Delhi Metropolitan Court Quashes the DV case as CrPC 125 is already undertrail.
IN THE COURT OF MRS. VEENA RANI, METROPOLITAN MAGISTRATE, NEW DELHI
Rubita, Age:26 years, R/o C-113, Gali No:37
Mahavir Enclave, Part III, New Delhi
Present Address: RZ 158/2, Gali No:9,
Kailash Puri ext. New Delhi …..Complainant.
1. Rupesh (Husband of complainant)
S/o Sh. Inder Pal.
2. Inder Pal both R/o C-113, Gali No:37
Mahavir Enclave, Part III, New Delhi.
3. Mehan Pal (Uncle respondent no:1)
R/o V & P.O , Allum, Distt. Muzafar
Nagar, U.P. …..Respondents
1. The present petition has been filed u/s 17,18,19 and 20 of the Domestic Violence Act 2005 by the complainant/petitioner Rubita
2. Precisely the facts of the case are that marriage between the petitioner and the respondent no:1 Rupesh (husband of complainant)
were solemnized on 7-3-2002 as per Hindu rights and customs. It is alleged that the parents of the petitioner gave sufficient dowry to the respondents at the time of marriage and even prior to the marriage. It is further alleged that after the marriage complainant
was taunted by his mother in law and sister in law for not bringing the Car in the dowry on the very first day of the marriage.
3. It is stated that it was revealed that respondent and his family members were having lots of expectations from this marriage and 2
uncle of the respondent no:1 had a talk at some other place where he was stated to be offerred a car in the dowry. On 5-5-2002 the marriage of the brother of the petitioner was fixed and she was allowed to attend the marriage of her brother only after lot of persuasion and requests. After the return of the petitioner from the marriage of his brother, she was beaten by fist blows and slapped for non fulfilling their dowry demands.
4. It is further stated that on several occasions respondent kept on beating , torturing and humiliating the petitioner and the petitioner kept on tolerating. The mother in law and sister in law of the complainant also stopped giving proper food to her but the father of the complainant in order to fulfill the demand of the dowry of the respondents paid a sum of Rs.25,000/- on 18-11-2003 and again on 25-1-2004 another Rs.25000/- was paid to the mother in law of the complainant by the father of the complainant but even that the in laws of the complainant remained unsatisfied. 5. It is further stated that on 27-3-2004 the father in law of the complainant abused her in filthy language and also slapped her, his mother in law also gave kicks and fist blows and in the meantime respondent no:3 arrived and instigated the other respondent and at his instigation the respondent no:1 pushed out the petitioner from the house and warned her not to come back unless and until she brings the Car from his parents. 6. Further on 28-3-2004 the complainant along with her brother came to her matrimonial house with a view to pacify the respondents but the respondents and his sister did not allow them to enter in the house. Again petitioner’s father and brother tried to pacify the situation but the behavior of the respondents remained adamant on the demand of the Car and thereafter finding no other way the petitioner demanded her Stridhan so that she could sustain herself 3 but she was denied.
7. On 30-9-2005 the petitioner received the notice of a case of dissolution of marriage from the court. Thereafter, the family members of the complainant approached the respondent and his parents but they on the other hand started abusing them and they also flatly refused to return her Stridhan. The complainant also filed a complaint before Women Cell Vasant Vihar on 19-10-2005 against respondent and his family members for torturing, harassing, inflicting cruelty and humiliating the complaint but same was withdrawn by complainant on 28-7-2006 since the accused no:1 apologized with the complainant and assured her to lead a fresh live.
8. IT is further stated that after some time the petitioner realised that the accused no:1 has once again defraud and cheated her by
playing with her sentiments and hence she again filed an application before DCP, Vasant Vihar on 29-5-2007 to re open her complaint and consequently FIR NO:822/2007 was lodged at P.S. DABRI against the respondents. During the proceedings before the Women Cell the respondent handed over some of the dowry articles in broken condition.
IT is stated that respondent has not made any provision for the maintenance and residence for the complainant and since then she is
surviving upon the charity of her parents. The petitioner had also filed a complaint u/s 125 Cr.P.C for maintenance and an interim order for payment of Rs.1500/- per month was passed against the respondent but the respondent no:1 is in arrears of more then ten months. It is stated that due to the aforesaid mentioned facts the petitioner compelled to file the present petition.
