Delhi District Court
Smt. Preeti vs Rajesh S/O Ram Kirpal (Husband) on 19 April, 2022
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE03, SOUTH EAST
SAKET COURTS, NEW DELHI
Criminal Appeal No. 381/2019
CNR No. DLSE010053842019
SMT. PREETI
W/o Rajesh
R/o E291, Aali Vihar,
Badarpur,
New Delhi110044
.... Appellant
VERSUS
1. RAJESH S/o Ram Kirpal (Husband)
2. SMT. SHIV KUMARI (Motherinlaw)
3. MR. RAM KIRPAL (Fatherinlaw)
All R/o E291,
Aali Vihar, Badarpur,
New Delhi110044
.... Respondents
Date of institution : 20.07.2019
Date of reserving the order : 19.04.2022
Date of pronouncement : 19.04.2022
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JUDGMENT
1. This is criminal appeal u/s 29 of Protection of Women From Domestic Violence Act 2005 preferred by appellant against impugned order dated 06.06.2019 passed by Court of Ms. Manika, Ld. MM04, South East, Delhi in CT case No. 3311/2018 whereby opportunity to lead complainant's evidence was closed and complaint filed by appellant was dismissed for non prosecution.
2. Brief facts as mentioned in the appeal are as follows:
3. That appellant filed an application for relief u/s 12 of PWDV Act, 2005 before Ld. Trial Court thereby seeking interim and exparte orders restraining respondents from inflicting further violence upon appellant.
4. That appellant married with respondent No. 1 on 23.11.2008 according to Hindu rites and customs at village Machitpur, Bareily, UP.
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5. That after marriage, appellant started residing with respondent No.1 and inlaws of appellant at village Hindukapurwa, Rai Bareily, UP. It is stated that parents of appellant died before marriage of appellant but that at the time when they were alive, they gave sum of Rs.51,000/ cash and gold articles to respondents.
6. That after few days of marriage, respondent No.1 started demanding a Hero Honda bike from appellant but when appellant refused to accede to demands of respondents, respondents started abusing appellant and mentally harassed her on daily basis.
7. It is stated that on 01.12.2008, appellant was shifted to D 371, Prakash Mohalla, Lajpat Nagar, New Delhi. After shifting in Delhi, behaviour of respondents got changed. In January 2009, respondent No.2 asked appellant to give her jewellery as she wanted to wear it in a function but that jewellery articles were never returned to appellant and were illegally retained by CA No. 381/2019 Preeti Vs. Rajesh and Ors. Page no....3 of 13 respondent No. 2.
8. It is stated that in year 2013, respondents shifted to E 291, Aali Vihar, Badarpur, New Delhi. It is stated that respondents No. 2, 4 and 5 used to pass remarks on appellant and made fun of physical attributes of appellant and made life of appellant a living hell in hope of extracting money from appellant.
9. That in September 2009, respondent No.1 started demanding Rs. 5 lakh cash to start a business and pressurized appellant to sell her home which was in name of appellant's father in Indrapuri, New Delhi.
10. That in year 2009, appellant and her brother Rinku sold property of their father at Indrapuri for sum of Rs. 4,75,000/ in order to fulfill demand of respondent No.1 and gave the said amount to respondent No.1.
11. It is stated that on 07.06.2010, appellant gave birth to a male child namely Yash at Jeevan Hospital, New Delhi and that CA No. 381/2019 Preeti Vs. Rajesh and Ors. Page no....4 of 13 all the expenses with regard to delivery of appellant were borne by brother and other relatives of appellant. After few days of delivery of appellant, respondents No. 1 to 3 started demanding one motorcycle as well as cash amount of Rs.50,000/ on ceremony of Chuchuk but when appellant refused, respondents No. 1 to 3 started beating appellant mercilessly.
12. It is stated that on occasion of Holi in 2011, respondents No. 2, 3 and 4 threw food made by appellant on the pretext that the same was insipid and respondent No. 2 slapped appellant.
