughter will remain happy in her matrimonial home. The entire dowry and Istridhan articles are in possession of the respondents. However, after sometime of the marriage, all the respondents even started treating the applicant with utmost cruelty on demand of some dowry and to fulfill their illegal demands, the applicant brought one TV set, CD player, Blower and other household goods from her parents with a hope that better sense may prevail upon the respondents. The applicant gave birth to two sons, one of the son is in the custody of the applicant. The respondent then started pressurizing upon the applicant to bring an amount of ? 5,00,000/- from her parents on the pretext that they wanted to install more machinery in their factory and when even the applicant refused to accept to their said illegal demand, she was subject to severe beatings from the hands of the respondents and ultimately on 7.11.2011 on the demand of 5,00,000/-, the respondents after giving beatings to the respondents taken her out of the matrimonial house which is also share household alongwith younger son and since then she is residing in her parents house. During the period she stayed with the respondents she was being maltreated and was given beatings by the respondents on the demand of more dowry and cash amount. The respondents have illegally retain the other son of the applicant and she also went the custody of the said son from the respondents. The daughter and son-in-law of the respondent no. 1 also used to join hands with the respondents. This act of the respondents amount to domestic violence and prayed for permanently monthly maintenance allowance from respondent Vikas Jain Rs. 50,000/- per month alongwith other relief i.e. protection order, residence order and monetary order.
2. Notice of the present application was issued to the respondents, who appeared through counsel and filed detailed written statement wherein they took preliminary objections that the petition is not maintainable at all and the applicant is estopped by her own act and conduct from filing the present petition. The applicant has not come to the court with clean hands and she has concealed the material facts from the court. Her marriage was solemnized with respondent no. 1 on 28.04.2011 and after marriage, two sons namely Vansh Jain and Bharat Jain have born from this wedlock. The marriage was performed in simple manner and only 50 persons from the side of the respondent no. 1 attended the marriage. No dowry was either demanded or given in the marriage as it was a dowry-less affair. However, parental family members of the applicant were having dishonest and fraudulent intentions from the very beginning and she started acting as per the asking of her parental family members. The applicant started quarreling with the respondent no. 1 on petty matters and started forcing him to live separately from his parents after getting his share in their properties. The parental family members of respondent no. 1 used to visit the house of the respondent no. 1 and applicant after committing theft of one or the other thing including gold ornaments used to give the same to them in their active connivance. The respondent number 1 and his family members never demanded any dowry from the applicant and her parental family members. The applicant and her parental family members were having malafide intentions and they wanted that the respondent number 1 may give younger son Bharat Jain to Sheena Jain wife of Vikram Jain as they were having no child nor any child could have born to them. The respondent no. 1 did not agree. The respondent no. 1 was doing labour job of embroidery work. The respondent no. 1 was having his own embroidery machines. The father of the applicant like other customers also used to come to the respondent no. 1 for getting done embroidery work. He used to instruct the colours of which embroidery was to be done on the garments, clothes etc and he took the respondent no. 1 in confidence. After some time, the respondent no. 1 found that there was also short of the embroidery clothes and goods etc and the goods were never completed and respondent no. 1 thought that some labour is doing this illegal theft and seeing the strict behaviour of the respondent no. 1, the labour started leaving the job and the embroidery work became stand to still and customers also started leaving the respondent no. 1 as they found irregularities. Though, the respondent no. 1 engaged new labour, but the goods were never remained complete and respondent no. 1 was unable to understand whether goods were being theft from the house or work place as the goods having more value used to be taken to the house for doing cutting thread and embroidery for giving finishing touch. There was no allowance of entering of stranger to the house of the respondent no. 1. The respondent no. 1 started keeping strict eagle eye. The respondent no. 1 was not resourceful to get installed