Full Text
HIGH COURT OF DELHI
NUTAN THAKUR .... Petitioner
Through: Ms. Indu Kaul, Advocate
Through: Mr. Saurabh Balwani and Mr. Sanchit Aggarwal, Advocates
JUDGMENT
1. The present revision petition under Sections 397/401 of Code of Criminal Procedure, 1973 (“Cr.P.C.”) has been filed by the petitioner challenging judgment dated 19.02.2018 passed by learned Additional Sessions Judge-Special Fast Track Court, Saket Courts, New Delhi (“Appellate Court”) in appeal C.A. No. 253/17 filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (“PWDVA”) against judgment and order dated 13.04.2017 passed by learned Metropolitan Magistrate, Mahila Court-01, South District, Saket Courts, New Delhi(“Trial Court”) in Complaint Case NO. 337/1/09.
2. The case of the petitioner is that in an application filed under Section 12 of PWDVA, 2005 by the petitioner, after the completion of pleadings, an interim order was passed by the learned Trial Court on 25.11.2009 vide which, the appellant was allowed to stay in her matrimonial home along with children. Thereafter, vide order dated 28.07.2010, the said court had further directed the respondent to pay Rs. 5,000/- to the petitioner per month. Thereafter, a settlement was arrived at in medication centre, however, the respondent did not comply with the same and stopped residing with her. The petitioner had deposited a Bank Guarantee in sum of Rs.60,000/- in terms of orders of the High Court of Delhi. The petitioner was directed to lead her evidence by the learned Trial Court, and vide order dated 06.04.2015 passed by this Court, it was directed that the learned Trial Court shall make every endeavour to decide the maintenance application within four weeks of filing of income affidavit of respondent no. 1. Respondent no. 1 had filed the same, thereafter, the petitioner was granted two opportunities to conclude complainant’s evidence. However, since she did not lead evidence, her evidence was closed vide order dated 15.07.2015 and the application to set aside the said order was also dismissed vide order dated 22.08.2015. Petitioner had filed an application under Section 311 Cr.P.C. for being granted opportunity to lead evidence. However, the same also dismissed by the learned Trial Court on 17.12.2016. Thereafter, the respondent had led his evidence and was cross-examined.Both the parties had advanced arguments and thereafter, the order dated 13.04.2017 was passed. The operative portion of the said order reads as under: “…13. It is submitted by the aggrieved person that she got legally married to respondent no. 1 and thereafter she lived with the respondent no. 1. It is further submitted that both the parties had two children out of the marriage. Thus, it is established that domestic relationship was shared between the parties and that they lived in a shared household.
14. In order to claim any relief under the Act, it has to be seen whether any domestic violence was suffered at all by the aggrieved or not. In the present case, aggrieved has not proved any of the allegations made by her as she has failed to lead any evidence. Despite giving various opportunities to her aggrieved failed to lead her evidence. Respondent filed his evidence by way of an affidavit and he was cross examined at length. However, all allegations of domestic violence were denied by him and aggrieved could not prove that she suffered domestic violence at the hands of respondent no. 1 or any of the other respondents. Thus, it has not been proved that domestic violence was inflicted upon the aggrieved. She is not entitled to any of the reliefs as stated in the PWDV Act.
15. In view of the above observations the present application u/s PWDV Act is disposed of as dismissed. All orders passed in the interim stand vacated…”
3. The petitioner had also filed an application under Section 25 of PWDVA, 2005 for release of Bank Guarantee and the same was also dismissed. The order dated 13.04.2017 was impugned before the learned Sessions Court/Appellate Court praying for setting aside order dated 13.04.2017, on the ground that despite evidence on record placed by the petitioner which had been taken cognizance of by the Court, just because the petitioner was unable to lead complainant evidence, the Court had passed the impugned order which was bad in law. It was argued that the evidence of the respondent containing the documents on record, per se established commission of offence of domestic violence and since Domestic Violence Act is a beneficial legislation, it had to be interpreted liberally. It was therefore, prayed before the learned Appellate Court that the impugned order dated 13.04.2017 be set aside and the learned Trial Court be directed to release the Bank Guarantee of Rs. 60,000/- in favour of the appellant.
4. The petitioner herein also filed an application under Section 391 Cr.P.C. before the Appellate Court for permission to lead further evidence praying that the same could be considered by the Appellate Court or the Appellate Court could direct the learned Trial Court to take the additional evidence on record. The learned Sessions Court/ Appellate Court passed the following order which has also been impugned before this Court: “...13. Now coming to the merits, before deciding this appeal, it is necessary to refer to certain facts. The appellant/aggrieved has filed the petition under Section 12 of PWDV Act on the allegations that she was married to the respondent at their native place at Bihar and out of their wedlock, two sons namely Yash Thakur and Aditya Thakur were born on 25.05.02 and 17.09.03 respectively. After the marriage, she was maltreated, harassed, beaten up and abused for dowry demand by her husband/respondent no. l and other respondents and ultimately, she left on 05.05.2007 to Bihar with her younger son who was also snatched later on by her sister-in-law. She was not allowed to enter into the house by her husband/respondent no. 1 and was not allowed to meet the children. ***
20. I have perused the judgment passed by the Trial Court. The petition was dismissed mainly on the ground that in order to claim any relief under the Act the appellant/aggrieved is required to prove domestic violence and since the appellant/aggrieved has not proved any of the allegations of domestic violence suffered at the hands of respondent no. l or any other respondents, hence, she is not entitled to any of the reliefs as stated in PW DV Act. ***
22. Hence, for claiming any relief under the Act, the complainant is required to prove that she is an aggrieved person, is in domestic relationship and is subjected to domestic violence as defined under Section 3 of the Act. If she does not lead evidence to prove the same, she cannot be given any reliefs as claimed by her under any of the provisions of the Act.
