Final Order 6

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SHRI ARVIND BANSAL:
ADDL. SESSIONS JUDGE–05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
CRIMINAL APPEAL NO. 66 of 2023
CNR NO. DLSH01-002975-2023
IN THE MATTER OF:
1. PRIYANKA SAPRU
W/o Sh. Rahul Raina,
R/o Flat No. 717, Ground Floor,
New Delhi – 110095 .......Appellant
Versus
1. RAHUL RAINA
S/o Sh. Ratan Lal Raina
R/o H. No. 21, Lane No. 2,
Near Ayurvedic College,
Jammu-181123
(Proforma Party)
2. RATAN LAL RAINA
S/o Mr. Shridhar Pandit Raina
3. Mrs. VIJAY RAINA
W/o Sh. Ratan Lal Raina
Both 3 & 4 R/o H. No. 21, Lane No. 2,
Laxmipura Extension,
Jammu-181123
4. Mrs. VICKY RAINA BAGH
W/o Mr. Vishal Bagh
D/o Mr. Ratan lal Raina
C/o Siemens PLM Softwre
Survey No. 21, Tower B & C Cummins India,
Office Campus, Baner Balewadi Road,
Laxman Nagar, Baner,
Pune-411045, Maharashtra .......Respondents
Instituted on : 17.05.2023
Reserved on : 02.11.2023
Pronounced on : 04.12.2023
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PRIYANKA SAPRU Vs. RAHUL RAINA AND ORS.
Police Station: GTB Enclave
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JUDGMENT
1. Vide instant appeal, appellant/wife has assailed an
order dt. 07.10.2022 of Ld. MM (Mahila Court)-01, Shahdara
whereby the Ld. Trial Court declined issuance of process to
respondent no. 2, 3 and 4 herein.
2. The succinct facts leading to filing of a petition under
DV Act by appellant/wife are as follows: that appellant/wife got
married to respondent no. 1 on 01.03.2018 at Jammu as per Hindu
rites and customs, and her family spent a handsome amount on the
marriage and fulfilled all the demands of the respondents. It is
alleged that on the next day of marriage, respondent no. 2 asked her
to hand over all her jewelery to them and she obediently agreed to
the same. Appellant and respondent no. 1 admittedly shifted from
Jammu to Noida after a few days. It is the case that respondent no.
4 visited them at their place in Noida and created rukus to provide
her money. It is alleged that respondents were not happy with the
dowry and started making comments upon her from the beginning
of the marriage itself.
2.1 It is stated that appellant/wife was subjected to
cruelty-mental and physical. It is also the allegation that respondent
no. 2 and 3 always instigated respondent no. 1 and at their instance,
he even slapped her. It is submitted that respondent no. 1 started
living in a separate room of the same flat in Noida and ignored her.
When the matter was brought to the notice of respondent no. 2 and
3, they both found faults with appellant/wife and caused her mental
agony. It is alleged that respondent no. 3 always advised her
son/respondent no. 1 to control appellant/wife by slapping her.
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2.2 It is the case that respondent no. 2 and 3 also visited
and stayed with appellant and respondent no. 1 in their flat for
about 2 months in November/December 2018 and during this
period, they instigated respondent no. 1 against her. It is alleged that
in March 2019 when appellant visited her in-laws at Jammu for
Shivratri, respondent no. 2 and 3 quarreled with her and respondent
no. 2 compelled her to bring an amount of Rs. 20 lacs from her
mother to buy a flat for respondent no. 1. It is pleaded that
respondent no. 4 stayed with appellant and respondent no. 1 at
Noida for 15 days in May 2019 and during her stay, criticized and
abused her at all times. Many other incidents of similar nature have
been narrated by appellant/wife in her petition before Ld. Trial
Court as well as this Court.
2.3 It is the case that appellant & respondent no. 1
separated on 27.06.2020 and since then, appellant had been staying
at her mother’s house at Dilshad Garden. Appellant also got one
FIR No. 477/2020 u/s 498A/323/506 IPC r/w 3/4 D.P. Act
registered against respondents at Noida. Later, appellant preferred a
petition u/s 12 DV Act at Shahdara, Delhi.
3. During the hearing of said petition u/s 12 DV Act, Ld.
Trial Court vide impugned order dt. 07.10.2022, denied issuance of
any process to respondent no. 2, 3 and 4 on the ground that they
didn’t reside in share household.
