IN THE COURT OF SH. DEEPAK GARG: ADDL. SESSIONS JUDGE
02 : NORTH WEST DISTRICT, ROHINI COURTS, DELHI
Criminal Appeal No. 97/18
1. Gautam Modi
S/o Sh. Parveen Chandra Modi
R/OA1/202B, LIG Flats
Lawrence Road, Keshavpuram
Delhi 110 035
2. Promila Modi
w/o Sh. Parveen Chandra Modi
R/OA1/202B, LIG Flats
Lawrence Road, Keshavpuram, Delhi 110 035…. Appellants
Vs.
Ms. Ruhal Modi
w/o Sh. Harish Modi
R/OA1/202B, LIG Flats
Lawrence Road, Keshavpuram,Delhi 110 035 …. Respondent
Date of Institution in Sessions Court : 26/05/2018
Date when visualisation indifferent : 06/07/2018
Date when visualisation conspicuous : 16/07/2018
JUDGEMENT
1. The benefaction seductiveness u/s 29 of a Protection of Women from Domestic Violence Act has been filed on seductiveness of a appellants – Gautam Modi and his mom Ms. Promila Modi opposite a impugned sequence antiquated 27/04/2018 upheld by a Ld. Trial Court in a box temperament Ex.No. 104/16, PS Keshav Puram patrician as Ruhal Modi vs. Gautam Modi Anr.
2. Brief contribution required for a ordering of a benefaction seductiveness are that complainant – Ms. Ruhal Modi (respondent herein) filed an focus u/s 12 of a Protection of Women from Domestic Violence Act (Hereinafter referred as D.V. Act) before a Ld. Trial Court, wherein it has been settled that respondent no. 1 Gautam Modi (appellant herein) is her hermit in law and respondent no. 2 Ms. Promila Modi is her mom in law and they have committed several acts of domestic assault opposite her. It is serve settled that respondent no. 2 is carrying behavioural problems with impassioned mood swings, that formula in several problems in a family. It is settled that a respondent no. 1 was impoverished and became fractious and he used to collect quarrels with family members and managed to get inequitable magnetism of his mom i.e. respondent no. 2 and he also used to mislay income from a complainant and other family members. It is serve settled that respondent no.1 has filed several complaints opposite his father, sister in law and hermit in law in sequence to harass and pressurize them. It is settled that via this distress of a family members given a year 2009, a petitioner/complainant has been harassed, threatened and beaten by a respondent and when a petitioner/complainant protested, he threatened her with apocalyptic consequences and this resulted in filing of a petition u/s 12 of D.V. Act before a Ld. Trial Court, wherein a petitioner/complainant prayed for several reliefs as mentioned in a request proviso therein.
3. The above pronounced focus was contested by a respondent. It was settled that it was a complainant who along with her other family members, was badgering and torturing a respondent and his mother. It was serve settled that a pronounced petition was a counterblast to a domestic assault box filed by a mom of a respondent i.e. respondent no. 2 opposite her father i.e. a father of a respondent. The respondent denied that he was impoverished and fractious or that he committed any act of domestic assault opposite a complainant. He settled that a skill in doubt where all were vital infact belonged to his mom and she wanted all, solely a respondent, to empty a skill so that they could live peacefully.
4. After execution of pleadings a Ld. Trial justice available justification in a case. Complainant examined herself and did not inspect any other witness. The respondent did not lead any evidence.
