Delhi HC- NRI 498a Quash-Jurisdictional (Section 4 IPC and Section 188 Cr.P.C.) and Limitaion bar U/s 468 crpc-misuse criminal justice system as a tool of vengeance

Crl. MC No.3329/2009    Sanjeev Majoo & Ors. v State (Govt. of NCT of Delhi)   

*              

IN THE HIGH COURT OF DELHI AT NEW DELHI  
            

Date of Reserve: August 25th , 2010  
 

 Date of Order:  September 22, 2010  Crl. M.C. No.3329 of 2009          22.09.2010

Sanjeev Majoo & Ors.          ...Petitioners         

Versus  

  

State Govt. of NCT of Delhi          ...Respondents   

Counsels:

Mr. Pallav Shishodia, Sr. Advocate with Mr. Mukul Kumar, Mr. B.R. Sharma and Mr.
Satpal Singh for petitioners.

Mr. O.P. Saxena, APP for respondent/State.
Mr. Rakesh Tikku, Advocate for complainant 

JUSTICE SHIV NARAYAN DHINGRA

1.  Whether reporters of local papers may be allowed to see the judgment?  Yes.
2.  To be referred to the reporter or not?          Yes.
3.  Whether judgment should be reported in Digest?        Yes.

JUDGMENT
 

1.  This petition under Section 482 Cr.P.C and Article 227 of the Constitution of India  has been preferred by the petitioners for quashing of FIR No.97 of 2009 dated 7th  July,  2009 registered against the petitioners under Sections 498A, 406 read with Section 34 of  IPC at police station Crime Against Women Cell, Nanakpura, New Delhi. 

2.  It is an undisputed  fact that petitioner no.1 Mr. Sanjeev Majoo and the  complainant i.e. wife Ms. Ruchi Majoo, both are citizens of USA and the marriage  between them had taken place on 12th  December 1996  at Delhi. Even at the time of
engagement, Ms. Ruchi Majoo and Mr. Sanjeev Majoo were in America and engagement  ceremony had taken place in Detroit, USA at the house of uncle of Ms. Ruchi Majoo in September 1996. After marriage, the parties left for USA, lived there as US citizens. Ms. Ruchi Majoo gave birth to one son namely master Kush,  who became US citizen  by birth. However, it appears that the life was not happy  for them  and Ms. Ruchi Majoo served a legal notice dated 8th July, 2008 on Mr. Sanjeev Majoo through her advocate inter alia, making following allegations: 

“2.  That however, immediately after the marriage, your conduct had been unbecoming of a good husband. My client was not earning at that time. You did not take care of  her financial requirements in an alien country and as a result she had to borrow from her father and family from time to time even  for her  personal needs. So much was your negative attitude towards her that she had to remain most of the times confined in the apartment where you and my client had shifted. 

3.  Even then for no justifiable reason you had been often scolding and rebuking my client and also adversely commenting on her mannerism and way of dressing, even privately and in the presence of your friends and relations, thereby causing humiliation to her. 

4.    That during the year 1997 when you and my client were in the USA, my client also came to know of your having extra-marital relationship with a married girl Neetu whose husband  had been threatening to cause physical harm to my client as well as to you. On coming to know of this, you had assured my client that you would mend your ways and as such my client agreed to pardon you at that time. 

5.  That during my client’s stay  in the USA she also came to know that you were also often having physical relationship with different women at time in Motel and/or some other  places and you were caught on one of such occasion. Even after you had got a job in New Jersey, after completing your studies, you did not take care of the financial needs and daily expenses of my client who was being forced to borrow from her family, which was a humiliating experience for my client. You did not even permit her to pursue her further studies thereby causing her physical, mental paid and  anguish. Every time you would create such a situation thereby forcing my client to withdraw to her room. You would pick up fights and arguments with her for no reason or rhyme thereby disturbing her peace of mind. 
  Xxxxxxx

7.  That somewhere in the year  2002, you also injured my client physically in the presence of baby  sitter who  was persuaded not to call the police at the insistence of my client who was trying to make the marriage work. You again apologized and also assured my client that in future you shall take care of the things. In between you had also been for counseling as you realized that your behavior was not normal. With the minor son also you were abusive and also caused hurt by pinching him hard on his body. You
were also rough to him most of the times. This abusive behavior continues. 

  Xxxxxxxxx

9.  That there are a large number of instances of occasions when your cruel conduct continued of which you are aware of and the same are not being repeated herein. You and your parents had also been  complaining of inadequate dowry to my client. Whatever my client had brought as Istridhan was also retained partly by you and partly by your parents. Whenever my client demanded the Istridhan, o n the pretext that the same is lying in safe custody, you had been refusing to give that to my client. 

  Xxxxxx

12.  You were persuaded to go for counseling twice but you left both times unfinished citing one or the other reason. You had also informed my client that in your office also, you had been warned of your  aggressive  behavior and  asked my client to go for some kind of improvement training so that you could know how to work as a group member. 

  xxxxx

15.  That accordingly on behalf of my client, I am to inform you that my client is not interested in going back to you to USA and she is trying to work out an alternate suitable arrangement for herself and her minor son and as such you are required not to co me and visit my client’s father house. My client is also seeking appropriate legal advice to take such legal steps which may be required for the welfare of the minor son as well as for herself  which my client is likely to take shortly which could include divorce proceedings in appropriate court including in US and  would also include claim of rights in respect of matrimonial assets. However, should you force your entry into my client’s father house in New Delhi, then my client and her father will take appropriate action against you in accordance with law.”    