13. It is stated that on 28.11.2012, when appellant asked for clothes for herself and her son, respondent No. 1 shouted and abused appellant and after hearing voice of respondent No. 1, respondents No. 2, 5 and 6 also came there and respondents No. 2 and 5 started beating appellants and respondent No. 6 gave threats to appellant.
14. It is stated that in April 2013, appellant caught respondent No. 1 on a call with girl namely Meetu and when CA No. 381/2019 Preeti Vs. Rajesh and Ors. Page no....5 of 13 appellant inquired regarding the girl, respondent No. 1 got furious and gave merciless beatings to appellant.
15. It is stated that in February 2014, all respondents except respondent No. 3 went to attend a marriage. It is stated that when appellant was cooking food in kitchen, respondent No. 3 caught her from her back and stated that mujhe malum hai mera beta tujhe pasand nahi karta, tu chahe to main har kami puri kar sakta hun. Appellant ran from there and saved herself after locking herself in a room. In night, when respondents No. 1 and 2 returned, appellant told them regarding the above said fact whereupon, respondents No. 1 and 2 became ferocious and started giving merciless beatings to appellant and said that Mere Pitaji par ye ilzam lagane ki teri himmat kaise hui.
16. It is stated that in the meanwhile, respondent No.1 started taking alcohol and after getting drunk, often used to beat appellant without any rhyme and reason.
17. That on 08.06.2015, when respondent came home in a CA No. 381/2019 Preeti Vs. Rajesh and Ors. Page no....6 of 13 drunken state and started abusing and beating appellant, appellant got fractured in her waist. Appellant made complaint on 100 number after that on insistence of family members of respondents and common relatives, matter was not pursued.
18. It is stated that after the above incident, behaviour of respondents changed towards appellant and respondents started torturing appellant and stopped providing proper food and milk to appellant and when appellant raised her voice against this, respondents No. 1 to 3 started beating appellant.
19. It is stated that on 18.04.2017, appellant made complaint to PS Sarita Vihar but that police officials of PS Sarita Vihar did not receive complaint of appellant and appellant had to file a complaint in Women Cell at ITO on 22.10.2017.
20. That respondent No. 1 did not bother to pay expenses of appellant and her children. It is stated that respondent No. 1 is working as a plumber and is earning Rs. 25,000/ per month.
21. That appellant filed complaint u/s 12 of DV Act on CA No. 381/2019 Preeti Vs. Rajesh and Ors. Page no....7 of 13 12.04.2018 wherein respondent No. 1 was proceeded exparte vide order dated 10.08.2019 and matter was fixed for exparte evidence of appellant.
22. That on 14.12.2019, appellant was given last opportunity for filing CE. It is stated that on 06.05.2019 and 13.05.2019, appellant could not file her evidence as she wanted to file certain documents alongwith her evidence i.e. NCR and medical dated 26.03.2019 but same were not made available to appellant by concerned authorities.
23. That on 06.06.2019, when matter came up for hearing, counsel for appellant requested Ld. Trial Court for pass over to file exparte evidence which was granted but that counsel for appellant got late in filing the same because of which Ld. Trial Court dismissed complaint for non prosecution. It is stated that on 06.06.2019, respondent No. 1 also filed an application for setting aside exparte order dated 10.08.2019 and that appellant was directed to file her reply to the same.
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24. Following grounds have been taken by appellant to challenge impugned order:
a) Because Ld. Trial Court erred in passing order of dismissal and failed to consider request of appellant for mere passover as exparte evidence affidavit was yet to be attested by Oath Commissioner since appellant could not visit her counsel prior to hearing of her case on account of some health issues.
b) That impugned order is misconceived and is based on conjectures and surmises
c). Because Ld. Trial Court failed to consider that appellant had gone through a lot during her marriage and need to maintain her children and in case complaint of appellant remains dismissed, she will suffer an irreparable loss.
d). That impugned order is bad in law and against principals of natural justice. On 06.06.2019, Court directed appellant to file reply to application under Order 9 Rule 7 CPC filed by respondent No. 1 but still case of appellant was dismissed. Ld. CA No. 381/2019 Preeti Vs. Rajesh and Ors. Page no....9 of 13 Trial Court could have imposed cost on appellant but Ld. Trial Court chose to dismiss case for non prosecution.
e). That due to unlawful order passed by Ld. Trial Court, appellant is on verge of being homeless.
f). That immense prejudice would be caused to appellant if her application u/s 12 DV Act is not restored.
g). Because impugned order is illegal and arbitrary and is liable to be set aside.
