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Failed to Prove – D.V. Act is dismissed

IN THE COURT OF MS. SALONI SINGH, METROPOLITAN
MAGISTRATE-02, MAHILA COURT, SAKET COURTS, SOUTH
DISTRICT, NEW DELHI

Complaint Case No:- 3/1A/2014 (463792/2016)
CNR No:- DLST02-000510-2013
Police Station:- Ambedkar Nagar

Himanshi @ Suman,
D/o, Kali Prasad,
W/o, Raveen,
R/s, 9/291, Dakshin Puri,New Delhi-110062. …Aggrieved

Vs.

1. Praveen Kumar (Husband),
2. Vijay Kumar (Father-in-law),
3. Sheela Devi (Mother-in-law),,
4. Manish @ Monu (Brother-in-law),
5. Bharti @Dolly (Sister-in-law),
All R/o, C-1/1061-62, Madangir,New Delhi. …Respondents

Application under Section 12 of the Protection of Women from Domestic Violence Act, 2005
Date of Institution : 06.06.2013
Date of Reserving Judgment : 28.11.2016
Date of Judgment : 20.12.2016 Judgment:-

By way of this application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, “D.V. Act”), the aggrieved has prayed for reliefs under Sections 18, 19, 20 and 21 of the said Act against the respondents, who allegedly subjected her to domestic violence while she resided with them in the shared household. The respondent no. 1, 2, 3 and 4 are the husband, father-in-law, mother-in-law and brother-in- law respectively of the applicant/aggrieved.

1. The facts of the case, as detailed in the application, are briefly stated here as follows:-

i. The aggrieved and the respondent no. 1 got married on 03.05.2004 as per Hindu rites and customs and the aggrieved came to reside in the matrimonial home at C-1/1061-62, Madangir, New Delhi with all the respondents. Two children, namely, Krish and Shaurya, were born out of the wedlock to the aggrieved and the respondent no. 1 on 23.10.2005 and 12.07.2009 respectively.

ii. The aggrieved has been subjected to continuous harassment by the respondents since her marriage. The respondents used to quarrel with the aggrieved on petty issues. On several occasions, the respondent no. 1 and his family members demanded dowry from the aggrieved as her father was a government servant. The respondents taunted and physically harassed the aggrieved and also used abusive language at her and her family members. The aggrieved continued to bear the atrocities inflicted on her till 26.11.2012 for the sake of her children and family members.

iii. On the occasion of Bhaidhuj, the aggrieved had gone to her parental home and when she returned with her sister Arti on 26.11.2012 at her matrimonial home, the respondent no. 3 pushed her out and the respondent no. 4 started to beat her with lathi/danda, at the instigation of the respondent no. 3, in order to teach the aggrieved a lesson. The sister of the aggrieved tried to save her at which the respondents started abusing and hitting the sister of the aggrieved. The respondent no. 1 also gave kicks and fist blows to the aggrieved till the aggrieved fainted. The sister of the aggrieved then called the local police at 100 number and also her parents. The parents of the aggrieved then were also abused and ill-treated. The respondent no. 4 pushed the father of the aggrieved against the wall and in that process his spectacles broke. The aggrieved was taken to Jai Prakash Trauma Centre on 26.11.2012 at around 1:30pm and injuries were found on her body after her medical examination. The aggrieved was not feeling well and was again taken to the hospital on the night of 26.11.2012 and was discharged on 27.11.2012. Again as the condition of the aggrieved had not improved, she was taken to the hospital on 29.11.2012 and a minor head injury was diagnosed.

iv. The aggrieved had returned to her parental home as she feared being beaten by the respondents. After the incident, the respondents no. 1 and 4 had threatened to throw acid at the aggrieved and her sister if they registered any case against them. The respondents have taken away the minor children of the aggrieved and the aggrieved apprehends threat to her and her children’s life at the hands of the respondents.

v. With regard to the said incident, a kalandara was prepared under Sections 107/151 of Code of Criminal Procedure, 1973 (for short, “CrPC”). Also on the complaint made under Section 156 (3) of CrPC, an FIR was registered against the respondents under Sections 498A, 406, 323 and 34 of the Indian Penal Code, 1860.