CCTV. On keeping strict watch in the house, the respondent no. 1 came to know that Satpal and his son Rajiv were visiting the house of the respondent no. 1 in his absence in routine and there was very much understanding between the applicant and her family members and they used to leave the house before reaching of the respondent no. 1. The respondent no. 1 started making recordings of the phone calls on account being suspicious and after going through the recordings, the respondent no. 1 came to know that the applicant’s parental family members in pre-planned manner used to set the time of visit to the house of the respondent no. 1 and commit theft and it also revealed that not only factory goods are being theft, but also also valuable household articles and gold ornaments are also being stolen. Applicant Neetu Jain played active role and she was master and behind all these thefts. The applicant had also made duplicate keys of the entire house rooms etc and were using the same as per their convenience and they committed theft of cash, jewellery from the main alimrah whose keys always remain with mother of the respondent no. 1 and even from the personal alimary of the respondent no. 1, blank cheques, drafts, parties’s signed parchis, ATM Cards etc. were stolen. About all this when the respondent no. 1 asked questions from the applicant Neetu Jain, she started quarreling with the respondent no. 1 and started asking him to appoint a security guard and respondent no. 1 came under depression and he could not understanding anything. Thereafter, in absence of the respondent no. 1, applicant Neetu Jain ran away from the house and when the respondent no. 1 did not find her in the house she made inquiries and came to know that she had gone to her parental house and when the respondent no. 1 made calls to the parental house of Neetu Jain, then father of the applicant Satpal Jain abused the respondent no. 1 very badly and threatened to implicate in false cases. Thereafter, respondent no. 1 informed the matter to the police, but police did not take action and ultimately the respondent no. 1 approached the Police Commissioner, Ludhiana and thereafter, the respondent no. 1 received calls from Police Station Kotwali, Chaura Bazar and thereafter, police officials received documents and recorded statement, but no action was taken thereafter. The applicant and her parental family members thereafter again dared to come to the respondent no. 1 and gave beatings to him. They are threatening to kill the respondent no. 1. The respondent no. 1 has suffered huge losses. The respondent no. 1 now without any work and is in jail. There is an apprehension of misuse of the blank cheques, papers etc of which theft is committed by the applicant. In this manner, the applicant has committed fraud and has deserted the respondent no. 1 without any sufficient cause. On merits, the marriage of the applicant and respondent no. 1 is an admitted. All the remaining averments made by the applicant in the application have been denied by the respondents and prayed for dismissal of the applicant.
3. In order to prove her case, the applicant Neetu Jain herself stepped into the witness box as PW1 and tendered her duly sworn affidavit Ex.PW1/A, in which she reiterated the entire version of the application.
4. The applicant further examined Satpal Jain son of Parkash Chand Jain as PW2, Reeta Jain wife of Satpal Jain as PW3, Gurinder Singh son of Basant Singh as PW4, Hitesh Chopra son of Suresh Chopra as PW5, who come present and tendered their duly sworn affidavit Ex.PW2/A to Ex.PW5/A and corroborated the version of the applicant examined as PW1.
5. The applicant further examined Rajeev Jain son of Satpal Jain as PW6, who come present and tendered his duly sworn affidavit Ex.PW6/A and proved on record photocopy of the certificate issued by Shifaly Public School in the name of Bharat Jain as Ex.P1.
6. The applicant further examined Anoop Dubey, Tax Assistant, Office of Additional C.I.T Range, Ludhiana as PW7, who come present and stated on oath that he is a summoned witness and has brought the uncertified record of returns of Satpal Jain having PAN number ABNPJ3625J with returns for the assessment year 2011-2012, 2012-2013, 2013-2014. This is confidential record of their office and they do not disclose to the third party in the interest of confidentiality and protection of privacy, but as per this record, the gross total income of Satpal Jain for the assessment year 2011-2012 was 4,25,748/-, for the assessment year 2012-2013 was ? ? 5,02,972/-, for the assessment year 2013-2014 was 7,18,208/- ? (gross total income is termed as proprietor’s fund). So far as certified copies of acknowledgements of these returns are concern, these acknowledgements are generated electronically in their income tax office of Banglore and he is not in a position to produce the same. Copy of the summons sent by the court is enclosed as Annexure-A.
