Kavita Kumari vs State & Anr
2016 Latest Caselaw 182 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 16th OCTOBER, 2015
                                DECIDED ON : 11th JANUARY, 2016

+     CRL.REV.P.304/2014 & CRL.M.A.No.8245/2014

      KAVITA KUMARI                                        ..... Petitioner
                          Through :    Mr.S.K.Bhalla, Advocate.

                          versus

      STATE & ANR.                                      ..... Respondents
                          Through :    Mr.Ashok K.Garg, APP.
                                       Ms.Kamlesh Sabharwal, Advocate
                                       for R2.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Instant revision petition has been preferred by the petitioner -

Kavita Kumari to challenge the legality of a judgment dated 19.04.2014 of

learned Addl. Sessions Judge in Crl.A.26/2013 whereby order dated

15.12.2011 passed by Mahila Court, Central District, Delhi, dismissing

application for interim relief under Protection of Women from Domestic

Violence Act (in short DV Act) was upheld. Petition is contested by

respondent No.2.

2. I have heard the learned counsel for the parties and have

examined the file. Petition under Section 29 of DV Act has been filed by

the petitioner against the respondent No.2 and is pending before the Trial

Court. By an order dated 15.12.2011, the learned Metropolitan Magistrate

dismissed the application moved by the petitioner for reinstatement in

house bearing No.T-514 B near Budh Bazar, Hill Road, Baljeet Nagar,

New Delhi. The appeal against the said order resulted in dismissal.

Learned counsel for the petitioner urged that the impugned orders cannot

be sustained as the petitioner, legally wedded wife of the respondent No.2

after her marriage on 16.04.1994 had lived at T-514 B near Budh Bazar,

Hill Road, Baljeet Nagar, New Delhi, and had shared the said

accommodation. In the month of August, 1998, they started living in a

rented accommodation at T-443, Baljeet Nagar, New Delhi. She was

forced to leave the said accommodation also on account of cruel treatment

of respondent No.2. She lodged a complaint case under Sections 323/34

IPC against the respondent No.2 and his brother and it resulted in their

conviction. A case vide FIR No.379/1998 under Sections 498A/406/34

IPC was also registered against the respondent No.2 and his brother. The

respondent No.2 had filed a divorce petition on 20.09.2002 which was

decreed vide judgment dated 02.05.2009. However, in appeal, the said

judgement and decree was set aside by this Court vide judgment dated

08.04.2011. Counsel urged that House No.T-514 B near Budh Bazar, Hill

Road, Baljeet Nagar, New Delhi, is the petitioner's shared household as

defined under DV Act and is exclusively owned by the respondent No.2.

The rented accommodation at T-443, Baljeet Nagar, New Delhi, was with

an oblique motive to desert her forever. It was further contended that the

Trial Court had specifically directed the respondent No.2 to produce the

title deeds of the said house vide order dated 09.03.2010. He, however,

did not comply the said order and filed an affidavit on 17.04.2010 stating

that the said house was not his property and was owned by his father.

Respondent No.2 has concealed the material relevant facts before the Trial

Court regarding the ownership of the said property. She is entitled for

residence in her shared household No.T-514 B near Budh Bazar, Hill

Road, Baljeet Nagar, New Delhi.

3. Learned counsel for the respondent No.2 refuting the

contentions urged that the petitioner has not come to the Court with clean

hands and has concealed various facts. After the marriage, the petitioner

and respondent No.2 lived in a government accommodation bearing

Quarter No.8, PS Patel Nagar, which was allotted to his father. She never

lived at any point of time in house No.T-514 B near Budh Bazar, Hill

Road, Baljeet Nagar, New Delhi. After compromise before CAW Cell as

recorded in DD No.6A dated 14.05.1998, the petitioner had shifted to T-

510/EA-5, Vijay Marg, Baljeet Nagar, New Delhi. The parties thereafter

lived in house No.T-443, Baljeet Nagar, New Delhi, a rented

accommodation. House No.T-514 B near Budh Bazar, Hill Road, Baljeet

Nagar, New Delhi, is not owned by him.

4. In the rejoinder, the petitioner has reiterated her version and

claimed that respondent No.2's father has since expired on 10.06.2014

and the said property has devolved upon him.

5. On scanning the Trial Court record, it reveals that no cogent

material / document has come on record to infer that after the marriage,

both the petitioner and the respondent No.2 had lived together in House

No.T-514 B near Budh Bazar, Hill Road, Baljeet Nagar, New Delhi. The

petitioner has not placed on record any document about its ownership. The

respondent No.2 was directed to produce on record title documents of the

said house. However, in his affidavit, he claimed that he was not in

possession of any such document. Till date no authentic documents have

come on record before the Trial Court to ascertain as to who is the owner

of the said accommodation or whether after marriage both the parties had

lived together as husband and wife therein for any particular duration.

Admitted position is that at the time of their separation in 1998, both the

parties were living together at T-443, Baljeet Nagar, New Delhi, in a

rented accommodation. The respondent No.2 has placed on record copy of

DD No.6A dated 14.08.1998 where the residential address of the

petitioner has been shown as T-510/EA-5, Gali No.2, Vijay Marg, Baljeet

Nagar, New Delhi. He has also filed an application dated 02.01.1999

moved before SHO PS Anand Parbat about recovery of dowry articles in

case FIR No.379/1998 under Sections 498A/406/34 IPC from the house

No. T-443, Baljeet Nagar, New Delhi. Recovery memo dated 03.01.1999

in the said FIR demonstrates that certain dowry articles were recovered in

the presence of respondent No.2 from T-443, Panjabi Basti, Baljeet Nagar,

New Delhi on 03.01.1999. In her counter-affidavit dated 21.05.2010, the

petitioner claimed that while her stay at house No.T-514 B near Budh

Bazar, Hill Road, Baljeet Nagar, New Delhi, the respondent No.2 had

shown her certain documents comprising of General Power of Attorney,

Special Power of Attorney, Agreement to Sale, Receipt, Affidavits and

Will, etc. showing that the said house was purchased by him. In the

absence of any such documents on record, it cannot be inferred with

certainty that house No.T-514 B near Budh Bazar, Hill Road, Baljeet

Nagar, New Delhi, is owned by respondent No.2. This aspect is yet to be

decided by the Trial Court after getting evidence of the parties during

trial.

6. Since there was no clinching evidence / material on record to

show the respondent No.2 to be the owner of the house No.T-514 B near

Budh Bazar, Hill Road, Baljeet Nagar, New Delhi, or that the said

accommodation was shared by the petitioner along with her husband after

her marriage, the impugned orders whereby the petitioner was declined

reinstatement in the said house cannot be faulted. The Appellate Court has

already noted and accepted the petitioner's contention that the petition

filed by her is within limitation and is maintainable.

7. In view of the above discussion, I find no illegality or

irregularity in the impugned orders. Revision petition is dismissed.

Pending application also stands disposed of. Trial Court record be sent

back forthwith with the copy of the order.

8. Observations in the order shall have no impact on the merits

of the case.

(S.P.GARG) JUDGE JANUARY 11, 2016 / tr