5. After trial, a pronounced petition u/s 12 of D.V. Act has been likely of by a Ld. Trial Court vide sequence antiquated 18/4/2016, whereby a respondent (appellant herein) was calm from committing any serve act of earthy assault or mental torture/harassment/domestic assault opposite a petitioner/ complainant (respondent herein),her husband, children, her father in law, hermit in law and sister in law. The respondent (appellant herein) was also calm from entering or regulating a skill temperament no. A1/202B, LIG Flat, Lawrence Road, Delhi where a petitioner/complainant is staying with her other family members, being continual hazard and risk to a chairman and skill of a petitioner/complainant and her children. In case, even if father in law of a petitioner/complainant allows a respondent (appellant herein) to reside in his property, as per his wishes if any, a respondent (appellant herein) was calm from entering a bedroom of a petitioner/complainant (respondent herein). The respondent (appellant herein) was serve destined to mislay a lock, if any on a room situated during a tip building of a common domicile as it is hampering a pacific delight of a skill by a petitioner/complainant and her children. The respondents have also been calm from causing division in a pacific delight of a skill of her father in law by a petitioner/ complainant i.e. a common domicile in that a petitioner/complainant is staying with her other family members. Further, a respondents have been destined to recompense a petitioner/complainant in a sum of Rs.10,000/ towards a physical, mental, emotional, written and mercantile abuse within 3 months from a date of order. The respondents have also been destined to make remuneration of lawsuit losses of Rs.10,000/ any to a postulant complainant within 3 months from a date of order.
6. The appellants herein were depressed with a sequence upheld by Ld. Trial Court and hence they filed seductiveness though a same was discharged by Ld. Sessions Court vide sequence antiquated 2/6/2017.
7. In sequence to get a sequence antiquated 18/4/2016 executed, a complainant Ruhal Modi (respondent herein) filed execution petition wherein execution no. 104/2016 before Ld. Trial Court in that Gautam Modi i.e. a appellant herein filed his objections. After conference both a sides, Ld. Trial Court vide sequence antiquated 27/4/2018, discharged a objections of a appellant and he is depressed with a pronounced sequence of Ld. MM and hence a benefaction seductiveness u/s 29 of a D.V. Act.
8. It is argued by ld. Counsel for a appellant/ JD that a sequence of Ld. Trial Court antiquated 27/4/2018, dismissing a objections of a appellant is bad in law and a same is probable to be set aside on following grounds:
(i) It is argued that mom of a appellant/JD and direct hilt was a genuine owners of a skill in doubt and she had paid a care volume in honour of a sale agreement antiquated 17/3/1988 though a father of a parties fraudulently got a vehicle help executed from a DDA antiquated 15/11/2010 on a basement of a aforementioned sale agreement antiquated 17/3/1988 and a appellant / JD had already filed a fit severe a pronounced vehicle help and a same is settled to be tentative in a justice of Ms. Divya Malhotra, Ld. Civil Judge, Rohini Courts, Delhi and compartment a time a pronounced fit is decided, appellant has a right to live in a skill in question;
(ii) It is serve argued that Sh. Praveen Chand Modi, father of a appellant/JD and DH lapsed on 10/3/2017 and after his genocide there is change in business since now a appellant/JD has turn cosharer/Coparcener/Coowner in a skill in doubt and hence in that capacity, he can't be calm from entering/using a skill where a DH is staying with other family members;
(iii) That a DH is guilty of dissimulation of element contribution since she has not mentioned in her execution petition about a benefaction help antiquated 22/8/2012 by a father of a parties in foster of a other brothers of a appellant/JD. It is serve settled that a pronounced benefaction Deed antiquated 22/8/2012 is fake and built request and no such benefaction help was executed by a father of a parties in foster of a other brothers of appellant/JD and DH.
(iv) That Ld. conference justice poorly came to a end that a domicile where a parties are vital is a “shared household” within a definition of DV Act. It is serve argued that a skill in doubt was in a name of father in law of respondent/DH and hence she could not have claimed even right of chateau in a pronounced property.
9. Per contra, Ld. Counsel for a respondent/DH has vehemently controverted a row of Ld. Counsel for a appellant/JD. It is argued that a sequence of Ld. MM antiquated 27/4/2018 dismissing a objections of appellant/JD is ideally scold in a eyes of law and a Ld. MM has righteously appreciated a contentions of both a sides and came to a right conclusion.
10. After conference both a sides, during a outset, it might be pronounced that a benefaction seductiveness has no merit.