7. Thereafter, the applicant closed her evidence by making separate statement and the case was fixed for evidence of the respondents.
8. To rebut the case of the applicant, respondent no. 1 Vikas Jain himself stepped into the witness box as RW1 and tendered his affidavit Ex.RA and proved on record certified copy of the order dated 24.04.2015 as Ex.R1, copy of order dated 15.12.2014 as Ex.R2.
9. The respondents further examined Vansh Jain as RW2, who come present and fully corroborated the version of the respondent no. 1 and thereafter, respondent no. 2 tendered the documents certified copy of the order dated 01.04.2015 as Ex.R3, certified copy of the statement of Neetu Jain in case titled as “Neetu Jain Vs Vikas Jain” as Ex.R4 and thereafter, counsel for the respondents closed the evidence on behalf of the respondents.
10.I have heard the counsel for the applicant and the counsel for the respondents and have gone through the entire material placed on record. Now it has been contended by the counsel for the applicant that the applicant was married with the respondent no. 1 on 28.04.2011 at Ludhiana according to Hindu Rites and Ceremonies. However, thereafter, she was ill-treated by her husband and his relatives and illegal demands of dowry were made and finally on 07.11.2011 she was expelled from her matrimonial home. Hence, she is entitled to the reliefs as claimed. On the other hand, the respondents have denied the allegations of the applicant and have prayed for dismissal of the same.
11.Now the witnesses examined by the applicant stated on the lines of the applicant under section 12 of the Domestic Violence Act. The applicant has contended that she was ill-treated and illegal demands were made from the side of the respondents and when she failed to fulfill the same she was ultimately expelled on 07.11.2011. However, after going through the entire material placed on record, this court is of the considered view that the allegations of illtreatment and demand of dowry are vague and are not liable to be believed. Though there are general allegations in the body of the application and stated by the applicant witnesses, but despite that the story putforth by the applicant does not appear trustworthy. PW1 Neetu Jain admitted in her cross examination that during the birth of her two sons she was admitted in the hospital and all the medical expenses were borne by the respondents. She also stated that she had not mentioned the company of the TV which was demanded by them. She also admitted that after her marriage her in-laws had already two TV sets. She also stated that she do not know what Vikas Jain was doing for the last 10 years. She also admitted that she had no proof regarding the demand of TV set, CD player, Blower from the respondents and that she even had no bills etc to show that they had supplied the same to the respondents. She also could not mention the date, year etc when she was given beating by Vikas Jain. She also admitted that she had no bills etc. regarding the dowry articles which were given to the respondents. She also admitted that she had no proof regarding the business of M/s V Jain Fabrics which was run by the respondents and had even no proof of his occupation. She also could not mention the income of the said firm. She also stated that she gave no application to the police authorities against Vikas Jain and his family members during the 10 years of their marriage. She also admitted that during these 10 years of their marriage her relatives used to visit the house of Vikas Jain. She also admitted that she is not ready to go to the house of Vikas Jain and that she will first see the portion only then she could visit. Similarly, PW2 Satpal Jain stated in his cross examination that before 7.11.2011 he had no altercation with Vikas Jain. He also admitted that before that date even no scuffle took place between Neetu Jain and Vikas Jain in his presence. He also stated that even he never had any altercation with Vinod Kumar Jain and with Veena Jain. He also stated that even his wife had no scuffle or altercation with Veena Jain or with her family members and that whenever he and his wife used to visit the house of Vinod Kumar Jain and they were treated warmly. He also admitted that Vikas Jain had two T.V. Sets and CD player earlier and that he had no proof regarding the delivery of 5,00,000/- to the respondents. ? Rita Jain while appearing as PW3 admitted in her cross examination that at the time of marriage Neetu Jain used to live in rented accommodation and marriage ceremony was conducted immediately i.e. within eight days after meeting. She also admitted that she can send her daughter to in her-laws provided the circumstances exist there as they used to be at the time of marriage i.e. the financial condition of in-laws. She also admitted that she had no proof of the income of Vikas Jain and his family members and about what he is doing these days. Further in her statement which is Ex.R4 on record made during the proceedings of petition under section 125 of Cr.P.C Neetu Jain even admitted that till date she had filed no petition under section 9 of Hindu Marriage Act. She also admitted that Vikas Jain is neither alcoholic nor had other bad habits and is even maintaining Vansh Jain. Thus, from the above mentioned evidence, it is clear that the applicant