9. To the application of the petitioner u/s 17,18,19 and 20 of the Domestic Violence Act 2005 the respondent no:1 and 2 filed their reply and in their preliminary objections they challenged the maintainability of the present application on the ground that 4
Protection of Women from Domestic Violence Act came into force on 26-10-2006 and it is an admitted fact that that complainant and respondent no:1 and 2 have been living separately much prior to the time of coming into force the said Act and in fact the complainant left the company of the respondent NO:1 on 6-2-2004. Since then she has been living with her parents and no allegation of commission of domestic violence have been alleged after 26-10-2006, therefore, the present petition is required to be rejected on this point only.
10. The respondent have denied that they have ever demanded dowry or harassed the complainant at any point of time. IT is submitted by the respondent that after few days of their marriage it was revealed that the complainant has been suffering from serious disease namely Epilepsy and this fact was concealed from the respondent no:1 by the petitioner and his family members. However, the respondent and his family members provided good status to the complainant but the complainant deserted respondent no:1 from the very beginning of the marriage and finally she left the company of the respondent no:1 on 6-2-2004 by taking her entire jewellery and cloths on the pretext to attend the marriage and did not return to her matrimonial house. Respondents made every efforts to convince the complainant to join her matrimonial home but the parents of the complainant put a condition that till the respondent no:1 starts living separately only then complainant will join the matrimonial home. It is stated that the parents of the complainant also threatened the respondents to falsely implicate them in false case of dowry demand, only thereafter the respondent No:1 had filed divorce case against the petitioner.
11. It is further stated that after receiving the notice of dissolution of marriage from the court, the petitioner filed the complaint before the Women Cell on 19-10-2005. The father of the complainant also 5 threatened the respondent that if respondent will not withdraw the divorce petition then the complainant will commit suicide and her death will be attributed to the respondent and her
12. The respondent also lodged complaints after such threats on 26-3-06, 22-6-2006 and 15-6-2007 and a case u/s 498A/323 / 506 / 504 and 3-4 of Dowry Prohibition Act was also registered against the respondent and after this they remained in Jail. IT is further stated that complainant has also received a sum of Rs.50,000/- on 13-10-2007 from the respondent and his family and after that the respondent and their family members were granted anticipatory bail.
13. IT is further submitted that complainant has been trying to misuse the provision of Protection of Women from Domestic Violence Act by suppressing the true fact just to have wrongful gain and to harass the respondents and their family members, therefore, on this ground the application of the petitioner is not maintainable and same requires out right rejection.
14. To the reply of the respondent no:1 and 2, the complainant preferred to file rejoinder and denied and controverted all the averments made in the reply reply of the respondents.
15. I have heard ld. counsel for the parties and perused the record carefully.
16. The alleged incidents of Domestic Violence Act relates to the period prior to 26-10-2006 the date when the Protection of Women from Domestic Violence Act, 2005 came into force and undisputedly the parties to the present case are living separately much prior to the time coming into force of the said Act. The Act can not be made applicable with retrospective effect unless the incident of Domestic Violence is continuing one.
17. In the instant case there is no such incident in continuance 6 because of said separation. No allegations of such violation within
the ambit of this Act after 26-10-2006 complained. On this ground only the complaint is liable to be rejected.
18. The respondent no:1 (husband) has filed a petition for dissolution of marriage u/s 13(1) (1-a) & (1-b) of Hindu Marriage Act, 1955 on 30-9-2005 which is pending and only thereafter when the complainant received the notice of the same , the complainant got registered FIR No:822/2007 dt. 31-10-2007 u/s 498/406 IPC lodged at Police Station Dabri against the respondents. The complainant also filed a petition u/s 125 Cr.PC for maintenance which is going on and an interim maintenance order is there in her favour. More over she has also got Rs.50,000/- after having the bail application in the said FIR No:822/2007 of P.S. DABRI . A case u/s 498(A)/323/506/504 IPC R/W u/s 3 and 4 of Dowry Prohibition Act, at PS Pratap Pur, District Meerut, UP was also got registered by the wife of the brother of the complainant against the brothers, mother and father of the complainant.
19. With regard to the right of residence , the house belongs to the mother of the husband of the complainant and it is not a shared house. The respondent NO:1 and complainant are not the owner of the property nor they have any right title or interest in the same.
