IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST) ROHINI COURTS: DELHI
Crl. Revision No. 367/2010
1. Santosh Kaur
W/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.
2. Ms. Ritu Kashyap
D/o Sh. Mohan Lal Kashyap
R/o 6-D, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College,
Ashok Vihar, Phase-III,
Delhi.
3. Mrs. Sarika Mehta
W/o Sh. Kamal Mehta
R/o F-8, 2nd Floor,
Kamla Nagar,
Delhi
............ Revisionists
Versus
Smt. Nidhi Kashyap
W/o Sh. Gaurav Kashyap
D/o Sh. K.C. Ahuja
R/o C-4/428, Lawrence Road,
Delhi . 110035
............ Respondent
Date of institution: 29.5.2010
Arguments heard on: 16.8.2010
Date of Decision: 28.8.2010
ORDER:
This revision has been filed against the summoning
orders dated 24.2.2010, 25.3.2010 and 23.4.2010 passed by the
Ld. Trial Court in the petition filed by the respondent Nidhi
Kashyap under Section 12 of the Protection of Women from
Domestic Violence Act, 2005. The revisionist no.1 Smt.
Santosh Kaur is the mother-in-law of the respondent whereas the
revisionist no.2 Ms. Ritu Kashyap is her unmarried sister-in-law
(Nanand) and respondent no.3 Mrs. Sarika Mehta is her married
sister-in-law (Nanand).
Briefly the case of the respondent Nidhi Kashyap/
applicant before the Trial Court is that she was the class mate of
revisionist no.2 Ritu Kashyap who is the real sister of Gaurav
Kashyap (respondent no.1 before the Ld. Trial Court) and had
friendly relations with him. According to Nidhi Kashyap, her
father is a property dealer and mother is a bank employee and
they have strong a financial background. It is pleaded that they
are only two sisters and therefore as a part of well planned
conspiracy, the revisionists before this court induced her to enter
into a matrimonial relationship with Gaurav Kashyap despite the
fact that both belonged to different communities. According to
the respondent, her marriage with Gaurav Kashyap was
solemnized secretly on 29.7.2008 at Arya Samaj Mandir, Birla
Line, Kamla Nagar, Delhi according to Hindu rites and
ceremonies after which she left for her parental home as she was
asked to disclose the factum of her marriage to them only after
45 days. It is further pleaded by Nidhi Kashyap that on
12.9.2008 when she entered into her matrimonial home at 6-D,
Janta Flats, Satyawati Colony, behind Laxmi Bai College, Ashok
Vihar, Phase-III, Delhi the revisionists before this court, under a
well planned design conspiracy and in a pre planned manner,
called her parents at their home and disclosed the factum of the
marriage of their son with the present respondent (Nidhi
Kashyap) on which her parents received a serious shock but
finding no alternative they ultimately gave their consent and
approval to the matrimonial ties and on 12.10.2008 as per the
demands of her in-laws, her parents organized a joint reception
where they gave a large amount of gold and jewellery and
domestic articles and cash to her. According to Nidhi Kashyap,
the respondent before this court court, the revisionists are in
domestic relationship with her due to her matrimonial
relationship with Gaurav Kashyap (respondent no. 1 before the
Ld. Trial Court). She has alleged that on 13.10.2008 after she
entered into her matrimonial home, her Nanand the revisionist
no.2 Ritu Kashyap raised a demand of Hundai i10 car and it was
made clear to her that in case if she wants to live peacefully she
would have to ask her parents to satisfy their demands. Again on
13.10.2008, her mother-in-law Smt. Santosh Kashyap the
revisionist no.1 before this court took a sum of Rs.20,000/- from
her purse against her will and consent and in the evening the
revisionists no.2 and 3 took away entire gold and diamond
jewelleries except one Mangal Sutra, one gold ring, nose pin
and ear rings and thereafter did not return the same to her despite
her repeated requests and demands. The present respondent
Nidhi Kashyap has also mentioned numerous other occasions
alleging that the revisionists before this court had been
disclosing their intent and expectations for cash and other
articles from time to time and she had been subjected to
harassment, torture and violence on account of the repeated
dowry demands made by the revisionists before this court
including her married sister-in-law Sarika Mehta. According to
Nidhi Kashyap, her entire jewellery is lying with her in-laws. A