has miserably failed to prove the allegations of cruelty and demand of dowry articles as alleged by her. It was incumbent upon the applicant to have clearly established on record the various instances of cruelty committed by the respondents and to establish that persistent and illegal demand of dowry were made by them due to which she was ultimately expelled from the matrimonial home. However as mentioned above there are only general allegations in the body of the application and the same appears to be vague and are not liable to be believed. The applicant Neetu Jain alongwith her father Satpal Jain clearly admitted in their cross examination that at the time of marriage of the applicant the respondents had earlier two TV sets and CD player. Further Neetu Jain also admitted that she had no proof i.e. bill etc regarding the TV set, CD player, Blower which she alleges to have been given to the respondents to meet their illegal demand. Further, she also admitted that she had placed no list of dowry articles on record to show that dowry articles were given at the time of her marriage. She also admitted that she never gave application to police officials during the 10 years of her marriage against the respondent Vikas Jain and his family members. Similarly, Satpal Jain also admitted that before 07.11.2011 he or his wife never had any altercation with Vikas Jain and his family members and whenever they visited their house they were always treated good. Further as mentioned above, Neetu Jain herself admitted in her cross examination that she is not ready to go to the house of the respondents and that she can think about only after watching the financial conditions of the respondents. The same admission was made by PW3 Rita Jain. Further, Rita Jain also admitted that the marriage was solemnized within eight days after meeting the respondents. Thus all these circumstances and the above mentioned evidence clearly shows that the allegations of cruelty and demand of dowry articles by the applicant are without any basis. It is highly improbable that the respondents would demand TV set, CD player, Blower from the applicant when they already had these articles. Further even the applicant has failed to establish on record that sufficient dowry articles were given at the time of marriage. PW3 Rita Jain clearly admitted that the marriage was solemnized within eight years. Further no list of dowry articles were placed on record in support of this contentions. Also the allegation regarding the demand of 5,00,000/- appears to be ? vague. No evidence qua this fact was also produced on record in the shape of any bank statement etc. As clearly admitted by the applicant and her father they could not even produced on record any bills etc. Regarding the articles i.e. CD Player, Blower and TV set which they allege to have given to the respondents in order to meet their illegal demand. Further as admitted by the applicant herself that she never moved any application to the police officials regarding the ill-treatment by the respondents within 10 years of her marriage. Even PW3 Satpal Jain also admitted that before 07.11.2011 they never had any altercation with the respondents and their family members. All these factor clearly goes to show that the allegation of cruelty and demand of dowry articles leveled against the respondents are without any basis.
12.Now as clearly mentioned above, the applicant has miserably failed to prove on record allegation of cruelty and illegal demand of dowry articles. Further it is also an establish fact on record that the applicant is not residing with the respondents. Neetu Jain while appearing as PW1 clearly admitted in her cross examination that she is not willing to go to the house of the respondents and that she could only think of that after seeing the residence of the respondents. Similar admission was made by PW3 Rita Jain who also stated that she cannot send her daughter to her in laws house provided the financial condition of her in-laws is better. Now in the present case, it has been contended by the applicant that she is entitled to maintenance to the tune of 50,000/- from the ? respondents as he is running a factory under the name and style of M/s V. Jain Fabrics and is earning more than 2,00,000/- per ? month. However, after hearing the contentions of counsel for the applicant and counsel for the respondent and after going through the entire material placed on record, this court is of the considered view that the applicant is not entitled to any such maintenance amount. In the present case, there is nothing on record to show that the applicant was treated with cruelty and persistent demand of dowry articles was made and due to all these factors she had reasonable ground for not residing with the respondents. In the present case, the applicant has failed to prove as to why she is residing out of her matrimonial home. The allegations of cruelty leveled against the respondents are not proved on record. Therefore, merely alleging that the financial condition of the respondents is not good and thereafter she cannot reside with the respondents is no ground at all for staying away from the matrimonial home. Therefore, the applicant has failed to prove any just and sufficient ground for her living separately and is accordingly, not entitled to maintenance.