4. Being aggrieved by the order, appellant has preferred
the present appeal u/s 29 DV Act.
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PRIYANKA SAPRU Vs. RAHUL RAINA AND ORS.
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5. Notice of the appeal was issued to respondent no. 1 to
4 who appeared through their Counsel. No formal written reply was
filed on behalf of the respondents.
5.1 Arguments of both the parties were heard at length.
List of citations was filed on behalf of appellant, and written
submissions were filed on behalf of respondent no. 2 to 4 by their
respective Counsels.
6. Appellant has challenged the impugned order on the
following grounds :-
(a) that the impugned order is against the facts on record;
(b) that Ld. Trial Court failed to consider that respondent no. 2
to 4 resided with appellant at her matrimonial house at
Jammu after marriage and caused cruelty and harassment as
narrated above;
(c) that Ld. Trial Court gave unnecessary weightage to
Domestic Incident Report while there were sufficient
allegations of domestic violence in the complaint under
Section 12 DV Act against respondent no. 2 to 4;
(d) that Ld. Trial Court did not consider that DIR was not in
accordance with the complaint u/s 12 DV Act and did not
mention the correct facts; and
(e) that Ld. Trial Court did not consider the applicable law
while passing the impugned order.
7.
Per Contra, Ld. Counsel for respondent no. 2 to 4
argued that there is clear admission on the part of appellant/wife in
the DIR that she stayed at her matrimonial house only for 3-4 days
and then shifted to Noida with respondent no. 1. It is argued that
such a stay does not create a ground for summoning of respondent
no. 2 to 4 for complaint u/s 12 of DV Act. It is stated that
respondent no. 4 is married and working at Pune, Maharashtra since
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2017, much prior to marriage of appellant with respondent no. 1.
Ld. Counsel stated that no interference was needed with the
impugned order dt. 07.10.2022.
8. It is noted that present appeal has an application under
Section 5 of Limitation Act enclosed thereto seeking condonation of
delay in filing the present appeal. While the impugned order is dt.
07.10.2022, the present appeal was preferred on 15.05.2023 with a
delay of about 157 days.
8.1 It is pleaded on behalf of appellant that she was
suffering from Carcinoma Urinary Bladder during the said period
and was under continuous treatment. It is also argued that mother of
appellant was also not keeping well and therefore, she could contact
her counsel only in April 2023, leading to a well-explained delay in
filing of this appeal. It is contended that delayed filing was neither
deliberate nor intentional and thus, be condoned.
8.2 Application faced vociferous challenge at the hands of
Ld. Counsel for respondents arguing that present appeal had been
preferred only to pressurize the respondents, and the grounds raised
in the application are flimsy and an afterthought. It is contended
that appellant was continuously working during that period and
drew full salary from her company without any leave deduction. It
is argued that delay is deliberate and be not condoned.
9. Submissions heard. Application & record perused.
10. This Court has perused the medical documents of the
appellant. While half of documents annexed to the application
pertains to January/September 2022, the others pertain to January &
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April 2023. She has been suffering this illness since 2020 and did
not underwent any surgical procedure between October 2022 to
May 2023. The prescriptions divulge regular consultation and
investigations only.
10.1 A studied perusal of Trial Court Record would divulge
that appellant was regularly appearing before Ld. Trial Court
throughout this period. She appeared on 15.12.2022, 20.02.2023
and 05.04.2023 without fail. Further, she also submitted her
rejoinder and income affidavit on 20.02.2023.
11. In the opinion of this Court, appellant was regularly in
touch with her Counsel since 07.10.2022 till filing of this appeal
and the grounds raised in application u/s 5 of Limitation Act appear
false and concocted. No sufficient cause has been put forth by the
appellant to seek condonation of delay.
11.1 Accordingly, applicantion moved under Section 5 of
Limitation Act seeking condonation of delay stands dismissed.
12. Be that as it may, this Court also heard both the parties
on merits.
12.1 After a careful reading of the entire complaint u/s 12
of DV Act and the present appeal, it is amply clear that appellant
resided with respondent no. 2 to 4 in the matrimonial home at
Jammu only for 'a few' days before shifting to Noida with her
husband. The Domestic Incident Report specified this period to be
3-4 days only.
