$~3 * + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
16. 09.2019 CRL.REV.P. 378/2019 & CRL.M.A. 6786/2019 SHILPA AGGARWAL Through: Ms. Tulika Prasad, Adv. ........ Petitioner
versus ..... Respondent Through: Mr. Avinash Trivedi, Adv. RUCHIKA GUPTA CORAM: HON'BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT
(ORAL) 1. Vide the present petition, the petitioner seeks direction thereby to set aside the order dated 14.1.2019 passed by ASJ-5 South East District, Saket Court, New Delhi, in criminal appeal 204183/2016.
2. Brief facts of the case are that the petitioner got married on 30.06.2006 and left House No.538, Sector-37, Faridabad for her matrimonial home and the petitioner till date is happily residing in her matrimonial home and is settled in United States of America.
3. On 16.01.2005, the respondent Ms. Ruchika Gupta married with Mr.Nitin Gupta, who is real brother of the petitioner and the respondent is real sister in law of the petitioner. The marriage was solemnised on 16.1.2005 at Pisces Garden, Vasant Kunj, New Delhi as per Hindu rites and CRL.REV.P. 378/2019 Page 1 of 9 ceremonies. Both the parties set up their matrimonial home at H.No.538 Sector-37 Faridabad.
4. Further case of the petitioner is that approximately one year after the... Petitioner
's marriage, i.e. in 2007, differences arose in the matrimonial life of the petitioner’s brother and the respondent, as the respondent misused the trust reposed on her by the petitioner's brother and his family members, by siphoning huge sums of money from the bank account of the petitioner's mother i.e. Smt Savita Gupta. The Respondent started a series of false and frivolous complaints and court cases against her husband and his family members including the petitioner herein by falsely claiming harassment for dowry, only as a cover for the financial embezzlement done by her with her husband’s family.
5. The Respondent preferred a complaint under Section 12 of the Prevention of Women from Domestic violence Act against her husband and his family members including the petitioner alleging by husband and his family members including the petitioner on false and concocted facts. In addition, a petition under Section 125 Cr.P.C. and a FIR under Section 498- A/406/ 34 IPC was also lodged.
6. Learned counsel appearing on behalf of petitioner submits that CRL.REV.P. 378/2019 Page 2 of 9 petitioner moved an application seeking deletion from array of parties in the petition under section 12 DV Act filed against respondent's husband and his family members including the petitioner.
7. The Ld. Trial Court was pleased to drop all proceedings against the petitioner while observing that the incidents of violence, as per Domestic Violence report filed by the protection officer, started only after the marriage of the petitioner and there was no domestic relation between the petitioner and the respondent at the time of filing of the present petition. The petitioner was already married in the year 2006 whereas the complaint was filed in the year 2007.
8. Being aggrieved, respondent filed the criminal revision petition against the said order. The same was allowed vide order dated 14.01.2019 by the Sessions Court.
9. Learned counsel for the petitioner submits that the learned Sessions Court failed to appreciate the fact that the petition under Section 12 of the Domestic Violence Act was filed in the year 2007 whereas the petitioner was already married and started staying separately in her matrimonial home from 2006 itself i.e. prior to filing of the petition, meaning thereby the petitioner was not in domestic relationship with the respondent at the time CRL.REV.P. 378/2019 Page 3 of 9 when the petition was originally filed before the Trial Court in the year 2007.
10. It is further submitted that the Trial Court did not appreciate the fact that even as per the domestic violence report filed by the protection officer, the respondent herself had stated that "my husband is a drunkard who slapped and hit me with fists and forced me out of the house at around 3.00 am at night and called at my parent's place and asked them to keep their daughter with them. Forced out of the house after physical harassment complainant stayed at Nand's house i.e. Shilpa Aggarwal at Sarita Vihar.” 11. Assuming though not admitting the aforesaid fact, even as per the respondent, the petitioner helped her sister in law and saved her from the alleged assault from her husband. However, the Ld. Judge did not consider the statement but the impugned order was passed against the petitioner 12. On the other hand, learned counsel appearing on behalf of respondent/complainant submits that at the time of the petitioner’s marriage, the parents of the petitioner took away her jewellery and gave them to the petitioner and they did not return the same. Moreover, the petitioner used to taunt, harass her and commit cruelty along with her parents. The fact remains that due to the aforesaid allegations, FIR No.336/2007 was CRL.REV.P. 378/2019 Page 4 of 9 registered against the petitioner and her family members for the offences under Section 498-A/4
IPC13 It is not in dispute that the petitioner has been discharged from those proceedings.
