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Parties residing in separate portions with separate kitchen. No Shared a household, No domestic relationship, No DV

IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL SESSIONS JUDGE-03
(SOUTH), SAKET COURTS, NEW DELHI

Criminal Appeal No. 65/18

1) Neha
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

Versus

1) Smt. Rajo
W/o Sh. Hans Raj

2) Pappu
S/o Not known

3) Pinki………..Respondents

Date of Institution : 13.02.2018
Arguments heard on : 05.07.2018
Date of order : 05.07.2018

JUDGMENT

1. This appeal has been preferred u/s 29 of Protection of Women From Domestic Violence Act (hereinafter referred as ‘ D.V. Act’) for assailing the order dated 12.01.2018 vide which the application filed by the aggrieved persons u/s 12 of D.V. Act was dismissed by the trial court by holding that there exists no domestic relationship between aggrieved persons and respondents.

2. Brief facts of the case which are necessary for the disposal of present appeal are that aggrieved person/appellant no.2 Smt. Dakha Devi is the mother in law of the respondent no.1. Respondent no.1 is the daughter of respondent no.2 while respondent no.3 is the niece of respondent no.1. As per the averments made in the application u/s 12 of D.V. Act, Smt. Dakha Devi with other aggrieved persons namely Neha and Simran who are her grand daughters, is living at the house no. H-I/188 Madangir. The father of aggrieved Neha and Simran is working as driver while their mother has already expired. It is alleged that respondent no.2 in collusion with her other relatives i.e. respondent no.2 3, is harassing and ill treating the aggrieved persons by using filthy language and picking up frequent quarrel with them. Whenever, respondent no.1 was asked to mend her ways, she extended threats to implicate aggrieved persons in false cases. Respondent no.1 also threatened the aggrieved persons to vacate the house or else she will dispossess them forcibly from the house. The husband of respondent no.1 had expired in the year 2010 as he was suffering from HIV and after his death, respondent no.1 went to her parental home where she resided for one year but thereafter, she again returned to her matrimonial home and started harassing the aggrieved persons. As per the application, the aggrieved persons are residing on the back side of the house while respondent no.1 is residing in the front portion of the same house.

3. Trial court record shows that before issuing summons in the matter, the DIR was called from protection officer and as per the DIR, respondent no.1 as well as the aggrieved persons are residing in  the different portions of same house and respondent no.1 has been using her separate kitchen for last 10-12 years. Whereas, respondent no.2 to 3 are the relatives of respondent no.1 and they are residing at their own house at a different address.

4. Vide impugned order, the trial court heard the arguments on the maintainability of the application and dismissed the application on the ground that there was no domestic relationship between the aggrieved persons and respondents so as to maintain the application under D.V. Act.

5. I have carefully perused the impugned order as well as entire trial court record.

6. Counsel for the has appellant vehemently argued that since the aggrieved persons as well as respondent no.1 are living in the same house belonging to aggrieved person Dhaka Devi and while living in the shared house, respondent no.1 has subjected aggrieved persons to the act of domestic violence therefore, Ld. Magistrate was not justified in dismissing the application at the outset for absence of domestic relationship.

7. On the other hand, Ld. counsel appearing for respondents argued that respondent no.1 is residing independently in the front portion of the house and she is maintaining her own kitchen and as such, there never existed any domestic relationship between her and the aggrieved person as they never resided under the same roof. It is further argued that respondent no.1 has never subjected the  aggrieved persons to any harassment as alleged by them.

8. At the outset, it is necessary to mention that D.V. Act was enacted with a specific purpose to provide protection to the aggrieved person who lives with the respondent in the shared household against the acts of domestic violence and for claiming any relief under D.V. Act, there needs to exist a ‘domestic relationship’ between the parties. Domestic relationship has been defines in Section 2(f) of D.V. Act which reads as under:-

“domestic relationship” means 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, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

9. In Vijay Verma vs. State of NCT of Delhi Ors., 2010 (118) DRJ 707, while discussing the ambit and scope of term ‘domestic relationship’ as defined in Section 2(f) of the Act, it was held that “domestic relationship comes to an end” once the son alongwith his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband ……..domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household.”

10. It is apparent that in order to make a person as respondent in a petition u/s 12 D.V. Act, there must exist a domestic  relationship between the respondent and the aggrieved person. If there is no domestic relation between the respondent and aggrieved person, the court of MM cannot pass an order against such person under the Act. The definition of domestic relationship under section 2
(f) of the act speaks of living together at any point of time. However, it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, a person can be a respondent but if the relationship does not continue and the relationship had been in past and is not in present, a person cannot be made respondent on the ground of past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. Reliance placed on Harbans Lal Malik vs. Payal Malik, 2010 (3) CC cases (HC) 543 wherein, the Hon’ble High court further held as under:-

“18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad. ”

11. Hence, though the definition u/s 2(f) of DV Act speaks of living together at any point of time in a shared household but, it covers within its ambit only those cases where domestic relationship continued and in said situation if the parties have lived together at any point of time in a shared household, the person can be respondent but if the relationship does not continue and has come to an end on account of parties shifting out of the shared household and setting up their own separate household, then such members can neither sue as an aggrieved person nor can be sued as respondent under D.V. Act.

12. Careful perusal of the trial court record shows that the aggrieved persons/appellants are living in the back portion of the house whereas, respondent no.1 was living in the front portion of the house but, they are living in their separate household having their separate kitchen. In the entire application u/s 12, it is nowhere the claim of the appellants that they have ever lived with the respondents in the same shared household as a member of joint family. The other two respondents are the relatives of respondent no.2 who are living at a separate address and even in the application or in the present appeal, their addresses have not been mentioned by the aggrieved person which shows that they are not even aware of address of said two respondents. In the DIR filed by the protection officer, it is clearly mentioned that respondent no.1 is though living in the same house but she is living in a separate portion and is having a separate kitchen for last 10-12 years. In said circumstances, it is apparently clear that there is no continuity of domestic relationship and hence, no domestic  relationship exists between the appellants and respondent no1. Regarding allegation of ill treatment and harassment at the hands of respondents, the aggrieved persons may avail separate remedy under law but, the remedies provided under D.V. Act cannot be availed without establishing the existence of domestic relationship. Whereas, in the facts and circumstances of the case, there is no prima facie case of domestic relationship between the parties. Hence, I concur with the findings of the trial court that the application u/s 12 of D.V. Act was not maintainable and was liable to be dismissed. I do not find any illegality or infirmity in the order of the trial court. The appeal is found meritless and accordingly dismissed.

13. TCR be sent back to the trial court along with copy of this order.

14. Appeal file 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 signed John by John Doe

Date:
2018.07.06

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