For that reliance is placed on the law laid down by Hon’ble Punjab & Haryana High Court in 1994 (1) HLR 350:-
Criminal Procedure Code, 1973, section 125 (old section 488). Husband serving in Bengal. Wife wanted him to leave service and live in Village. Wife has no right to force her husband to leave service. Wife living separately. Wife not entitled to maintenance
Further reliance is placed on the law laid down by Allahabad High Court in 1989 (1) HLR 278:-
“Criminal Procedure Code, 1973. Section 125. Maintenance. Revision by husband against his wife. Allegation of wife that husband used to beat her treat her with cruelty and was not caring for her food and clothes. Husband earing 1500/- ? per month. Husband neglected her. Beating turned her out of house. Maintenance claim of 500/- per ? month. Wife earning. She is teacher in Muslim Girls Madarsa. Wife admitted in cross examination that husband never misbehaved with her. Petition dismissed. However session court allowed 400/- ? per month as maintenance. Nothing on record to show that at any stage of proceedings there were talks of compromise between the parties. Wife failed to proved that husband had been cruel to her. Wife not entitled to any maintenance allowance and petition was rightly dismissed by the Magistrate. Husband not guilty of neglect or refusal to maintain wife”.
Further reliance is placed on the law laid down by Hon’ble Punjab & Haryana High Court in 2012(4) Law Herald 3118:
“Criminal Procedure Code, 1973, section 125. Hindu Marriage Act, 1955, Section 24. Maintenance pendente lite. Wife is not entitled to double maintenance. If, she has already been awarded maintenance under section 125 that would merge with the maintenance pendente life awarded by the trial court invoking the provisions under section 24 of the Hindu Marriage Act. Meaning thereby, Court while dealing with the maintenance pendente life under section 24 of the Hindu Marriage Act, will have to take into account the amount awarded under section 125 of the direct payment of maintenance pendente lite”.
Further reliance is placed on the law laid down by Bombay High Court in 1989 (1) HLR 269:-
“Civil Procedure Code, 1973. Section 125. Scope. Maintenance. Wife failed to prove her case for maintenance on the ground of cruelty. Trail Court rejected her application of respondent (wife) for maintenance under section 125 of Criminal Procedure Code. Appellate Court reversed the order of Trial Court and held the wife entitled to maintenance under section 125 Criminal Procedure Code. The material placed on record show that the Trial Court took the possible view. Appellate Court erred in reappreciating the evidence without pointing out the patent or material illegality committed by Trial Court in reaching to the conclusion that applicant (wife) had failed to prove her case and she is not entitled to maintenance. Allegations of ill-treatment and cruelty beyond the scope of section 125 Criminal Procedure Code. Appellate Court while Reversing the order of Trial Court completely misdirected himself in approach and exercise of the jurisdiction. Order of appellate Court be set aside”
Further reliance is placed on the law laid down by Calcutta High Court in 2002 (2) HLR 286:-
“Criminal Procedure Code, 1973, Section 125. Maintenance. Justification of husband obtaining divorce on ground that wife left matrimonial home voluntarily. Wife claiming maintenance. Wife refused to live with her husband. No cogent ground shown by wife of live separately from husband. Wife also failed to prove that she was unable to maintain herself. Held, wife not entitled to maintenance from husband. Trial Court held not justified in allowing application under section 125 Criminal Procedure Code. Order granting maintenance set aside”.