petition under Section 9 of the Hindu Marriage Act filed by
Gaurav Kashyap the husband of the present respondent is also
pending adjudication before the Ld. ADJ, Rohini. She has
alleged that she has been compelled to make a complaint before
the Crime Against Women Cell, Pitam Pura, Delhi on account of
the callous conduct on the part of her in-laws including the
present revisionists. She has further alleged that her husband
Gaurav Kashyap is the owner of property bearing no. 6-D, Janta
Flats, Satyawati Colony, Behind Laxmi Bai College, Ashok
Vihar, Phase-III, Delhi and he and his parents are owning and
possessing 100 sq. plot as Samaipur Badli, Delhi. Further, she
has alleged that her husband Gaurav Kashyap and his parents are
owning and possessing the HIG Flat in TDI Sonepat having a
market value to the tune of Rs.22 lacs and are running a factory
under the name and style of MCO Chemical, Samaypur, Delhi
and are owning and possessing two godowns at Samaypur and
Swaroop Nagar and her husband Gaurav Kashyap is having one
house at Sri Nagar, Bharat Nagar, Delhi. It is also alleged by the
respondent before this court that her husband and his parents are
owning and possessing a Maruti 800 car bearing no. DL-6019
and are also owning a truck Tata-407 and two victor bikes. She
has now demanded that her husband Gaurav Kashyap i.e. the
respondent no.1 before the Ld. Trial Court is under a legal
obligation to maintain her and she requires independent
residential accommodation which is available at the rental value
of Rs.10,000/- per month excluding the water and electricity
charges and also requires Rs.30,000/- per month for her
maintenance and Rs. 5 lacs on account of mental torture, pain
and agony suffered by her. According to the present respondent
she cannot remain dependent upon her parents for her shelter and
therefore, her husband Gaurav Kashyap is required to make the
arrangements for separate residential accommodation. In her
petition, the present respondent Nidhi Kashyap has further
demanded that her husband and her in-laws including the present
revisionists should be restrained from entering into her parental
home and from making any kind of communication to her and
from committing any act of Domestic Violence and aiding or
abetting in the commission of acts of domestic violence.
Further, she has demanded that they be restrained from
alienating and parting with her istridhan articles and also from
creating any third part interest and parting with the possession of
the property bearing No. D-6, Janta Flats, Satyawati Colony,
Behind Laxmi Bai College, Ashok Vihar, Delhi and property
bearing no. 77, Bharat Nagar Delhi till her husband make the
provisions for her independent residential accommodation. She
has also claimed Rs.3,000/- from her in-laws including the
present revisionists as litigation expenses.
Pursuant to the aforesaid petition, the Ld. Trial Court
sought a Domestic Incident Report from the Protection Officer.
The said report was duly filed which I have duly perused. The
said report clearly reflects that Smt. Sarika Mehta the revisionist
no.3 before this court is not a member of the shared household
and is separately residing at her matrimonial home residing at F-
8, 2nd Floor, Kamla Nagar, Delhi with her husband Sh. Kamal
Mehta whereas Smt. Santosh Kaur the mother-in-law and Ritu
Kashyap the unmarried sister-in-law are all residing at 6-D, Janta
Flats, Satyawati Colony, Behind Laxmi Bai College, Delhi. The
report further shows that only one incident of domestic violence
on 3.7.2009 by the husband has been reported on which day the
present respondent was beaten by her husband and was asked to
leave the house. The report further reflects that the only incident
of verbal and emotional abuse are of insults for not having
brought dowry, demeaning, humiliating, undermining, ridicule
and name calling by her husband and her in-laws and preventing
her from meeting a particular person. She has also alleged
economic violence upon her by her husband by not providing her
money, food, clothes, medicine etc. and forcing her out of the
matrimonial house and has alleged that her in-laws including the
present revisionists have disposed off her istridhan articles by
selling or pawing the same without her consent and forcibly
taken away her salary, income or wages etc.