3.  As things turned out, Ms. Ruchi Majoo came to India with her son and a custody battle  for the son  is going on between the parties. Mr. Sanjeev Majoo, petitioner no.1 herein, applied for divorce before the Court in USA and a decree of divorce was granted by the US Court on 13th May, 2009 whereby rights of Ms. Ruchi Majoo wife were decided by the Court in USA and following arrangement was made: 

“10.  The Respondent is awarded the following items of  community property as her sole and separate property subject to all liens ad encumbrances thereon: 

A.  Furniture, furnishing, and personal effects in her possession; 
B.  Gold jewelry in her possession; 
C.  Bank of America bank account in her name; 
D.  Emigrant Direct bank account in her name; 
E.  Standard Chartered bank account in her name; 
F.  Bank accounts in India in Respondent’s name; 
G.  Real property in India in Respondent’s name;   

4.  Ms. Ruchi Majoo in her communication to the Superior Court at California, USA on 22nd  April, 2009 had informed the Court as under: 

“1.  I do not own any Real estate in India. The information  given by Mr. Sanjeev Majoo is wrong and needs to be
corrected.

2.  All my jewelry excepting two items of jewelry and a ring are  in my home at 462, Cremona Way, Oak Park, CA, where my, My Sanjeev Majoo stays and at the Residence of my’s parents, in Udaipur, India. This forms a part of my dowry given by my family at the time of my marriage in India and during the course of our married life, which is customary as per Indian traditions. 

3.  I have Indian Rupees 4,10,000/- (equivalent to USD 10k) in  Indian banks, which was a gift from my family and not a part of my income.    This money was transferred by me from USA (Bank of America) to India much before I left USA for India.” 

5.  However, in the FIR which Ms. Ruchi Majoo lodged against Mr. Sanjeev Majoo and her father in law, mother in law and brother in law, she made allegations that even before her marriage, her father in law and mother in law had told that her parents should keep in mind the expenditure on education of Mr. Sanjeev Majoo while considering the dowry and the dowry should commensurate with the status of in laws and so  a  lot of dowry was given at the time of marriage including jewelry, clothes and gazettes. After marriage a locker was opened at Udaipur in the joint name of herself, her husband and mother in law and whole lot of articles and expensive gifts were retained by in-laws at Udaipur. She further alleged that even when in 1997, when her mother in  law was in USA, she passed sarcastic remarks regarding insufficient dowry. In 1999, she had come to attend the marriage of  husband’s  brother Mr.  Rajeev Majoo and gone to Udaipur. Even during that period, her in-laws put consistent pressure and demanded more money. She was permitted to open locker in Udaipur for wearing jewelry on the occasion of marriage but again the jewelry was kept in the locker and she was not allowed to take her items.  Thereafter, she made allegations of what transpired between her and her husband in USA from 1997 onwards. She stated that her matrimonial life went through rough weathers and it became difficult for her to stay in USA with her husband anymore. She decided to come to India with the child in December 2004. In December 2004, her in laws also came to India and threatened her to return to USA or else a situation would be created that she would be divorced by her husband. She came to Delhi and requested her to go back to USA and promised that things will improve. She went back to USA on this promise  in  January,  2005.  Again  her  husband’s  attitude  did  not improve and she narrated what happened in USA between her and her husband. Ultimately in January 2008, she had told her husband that she would no more  live  with him as  she  had planned to live separately from him with her son. On this, her husband suggested that she should go to India along with  the  child for summer vacation and he would also accompany her since had had to see his parents. She came to his parent’s house. She went on narrating  the sequence of incidents which took place in Delhi between her and her husband including the legal battle for taking custody of her son Kush. Both she and her husband exchanged emails regarding their son and she leveled allegations against her husband about threats of filing a kidnapping case against her  in USA and obtaining of divorce by her husband from US Court. Ultimately, she recorded in her complaint that the facts written by her showed that she had been treated with cruelty both physically and mentally because of willful conduct of her husband,  her parents  in  law and her brother in law. 

6.   It is apparent that the complainant, a citizen of USA, had all along lived in USA with her son and husband, away from her in laws but filed this FIR against her mother in law, father in law, brother in law and her husband so as to misuse criminal justice system as a tool of vengeance. From perusal of her statement made in California Court, it is apparent  that entire scene of occurrence was USA, her in laws had no say in their married life. In California court, she had categorically stated that all her jewelry was lying in her US house. She nowhere stated that her jewelry was lying with her in laws but in FIR against her in law, she suddenly discovered that she had a locker in Udaipur. She does not disclose the locker number  or the bank where the locker was, the date of opening of locker and what jewelry were lying in it and submits that her in laws in 1997 and 1998 had asked her to keep her jewelry there. While in 2008, she told the California Court that her entire jewelry was with her at her house in USA, California. 