Further reliance is placed on the law laid down by Rajasthan High Court in 1999 CriLJ 1789:-
“Criminal Procedure Code, 1973, Section 125 and 397. Maintenance claimed by wife for herself and for two minor children. She was living separately and refused to live with husband in spite of his offer to maintain in her and her children. Magistrate rightly refused maintenance. Revisional Court by reappraising evidence overstepped its jurisdiction and allowed maintenance. Wife living separately without just cause, not entitled to maintenance. However, her children are entitled for maintenance. Revisional jurisdiction and its scope. Clarified”
Further reliance is placed on the law laid down by Uttarakhand High Court in 2013 (2) U.D. 572:-
“Criminal Procedure Code, 1973, Section 125(4). Claim of maintenance of wife refusing to live with her husband. Even if it is proved that the husband is having sufficient means and his wife is unable to maintain herself, the wife is not entitled to maintenance allowance, if she refused to live with her husband without any sufficient reason, as has been provided under sub-section (4) of Section 125 of Criminal Procedure Code”.
Further reliance is placed on the law laid down by Bombay High Court in 2002 (1) ALL MR (Cri) 704:-
“Criminal Procedure Code, 1973. Section 125. Decree for restitution of conjugal rights in favour of husband. Wife not joining husband without justification. Wife not entitled to maintenance” “Criminal Procedure Code, 1973, section 125. Wife must prove neglect on part of husband. Ill-treatment cannot be substantiated on basis of general allegations of wife in absence of details thereof”.
Further reliance is placed on the law laid down by Madhya Pradesh High Court in 1991 (1) HLR 457:-
“Criminal Procedure Code, 1973, section 125. Maintenance. Wife herself left house of husband and refused to live with him because he was living in a small accommodation jointly with his sister and brother-in-law. Held. Wife was guilty in refusing to live with husband. Wife not entitled to maintenance under section 125, Criminal Procedure Code”.
Further reliance is placed on the law laid down by Calcutta High Court in 2000 (4) AICLR 462:-
“Criminal Procedure Code, 1973, section 125. Maintenance. Wife seeking maintenance alleging that she was subjected to torture and ill-treatment by her husband in-laws. However, failed to prove the same. Wife having failed to prove any just and sufficient ground for her living separately. Not entitled to maintenance in view of provisions of section 125 (4). Criminal Procedure Code”.
Further reliance is placed on the law laid down by Punjab and Haryana High Court 1991(2) R.C.R (Criminal) 281:-
“Criminal Procedure Code, 1973, section 125. Wife deserting husband taking with minor child. Minor child entitled to maintenance even if he was kept away wrongly by the wife. Wife not entitled to maintenance”.
13.However as far as the minor child is concerned, it is the legal and moral obligation of the respondent no. 1 to maintain him. Regarding the maintenance amount no proof of the exact earning of the respondent no. 1 have been placed on record. It has been admitted by PW1 Neetu Jain as well as her witnesses that they had not knowledge about the exact earning of Vikas Jain. Further they also admitted that they have no proof regarding the income of the respondent firm i.e. M/s V Jain Fabrics. Hence, in such likes circumstances and considering the fact that Vikas Jain is an able bodied person, therefore, maintenance to the tune of 3000/- per ? month should be paid by him to the minor son who is in the custody of the applicant.
14.Thus, in view of the above mentioned discussion, the reliefs which are claimed by the applicant under section 18 of Domestic Violence Act i.e. Protection Order and under section 17 of Domestic Violence Act regarding her claim of maintenance are hereby dismissed. Even no ground at all is made out for granting compensation order in her favour. However, as mentioned above, the minor son of the applicant in her custody is legally and morally entitled to be maintained by his father namely Vikas Jain respondent no. 1. Hence, respondent no. 1 is directed to pay ? 3000/- per month as maintenance to the minor son of the applicant from the date of this order. The petition is accordingly dispose of. File be consigned to the record room. File be consigned to Record Room.
Announced in open Court.
Rajinder Singh Nagpal, PCS
Judicial Magistrate Ist Class