IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL SESSIONS JUDGE-03
(SOUTH), SAKET COURTS, NEW DELHI
Criminal Appeal No. 65/18
D/o Sh. Hira Lal
2) Smt. Dakha Devi
W/o Sh. Ram Dhan
3) Simran (minor aged about 15 years)
D/o Sh. Hira Lal
All R/o H-I/188, Madangir,
New Delhi-110062……….. Appellants
1) Smt. Rajo
W/o Sh. Hans Raj
S/o Not known
Date of Institution : 13.02.2018
Arguments listened on : 05.07.2018
Date of sequence : 05.07.2018
1. This interest has been elite u/s 29 of Protection of Women From Domestic Violence Act (hereinafter referred as ‘ D.V. Act’) for assailing a sequence antiquated 12.01.2018 vide that a focus filed by a depressed persons u/s 12 of D.V. Act was discharged by a hearing justice by holding that there exists no domestic attribute between depressed persons and respondents.
2. Brief contribution of a box that are required for a ordering of benefaction interest are that depressed person/appellant no.2 Smt. Dakha Devi is a mom in law of a respondent no.1. Respondent no.1 is a daughter of respondent no.2 while respondent no.3 is a niece of respondent no.1. As per a averments done in a focus u/s 12 of D.V. Act, Smt. Dakha Devi with other depressed persons namely Neha and Simran who are her grand daughters, is vital during a residence no. H-I/188 Madangir. The father of depressed Neha and Simran is operative as motorist while their mom has already expired. It is purported that respondent no.2 in collusion with her other kin i.e. respondent no.2 3, is badgering and ill treating a depressed persons by regulating dirty denunciation and picking adult visit argue with them. Whenever, respondent no.1 was asked to mend her ways, she extended threats to implicate depressed persons in fake cases. Respondent no.1 also threatened a depressed persons to empty a residence or else she will banish them forcibly from a house. The father of respondent no.1 had lapsed in a year 2010 as he was pang from HIV and after his death, respondent no.1 went to her parental home where she resided for one year yet thereafter, she again returned to her matrimonial home and started badgering a depressed persons. As per a application, a depressed persons are staying on a behind side of a residence while respondent no.1 is staying in a front apportionment of a same house.
3. Trial justice record shows that before arising summons in a matter, a DIR was called from insurance officer and as per a DIR, respondent no.1 as good as a depressed persons are staying in a opposite portions of same residence and respondent no.1 has been regulating her apart kitchen for final 10-12 years. Whereas, respondent no.2 to 3 are a kin of respondent no.1 and they are staying during their possess residence during a opposite address.
4. Vide impugned order, a hearing justice listened a arguments on a maintainability of a focus and discharged a focus on a belligerent that there was no domestic attribute between a depressed persons and respondents so as to say a focus underneath D.V. Act.
5. we have delicately perused a impugned sequence as good as whole hearing justice record.
6. Counsel for a has appellant vehemently argued that given a depressed persons as good as respondent no.1 are vital in a same residence belonging to depressed chairman Dhaka Devi and while vital in a common house, respondent no.1 has subjected depressed persons to a act of domestic assault therefore, Ld. Magistrate was not fit in dismissing a focus during a opening for deficiency of domestic relationship.
7. On a other hand, Ld. warn appearing for respondents argued that respondent no.1 is staying exclusively in a front apportionment of a residence and she is progressing her possess kitchen and as such, there never existed any domestic attribute between her and a depressed chairman as they never resided underneath a same roof. It is serve argued that respondent no.1 has never subjected the depressed persons to any nuisance as purported by them.
8. At a outset, it is required to discuss that D.V. Act was enacted with a specific purpose to yield insurance to a depressed chairman who lives with a respondent in a common domicile opposite a acts of domestic assault and for claiming any service underneath D.V. Act, there needs to exist a ‘domestic relationship’ between a parties. Domestic attribute has been defines in Section 2(f) of D.V. Act that reads as under:-
“domestic relationship” means a attribute between dual persons who live or have, during any indicate of time, lived together in a common household, when they are associated by consanguinity, marriage, or by a attribute in a inlet of marriage, or by a attribute in a inlet of marriage, adoption or are family members vital together as a corner family.