23. In the present case, the appellant did not lead any evidence to prove that she is an aggrieved person and subjected to domestic violence by the respondent and his other family members. Learned counsel for the appellant has argued that even if the appellant has not led any evidence, her case stands proved from the cross-examination of the respondent. It is a settled law that a party who asserts a positive act, has to prove the same by leading evidence and the party has to stand on his own legs. The party cannot claim to prove his case on the basis of the cross-examination of the other party. Even otherwise, I have seen the crossexamination of the respondent wherein he has denied all the assertions of the appellant regarding the incidents of domestic violence upon her by respondent and his family members. The averments of domestic violence which are pre condition for grant of any relief under the Act, were required to be proved by the appellant by leading her evidence and since the appellant has not led any evidence, she has failed to prove her case and as such the Trial Court had rightly dismissed the petition of the appellant under Section 12 of DV Act.
24. Hence, there is no infirmity or illegality in the judgment of the Trial Court. Accordingly, the appeal is dismissed. As the main petition of aggrieved under 12 D V Act is dismissed on merits, the application for release of FDR also does not survive and is dismissed. The application under Section 391 Cr. P.C for leading evidence is also dismissed...”
5. I have heard arguments and have gone through the case file.The petitioner is aggrieved by both orders dated 13.04.2017 and 19.02.2018, since it was argued that even if the petitioner had not led her evidence to support the claim made by her in her complaint under Section 12 of the Domestic Violence Act, 2005, on the basis of the cross-examination of the respondent, the learned Trial Court and the Appellate Court should have taken cognizance of domestic violence, and further that she was granted right to reside in matrimonial home as well as interim maintenance only because she was an aggrieved person under the Domestic Violence Act, 2005.
6. An aggrieved person has been defined under Section 2(a) of the Protection of Women from Domestic Violence Act, 2005. The same reads as under: “…2(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;…”
7. Domestic relationship has been defined under Section 2(f) of the “…2(f) “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, adoption or are family members living together as a joint family;..”
8. Domestic violence has also been defined under Section 3 of the “…3. Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it— (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.—For the purposes of this section,— (i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force; (ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman; (iii) “verbal and emotional abuse” includes— (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested. (iv) “economic abuse” includes— (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance; (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. …”
9. A combined reading of the above, therefore, makes it clear that for claiming any relief under the Act, the complainant is required to prove that (i) she is an aggrieved person, (ii) she is in a domestic relationship, and (iii) she has been subjected to domestic violence as defined under Section 3 of the Act. In case the complainant, claiming to be aggrieved person who has been subjected to domestic violence, does not lead evidence in support of her claim, she will not be entitled to any relief claimed by her under any provisions of the Act.
10. It is clear from the record that the petition under Section 12 of PWDVA, 2005 was filed on 11.08.2009,residence orders were passed in favour of the petitioner on 25.11.2009 and interim maintenance order granting Rs. 5,000/- per month to petitioner was passed on 28.07.2010. Thereafter, an amicable settlement was reached between the parties before Delhi High Court but the said settlement could not be adhered to and therefore, the learned Trial Court had fixed the case for leading complainant’s evidence for 22.06.2012.
11. The complainant, however, did not lead evidence despite opportunities and last opportunity was granted to lead evidence on 27.04.2013. In the meantime, the matter was again taken to this Court against order dated 28.07.2010, wherein this Court passed an order dated 06.04.2015 vide which, the respondent was directed to file affidavit of income within two weeks and the learned Trial Court was directed to make all endeavours to decide the application for grant of permanent maintenance within four weeks after filing of affidavits by both the sides. The respondent filed his income affidavit on 29.05.2015 and the appellant filed her income affidavit on 22.06.2015. Thereafter, the learned Trial Court again fixed the case for leading complainant’s evidence and had granted two opportunities to her to conclude her evidence since she could not lead any evidence, CE was ordered to be closed on 15.07.2015 after giving two opportunities to the appellant, since there were directions of the High Court to decide the permanent maintenance application within four weeks after filing of the affidavit of both the sides. It is thus clear that since the learned Trial Court was bound to decide the application in a time-bound manner on the directions of this Court, the learned Trial Court had rightly granted two opportunities and a last opportunity to conclude evidence, however, petitioner could not lead evidence and being a time-bound matter, the learned Trial Court had closed evidence. Similarly, on the above grounds, the applications for setting aside the order vide which right to lead evidence of the complainant was closed and further again for permission to lead evidence was rightly dismissed by the learned Trial Court by observing that the grounds for adjournment taken by the complainant before it were contradictory and the said orders were never challenged before any higher Court. The petitioner instead preferred to proceed with the case further and it was only after the respondent had led his evidence, he had been cross-examined by the petitioner after final arguments were heard and final judgment was pronounced and the petition under Section 12 of PWDVA, 2005 was dismissed by the learned Trial Court that the final order was challenged. It is thus, clear that the order vide which the application for leading further evidence was dismissed was never challenged by the petitioner before any court. The petitioner did not challenge the order dated 22.08.2015 vide which her application to set aside the order dated 15.07.2015 vide which her evidence was closed and similarly, application filed by her under Section 311 Cr.P.C. filed for leading further evidence dated 17.12.2012 was dismissed vide order dated 17.12.2016 were never challenged before any court and thus attained finality.