7.  Even if it is believed that in 1996, her in laws had expressed desire that the dowry must commensurate with the status,  firstly she had not alleged any demand, still if she considered this as demand, she  was at liberty to get a case registered under Dowry Prohibition Act at that time. There are no allegations of cruelty against in laws. Therefore, no offence under Section 498A IPC was made out against her in laws on the basis of allegations made by her in the FIR even if every allegation is considered true. As far as Mr. Sanjeev Majoo is concerned, the complainant and Mr. Sanjeev Majoo had lived in USA and all allegations of cruelty are of USA. No offence was committed within the jurisdiction of this country. Thus, no offence could have been registered against any of the petitioners/ accused persons under Section 498A  or 406 IPC  in India. Even otherwise, since both of them were American Citizens and the matrimonial offence, if committed, were committed in USA,  the Court at India would have no jurisdiction to proceed against Mr. Sanjeev Majoo. All persons who commit crime in India can be tried in India whether they are foreign or Indian citizens, but Section 4 IPC puts a bar on the scope of applicability of territorial jurisdiction to the courts of India to try a case, cause of action of which had taken place outside the geographical limits only in respect of Indian
citizens. Where the accused is not a citizen of India and the cause of action/ offence has not been committed within India, in view of Section 4 IPC and Section 188 Cr.P.C, the trial of offence against the person cannot proceed in India. Section 188 Cr.P.C reads as under: 

“188. Offence committed outside India. When an offence is committed outside India-
(a) By a citizen of India, whether on the high seas or elsewhere; or
(b) By a person, not being such citizen, on any ship or aircraft
registered in India.
He may be dealt with in respect of such offence as if it had been
committed at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding
sections of this Chapter, no such offence shall be inquired into or tried
in India except with the previous sanction of the Central Government.”

8.  Mr. Sanjeev Majoo in this case and the complainant in this case both being American citizens and the alleged matrimonial cruelties having taken place in America, police and courts in India  did not have jurisdiction  to enquire into or conduct trial of offence. 

9.  In view of the facts disclosed from the FIR, even if all the facts stated in FIR are considered true, no offence was made out against father in law, brother in law, mother in law.  If any offence is made out cognizance of it was barred by limitation under Section 468 Cr.P.C. As far as Mr. Sanjeev Majoo is concerned , FIR could not have been registered in view of Section 4 IPC and Section 188 Cr.P.C. 

10.  In the result, the petition is allowed and the FIR No.97 of 2009 dated 7th  July, 2009 registered against the petitioners under Sections 498A, 406 read with Section 34 of IPC at police station Crime Against Women Cell, Nanakpura, New Delhi and the
proceedings emanating therefrom are hereby quashed.

11.  The petition stands allowed.          

September22,  2010                

SHIV NARAYAN DHINGRA, J
rd

http://lobis.nic.in/dhc/SND/judgement/23-09-2010/SND22092010CRLMM33292009.pdf

(Judgement) by SHIV NARAYAN DHINGRA-Again DV Misuse Judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 6th July, 2010
Date of Order: 29th July, 2010

+ Crl. Rev. P. No. 253/2010
%
                                                                                                                    29.07.2010

Harbans Lal Malik                                                                                   … Petitioner
                                              Through: Mr. Dharam Raj, Advocate
Versus

Payal Malik
                                                                                                                 … Respondents
                                              Through: Mr. R.Jain, Mr. Deepak Aggarwal
                                              & Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 252/2010
%
                                                                                                                        29.07.2010

Varun Malik
                                                                                                                      … Petitioner
                                              Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik
                                                                                                                     … Respondents

                                             Through: Mr. R.Jain, Mr. Deepak Aggarwal
                                              & Mr. D.Jain, Advocates

+ Crl. Rev. P. No. 338/2010
%                                                                                                                         29.07.2010

Nagesh Malik                                                                                                    … Petitioner
                                                Through: Mr. Dharam Raj, Advocate

Versus

Payal Malik                                                                                                            … Respondents
                                                 Through: Mr. R.Jain, Mr.Deepak Aggarwal
                                                 & Mr. D.Jain, Advocates

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes.


JUDGMENT


These petitions arise out of order passed by the learned Additional Sessions Judge on 7th May, 2010 while disposing of two appeals against the order dated 27th July, 2009 passed by the learned MM.

2. The undisputed facts are that Ms. Payal Malik used to live with her parents before marriage at Hissar. Her marriage took place with Mr. Nagesh Malik whose parents used to live at Panipat. Marriage of the parties was solemnized at Panipat on 30th August, 2001. Nagesh Malik was already working in USA and after marriage both of them went to USA on 20th September, 2001 where they settled their matrimonial home and lived together. On 24th October, 2002 a female child was born to the couple at USA, who was named as Vanishka. The parties continued living together in USA till 2008. It seems deep differences arose between the parties and they could not pull on together. There are allegations and counter allegations made by wife and husband which are not relevant for the purpose of deciding this petition. However, husband alleged that on 6th August, 2008 due to these differences, parties executed a post-nuptial agreement and decided to obtain divorce from each other, sticking to the agreement. Wife refutes having signed the agreement voluntarily and alleges that she was turned out from USA by her husband on 22nd August, 2008. Whereas the husband‟s contention is that she of her own left USA without joining the husband for obtaining divorce through a Court in USA. The husband filed a divorce petition before Superior Court of New Jersey Chancery Division Family Court USA on 27th August, 2008. The notice of divorce suit was duly served on her. The Court of New Jersey allowed the divorce petition and a decree of divorce was granted on 4th December, 2008.