9. In Vijay Verma vs. State of NCT of Delhi Ors., 2010 (118) DRJ 707, while deliberating a ambit and range of tenure ‘domestic relationship’ as tangible in Section 2(f) of a Act, it was hold that “domestic attribute comes to an end” once a son alongwith his family changed out of a corner family and determined his possess domicile or when a daughter gets married and establishes her possess domicile with her father ……..domestic attribute continues so prolonged as a parties live underneath a same roof and suffer vital together in a common household.”
10. It is apparent that in sequence to make a chairman as respondent in a petition u/s 12 D.V. Act, there contingency exist a domestic attribute between a respondent and a depressed person. If there is no domestic propinquity between a respondent and depressed person, a justice of MM can't pass an sequence opposite such chairman underneath a Act. The clarification of domestic attribute underneath territory 2
(f) of a act speaks of vital together during any indicate of time. However, it does not pronounce of carrying propinquity during any indicate of time. Thus, if a domestic attribute continued and if a parties have lived together during any indicate of time in a common household, a chairman can be a respondent yet if a attribute does not continue and a attribute had been in past and is not in present, a chairman can't be done respondent on a belligerent of past relationship. The domestic attribute between a depressed chairman and a respondent contingency be benefaction and alive during a time when censure underneath Domestic Violence Act is filed and if this attribute is not alive on a date when censure is filed, a domestic attribute can't be pronounced to be there. Reliance placed on Harbans Lal Malik vs. Payal Malik, 2010 (3) CC cases (HC) 543 wherein, a Hon’ble High justice serve hold as under:-
“18. Thus, in sequence to consecrate a family and domestic attribute it is required that a persons who consecrate domestic attribute contingency be vital together in a same residence underneath one head. If they are vital apart afterwards they are not a family yet they are kin associated by blood or affinity to any other. Where kin live apart from their son like any other relative, a family of son can't embody his parents. The kin can be enclosed in a family of son usually when they are contingent on a son and/or are vital along with a son in a same house. But when they are not contingent on a son and they are vital separate, a kin shall consecrate a apart family and son, his mother and children shall consecrate a apart family. There can be no domestic attribute of a mother of son with a kin when a kin are not vital along with a son and there can be no domestic attribute of a mother with a kin of her father when son along with a mother is vital abroad. ”
11. Hence, yet a clarification u/s 2(f) of DV Act speaks of vital together during any indicate of time in a common domicile but, it covers within a ambit usually those cases where domestic attribute continued and in pronounced conditions if a parties have lived together during any indicate of time in a common household, a chairman can be respondent yet if a attribute does not continue and has come to an finish on comment of parties changeable out of a common domicile and environment adult their possess apart household, afterwards such members can conjunction sue as an depressed chairman nor can be sued as respondent underneath D.V. Act.
12. Careful examination of a hearing justice record shows that a depressed persons/appellants are vital in a behind apportionment of a residence whereas, respondent no.1 was vital in a front apportionment of a residence but, they are vital in their apart domicile carrying their apart kitchen. In a whole focus u/s 12, it is nowhere a explain of a appellants that they have ever lived with a respondents in a same common domicile as a member of corner family. The other dual respondents are a kin of respondent no.2 who are vital during a apart residence and even in a focus or in a benefaction appeal, their addresses have not been mentioned by a depressed chairman that shows that they are not even wakeful of residence of pronounced dual respondents. In a DIR filed by a insurance officer, it is clearly mentioned that respondent no.1 is yet vital in a same residence yet she is vital in a apart apportionment and is carrying a apart kitchen for final 10-12 years. In pronounced circumstances, it is apparently transparent that there is no smoothness of domestic attribute and hence, no domestic attribute exists between a appellants and respondent no1. Regarding claim of ill diagnosis and nuisance during a hands of respondents, a depressed persons might relief apart pill underneath law but, a remedies supposing underneath D.V. Act can't be availed but substantiating a existence of domestic relationship. Whereas, in a contribution and resources of a case, there is no prima facie box of domestic attribute between a parties. Hence, we grant with a commentary of a hearing justice that a focus u/s 12 of D.V. Act was not maintainable and was probable to be dismissed. we do not find any illegality or feebleness in a sequence of a hearing court. The interest is found meritless and accordingly dismissed.
13. TCR be sent behind to a hearing justice along with duplicate of this order.
14. Appeal record be consigned to record room.
Announced in open Court on 05.07.2018 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi Digitally sealed John by John Doe