2. On filing of the present application under Section 12 of the D.V. Act, notice of the application was issued to the respondents no. 1, 2, 3 and 4 on 20.06.2013 and notice to the respondent no. 5 was declined by the Court on the ground that the respondent no. 5 had been married and was residing separately with her family for the past five to six years. Further at the directions of the Court, the domestic incident report (DIR) was filed by the protection officer, Ms. Kiran Sharma.

3. The respondents filed their reply on 12.12.2013, wherein they have denied allegations of domestic violence being inflicted upon the aggrieved by any of them. They have raised several preliminary objections, namely, that the application is not maintainable and is liable to be dismissed for concealment of material facts. It is stated that the aggrieved has not approached the Court with clean hands and has not disclosed that she had abandoned the company of the respondent no. 1 and deserted her children and had taken all her jewellery and other expensive articles at that time; that the present application has been filed only to malign and tarnish the reputation of the respondents and with an intent to harass the respondents. It is alleged that the contentions/allegations made against the respondents are baseless and false. It is stated that it is the aggrieved, who is not willing to reside with the respondents and wants to grab the properties of the parents of the respondent no. 1. It is further stated that the respondents gave the aggrieved love and affection and that the aggrieved did not care for her children and her husband.

3. The rejoinder was filed on behalf of the aggrieved on 12.03.2014 denying the allegations/averments made by the respondents in their reply. It is alleged that the aggrieved was thrown out of the matrimonial home by the respondents and that they had taken away her children and that she is pursuing a petition for custody of her children at the Family Court, Saket, New Delhi.

4. The aggrieved and the respondent no. 1 have filed their respective income affidavits in compliance with the judgment of the Hon’ble High Court of Delhi in Kusum Sharma v. Mahendra Kumar Sharma., AIR 2015 Delhi 53

5. On completion of the pleadings of the parties, both the parties were given an opportunity to lead their evidence. The aggrieved first proceeded to lead her evidence.

6. In order to substantiate her case, the aggrieved only examined herself and stepped into the witness box as CW-1. She tendered her examination-in-chief by way of an affidavit, Exhibit CW-1/A, relying upon the following documents:-

– Copy of marriage invitation card, Exhibit CW­1/1 (Colly);
­ A marriage photograph, Exhibit CW­1/2;
­ Copy of MLC no. 341909, Exhibit CW­1/3, which is de­exhibited to Mark A;
­ Copy of medical records of the aggrieved, Exhibit CW­1/4, which is de­exhibited to Mark B;
­ Copy of Kalandara involving respondent Manish @ Monu,Exhibit CW­1/5, which is de­exhibited to Mark C; and
– Copy of FIR no. 445/12, PS Ambedkar Nagar, Exhibit CW-1/6, which is de-exhibited to Mark CW-1/6.

7. In her affidavit, CW-1 has deposed on the same lines as stated in the application and was cross-examined by the Learned Counsel for the respondents. No other witness was examined by the aggrieved. The evidence of the aggrieved was closed by way of a separate statement.

8. The respondents in support of their case called upon and only examined the respondent no. 1 as RW-1, who tendered his examination-in-chief, by way of affidavit, Exhibit RW-1/A. RW-1 deposed on the same lines as stated in the reply and was cross- examined by the Learned Counsel for the aggrieved. No other witnesses were examined by the respondents. Written arguments were filed on behalf of both the parties reiterating the averments/contentions raised in their respective pleadings and they also relied upon relevant judgments/case law in support thereof.

9. The submissions made on behalf of the both the parties have been considered and the record of the case including the DIR has been thoroughly perused. The findings of this Court are as follows:-

10.In order to be entitled to the reliefs claimed, it is for the applicant to prove that she ‘is’ or ‘has been’ in a ‘domestic relationship‘ with the ‘respondent(s)’ and that the respondent(s) had subjected her to ‘domestic violence’. A ‘domestic relationship’ has been defined in Section 2 (f) of the D.V. Act to mean, “a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

11.It is not disputed that the aggrieved and the respondent no. 1 are wife and husband. It is also not disputed that after her marriage with the respondent no. 1, the aggrieved started residing at her matrimonial home at C-1/1061-62, Madangir, New Delhi with the respondents no. 1, 2, 3 and 4. It is also not disputed that since her marriage the aggrieved had been living at the matrimonial home and resided there till 26.11.2012. It is not the case of the respondents that the aggrieved and the respondent no. 1 had a separate kitchen and were maintaining their own household at the same premises. Therefore, it can be stated that the aggrieved had a domestic relationship with the respondents.

