Delhi District Court
At Presently vs Nimit Gandhi on 29 April, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL No. 267/2022 (RBT 61/22)
IN THE MATTER OF:
Harshita G. Gandhi
W/o Sh. Nimit Gandhi
D/o Sh. K. K. Gupta,
R/o H. No. A-54, Shivalik,
Malviya Nagar, New Delhi-110017.
At presently:-
H. No. C-97, Kalkaji,
New Delhi-110019.
.......Appellant
Versus
1. Nimit Gandhi
S/o Sh. M. K. Gandhi
R/o H. No. C-2422, Sushant Lok-1,
Gurugram, Haryana.
2. Sh. M. K. Gandhi
S/o Sh. Sadhu Ram Gandhi
Both R/o 86, Ground Floor, Navjeevan Vihar,
Malviya Nagar, New Delhi-110017.
........Respondents
1CA 267/2022 Harshita G. Gandhi Vs. M. K. Gandhi & Ors Page 1 / 6
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.04.29
17:30:28
+0530
Instituted on : 29.10.2022
Reserved on : not reserved
Pronounced on : 29.04.2023
JUDGMENT
1. Vide this judgment, I shall dispose of present criminal appeal under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act) preferred by Smt. Harshita G. Gandhi against the order dated 07.10.2022 of Ld. MM-03 (Mahila Court), South District in complaint case no. 253/2021 titled as "Harshita G. Gandhi vs. Nimit Gandhi And Ors." whereby her application seeking early hearing was dismissed by Ld. Magistrate with cost of Rs. 5,000/- to be deposited with DLSA (South), Saket.
2. Briefly stated the facts as per record are as under:-
An application under Section 12 of the Act was filed at the instance of the appellant before Ld. Trial Court on 08.02.2021against Nimit Gandhi (husband), Sh. M. K. Gandhi (father-in-law), Smt. Meenu Gandhi (mother-in-law) and Smt. Astha Gandhi (sister-in-law). The matter was taken up by Ld. Magistrate on 09.02.2021 and after considering the arguments, notice was ordered to be issued to the husband whereas summoning of remaining family members was deferred.
During the course of proceedings, the matter was fixed for arguments on interim maintenance application for 04.07.2022. On 04.07.2022, it was brought to the notice of the Ld. Magistrate by Ld. Counsel for respondent/husband that the appellant has not moved an application under Section 23 of the Act. Accordingly, time was sought by Ld. Counsel for appellant to move such an 1CA 267/2022 Harshita G. Gandhi Vs. M. K. Gandhi & Ors Page 2 / 6 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.04.29 17:30:37 +0530 application and matter was fixed for 13.09.2022. On 13.09.2022, it was submitted on behalf of appellant that her circumstances have changed as she has lost her job so it was directed that fresh income affidavit be filed within four weeks with advance copy to the opposite party. The matter was adjourned for 20.12.2022 at 12.00 noon. In between an application was filed on behalf of appellant praying for early hearing of the matter. Same was dismissed vide order dated 06.10.2022 of Ld. Magistrate mentioning therein that early hearing was not possible due to heavy board of the court. Immediately thereafter, another application seeking same relief was moved before Ld. Trial Court which was again dismissed vide order dated 07.10.2022, this time with a cost of Rs.
5,000/- to be deposited with DLSA (South) Saket within a week. Said order is being challenged in these proceedings.
3. No submissions have been made on behalf of the appellant despite opportunity having been granted. In fact, even steps were not taken by her for issuing notice to the respondents despite several opportunities having been granted. Last such opportunity was granted on 23.03.2023 subject to cost of Rs. 5,000/- to be deposited with DLSA (South), Saket still, needful was not done. In these circumstances, appeal is being disposed off as per the material being available on record.
4. Relevant portion of the impugned order is being reproduced below for ready reference:-
"It is to be noted that this is the second application moved by the complainant in two consecutive dates. One early hearing application is already dismissed by this Court vide order dated 06.10.2022, despite which another early hearing application is moved by the complainant. It is also interesting to know that the matter was listed for arguments on interim maintenance on the last date of hearing, however, 1CA 267/2022 Harshita G. Gandhi Vs. M. K. Gandhi & Ors Page 3 / 6 Digitally signed by SUNIL SUNIL Date:
GUPTA GUPTA 2023.04.29 17:30:44 +0530 court was constrained to adjourn the matter as Ld. Counsel for complainant submitted that complainant lost her job and the circumstances got changed and accordingly complainant was directed to file a fresh income affidavit and the matter was deferred for arguments on interim maintenance on the next date of hearing i.e. 20.12.2022.