3. On 13th January, 2009 wife filed a complaint before CAW Cell Hissar against husband and in-laws. Ms. Sushila, Inspector of CAW Cell Hissar, vide her report dated 20th January, 2009, observed that the allegations in the complaint were not true and it was useless to keep the complaint pending further. Thereafter, wife filed a complaint in the Court of MM at Delhi making her husband (Nagesh Malik), father-in-law (Harbans Lal Malik), mother-in-law (Neelam Malik) and brother-in-law (Varun Malik) as parties under Section 12 of Protection of Women from Domestic Violence Act, 2005 [in short – Domestic Violence Act] with a prayer that Court should pass a protection order under Section 18, residence order under Section 19, monetary relief order under Section 20, compensation order under Section 22 and interim orders under Section 23 of the Act. She made allegations of mal-treatment at the hands of respondents from day one of the marriage till she left USA and came to India. She stated, after coming back from USA she went to her in-laws‟ house at Panipat but found the house locked as her parents-in-law had gone to USA. She also stated that her husband had sent a complaint to SP Panipat leveling certain scandalous allegations against her. She graduated from Delhi University in 1998 and had done interior designing course from South Delhi Polytechnic. She alleged that her in-laws had three houses and an industrial unit in Panipat. They had properties in Delhi as well and respondent no.1 (her husband) had share in properties of her in-laws. She submitted that her complaint at CAW Cell Hissar could not be pursued by her as her in-laws had tried to mislead Haryana police and also because of a tragedy in her family. She left her parents‟ house and came to Delhi to pursue her career prospects. She was presently residing at Malviya Nagar, Delhi. Till the time she was not given back her matrimonial home (at Panipat), she would live in Delhi, so the Court of MM at Delhi had jurisdiction. She prayed that custody of child Vanshika should be given to her. She should be given shares in properties at Panipat and Delhi as well as a house in New Jersey, USA. She should be given Rs.20,000/- per month for her maintenance and education as she intended to pursue further study and Court should direct for return of her dowry articles. Along with main application under the Domestic Violence Act, applications for interim reliefs were made. She in the application under Section 23 of the Act prayed for a residence or in lieu thereof a sum of Rs.20,000/- per month and Rs.50,000/- as onetime payment to meet education expenses, a car or Rs.8,000/- per month in lieu of the car and Rs.20,000/- per month for her day-to-day expenses and Rs.50,000/- as onetime payment to repay her debts.

4. The learned MM, by her order dated 27th July, 2009 directed that an amount of Rs.50,000/- per month be paid to wife as interim maintenance jointly or severally by respondents no. 1,2 & 4. She dropped respondent no.3 from the array of respondents on the ground that petition against a female respondent was not maintainable.

5. It was pleaded before the learned MM by the petitioner that there was a decree of divorce granted by a Competent Court of New Jersey, Chancery Division after following due procedure as laid down in USA. After grant of divorce there was no domestic relationship of Ms. Payal Malik with any of the respondents. (It is noted in the order of MM that the decree of divorce passed by the Court of US was placed on record.) Reliance was also placed by the petitioner on post nuptial agreement as entered into between husband and wife. The learned trial Court did not think it proper to deal with the issue whether an application under Section 12 of Domestic Violence Act could be entertained at all in respect of a divorced wife and whether the decree of divorce granted by the foreign Court where the parties had lived together for more than seven years, had some value or not.

6. The trial Court after discussing the objects and aims of The Protection of Women Against Domestic Violence Act, 2005 and after reproducing a quote from novelist Joseph Conrad “being a woman is a terribly difficult task, since it consists principally in dealing with men” [as if men, though given birth by women, are ferocious animals and not human beings, but cannibals] passed an order for grant of maintenance.

7. In appeal before the learned Sessions Judge, an argument was pressed that the judgment given by New Jersey Court was conclusive evidence of status of the parties and in view of Section 14 of Code of Civil Procedure and Section 4 of The Indian Evidence Act, unless the judgment was set aside the trial Court should not have entertained the petition under Section 12 of The Protection of Women Against Domestic Violence Act. It was pleaded that only an application under Section 125 Cr.P.C. (which is applicable to divorced wife) could have been entertained by a Court, if moved. It was argued by wife that decree of divorce was obtained by fraud and was hit by Section 13 CPC and therefore could not stand in the way of entertaining an application under Section 12 of Domestic Violence Act.

8. The learned Sessions Judge while deciding appeal observed that the provisions of Domestic Violence Act are to be interpreted taking help of Section 125 Cr.P.C. and the explanation given under Section 125 Cr.P.C. of “Wife” is to be read in Domestic Violence Act also. He further observed that the Court has to take pragmatic approach and unless the dissolution of marriage was proved by evidence, the Court has not to act on the decree. He therefore dismissed the appeal filed by husband and other respondents observing that there was no illegality in the order of learned trial Court in granting maintenance. He allowed an appeal filed by wife in respect of execution of the order of of MM and directed that Ministry of External Affairs be sent a request to execute the order dated 27th July, 2009 as per law.

9. The first issue arising in this case is whether an application under Section 12 of Domestic Violence Act made by the respondent could have been entertained against all the respondents (petitioners herein) as arrayed in her application and whether the Court without discussing the domestic and legal relationship of different respondents with the petitioner, could have passed an order against the petitioners making them jointly and severally liable to pay maintenance of Rs.50,000/-.