11. The initial evidence of Ld. Counsel for a appellant/JD about a fit being filed by him in polite court, Rohini, Delhi severe a vehicle help antiquated 15/11/2010 and during a pendencey of a pronounced case, he has a right to reside in a skill in question, has no merit. While last a box of domestic assault between a parties, Ld. Trial justice had clearly came to a end that DH had suffered earthy , mental, emotional, written and careful abuse during a hands of a JD and Ld. Trial justice righteously hold that a service postulated to a DH opposite a JD was on comment of a domestic abuse that she had suffered during his hands and this service was eccentric of a pretension of a pronounced property. It serve righteously hold that it was not within a office of a pronounced justice conference a petititon u/s 12 of a DV Act to confirm a competing claims of a parties as to right and pretension to a common domicile and a office of a pronounced justice was singular to last either a postulant who was vital in a common domicile in domestic attribute with a respondent had suffered domestic abuse during his /her palm and to extend service to a postulant accordingly. Hence, filing of a polite fit by a appellant/JD in a polite justice severe a vehicle help antiquated 15/11/2010 would not come in a approach of a conference justice adjudicating a focus of a direct hilt claiming service underneath DV Act.
12. On a same logic, a evidence of Ld. Counsel for a appellant/JD that after a genocide of a father of a parties, there is change of business and a appellant/JD being a coparcener /coowner can't be calm from enjoying a possession of a property, binds no water. It is contended by Ld. Counsel for a respondent/DH that a father of a parties during his life time means a pronounced skill to a other brothers vide benefaction help antiquated 22/8/2012 and hence a appellant/JD has no right, pretension or seductiveness in a skill in question. This aspect is not to be motionless by a conference justice or by this justice conference a benefaction appeal. There is consequence in a row of Ld. Counsel for a respondent/DH that if a appellant/JD claims tenure /Coparcenery rights/coownership /partition in a skill in question, he has to record apart suit, if during all he is entitled to a same as per law. He has to take suitable step for a redressal of his grievances though on this ground, a execution petition of a DH can't be dismissed.
13. The evidence of a Ld. Counsel for a appellant/JD about dissimulation of element fact on a partial of respondent/DH has also no merit. The appellant/JD is denying a execution of benefaction help antiquated 22/8/2012 by his father in foster of his other brothers in honour of skill in doubt and in a circumstance, he can't be listened observant that a respondent/DH had secluded element contribution from a conference justice by not disclosing about a pronounced benefaction help in a execution petition. The appellant/JD is floating prohibited and cold during a same time that he can't be authorised in a business of a case. Moreover, a respondent DH had filed execution petition for seeking execution of a sequence antiquated 18/4/2016 and a appellant /JD has unsuccessful to uncover that in a resources of a case, it was required for her to discuss about a benefaction help in doubt in a execution petition.
14. By arguing that a daughter in law can't explain any right of chateau in a skill of his father in law underneath a DV Act, Ld. warn for appellant/JD is substantially referring to an management of Hon’ble Supreme Court patrician as S.R. Batra and Anr. vs. Tarun Batra, Appeal (Civil) 5837 of 2006. In my view, this evidence has also no merit. The pronounced box of Batra (supra) is clearly discernible since in a pronounced box daughter in law was claiming right of chateau from his father in law in a skill that was in a name of father in law though in a benefaction case, respondent/DH has not filed focus underneath DV Act and is not claiming any service opposite her father in law though she claimed service opposite a appellant/JD who is her hermit in law. Hence a management of Batra (Supra) has no qualification in a benefaction case.
15. In perspective of a above, we am of a deliberate opinion that there is no illegality or feebleness in a impugned sequence antiquated 27/04/2018 upheld by Ld. Trial court.
16. Accordingly, benefaction seductiveness filed by a appellant has no consequence and same is dismissed.
17. Copy of this sequence be sent to a Ld. MM for information and compliance. TCR be returned back.
File of this rider be consigned to Record Room.
Announced in a open justice (Deepak Garg)
on antiquated 16th July, 2018 ASJII, NorthWest,