12.2 Further, appellant has narrated many incidents of
alleged cruelty and harassment against respondent no. 2 to 4
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individually and collectively. Some of such incidents took place
while the respondents were staying at their respective places (and
not at Noida with appellant) and appellant was allegedly harassed
over phone. Some other incidents occurred when respondent no. 2,
3 and 4 allegedly visited appellant at Noida at different times.
12.3 It is an admitted case of appellant, that respondent no.
2 & 3 are permanent residents of Jammu and respondent no. 4 is
permanent resident of Pune, and therefore, the said addresses of
respondents have been provided in the memo of parties. It is also
not disputed that appellant never shifted to Jammu for a substantial
period of time to stay with her in-laws. Similar is the case of
respondent no. 2 to 4 qua appellant staying at Noida. Thus, there
was never a 'shared' household enjoyed by the parties, nor there was
a consequent 'domestic relationship' between them.
13. In this regard, Hon'ble Supreme Court in case titled
Satish Chandra Ahuja Vs. Sneha Ahuja observed as under:
…...
63. The words “lives or at any stage has lived in a domestic
relationship” have to be given its normal and purposeful
meaning. The living of woman in a household has to
refer to a living which has some permanency. Mere
fleeting or casual living at different places shall not
make a shared household. The intention of the parties
and the nature of living including the nature of
household have to be looked into to find out as to
whether the parties intended to treat the premises as
shared household or not. As noted above, 2005 Act was
enacted to give a higher right in favour of woman. The Act
of 2005 has been enacted to provide for more effective
protection of the rights of the woman who are victims of
violence of any kind occurring within the family. The Act
has to be interpreted in a manner to effectuate the very
purpose and object of the Act. Section 2(s) read with
Sections 17 and 19 of Act, 2005 grants an entitlement in
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favour of the woman of the right of residence under the
shared household irrespective of her having any legal interest
in the same or not.(Emphasis supplied)
Similarly, Hon'ble Delhi High Court in
Bharti Anand Vs.
Sushand Anand (26.04.2022) observed as follows:
….....
15. While the above observations of the Court are in the
context of the place of residence of the "aggrieved
person", it would equally apply to the identification of
those who may be properly impleaded as respondents on
the basis of residence in the shared household. Just as
the woman living fleetingly or casually at different
places, would not convert those places into a
"shared household", the visits of sundry family
members to the matrimonial home, without
permanency or the intention to treat the premises
as shared household, would not render them as
members of the "shared household".(Emphasis
supplied)
14. The facts and circumstances of the present case
squarely fall within the parameters of law laid down by Honb'le
High Court in aforesaid cases. In the opinion of this Court,
appellant never had any intention to treat her in-laws house at
Jammu as 'shared household' nor did the respondents (2 to 4) had
any willingness to consider the house of appellant & respondent no.
1 as a 'shared household'.
15. As such, Ld. Trial Court rightly observed that
respondent no. 2 to 4 did not reside in the shared household and
consequently, declined issuance of process to all three of them.
15.1 Ld. Counsel for appellant relied upon a judgment
titled
Prabha Tyagi Vs. Kamlesh Devi (2022) 8 SCC 90 and
Santosh Bakshi Vs. State of Punjab (2014) 13 SCC 25 to
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argue that Ld. Trial Court erroneously relied upon DIR to decline
issuance of process to respondent no. 2 to 4. This Court has perused
the judgments. In the opinion of this Court, reliance of appellant on
the said judgments is misconceived as the facts and circumstances
asserted in the petition under Section 12 DV Act before Ld. Trial
Court itself does not make out a case for issuance of process against
the said respondents. DIR merely corroborated the case of
appellant/wife regarding her stay at her matrimonial house at
Jammu.
16. This Court can understand the anxiety of appellant to
prefer this appeal, however, she must also understand that her
allegations against respondent no. 2 to 4 'may' make out an offence
under any other applicable penal provisions but do not amount to
'domestic' violence within the ambit of DV Act.
17. There is no reason to interfere with the impugned
order dt. 07.10.2022 of the Ld. Trial Court which is based on
correct understanding of law and facts and circumstances of the
present case. The appeal stands dismissed even on merits.
18. The instant appeal stands dismissed in terms of
aforesaid observations.
Dictated and Announced
in open Court on 04.12.2023.
(Arvind Bansal)
Addl. Sessions Judge-05
Shahdara District,
Karkardooma Courts, Delhi.
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