10. Under Section 12, an „aggrieved person‟ can file an application to Magistrate against the respondents. The respondent has been defined under Section

2 (q). The definition reads as under:

“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

            Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

11. It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under Section

2 (f) of the Act and is as under:

“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;

12. It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and 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. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. The first respondent made by the wife in her complaint before the learned MM in this case was husband with whom the wife had lived under the same roof in a shared household till 22nd August, 2008 in USA. She had not lived for last 7 ½ years with respondent no.1 in India. Respondent No.4 is Varun Malik who is brother of the husband. Under no circumstances it can be said that brother of husband, who was a major and independent, living separately from this husband and wife, had any kind of domestic relationship or moral or legal responsibility/obligations towards his brother‟s wife. He had not lived in domestic relationship with Payal Malik at any point of time. Merely because a person is brother of the husband he cannot be arrayed as a respondent, nor does an MM gets authority over each and every relative of the husband, without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.

13. The other respondent made in this case is Harbans Lal, father of Nagesh Malik. Nagesh Malik was living in USA he came to India to solemnize his marriage with an appropriate person. After marriage was solemnized he left India and went to USA. He lived all along with his wife in USA, birth of the child had taken place in USA. In all such cases where boy lives abroad and is settled abroad but comes to India for marriage, it is known to the girl as well as to the parents of the girl that they are choosing a groom who is not living with his parents but settled abroad. His links with the parents are only as with any other relative. He is not dependent on parents may be parents, if poor, take financial help from him.

14. The girl and the parents of the girl knew it very well that they had selected a person for marriage with whom the girl was going to live abroad and the matrimonial home and the shared household was going to be outside India. This act of marrying a person settled abroad is a voluntary act of the girl. If she had not intended to enjoy the fat salary which boys working abroad get and the material facilities available abroad, she could have refused to marry him and settled for a boy having moderate salary within India. After having chosen a person living abroad, putting the responsibility, after failure of marriage, on the shoulders on his parents and making them criminals in the eyes of law because matrimonial ties between the two could not last for long, does not sound either legally correct or morally correct. How can the parents of a boy who is working abroad, living abroad, an adult, free to take his own decisions, be arrayed as criminals or respondents if the marriage between him and his wife failed due to any reason whatsoever after few years of marriage. If the sin committed by such parents of boy is that they facilitated the marriage, then this sin is equally committed by parents of the girl. If such marriage fails then parents of both bride and groom would have to share equal responsibility. The responsibility of parents of the groom cannot be more. Shelter of Indian culture and joint family cannot be taken to book only relatives of boy. A woman‟s shared household in India in such cases is also her parents‟ house where she lived before marriage and not her in-laws‟ house where she did not live after marriage.

15. When the shared household of husband and wife had not been in India for the last 08 years at any point of time, it is strange that the learned MM did not even think it proper to discuss as to how the father or the brother of the boy could be made respondents in proceedings of domestic violence, after husband and wife had not been able to pull on together. In the present case, Mr. Harbans Lal Malik petitioner could not be said to have shared household with the respondent since the respondent had not lived in his house as a family member, in a joint family of which Harbans Lal Malik was the head.

16. It is important to consider as to what “family” is and what “joint family” is. As per Black‟s Law Dictionary (VI Edition) “family” means a collective body of persons who live in one house under one head or management. Dictionary states that the meaning of word “family” necessarily depends on field of law in which word is used, but this is the most common meaning. “Family” also means a group of blood relatives and all the relations who descend from a common ancestor or who spring from a common root. However, for the purpose of domestic violence act where the object is to protect a woman from domestic violence, “family” has to be defined as a collective body of persons who live in one house under one head or management. In Chamber‟s Dictionary (1994-95) again the “family” is defined as all those who live in one house i.e. parents, children servants; parents and their children. In Shorter Oxford English Dictionary (1993 ed.) “family” is defined as a group of persons living in one household including parents and their children, boarders, servants and such a group is a organizational unit of society.

17. A Hindu Joint Family or Hindu Undivided Family (HUF) or a Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof. All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters or widowed relatives, all bound by the common sapinda relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. The family is headed by a patriarch, usually the oldest male, who makes decisions on economic and social matters on behalf of the entire family. The patriarch‟s wife generally exerts control over the kitchen, child rearing and minor religious practices. All money goes to the common pool and all property is held jointly. The essential features of a joint family are:

Head of the family takes all decisions

All members live under one roof

Share the same kitchen

Three generations living together (though often two or more brothers live together or father and son live together or all the descendants of male live together)

Income and expenditure in a common pool – property held together.

A common place of worship

All decisions are made by the male head of the family – patrilineal, patriarchal.


18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad. I, therefore consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic Violence Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.

19. I, also consider that the definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as Section 125 Cr.P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. Domestic Violence is not perceived in this manner. The definition of “Domestic Violence” as given in Section 3 of The Protection of Women from Domestic Violence Act, 2005 and is under:

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.

20. This definition pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce.

21. The next question which arises is whether the learned Court of MM could have ignored the decree granted by the Court of New Jersey, USA. Section 14 of CPC reads as under:

14. Presumption as to foreign judgments. – The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

22. It is evident from the reading of this provision that the Court has to presume, if a certified copy of foreign judgment is produced that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on record or is proved. Obtaining of divorce by husband from New Jersey Court is not denied in this case. Prima facie New Jersey, USA Court had jurisdiction is evident from the fact that husband and wife lived together in New Jersey for 7 ½ years. The laws of New Jersey provided that the jurisdiction in a matrimonial matter can be assumed by the Court if the parties have ordinarily lived there for one year. In the present case admittedly the parties lived there for 7 ½ years thus prima facie there was no issue whether the Court of New Jersey had jurisdiction or not.