In the meantime, this early hearing application is moved by the complainant. The court has alre1ady made it clear that early hearing is not possible, considering the heavy board despite which another application is being pressed by complainant yet again. This application is absolutely frivolous, wasting court's precious time and the same is dismissed with cost of Rs.5,000/- to be deposited in the DLSA, South, Saket within a week. Proof of deposit of cost be furnished by the complainant on the next date of hearing i.e. 20.12.2022."
5. Perusal of the above reveals that earlier application praying for early hearing was moved on behalf of appellant was dismissed by the Court vide order dated 06.10.2022 clearly stating therein that same was not possible considering the pendency of the Court and heavy board. That order was passed in the presence of Ld. Proxy Counsel for the appellant however, another application seeking same relief was moved on the next day i.e. 07.10.2022 without their being any change in the circumstances. No such change has been mentioned in the application. Surprisingly, there is not even mention of the fact in the subsequent application about the dismissal of earlier application dated 06.10.2022. May be, same was not so mentioned as it would have been almost impossible for Ld. Counsel for the appellant to justify as to why the second application was being moved that too on the next day. It has been mentioned in the appeal that as per Section 12 (5) of the Act, an application under Section 12 is to be disposed off within 60 days from the date of its hearing, however, her application for interim maintenance was not decided even after lapse of almost 600 days.
1CA 267/2022 Harshita G. Gandhi Vs. M. K. Gandhi & Ors Page 4 / 6Digitally signed by SUNIL SUNIL Date:
GUPTA GUPTA 2023.04.29 17:30:52 +0530
6. Section 12 (5) of the Act provides as under:-
(5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1)within a period of sixty days from the date of its first hearing.
7. Perusal of above reveals that it is not a mandatory provision in the sense that every such application is to be decided within the period of 60 days, however, as per the same, efforts are to be made by Ld. Magistrate to dispose of every application within such period. Adhering to the said timeline might not be possible in most of the cases due to the pendency of the Court and the complexity of the issues involved partly due to voluminous pleadings being filed on behalf of the parties.
8. Record reveals that the matter was adjourned on 13.09.2022 as a submission was made on behalf of the appellant that she has lost her job. Ld. Trial court has rightly directed her on that day to file a fresh income affidavit as the submission regarding her having lost the job could not have been accepted otherwise. Interestingly, on 20.12.2022, it came on record that the appellant had lost her job in June 2022. If that was so, it is not clear as to why this fact was not brought to the notice of Ld. Trial Court on 04.07.2022. Further, proceedings dated 20.12.2022 revealed that the appellant did not file fresh income affidavit as directed by Ld. Trial Court on 13.09.2022. It was stated on her behalf on 20.12.2022 that an adverse inference may be taken against her for not filing the fresh affidavit.
9. Above-mentioned facts alongwith non-appearance of the appellant before this Court today and her failure to take steps for issuing notice to the other party is clearly indicating that she is not pursuing her cases diligently. In the light of such conduct of the appellant, this Court is of the view that the appellant is not 1CA 267/2022 Harshita G. Gandhi Vs. M. K. Gandhi & Ors Page 5 / 6 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.04.29 17:30:59 +0530 entitled to any relief as being sought for in the present proceedings. It appears that 2nd application praying for early hearing of the matter was moved after dismissal of earlier application seeking same relief on the previous day, just to arm twist the Court of Ld. Magistrate and for that reason, this Court is unable to see any ground to grant relief as prayed for by her.
10. The appeal is accordingly dismissed. Let the cost of Rs. 5,000/- as ordered by Ld. Magistrate be deposited with DLSA, South within 15 days from today and receipt thereof be placed before Ld. Trial Court by next date fixed there i.e., 24.05.2023.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.04.29
17:31:16
+0530
Announced in the open (Sunil Gupta)
Court on 29th April, 2023 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
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