14. On perusal of order dated 14.01.2019, it is recorded by the Court below in para 3 that the respondent/appellant was married to Mr. Nitin Gupta on 16.01.2005. Marriage of Shilpa, petitioner herein, was solemnized on 30.06.2006 i.e. after about one and half years of the marriage of the respondent. The respondent herein stated that at the time of Bidaai of the petitioner, the petitioner had taken jewellery of the respondent and the same has not been returned. The petitioner had taken her jewellery at the time of her marriage. By recording the aforesaid fact, the learned Judge has relied upon the judgment passed in Harbans Lal Malik V. Payal Malik 171 (2010) DLT67 The learned Revisional Court has opined that the facts of the case cited are not applicable to the present case.
15. On perusing the impugned order of the learned Revisional Court, in para 6 it is mentioned that on the very next date of the marriage of the respondent herein, the petitioner and her family members were taunting the respondent that she had not brought dowry, gifts and cash according to their CRL.REV.P. 378/2019 Page 5 of 9 expectations. It is mentioned in para 5 of the application made by the respondent that on 17.01.2005 when the brother of the respondent came to her matrimonial home, her mother in law, jeth, jethani and nanad (herein petitioner) again taunted her for not bringing papers of luxury flat in Gurgaon and ₹10 lacs in cash. In para 7 of the application, it is stated that on the very next date, the mother in law, jethani and nanad asked the petitioner either to fulfil their demands of luxury flat in Gurgaon and ₹10 lacs cash, otherwise they would not keep her in her matrimonial home and their demands continued on every festival like holi, diwali, dusshera, birthdays and karwa chauth etc.
16. The fact remains that the aforesaid allegations recorded by the Revisional Court are governed under Section 498A/406 IPC.
17. However, under the Protection of Women from Domestic Violence Act, 2005, “aggrieved person” and “domestic relationship” are defined as:-
"“Section 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; Section 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 CRL.REV.P. 378/2019 Page 6 of 9 family members living together as a joint family;” 18. Further in the case of Adil & Ors. vs. State & Anr.:
2010. (119) DRJ297 of this Court, a “domestic relationship” has been clarified as under:-
"6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or „at any point of time‟. The problem arises with the meaning of phrase "at any point of time". Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship?. I consider that "at any point of time" under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, "at any point of time" cannot be defined as "at any point of time in the past" whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an CRL.REV.P. 378/2019 Page 7 of 9 application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with 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. Such son, daughter, daughter-in-law, son-in- law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase „at any point of time‟, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not the household relationship continues. permanently, However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end."
the domestic left CRL.REV.P. 378/2019 Page 8 of 9 19. It is not in dispute that the petitioner has already been discharged for the offences under Section 498A/406 IPC and the order of discharge has attained finality.
20. It is also not in dispute that petitioner was not staying with the respondent at the time when the issues arose between the respondent and parents of the petitioner. However, where the living together has been given up and separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relative of each other survives. Since the petitioner has settled abroad after marriage with her husband and living in her matrimonial home, therefore, I am of the considered opinion that petitioner cannot be made party in the case filed under the Domestic Violence Act.
21. In view of the above, while maintaining the order of the Magistrate dated 24.01.2018, I hereby set aside the order dated 14.01.2019 passed by the Revisional Court.
22. Accordingly, the petition is allowed and disposed of.
23. Pending application also stands disposed of.
24. Order dasti. (SURESH KUMAR KAIT) JUDGE SEPTEMBER16 2019/ms CRL.REV.P. 378/2019 Page 9 of 9