23. Section 13 of CPC provides as under:

13. When foreign judgment not conclusive.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-


(a) where it has not been pronounced by a Court of competent jurisdiction;


(b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1[India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in 1[India].

24. It is evident that a foreign judgment has to be on the face of it considered to be final. The explanations as mentioned in Section 13 are to be proved by a person who alleges that the foreign judgment was not to be relied on and should not be considered. A foreign judgment can be set aside by a competent Court, only when the person aggrieved from foreign judgment asks for a declaration that the judgment should not be acted upon. So long as the foreign judgment is not set aside and the issue regarding foreign judgment is not adjudicated by a competent Court, the judgment cannot be ignored and a Court cannot brush aside a foreign judgment as a non- consequential. Section 13 & 14 of CPC provide how a foreign judgment is to be dealt with. A Court in India has to presume that the judgment delivered by a foreign Court where the parties had lived for 7 ½ years and given birth to a girl, is a judgment given by a competent court and if anyone wants that this judgment be disregarded, he has to prove the same before the Court. So long as he does not prove it, the judgment is considered as a valid judgment and has to be given effect to.

25. It was argued by the respondent Counsel that the respondent did not participate in proceedings before the Court of New Jersey, USA. Participating or not participating before the Court is not a ground for setting aside its judgment. The grounds for setting aside a foreign judgment are given in Section 13 CPC and this is not one of the grounds.

26. The question of jurisdiction was considered by the Court of New Jersey, USA that awarded decree of divorce and it is not shown by the Counsel for respondent how Court of New Jersey had no jurisdiction when the two parties lived there for 7 ½ years and gave birth to a US citizen within the jurisdiction of that Court. Learned Counsel for the respondent relied upon Y. Narasimha Rao v. Venkata Lakshmi (1991) 3 SCC 451 to press the point that a decree of divorce granted by a foreign Court should not be relied upon since the parties were married in India and they were governed by Hindu Marriage Act. A bare perusal of the judgment of New Jersey Court would show that the divorce was granted on the ground of cruelty which is one of the grounds available under Hindu Marriage Act.

27. In Y. Narasimha Rao‟s case (supra), decree of divorce was obtained by husband from the Circuit Court of St. Louis Country Missouri, USA by creating a jurisdiction of that Court as the condition for invoking jurisdiction of that Court was 90 days residence. Supreme Court observed that the residence does not mean a “temporary residence” for the purpose of obtaining divorce but it must be “habitual residence “which is intended to be a permanent residence for future as well, since it was not the case, the decree was found to be null and void. It is not the position in this case. The parties had made New Jersey as their home for 7 ½ years thus the Court of New Jersey could not be said to have assumed jurisdiction only on the basis of temporary residence of husband. I also consider that issue of assuming jurisdiction on the basis of temporary residence may have no force today when statutory provisions in India allow assumption of jurisdiction on the basis of a temporary residence [Section 27(1)(a) of Protection of Women from Domestic Violence Act, 2005].

28. I am surprised that the Courts below did not give weight to the judgment of New Jersey where parties lived for 7 ½ years but assumed jurisdiction under Domestic Violence Act because of the pure temporary residence (as pleaded by her) of wife in Delhi who is otherwise resident of Hissar. The Court of ASJ wanted that the order of the Court of MM should be honoured by the US while the Court here would not honour a decree of Court of USA where the husband and wife lived for 7 ½ years.

29. I consider that the decree of divorce granted by the Court of New Jersey, USA where husband and wife lived together for 7 ½ years and gave birth to a child could not be ignored and it could not be said that domestic relationship of the wife continued with her husband in New Jersey or her in-laws living at Panipat.

30. The learned MM and learned ASJ committed jurisdictional error by assuming jurisdiction under Domestic Violence Act, in view of admitted fact that the wife had all along, before filing the petition under Domestic Violence Act, lived with her husband in USA. Her shared household had been in USA, her husband was still living in USA the child was born in USA. The courts below also committed grave error by making brother or father of the husband and father of the husband jointly responsible for payment of Rs.50,000/- to the wife. There was no justification for directing brother of the husband to pay this amount. Once a son grows and he starts earning, marries, makes his separate home, and sires children the burden of his wife cannot be put on the shoulders of his father or brother on an estrangement between husband and wife. This burden has to be borne by the husband alone and not by the parents or bothers or sister of the husband, unless and until the husband had been contributing to the joint family as a member of HUF and has a right of deriving benefits from the joint family. If the husband had not been contributing or deriving benefits from the joint family, had not been member of the joint family and the parents had been treated like any other relative, how can the parents be burdened with the responsibility of his wife. 31. In view of my above discussion, order dated 27th July, 2009 passed by learned MM and order dated 7th May, 2010 passed by learned ASJ, directing payment of Rs.50,000/- jointly and severally, ignoring the decree of divorce and without devolving upon the domestic relationship are illegal and not tenable. The orders are set aside. No order as to costs.

July 29, 2010                                                                           SHIV NARAYAN DHINGRA, J. v

Story,498A Quash (Judgement) Crl.MC 722/2009 Amit Sharma V State & Ors

The present FIR was registered at the behest of Smt. Kavita Gupta who a resident of USA and had come to Delhi perhaps only for registration of this FIR.

I think this judgement can help few people who are fighting DV cases whilst both spouses stay abroad.