The revisionists before this court have alleged that
the orders of summoning are also bad as they have been passed
without calling upon the respondent to furnish and establish the
material facts necessitated for passing such orders. It is
submitted that no domestic violence has ever been committed by
the revisionists upon the respondent before this court
(complainant before the Ld. Trial Court) and the petitioner under
the Domestic Violence Act has been filed on false and frivolous
grounds and the complaint filed by the present respondents
against them before Crime Against Women Cell, Pitam Pura has
been filed only to harass, humiliate and to extort money from
them. The revisionists have pointed out that the marriage of
Gaurav Kashyap with the present respondent was a simple one
without any demand and was an outcome of the love affair.
They have pointed out that the parents of the present respondent
were against her marriage and therefore, they secretly got
married without informing their family members at Arya Samaj
Mandir which was a dowry less marriage and the respondent had
come in wearing clothes and it is in this background that the
parents of Gaurav Kashyap including the revisionists organized a
reception on 12.10.2008 at Janak Vatika, Bharat Nagar. The
revisionists have further pointed out that on 3.7.2009 the present
respondent Nidhi Kashyap picked up a quarrel with her husband
Gaurav Kashyap and called her father with 5-6 other people who
beaten up Gaurav Kashyap and even shouted on road and use
abusive language for Gaurav Kashyap. Thereafter the present
respondent went to her parent's house by saying that she would
not live nor would maintain any relations with them and Gaurav
Kashyap made umpteen efforts to bring her back but she refused.
According to the revisionists they are themselves aggrieved and
victim of the violence inflicted upon them by the present
respondent. It is further stated that all the properties mentioned
by the present respondent does not belong to the husband of the
respondent. The revisionists have placed their reliance on the
following authorities:
1. S.R. Batra & Anr. vs. Smt. Taruna Batra reported in 1
(2007) SLT 1.
2. Shumita Didi Sandhu Vs. Sanjay Singh Sandhu reported
in 2007 (96) DRJ 697.
3. Mohd. Maqeenuddin Ahmed & Ors. Vs. The State of
Andhra Pradesh & Anr. reported in 2008 (1) JCC 85.
The Protection of Women from Domestic Violence
Act, 2005 is a special legislation in favour of women. It is the
duty of the court to ensure that this special legislation reaches
out to the effected lot but at the same time is not allowed to be
misused by anyone.
Wikipedia defines domestic relationship between
two individuals as a legal or personal relationship to live
together or share one domestic life but are neither joined by
marriage nor the civil union.
The Indian law i.e. Protection of Women from
Domestic Violence Act, 2005 does not define family but it
defines Domestic 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. Domestic relations
are meant to cover sisters, widows, mothers and daughters and
single women. The Indian law does not specify separate
relationship and mentions members in a joint family.
The intent of Protection of Women from Domestic
Violence Act, 2005 is to protect the value system and institution
of family and save it from destruction. This being so, the
provisions of the Protection of Women from Domestic Violence
Act, 2005 have to be so interpreted to ensure that the existing
family system is preserved. The misuse and abuse of the Act is a
matter of serious concern for the courts who are required to be
careful and ensure that a woman petitioner is not made a puppet
or pawn in the hands of her male relatives so as to manipulate
the Protection of Women from Domestic Violence Act, 2005
and use it for ulterior motives.
In the present case it is an admitted case of the parties
before this court that the respondent Nidhi Kashyap who is the
wife of Gaurav Kashyap (respondent no.1 before the Ld. Trial
Court) has filed the complaint under special legislation
(Protection of Women from Domestic Violence Act, 2005)
wherein she has spared none and roped the entire family
including the young unmarried sister-in-law who was her friend
and class-mate even before her marriage and also her married
sister-in-law who is residing separately with her own family. It
is admitted that the marriage between the present respondent
Nidhi Kashyap with Gaurav Kashyap was solemnized secretly
and was an outcome of a love affair as Nidhi Kashyap was
known to Gaurav Kashyap through the revisionist no.2 Ritu
Kashyap who was the batch mate of Nidhi Kashyap and was
studying with her. It is also an admitted case of the parties that
on having come to know of marriage a reception had been
organized after which the present respondent Nidhi Kashyap
started staying with her husband and her in-laws. It appears that
unfortunately the said marriage is not worked out resulting into
spade of litigation between the parties and Gaurav Kashyap even
filed a petition under Section 9 of the Hindu Marriage act
which is still pending adjudication and the present respondent
Nidhi Kashyap has filed a case in Crime Against Women Cell
alleging dowry demands and harassment against one and all.