12.Next it is to be seen as to whether the aggrieved has been able to show that the respondents had subjected her to domestic violence and as a result of which she is entitled to the reliefs claimed by her in the present application under Section 12 of the D.V. Act.

13.The aggrieved in her application has made allegations that she had been harassed, ill-treated, verbally abused, physically assaulted and taunted at by the respondents since her marriage, which is over a period of more than eight years, and that she had kept bearing the atrocities inflicted on her for the sake of her children and family members. These allegations made by the aggrieved in her application have not been substantiated with incidents or dates and no specific allegations have been made against any one of the respondents in this regard. It is merely alleged against all the respondents that they had harassed her. Admittedly she had not filed any complaint to any authority in this regard in those eight years. A copy of the FIR no. 445 dated 26.12.2012 as Mark CW-1/6 (Colly) is relied upon by the aggrieved, wherein the aggrieved has given a detailed account of the incident that allegedly occurred on 26.11.2012 without any specific allegations of domestic violence made against any of the respondents for those eight years. It has been alleged in the FIR that these people had been troubling her for eight years and have been demanding dowry from her and also demanded money from her. That they do not bear her expenses and that her family members have been bearing her expenses. Again in the said FIR, these allegations have not been substantiated with specific incidents or dates and even otherwise the criminal proceedings are pending adjudication.

14.The aggrieved alleges that the respondent no. 1 and his family members had on several instances demanded dowry from the aggrieved as her father was a government servant. The aggrieved in her application claims that her father was a government servant, however, during her cross-examination, the aggrieved/CW-1 has stated that he father was an auto-rickshaw driver at the time of her marriage and it was the respondent no. 2 who was in a government job. The allegation that the respondents demanded dowry from the aggrieved because her father was a government servant does not find support by her own statement made during her cross- examination and the testimony of CW-1 cannot be relied upon in this regard. Further there are no specific details given as to the dowry demanded such as item/articles demanded, who demanded, when it was demanded, from whom it was demanded etc.

15.The only incident which has been mentioned in the present application by the aggrieved is of 26.11.2012, when allegedly the respondents no. 1 had not let her enter the matrimonial home and the respondents no. 1 and 4 had started to beat her. It is interesting to note here that there is no reason or cause mentioned by the aggrieved in her application as to why the respondents had all of a sudden on 26.11.2012 started to beat her and had not allowed her to enter the matrimonial home. It has already been observed that there are no previous incidents of domestic abuse which have been cited by the aggrieved in her application, from which it can be stated that the aggrieved was being abused or harassed on a continuous basis. There is no mention in the application or in the affidavit of the aggrieved, Exhibit CW-1/A, of any other incident or situation or maltreatment meted out to her by the respondents, which had culminated in the incident of 26.11.2012. It is unfathomable that without any cause or reason the respondents would have started beating the aggrieved and had thrown her out of the matrimonial house on 26.11.2012. It is only during the cross-examination of RW- 1 that it was put to him that the sexual advances made by the respondents no. 2 and 4 at the aggrieved was the only reason for discord in their family and that RW-1 did not want the aggrieved to disclose this to anybody else. RW-1 during his cross-examination has denied these allegations, however, it be noted that these allegations were first brought up on record during the cross- examination of RW-1 and do not find mention in the application/affidavit of CW-1. The case of the respondents is that the aggrieved and her sister after coming back from their parental home had attacked the respondent no. 1 and had injured her. What does not seem to be disputed between the parties is the incident of 26.11.2012. The reason of the incident has not been shown/proved by either of the parties.

16.Also there appears to be a discrepancy in the medical examination report relied upon by the aggrieved to show that she had sustained injuries by the brutal beating of the respondents no. 1 and 4 on 26.11.2012. The averments/allegations in this regard made by the aggrieved in her application are detailed in paragraphs number 10, 11, 12 and 13 which are reproduced below:-

“10. That the complainant/ aggrieved person was taken to J.P. Trauma Center on 26.11.12 at about 1.30 pm and as per the MLC there were injuries on the person of complainant/ aggrieved person Himanshi, injuries on her parietal region, wrist etc. As per the MLC the injuries caused on the person of the complainant/ aggrieved person were blunt. The complainant/ aggrieved person then came back to her parental house fearing ill treatment form the hands of accused persons.

