Delhi District Court
Sh. Manoj Dhawan vs Ms. Nitu Dhawan on 14 July, 2017
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
Crl. (A) No. 20/2/2017
UID No. 92/2017
P.S. Khyala
Sh. Manoj Dhawan,
S/o Late Sh. Vijay Kumar Dhawan,
R/o 24/153, 1st Floor, Shakati Nagar,
Vyas Marg, Near Dena Bank,
G.T. Road, Delhi110007
.....Appellant
Versus
Ms. Nitu Dhawan,
S/o Sh. Ramesh Kumar Tandon,
R/o House no. S221/282, Ground Floor,
Gali No.7, Near Guru Govind Singh Hospital,
Vishnu Garden, New Delhi.
.....Respondent
Date of filing: 23.03.2017
Date of arguments: 03.07.2017
Date of order: 14.07.2017
O R D E R
1. The present appeal under Section 29 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter
CA No. 92/2017 Manoj Dhawan Vs Nitu Dhawan 1 of 9
referred to as D.V. Act) has been filed by the appellant against
the order dated 22.02.2017 passed by the Court of Ms Shefali
Sharma, Ld. Metropolitan Magistrate (Mahila Court01), West,
Tis Hazari Courts, Delhi, dismissing the application under
Section 25 (2) of the D.V.Act for modification of interim
maintenance order.
Brief Facts:
2. The respondent/complainant filed a complaint under the provisions of D.V.Act. The Ld. Metropolitan Magistrate issued the notice to the respondent and thereafter vide order dated 13.05.2015, the application for interim orders moved under Section 23 of the D.V. Act was disposed of.
3. Appellant being aggrieved by the said order had filed a criminal appeal, which was dismissed by the Ld. Sessions Court vide order dated 17.09.2015, The appellant challenged the interim maintenance order by filing a petition under Section 482 Cr.P.C. in the Hon'ble High Court of Delhi. The Hon'ble CA No. 92/2017 Manoj Dhawan Vs Nitu Dhawan 2 of 9 High Court of Delhi had also dismissed the said petition. The relevant observation of the Hon'ble High Court of Delhi contained in order dated 19.09.2016 is reproduced as under: Para 2 "if that be so, the impugned orders cannot be interdicted. Subsequent change of events has already been brought by the petition to the notice of the Ld. Metropolitan Magistrate.
Para 3 Learned counsel for the petition states that the petition may be disposed of maintaining the impugned orders but directed the Learned Metropolitan Magistrate to expeditiously decide petitioner's application praying for subsequent events to be taken note of and orders passed modifying the direction issued in the order dated May 13,2015 passed by the Learned Metropolitan Magistrate, Delhi".
4. The appellant (husband) moved an application under Section 25 of D.V. Act for modification of interim maintenance order. The said application under Section 25(2) of the D.V. Act praying for modification of order dated 13.05.2015 has been dismissed by Ld. Metropolitan Magistrate and feeling aggrieved by the said order, the present appeal is filed.
5. In this appeal, it is stated that the impugned order has CA No. 92/2017 Manoj Dhawan Vs Nitu Dhawan 3 of 9 been passed without the application of mind. That the Ld. Metropolitan Magistrate has failed to take notice that the power of disposing off the application under Section 25 (2) of D.V. Act is only withing the domain of Ld. Metropolitan Magistrate and that is why the Hon'ble High Court has remanded the matter back to decide the application. That the Ld. Metropolitan Magistrate has erroneously observed in para 9 that no documents has been filed regarding sending request to the LIC branch on 03.08.2015 for reduction of the premium or closure of the policies. That the Ld. Metropolitan Magistrate has fails to appreciate that the Hon'ble High Court of Delhi has indicated to ascertain the factum of the loss of the job. That the Ld. Metropolitan Magistrate has fails to take notice that even the Ld. ASJ did not comment on change of circumstances as the law permits only to the Ld. Metropolitan Magistrate to do the needful on the application under Section 25(2) D.V. Act. That Ld. Metropolitan Magistrate has fails to take notice that CA No. 92/2017 Manoj Dhawan Vs Nitu Dhawan 4 of 9 son of the appellant has attained the age of majority on 17.05.2016 and not entitled to claim maintenance under the law. It is prayed that in view of the grounds of appeal, the impugned order dated 22.02.2017 may kindly be set aside.