The provisions of the Protection of Women from
Domestic Violence Act, 2005 have been invoked by the
respondent Nidhi Kashyap not only against her husband Gaurav
Kashyap but also against her aged father-in-law Mohan Lal
Kashyap (respondent no.2 before the Ld. Trial Court), motherin-
law Smt. Santosh Kaur (present revisionist no.1 before this
court), unmarried sister Ritu Kashyap (revisionist no.2 before
this court with whom Nidhi Kashyap was previously studying
and through whom she came to know Gaurav Kashyap and had a
love affair), married sister Smt. Sarika Mehta and her husband
Sh. Kamal Mehta who both are residing at F-8, 2nd Floor, Kala
Nagar, Delhi.
At the very outset I may observe that merely because
the revisionist no.3 Smt. Sarika Mehta happen to be the real
sister of the husband of present respondent would not ipso-facto
imply a domestic relationship to the extent as contemplated
under the Protection of Women from Domestic Violence Act,
2005 as she is residing separately with her own husband and
cannot be deemed to be a member of the shared household as a
joint family. The revisionist no.2 Ritu Kashyap is a young girl
of 22 years who had been the classmate of the present
respondent and through whom the present respondent had came
into contact with Gaurav Kashyap and had an affair culminating
into the marriage. The revisionist no.1 is the aged mother-in-law.
The allegations against her are general and non specific.
Daughters married or unmarried cannot be terrorized
into abandoning their parental family under the fear of their
involvement into litigations connected with Domestic Violence.
Married sisters residing in their own matrimonial houses are not
a part of the shared household or joint family as contemplated
under the Protection of Women from Domestic Violence Act,
2005 but at the same time they have certain rights in their
parental home which cannot be denied to them. Even an
unmarried sister of the husband residing in the shared household
with her parents has certain rights which cannot be taken away.
Making wild allegations against an unmarried sister-in-law of a
tender marriageable age by an estranged wife of brother
tentamounts to inflicting violence upon her and it is the duty of
the court to ensure that she is protected from the same. Violence
can also be inflicted by an estranged wife or daughter-in- law or
sister-in-law upon other members of the husband's family to gain
and secure personal points and financial control or for separating
her husband from his parents and other family members. In the
zeal and endeavour to implement the rights of one woman
(daughter-in- law) it is necessary for the courts to ensure that the
rights of another woman (in her capacity as mother-in-law or
sister-in-law married or unmarried) are not taken away or
infringed in any manner. The Protection of Women from
Domestic Violence Act, 2005 protects the mothers, sisters and
daughters from any kind of physical and mental abuse or
violence in as much as it does the daughter-in- law. The court as
a protector and implementor of rights, is required to perform a
balancing act. It is necessary to ensure that it does not get
swayed by the astute legal drafting of the counsels and is
required to get at the truth of the allegations by examining the
pleadings on the touch-stone of reasonableness and probabilities.
Where a complaint appears to have been filed on filmsy grounds
only to humiliate the family members, the same is required to be
thrown out at the earliest opportunity. Mother-in-law or sister'sin-
law (married or unmarried) cannot be permitted to be
subjected to harassment only because they happen to be related
to the estranged husband of the woman (complainant) .
In the present case firstly I have considered the
allegations reflected in the Domestic Incidence Report and the
allegations so made by the complainant Nidhi Kashyap before
the court which do not inspire confidence and appears to have
been made in routine. The respondent has alleged that the
present revisionists had forcibly taken away her salary and
wages which allegations on the face of it are false and incorrect
since it is an admitted case of the respondent before this court
that she is not working. The question of her husband or in-laws
taking away her salary, income, wages etc. under these
circumstances does not arise.