11. That the complainant/ aggrieved person was again taken to hospital by her parents in the night of 26.11.2012 because she was not feeling well. The doctor opined that the injuries caused on the person of the complainant/ aggrieved person were the injuries of soft tissue injury on left fore arm and shoulder. She was discharged from Trauma Center on 27.11.2012.

12. That despite the apparent injuries to the complainant/ aggrieved person, police did not register an FIR u/s 307, 324, 325 & 34 IPC. In connivance with the accused persons the police simply made Kalandara under section 107/151 Cr.PC.

13. That the condition of complainant/ aggrieved person did not improve and there was persistent pain in her head and she was also vomiting. On 29.11.2012 complainant/ aggrieved person was again examined by J.P. Trauma Center in which ‘Minor Head Injury’ was diagnosed.”

17.The averments in this regard made in her affidavit Exhibit CW-1/A are given in paragraphs no. 7, 8 and 9 which are reproduced below:-

“7. That I the deponent say that the police came to the matrimonial house of the deponent was taken to J.P. Narayan Apex Trauma Centre by the police on 26.11.2012 at around 1.30 pm and she was treated for her injuries and MLC was made by the doctors treating the complainant. That the copy of the MLC is exhibited as Ex. CW­1/3.

8. That I the deponent say that the deponent was discharged from the J.P. Trauma Center on 27.11.2012 but the police did not register an FIR despite a MLC due to the influence of the respondents and the police simply made a Kalandara u/s 107/151 of Cr.PC against the respondents.

9. That I the deponent say that the condition of the deponent was not improved and there was persistent pain in the head of the deponent and she was vomiting continuously. That the deponent was again examined at J.P. Trauma Centre and she was diagnosed for minor head injuries. The report of the J.P. Trauma Center is exhibited as Ex. CW­1/4.”

18.During her cross-examination, she has stated, “… It is incorrect to suggest that on 26.11.2012 me and my sister gave beatings to my mother in law and thereafter by making false allegations against respondents registered a false kalandara against them. It is correct that in my affidavit Ex.CW1/A at para no.6 it is wrongly mentioned that I was beaten by a danda by Manish Kumar. VOL. It was a Sugarcane (danda). It is correct that I was taken to AIIMS Trauma Centre by my husband and my MLC was also prepared there. It is correct that in the said MLC no injuries were opined by doctors. It is correct that I had gone to my parents house after the MLC was prepared and since then I am residing with my parents.

At this stage, Copy of MLC dt. 26.11.2012 at 18:27 Hours is shown to the witness who has admitted the same as correct. The said document is now Mark CW1/D2.

It is correct that no MLC was prepared on 26.11.2012 at 1.30 pm as I stated in my affidavit Ex.CW1/A at para no.7.

It is incorrect to suggest that Mark A and Mark B are wrongly prepared by me after self inflicted injuries just to falsely implicate the respondents as Mark CW1/D2 has shown no injuries which was prepared prior to Mark A and Mark B….”