HC slams police, says registration of FIRs has become business

New Delhi, Aug 9  The Delhi High Court has slammed the city police for "lack of professionalism" saying registration of FIRs has been made a profitable business by some police officials. The remarks were made by the High Court which was hearing a plea by an NRI and his family members against whom an FIR was lodged by his wife after coming from the USA. "Why such (meritless) FIRs are registered is obvious. It seems registration of FIRs has been made a profitable business by some police officials. The police, in the present case, not only registered the FIR but also got lookout circulars for the petitioners issued. "Police is supposed to be professional in its working culture. The fall in standard of the police has gone to such an extent that in genuine cases it is difficult to get a case registered and even if registered, it won't act with sincerity but you can get any false FIR registered with it if you have right connections," Justice S N Dhingra said while quashing the FIR registered in August 2008. The court expressed surprise how the police registered FIR here when no cohabitation had ever taken place in the city between the couple, who had left for the USA immediately after the solemnisation of their marriage at Panchkula in Haryana. "It is surprising that such FIRs are registered by the police when neither complainant lives in Delhi nor the accused persons live in Delhi nor any part of alleged offence had taken place in Delhi. "The alleged offence admittedly had taken place in the USA. All the accused persons, as mentioned by the complainant, are living in USA. The complainant herself is living in the USA and the father of complainant perhaps is living in Delhi and pursuing this complaint," the court said while also quashing lookout circulars issued after lodging of the case. The court said all the developments, including the allegation of cruelties and the attitude of the husband towards her, were in the USA and the FIR should not have been registered here if the police had acted bonafide. "I consider that registration of this FIR is a sordid story of working culture of Delhi police. It is this police which refuses to register FIRs in cases of heinous offences which take place on the roads of Delhi and when the complainant dare comes to police station for registration of FIR ... while the FIRs are registered then nothing happens in India and no investigation can be done by the police in India," the court said.

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Crl.MC 722/2009 Amit Sharma V State & Ors.

http://lobis.nic.in/dhc/SND/judgement/07-08-2010/SND06082010CRLMM7222009.pdf

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 28th July, 2010

Date of Order: August 06, 2010

+ Crl. M.C. 722 of 2009

% 06.08.2010
Amit Sharma ...Petitioner Through: Mr. R.S. Kela, Advocate

Versus State & Ors. ...Respondents Through: Mr. Sunil Sharma, APP for State Mr. R.K. Pandhi, Advocate for R-2

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the reporter or not? Yes. 3. Whether judgment should be reported in Digest? Yes. JUDGMENT 1. The present petition under Section 482 Cr.P.C read with Article 227 of the Constitution of India has been preferred by the petitioner for quashing of FIR No.170 dated 15th August, 2008 registered at Police Station Kirti Nagar, West Delhi District, New Delhi.

2. The present FIR was registered at the behest of Smt. Kavita Gupta who a resident of USA and had come to Delhi perhaps only for registration of this FIR. A perusal of FIR reveals that Smt. Kavita Gupta was living in USA since 1993. She obtained Master Degree in Electrical Engineering from Arizona State, USA in 1995 and subsequently got employed in USA and started working there and living there. She came to India at Panchkula, Haryana for the purpose of marriage and was married to Shri Amit Sharma on 10th January 2000 at Panchkula. After this marriage, her version of events, as given in FIR reads as under:

“After marriage, I and my husband went to USA and all the documents and money for the visa and other arranged by me as per assurance and promise of the husband that when we will reach at USA, I already arranged a job at there through my friends and sister immediately I will joint there and payback to all the money spent by you for my visa and other expenses in presence of my father in law and mother in law. Accordingly, my husband and I arrived at USA in the month end of January, 2000 and I shocked after four months pass away when my husband at home without any job neither he tries for the same nor any tension in his mind, totally depends upon me as well as enjoy with my hard earning money congregate since 1993 and the present salary earned by me. In continuation, my husband wants to persuade a professional course for the same course I burdened the shelter, education and day to day expenses of my husband, texts books, fees, etc. Till 2003 I provided well professional education my husband and accordingly he got the join in the year, 2004 as per the hardship, sacrifice and financial and monetary help and encouragement of mine. I have, sponsored him H-4 spouse visa to USA. Thus facilitating immigration to USA and sponsored his Green Card application. As such I have not been able to enjoy my matrimonial life and married life normally and I totally sacrificed her obligations and enjoyments only for the career and goodwill of my husband. Further, I have provided a car to him for his personal use totally financed by me just to maintain the respondent’s social status in the University as well as his friends circle. The year wise events of sacrifice and financial help provided by me annexed as Annexure-B. My nightmare started after my husband got a full time job. As soon as he was settled into his job, his parents (father in law and mother in law) sponsored by his sister for green cards and they come to stay on a permanent basis at my place now in addition to supporting my husband, I was forced to pay for his parents expenditure as well. It is to be noted that I was not even informed about the development that they were planning to immigrate permanently and would be staying with the complainant. His sister Anita Trehan sponsored and signed the financial support documents agreeing to support his parents. However, she has not contributed singly penny towards their support nor offer to keep them at her home. This information has been reported to USA immigration authorities as well. His parents in compliance with his sister and my husband therefore forced their way into the house in Houston and started
to threatened me and harass me if I questioned them on this step. Further, I submit that they treated me like a slave and prisoner in my own house each time of which has been bought with my own hard earned money. I was subjected to mental abuse, and criticized the complainant constantly and made her lose of her self-esteem. It is to be noted that I was undergoing infertility (intrusive inventor fertilization procedure) chiefly because of my husband’s abuse the complainant (push her against the wall, twist her arms, catch her neck) and in summer 2006, he slapped her in front of his parents as well as admitted to doing other physical harms and also threatened to me to evict me from my life and made pieces of her dead body and the same can be disposed of in such a manner without be able to identifying at any point to time. It is further pertinent to mention here that on August 2nd 2006, my husband and his parents assaulted me and forced me out of my own house in Friendswood, Texas, where each and everything were brought by myself including two cars. They also took all my wedding and other jewellary into their possession i.e. my “Istri Dhan” items and they also took possession of all the cheque books of joint accounts and without the knowledge of the petitioner, they transferred/ withdrew considerable amounts from the account. They have further gone into such a grave extent by removing and destroying all the documents relating to the education and bills etc paid by me for my husband and even spent for the welfare of the parents of my husband. After completing their ill designs they had filed a divorce case against me in Harris County Court, USA on the grounds of irreconcilable differences and further claimed all the properties belonged to me which I got and bought out of my own hard earned money. Being harassed by my in- laws and my husband I with folded hands request / pray before your goodself to register a criminal case against my husband and my in-laws for the offence committed by them…….”