6. Notice of the appeal was issued to the respondent. The respondent put the appearance through her counsel and strongly opposed the grounds of appeal.
7. I have carefully perused the material on record and gone through the submissions made by Ld. Counsels for the parties.
8. It is submitted by the Ld. Counsel for the appellant that in view of the grounds of the appeal, the impugned order may kindly be set aside. On the other hand, it is submitted by the Ld. Counsel for the respondent that there is no illegality or infirmity in the order passed by the Ld. Metropolitan Magistrate. It is prayed that the appeal may kindly be dismissed.
9. The appellant in the present appeal has raised the CA No. 92/2017 Manoj Dhawan Vs Nitu Dhawan 5 of 9 contention that the son of the appellant has attained the age of majority on 17.07.2016 and hence not entitled to claim maintenance. The perusal of the application under Seciotn 25(2) of D.V. Act moved by the appellant would reveals that no such contention regarding attaining the age of majority by son of the appellant, is mentioned in the same. Therefore, this contention regarding the attaining of the age of the majority by the son of the appellant need not be considered by this court.
10. In the present case, the interim maintenance order was passed by Ld. Trial Court on 13.05.2015. The appellant by virtue of the application under Section 25(2) of the D.V. Act sought modification of the order on the basis of happening of events after passing of the maintenance order. The loss of the job of the appellant had occurred after passing of the interim maintenance order. Therefore, it was a valid ground to knock the door of the Ld. Metropolitan Magistrate under Section 25 (2) of the D.V. Act. The reduction of the premium of the LIC CA No. 92/2017 Manoj Dhawan Vs Nitu Dhawan 6 of 9 policies or closure of the polices by the appellant is also an attaining circumstances taken place, allegedly due to the loss of the job on 03.08.2015, which had also taken place after the passing of the interim maintenance order. The filing of the appeal challenging the interim maintenance order or even mentioning this fact does not take away the right of the appellant to move an application for modification on the basis of the changed circumstances under Section 25 (2) of D.V. Act.
11. The Ld. Metropolitan Magistrate while passing the order on the interim maintenance application has to consider the fact and circumstances which existed on the date of the filing the complaint or has taken place on or before passing the order on interim maintenance application. The fact regarding the loss of the job and other attaining circumstances were not within the consideration of the Ld. Metropolitan Magistrate at the time of order on the passing of the interim maintenance application. Therefore, it was a justified ground for the appellant to CA No. 92/2017 Manoj Dhawan Vs Nitu Dhawan 7 of 9 approach the Ld. Metropolitan Magistrate praying for exercise of the jurisdiction under Section 25(2) of the D.V. Act.
12. It is also not out of place to mention that the Hon'ble Delhi High court in the order dated 19.09.2016 has also granted opportunity to the appellant to raise the contention regarding loss of the job and other circumstances on the pending application under Section 25(2) of the D.V. Act.
13. The contention regarding the existence of the property in the name of the respondent/complainant had already been raised by the appellant and dealt with at the time of passing interim maintenance order by the Ld. Metropolitan Magistrate. Therefore, the Ld. Metropolitan Magistrate was justified while declining the prayer on this ground.
14. In view of the above discussions the order passed by the Ld. Metropolitan Magistrate dated 22.02.2017 is set aside. The present matter is remanded back to the Ld. Metropolitan Magistrate with direction to decide afresh the application under CA No. 92/2017 Manoj Dhawan Vs Nitu Dhawan 8 of 9 Section 25(2) of D.V.Act filed by the appellant.
15. Ld. Metropolitan Magistrate shall decide the application without being influenced by the order passed by this court.
16. Appeal file be consigned to record room after completion of necessary formalities.
17. Trial Court Record be sent back along with copy of this order.
Announced in the open court today i.e. 14th July, 2017 (DEVENDER KUMAR JANGALA) ADDL. SESSIONS JUDGE03 (WEST), DELHI CA No. 92/2017 Manoj Dhawan Vs Nitu Dhawan 9 of 9