19.The relevant portion of the FIR dated 26.12.2012 as Mark CW-1/6 (Colly), is reproduced as follows:- “…Jab PCR wahan aayi to se dekhkar mere pati ne mujhe jabardasti haath pakad kar apni gaadi me baithaya mujhe akela dekhkar meri bahan Aarti mere saath aayi mere pati mujhe poore raste bhar dhamka dara karke leke gaye ki agar mene Dr. ko kuch bataya ya MLC banwai to mere pati mujhe lautte samai jinda nahi chodenge. Is dar se mein ghabra gayi meri haalat ko dekh kar meri bahan bhi ghabra gayi phir Dr. ne pucha to mere pati ne jaldi se bola ki seedyon se gir gayi is liye meri MLC nahi bani or (halki phulki) dose dekar hame kaha is 72 ghanto ke andar agar ulti hoti he to dubara le aana. Phir mere pati hame wapas ghar laate samai dhamka rahe the ki bayan diya to chodunga nahi aur hame raaste me hi utaar diya. Hum jab shaam ko ghar aaye to mere ghar me (Monti) IO Dharampal aur mere Sasural ke rishtedaar aaye hue the tab bhi IO ne mere bayan ki koi baat nahi ki aur samjha bujha ke chala gaya raat 10 baje meri haalat kharab hui mujhe ultiya hone lagi. To mere papa mummy mujhe Trauma Center waapis leke gaye. Tab mene Dr. to saari baat kahi aur meri MLC bani. Mera poora treatment hua. CT scan, X­ray, drip chadai. Me poori raat bhar Trauma Center me bharti rahi subah 4.30 baje mere papa mummy mujhe ghar laaye. Phir 27.11.12 ko subhah 11 baje Monti aur IO Dharampal aaye tab bhi unhone mere bayan ke koi baat nahi kaha ke 2 baje thana bulaya jayega. Dono partiyo ko tab baat karenge. Lekin na to koi phone aaya va hi bulaya gaya. Phir shaam ko mere pati aur Monti ghar aaye aur mujhe dantne lage ki tune MLC kyon banwai aur dhamkaya ki bayan mat dena warna tera bura kar dunga aur teri bahan ko uthwa lunga aur chale gaye phir 28/11/12 ki subah 10 ka phone aur 10 baje bayan ke liye gaya. 28/11/12 ko meri halat theek nahi thi phir bhi me aai aur mene dekha ki mere sasural wale saare thane me khade hai. Mujhe bench par letaya gaya phir bhi IO ne mujhe bola ki pahle aap theek ho jao phir bayan le lenge mene kaha ki mein baar baar thane me nahi aa sakti, mera bayan le lo. Tab IO he bayan liya, mere sign maange to hamne padne ke liye bola to unhone mana kar diya kaha meri handwriting samajh nahi aayegi aur mere sign liye. …”

20.There are two MLC and discharge notes on record. The MLC relied upon her is with date of arrival as 26.11.2012 of 10:48pm as Mark A mentioning swelling (left parietal region and left wrist) and abrasion (small over left wrist) stated to be simple injury. The discharge note relied upon by the aggrieved as Mark B shows date of arrival as 27.11.2012 at 22:50 and date of discharge as 27.11.2012 at 2:31 mentioning the diagnosis as soft tissue injury left forearm and shoulder alleged to be by assault. To the contrary, it is stated by her in the affidavit Exhibit CW-1/A that she was taken by the police to the J.P. Narayan Trauma Centre on 26.11.2012 at around 1:30pm and was discharged on 27.11.2012. During her cross-examination, the aggrieved was confronted with another discharge note with date of arrival and date of discharge as 26.11.2012 18:27 as Exhibit CW-1/D2 mentioning diagnosis as soft tissue injury alleged to be by fall, which CW-1 admitted as correct. Further during her cross-examination, CW-1 has stated that she was taken to AIIMS Trauma Centre by her husband and an MLC was also prepared there. CW-1 also admitted during her cross- examination that it had been wrongly mentioned in her affidavit Exhibit CW-1/A that her MLC was prepared on 26.11.2012 at 1:30pm. CW-1 was confronted with the DD entry dated 28.11.2012, which is on record as Mark D mentioning that the MLC was prepared at Batra Hospital. CW-1 admitted that no MLC was prepared at Batra Hospital. The statements made by the aggrieved as to the time and date when the MLC were prepared in her application, affidavit, documents on record are all different. They do not corroborate each other.

21.From the above, it is stated that the aggrieved has been unable to show that she had been subjected to domestic violence by the respondents while she resided in the shared household. Having failed to prove the she had been subjected to domestic violence by the respondents, she would not be entitled to the reliefs claimed by her. Accordingly, the application of the aggrieved under Section 12 of the D.V. Act is dismissed. File be consigned to record room after due compliance.

Pronounced in Open Court
today December 20, 2016 (SALONI SINGH)
Metropolitan Magistrate-02,
Mahila Court, Saket, South,
New Delhi, 20.12.2016.

Present: Mr. D.S. Chauhan, Advocate for complainant.
None for respondent.
Put up for purpose fixed at 4.00 pm.

(Saloni Singh)
MM­02 (Mahila court), South
Saket Courts/N.D./ 20.12.2016
At 04.00 pm
Present: None for complainant.
Mr. Deepak Kumar, proxy Advocate for the respondents with all respondents in person.

Vide separate judgment of even date, the application of the complaint u/s 12 of the D.V. Act has been dismissed. File be consigned to record room after due compliance.

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