12. In view thereof, since the petitioner had not challenged the above orders, there was no material before the learned Trial Court to have held that the petitioner was an aggrieved person or that any act of domestic violence had taken place with her. The petitioner wants to rely upon the cross-examination of the respondent to persuade this Court to hold that on the basis of the cross-examination of the respondent, the learned Trial Court should have held her to be an aggrieved person even if she herself had not led any evidence in this regard.
13. This Court is not in agreement with the petitioner and finds no infirmity in the order of the learned Trial Court and the Appellate Court, wherein it was rightly held that it was the complainant’s case filed by her which had to stand on its own legs and the complainant could not have proved her case on the basis of cross-examination of the respondent. It is settled law that the person who asserts an act has to prove the same by leading evidence. The learned Trial Court as well as learned Appellate Court have also rightly held that the crossexamination of the respondent is merely denial of assertions of the complainant regarding incidence of domestic violence by him and his family members. Thus, in absence of any evidence or averments of domestic violence which is a pre-condition for grant of any relief under the Act,the learned Trial Court or the learned Appellate Court rightly held that the petitioner had failed to lead evidence and prove her case under Section 12 of PWDVA, 2005 and had dismissed her petition.
14. The petitioner before this Court has sought following reliefs: a) Set aside the impugned orders dated 13.04.2017 and 19.02.2018; b) Allow the petitioner to file her evidence; c) To direct the police to verify the addresses of the children and respondent; d) Direct the respondent to allow petitioner to live with her husband/respondent and children; e) Direct the respondent to pay her room rent and maintenance to petitioner regularly on 7th of each month; f) Direct the respondent to return the custody of children to the petitioner; g) Direct the Trial Court to release Bank Guarantee of Rs. 60,000/- in favour of the petitioner.
15. During the course of arguments, it was stated that this Court may consider that the Act is a beneficial piece of legislation and it will result in grave miscarriage of justice in case she is not allowed to place on record her evidence, more so, since neither she has a place to live nor are the children now in her custody. It is noted that the present petition has travelled for 12 long years it is not the petitioneronly who may have suffered the same however her own laxity and negligence cannot be overlooked. This Court also remains conscious of the fact that even the respondent has suffered 12 years of facing criminal trial. In these peculiar circumstances of this case, this Court needs to balance the rights of both the parties without ignoring agonies suffered by both which result in most cases of marital discord which are neither settled in the courts nor within four walls of home. The assistance of the mediation centre also could not persuade the parties to end the litigation which is ultimately helping none including the children. The fact in these peculiar circumstances remains that the appellant due to her on laxity could not lead evidence in time, the learned Trial Court was bound by a time-bound directions of the High Court and therefore, could not have granted un-ending opportunities to lead evidence and therefore, being bound by directions of the High Court had to close evidence and decide the application within two months. It is not clear as to whether the petitionerhad legal assistance or not to have challenged the orders of closure of evidence and application under Section 311 Cr.P.C. filed by her which she had moved before the learned Trial Court. Even during the course of arguments, this Court tried that the matter could be settled by mediation, but the parties still could not reach any settlement.
16. This Court, therefore, in these peculiar circumstances of this case, orders that the appellant be allowed to lead evidence on one single day fixed by the learned Trial Court. She will not be granted any further opportunity to lead evidence. The respondent will have every right to cross-examine the complainant or any other witness. The case will be decided on the basis of any further evidence led by the complainant. The other contention regarding the Bank Guarantee will be decided by the learned Trial Court as per law in case such a stage arises upon any further evidence being brought on record by the complainant.
17. This Court would have burdened the complainant with some cost for her laxity in producing evidence and for prolonging trial. However, considering her counsel’s request that even the counsel is conducting the case pro bono due to weak financial position of the complainant, only a nominal cost of Rs. 5,000/- is imposed on petitionerto convey a message that the parties should lead their evidence expeditiously so that the cases can be decided expeditiously. This Court still hopes and conveys to the parties that they should try and settle the matter as mediation is better that litigation. Ordered accordingly.
18. Accordingly, the present revision petition stands disposed of.
SWARANA KANTA SHARMA, J DECEMBER 8, 2022