Secondly the report of the Protection Officer also
show that the dowry related harassment pertains to the demand
of car and cash of Rs.3 lacs. The respondent Nidhi Kashyap has
also attached the list of Stridhan articles alongwith the petition to
support and substantiate her allegations regarding
misappropriation of her Stridhan articles which I have perused. I
may observe that the said list so attached along with the petition
is not a duly authenticated list signed by both the parties as
required under the Dowry Prohibition Act. This is the list of
articles which only the respondent Nidhi Kashyap claims were
her stridhan which list does not bear the signatures of the
respondent. Under the given circumstances as the list is not
signed by both parties, it was necessary for the complainant
Nidhi Kashyap to have attached alongwith her list the receipts/
bills showing purchase of these articles which has not been done.
Therefore, the above allegations also do not appear to be credible
and truth-full particularly keeping in view the background that
the marriage between the respondent and Gaurav Kashyap was a
secret, runaway marriage as an outcome of a love affair which
marriage was kept secret for many days and ultimately when the
same was disclosed to the parents of the respondent by her inlaws
a joint reception was organized.
Thirdly the present respondent Nidhi Kashyap has
not placed on record any document to show that her husband is
the owner of any of the aforesaid properties or have any
independent right over the same. The allegations are non
specific and general. It is settled law that the claim for
alternative accommodation can only be made by a women
against her husband and not against in-laws or other
relatives nor can she claim any right to stay in the said house
(Ref: S.R. Batra & Anr. Vs. Smt. Taruna Batra reported in 1
(2007) SLT 1 and Shumita Didi Sandhu Vs. Sanjay Singh
Sandhu reported in 2007 (96) DRJ 697). The present
respondent has not placed on record any document to show that
the properties in the present case belonging to her husband
Gaurav Kashyap and the complaint in Crime Against Women
Cell.
Lastly it is an admitted case of the parties including
that of the complainant Nidhi Kashyap that her marriage with
Gaurav Kashyap is an outcome of the long standing love affair
between them. She was a classmate of the revisionist no.2 Ritu
Kashyap through whom she was introduced to Gaurav Kashyap
(her real brother) with whom she developed love affair
culminating into a secret marriage which was disclosed to her
parents much later. This being the background of the case, the
allegations made by the complainant against one and all family
members of her husband where none have been spared do not
appear probable. It is apparent on the face of the pleadings that
they have been so drafted so as to involved all the family
members of the husband sparing none including the present
revisionists who are the aged mother-in-law, unmarried sister-inlaw
of marriageable age and married sister-in-law residing
separately. This, it appears has been done for the purpose of
harassing the entire family of the husband with a sinister motive
and design to harass and humiliate them. Given the background
of the case, the allegations made against the Revisionists on the
face of it do not appear to be truthful and probable warranting
any interference from the court under this Special Legislation.
In view of the above background and in the interest
of justice, I hereby set aside the orders of dated 24.2.2010,
25.3.2010 and 23.4.2010 passed by the Ld. Trial Court thereby
summoning the present revisionists i.e. Smt. Santosh Kaur, Ms.
Ritu Kashyap and Smt. Sarika Mehta since there does not exist
sufficient material on record to summon them and to proceed
against them under the Protection of Women from Domestic
Violence Act, 2005.
Revision is accordingly allowed. Trial court record
be sent back along with the copy of this order. Revision file be
consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.8.2010 ASJ-II(NW): Rohini
Santosh Kaur Vs. Nidhi Kashyap
CR No. 367/2010
28.8.2010
Present: None for the Revisionists.
None for the respondent.
Vide my separate detailed order dictated and
announced in the open court, I set aside the orders of dated
24.2.2010, 25.3.2010 and 23.4.2010 passed by the Ld. Trial
Court thereby summoning the present revisionists i.e. Smt.
Santosh Kaur, Ms. Ritu Kashyap and Smt. Sarika Mehta since
there does not exist sufficient material on record to summon
them and to proceed against them under the Protection of
Women from Domestic Violence Act, 2005.
Revision is accordingly allowed. Trial court record
be sent back along with the copy of this order. Revision file be
consigned to Record Room.
(Dr. Kamini Lau)
ASJ-II (NW)/ 28.8.2010
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