3. After lodging this FIR in Delhi, she again flew back to USA and is presently residing in USA. The case is being prosecuted by her father as her attorney. A perusal of this FIR would show that immediately after marriage, the parties moved to USA and thereafter all events as alleged by her are of USA. Even the allegations of her Istridhan being taken away by her father in law and mother in law is of USA and not of India. Allegations of cruelties and the attitude of her husband towards her are all of USA. It is not stated by her that she ever stayed with her in laws or husband from the time of marriage till filing of this complaint at Delhi. When the counsel for State was asked how this FIR was registered in Delhi, the response of the State counsel as given in the form of brief synopsis is that while in India, the complainant and accused cohabited at Delhi at Kirti Nagar, which is the matrimonial house of complainant and therefore there was jurisdiction of Delhi court. A perusal of FIR would show that nowhere the complainant had stated that cohabitation had ever taken place between the parties at Delhi or the parties ever lived at Delhi.

4. It is surprising that such FIRs are registered by the police when neither complainant lives in Delhi nor the accused persons live in Delhi nor any part of alleged offence had taken place in Delhi. The alleged offence admittedly had taken place in USA. All the accused persons, as mentioned by the complainant, are living in USA. The complainant herself is living in USA and the father of complainant perhaps is living in Delhi and pursuing this complaint. I consider that registration of this FIR is a sordid story of working culture of Delhi police. It is this police which refuses to register FIRs in case of robberies, thefts and other heinous offences which take place on the roads of Delhi and when the complainant dare comes to police station for registration of FIR, he is made to run from one police station to another on the issue of jurisdiction itself, while the FIRs are registered when nothing happened in India and no investigation can be done by the police in India. Why such FIRs are registered is obvious. It seems registration of FIRs has been made a profitable business by some police officials. The police, in the present case, not only registered the FIR but also got lookout circulars for the petitioners issued.


5. Police is supposed to be professional in its working culture. The fall in standard of police has gone to such an extent that in genuine cases it is difficult to get a case registered and even if registered, it wont act with sincerity but you can get any false FIR registered with it, if you have right connections. The Supreme Court has to say about registration of FIRs in India in Lalita Kumari v Govt. of U.P. & Ors Writ Petition (Crl.) No.68 of 2008 decided on 14th July, 2008 as under: “It is a matter of experience of one of us (B.N. Agrawal, J) while acting as Judge of Patna High Court, Chief Justice of Orissa High Court and Judge of this Court that in spite of law laid down by this Court, the concerned police authorities do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. Further experience shows that even after orders are passed by the concerned courts for registration of the case, the police does not take the necessary steps and when matters are brought to the notice of the Inspecting Judges of the High Court during the course of inspection of Courts and Superintendents of Police are taken to task, then only FIRs are registered. In large number of cases investigations do not commence even after registration of FIRs and in case like the present one, steps are not taken for recovery of the kidnapped person of apprehending the accused person with reasonable desptach. At times it has been found that when harsh orders are passed by the Members of the Judiciary in a State, the police becomes hostile to them for instance in Bihar when a bail petition filed by a police personnel, who was accused was rejected by a member of Bihar Superior Judicial Service, he was assaulted in the Court room for which contempt proceedings was initiated by Patna High and the erring police officials were convicted and sentenced to suffer imprisonment. On the other hand, there are innumerable cases that where the complainant is a practical person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed, immediate steps are taken for apprehending the accused and recovery of the kidnapped persons and the properties which were subject matter of theft or dacoity. In the case before us allegations have been made that the Station House Officer of the concerned Police Statio n is pressurizing the complainant to withdraw the complaint, which, if true, is a very disturbing state of affairs. We do not know there may be innumerable such instance.”

6. In the result, I allow this petition and the FIR No.170 dated 15th August, 2008 registered at Police Station Kirti Nagar, West Delhi District, New Delhi and the proceedings emanating therefrom are hereby quashed. The lookout circulars of petitioners are also quashed.

7. The petition stands allowed.

August 06, 2010

SHIV NARAYAN DHINGRA J. rd