25. It is prayed to call TCR and set aside impugned order dated 06.06.2019.
26. I have heard arguments addressed by respective counsels and perused record including trial court record.
27. Respondent No. 1 did not address any arguments on appeal despite making appearance before this Court on 07.11.2019. After 07.11.2019, respondent No. 1 did not appear. On 15.12.2021, one last and final opportunity was granted to respondents to appear and address arguments on appeal failing which it was directed that arguments to be addressed on behalf CA No. 381/2019 Preeti Vs. Rajesh and Ors. Page no....10 of 13 of appellant shall be heard and matter shall be decided on basis of record including TCR.
28. Arguments on appeal were addressed on behalf of respondents No. 2 and 3 only besides on behalf of appellant.
29. Perusal of Trial Court record shows that respondent No.1 who is husband of appellant was proceeded ex-parte on 10.08.2018. Respondent No. 1 filed an application under Order 9 Rule 7 CPC for setting aside ex-parte order dated 10.08.2018 on 04.05.2019. Appellant was directed to file reply to this application of respondent No. 1 on 06.06.2019 in the morning but that passover was sought by appellant on 06.06.2019 for filing affidavit of evidence. After passover, when affidavit of evidence was not filed by appellant, Ld. Trial Court closed evidence of appellant and dismissed complaint filed by her for non prosecution. Ld. Trial Court in impugned order observed that despite grant of last opportunity on 14.12.2018, appellant failed to file the same on future dates of hearing.
30. I am of the view that appellant filed petition u/s 12 of CA No. 381/2019 Preeti Vs. Rajesh and Ors. Page no....11 of 13 PWDV Act alongwith an application for interim maintenance u/s 23 of the Act. Perusal of Trial Court record shows that appellant was represented by legal aid counsel before Ld. Trial Court which clearly shows that appellant did not have resources to engage private counsel. Parents of appellant are already stated to have expired as per appeal filed by appellant. I am of the view that no doubt appellant should have filed evidence by way of affidavit as directed by Ld. Trial Court but that dismissal of petition / complaint filed by appellant because of non filing of the same in the scenario that in the morning, Ld. Trial Court was intending to give a date to appellant for filing reply to application of respondent No. 1 under Order 9 Rule 7 CPC for setting aside ex-parte order against him operated too harshly upon appellant. On account of passing impugned order, appellant has been left to lurches as appellant in proceedings before Ld. Trial Court was being represented by Legal Aid Counsel. During course of arguments, it was submitted on behalf of appellant that affidavit of evidence could not be filed CA No. 381/2019 Preeti Vs. Rajesh and Ors. Page no....12 of 13 by appellant as appellant was to arrange the record pertaining to NCR and her medical which was not provided to her by authorities concerned and it was because of no fault of appellant that affidavit of evidence could not be filed in time by her. In these circumstances, I am of the view that impugned order is against principals of natural justice and deserves to be set aside and is accordingly set aside. Appellant is directed to file her affidavit of evidence before Ld. Trial Court on 07.05.2022. Appeal filed by appellant thus stands disposed of as allowed. Petition filed by appellant before Ld. Trial Court is directed to be restored to its original number.
31. Trial court record be sent back along with the copy of this judgment.
32. Appeal file be consigned to record room.
Dictated and Announced (Sonu Agnihotri)
in the open court ASJ03 (SouthEast),
on 19.04.2022 Saket Courts, Delhi
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