Delhi High Court
Abdul Rub & Ors. vs Razia Begum on 4 October, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 20, 2010
Date of Order: 4th October, 2010
+ Crl.M.C.No. 4246/2009
% 04.10.2010
Razia Begum ... Petitioner
Through: Mr. Ajay M. Lal, Advocate
Versus
State, NCT of Delhi & Ors. ... Respondents
Through: Mr. Sunil Sharma, APP for the State
Mr. S.D.Ansari, Advocate for the respondents
Crl.M.C.No. 4375/2009
% 04.10.2010
Abdul Rub & Ors. ... Petitioners
Through: Mr. S.D.Ansari, Advocate
Versus
Razia Begum ... Respondent
Through: Mr. Ajay M. Lal, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
These two petitions have been filed assailing order dated 29th
October, 2009 passed by the learned Additional Session Judge. One petition has
been filed by the Smt. Razia Begum widow of the deceased Abdul Rauf and other
has been filed by her father-in-law, brothers-in-law and others who were made
respondents in the application under Section 22 of Protection of Women from
Domestic Violence Act, 2005 (in short Domestic Violence Act) by Razia Begum.
2. In her application under Domestic Violence Act, Razia Begum had
made 11 respondents and she specified her relations with respondents as under:
2. That the complainant/aggrieved person married to
one Abdul Rauf on 1.10.1995 who was the son of
respondents no. 3, 7 & 9 and brother of respondents no. 1,
2, 4, 5, 8, 10 & 11 and dewar (brother-in-law) of respondent
no.6. That the marriage between the
complainant/aggrieved person with the aforesaid late Abdul
Rauf was duly performed and solemnized on 1.10.1995 in
accordance with all essential Muslim/Islamic customs rites
and ceremonies, and law at Delhi. However, unfortunately
the husband of complainant/aggrieved person had expired
on 2.9.2006.
x x x x x
4. That respondent no.1 and respondent no.8 are the
jeth of the complaint/aggrieved person respondent no.2 is
the father-in-law, respondents no. 3 & 4 are dewars,
respondents no. 5 & 9 are mothers-in-law, respondent no.6
is the jethani of the complainant, respondent no. 7, 10 & 11
are nands (sisters-in-law).
3. The order of learned MM passed under Section 22 of Domestic
Violence Act shows that the order was passed against five male respondents and all
woman respondents seem to have been dropped. The five respondents against
whom order has been passed are Abdul Rab, Abdul Samad, Abdul Khaliq, Kasim
and Abdul Wahab. While first four respondents have been shown as residents of
H.No. 450 Chawri Bazar, Chittla Gate, Jama Masjid but the fifth respondent i.e. Abdul
Wahab has been shown as resident of H.No. 1456, Kala Mehal, Khirki, Jama Masjid,
Delhi. Vide her order, the learned MM directed payment of maintenance of `
10,000/- p.m. to the wife from the date of filing of petition and also held that widow
was entitled to stay/reside at the second floor of the joint household and could be
evicted only after due process of law. However, order of learned MM did not specify
which of the respondents was liable to pay what amount and why
4. In appeal before the learned Additional Sessions Judge, the relatives
of widow did not assail the order regarding residence given to the widow and stated
that she was already living there and they have filed civil suit in this respect but
assailed the order for granting maintenance. The learned Session Judge in appeal
reduced the maintenance from ` 10,000/- to ` 6,000/- vide his order dated 29th
October, 2009 both the parties are before the Court.
5. Neither the order of learned MM nor the order passed by learned
Additional Sessions judge specify as to which of the respondent out of the five would
be liable to make the payment and why. The learned MM has only discussed the
broad allegations and counter allegations but her order is conspicuously silent as to
who were in the domestic relationship with the widow and who out of the five persons
had deprived the widow of financial resources, if any, and who was liable to pay
maintenance. Same is true in respect of the order passed by learned Additional
Session Judge. The order of learned Additional Sessions Judge is equally silent as
to who would be liable to pay the maintenance.
6. It has to be noticed that although Domestic Violence Act is not a penal
law but it is a peculiar Act where non-compliance of the order passed under the Act
has been made as an offence under Section 31 of the Act and an FIR can be
registered against the person who does not comply with the order and this offence is
triable by the same Magistrate who passed the interim order for protection or
maintenance. In view of this provision under Section 31, it becomes incumbent and
responsibility of the Magistrate to be careful in passing order and to specify as to
whether there was domestic relationship between the aggrieved person and the
respondent and who was the person responsible for compliance of the order.
7. Under Domestic Violence Act every relative of the husband cannot be
made as a respondent. Only those persons can be made respondents, who satisfy
the definition of Section 2(q) which 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.
8. Thus, in order to fix liability upon a respondent the respondent must
be a person who is or has been in domestic relationship with the aggrieved person.
Domestic relationship is defined in Section 2(f) of the Act which reads 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."
Thus, it is apparent from above definition that in order to constitute domestic
relationship there must have been living together in a shared household and there
must be relationship as specified in Section 2(f).
9. The entire complaint of the complainant/Razia Begum does not show
that she was in domestic relationship with each of the respondents nor the orders of
the learned MM or Sessions Judge show that why the order has been passed against
all male relatives named by the complainant in her complaint, without coming to a
conclusion whether any domestic relationship existed between the aggrieved person
and the respondents.
10. One of the respondents against whom order has been passed is
Abdul Wahab. He has not lived even in the house where aggrieved person Razia
was living. The learned MM and learned Sessions Judge passed maintenance order
against him also. The parentage of respondent Kasim has not been given in the
complaint. The complaint also shows that even cousin (brother) of the husband has
been made a respondent. It is expected from the trial Court that before passing an
order under Domestic Violence Act, it must be satisfied that there existed a domestic
relationship between the petitioner and the respondent. It is also incumbent upon the
Court to specify as to which of the respondents would be liable to make the payment
of interim maintenance and why, keeping in view the provisions of the Act and the
decision of this Court in Crl. M.C. No.3878/2009 Vijay Verma v. State NCT of Delhi &
Anr. [MANU/DE/1946/2010] decided on 13th August, 2010 and Crl. Rev. P. No.
253/2010 Harbans Lal Malik v. Payal Malik [MANU/DE/1842/2010] decided on 29th
July, 2010
11. The trial Court and the Sessions Judge passed interim orders without
satisfying themselves of basic requirement of domestic violence act that the order
can be passed only against the 'respondents' who had been in 'domestic relationship'
with the 'aggrieved person'. The order passed by the learned MM and the learned
Sessions Judge are hereby set aside the matter is remanded back to learned MM to
pass order in accordance with law and in accordance with judgments given in Crl.
M.C. No.3878/2009 Vijay Verma v. State NCT of Delhi & Anr. and Crl. Rev. P. No.
253/2010 Harbans Lal Malik v. Payal Malik.
12. However, till the order is passed by the learned MM afresh, Razia
Begum shall not be dispossessed from the portion of house in her occupation and
petitioner Abdul Rub and Abdul Khaliq till then shall jointly pay a sum of `5,000/-
p.m. as maintenance to Razia Begum from the date of application.
Both the petitions stand disposed of.
October 04, 2010 SHIV NARAYAN DHINGRA, J.
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