20. It has been held in In the authority reported as S.R. Batra Vs. Smt. Taruna Batra, 2006 (13) SCALE 652. The facts of this case were that Trauna Batra and Amit Batra were married on April 14, 2000. After marriage, Taruna started living with her husband Amit on the second floor of her mother-in-law’s house at Ashok Vihar in Delhi. Amit Batra filed a divorce petition against his wife. Taruna Batra filed a First Information Report for cruelty, intimidation and breach of trust against her in laws, husband and sister-in-law. Taruna shifted to her parent’s house. Later, when she tried to enter the house she found 7 that the main entrance was locked. She filed a suit for mandatory injunction to enter the premises. According to the husband’s family, Taruna Batra forcibly broke open the lock of her mother-in-law’s house and terrorised them. The family also stated that the husband Amit had moved out of Ashok Vihar to his own flat at Mohan Nagar.
21. The trial court held that Taruna was in possession of the second floor of the house and granted an injunction restraining the husband’s family from interfering with her possession. IN appeal, the learned court held that Taruna was not living on the second floor of the premises. The learned court also held that Amit Batra was not living in the Ashok Vihar premises, and that the ‘matrimonial home’ could not be said to be a place where only the wife was residing. The application seeking that the husband’s family be restrained from interfering with the wife’s possession was dismissed by the court.Taruna Batra subsequently filed a petition in the Hon’ble Delhi High Court.
22. The Hon’ble Delhi High Court took the view that mere change of residence by the husband would not shift the matrimonial home,
particularly when he had filed a divorce petition against his wife. Therefore, the shifting of the husband Amit Batra to Mohan Nagar in Ghaziabad would not make that house the matrimonial home of the wife Taruna. The Hon’ble Delhi High Court held that Taruna Batra was entitled to continue to reside on the second floor of the Ashok Vihar premises, as that was her matrimonial home. Amit and his family appealed to the apex court.
23. The Hon’ble Supreme Court observed that in England the rights of the spouse to the matrimonial home were governed by the Matrimonial Homes Act, 1967. But no such rights exist in India. Illustrating the mindset that the court brought to bear on interpreting a law that deals with the rights of a wife in the matrimonial home, the judgment declares that, in any case, the rights which may be available under any law could only be against the husband and not against the mother in law or father in law. The court held that the Ashok Vihar house belonged to the mother in law and not to be husband. Therefore, Taruna Batra could not claim any right to live in the premises. The judgment observes that Taruna Batra was not residing in the house and so could not claim an injunction restraining the husband’s family from dispossessing her of the premises. Therefore, the court goes on to interpret the definition of ‘shared household’ in the Domestic Violence Act and the rights of a woman in the household. The Domestic Violence Act clearly defines ‘shared household’ in Section 2(s) as a household where the aggrieved person ”lives or at any stage has lived in a domestic relationship either singly or along with the respondent”. The definition covers household owned or tenanted, or joint family property, irrespective of whether the respondent or the aggrieved person has a right, title or interest in the shared household. The submission made on behalf of Taruna Batra was that the definition of ‘shared household’ in the Domestic Violence Act clearly included a household where the aggrieved person lives or at any stage had lived in a domestic relationship. As Taruna Batra had admittedly lived in the premises at Ashok Vihar, it clearly constituted her ‘shared household’. The Hon’ble Supreme Court, rejected the submission that the second floor premises of Ashok Vihar were the shared household of the wife Taruna Batra. The court also rejected Taruna Batra’s claim for alternative accommodation under the Domestic Violence Act. The judgment holds that the property belonged to the husband’s mother and could not be claimed by the wife as ‘shared household’.
24. I am also basing my decision on the above-discussed reported as S.R. Batra Vs. Smt. Taruna Batra, 2006 (13) SCALE 652.
25. In the wake of the above facts and circumstances the relief sought under the Act stand removed far away from the domain of the Protection of Women from Domestic Violence Act, 2005 and if attempt to consider relief sought under the act , it will amount to forcing them to embrace the ambit of Act which will further amount to abusing and misusing the forum under this Act.
26. The parties are already in adequate legal battle as aforesaid and no further battle front is needed to be opened. Hence in view of the above mentioned observations and discussion , the complaint of complainant/petitioner merits dismissal, the same is dismissed.
File be consigned to record room.
Announced in the open court.