Delhi District Court
Ravi Shankar & Ors vs . Abha Sharma on 13 December, 2019
Ravi Shankar & Ors Vs. Abha Sharma
Case Registration No. 289/2018
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE02:
DWARKA COURTS: NEW DELHI
Criminal Appeal No.: 22/18
Case Registration No: 289/2018
CNR No. DLSW01015212018
1. RAVI SHANKAR
S/o Late Ashok Kumar Singh
R/o House No. 401,
4th Floor , Katwaria Sarai, Delhi16.
2. MALTI DEVI
W/o Late Ashok Kumar Singh
R/o Post Bihta,
District Patna, Bihar801 103.
3. ANAND SHANKAR
S/o Late Ashok Kumar Singh
R/o House No. 402,
4th Floor, Katwaria Sarai, Delhi16.
.... Appellants
VERSUS
ABHA SHARMA
W/o Ravi Shankar
D/o Devender Sharma
R/o RZG33, Raj NagarII,
Shyam Mandir Wali Gali,
Palam Village, New Delhi45. .....Respondent
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Ravi Shankar & Ors Vs. Abha Sharma
Case Registration No. 289/2018
Date of institution : 16.08.2018
Date of reserving judgment : 13.12.2019
Date of pronouncement : 13.12.2019
JUDGMENT
1. This is an appeal preferred by appellants Under Section 29 of Protection of Women from Domestic Violence Act, 2005 against impugned order dated 18.07.2018 passed by Ms. Neha, Ld. MM (Mahila Court), Dwarka Courts, New Delhi.
2. The brief facts as mentioned in the appeal are as follows:
3. It is stated that case before Ld. Trial Court was filed in January, 2013 and written statement in this case was filed on next date of hearing.
4. It is stated that in the meanwhile, respondent/complainant also filed application U/sec 125 Cr. P. C which was dismissed on 02.07.2014 by court of Ms. Neena Bansal Krishnan, Ld. Judge, Family Courts, Dwarka. It is stated that complainant/respondent further filed an application U/sec 127 Cr. P. C challenging order dated 02.07.2014 which was also dismissed vide order dated 03.02.2015. It is stated that on 22.04.2015, complainant filed appeal challenging order dated 02.07.2014 and 03.02.2015 before Hon'ble Page no2 of 10 Ravi Shankar & Ors Vs. Abha Sharma Case Registration No. 289/2018 High Court of Delhi which complainant opted not to press as she withdrew the same and as such order dated 02.07.2014 has attained finality as on date. It is stated that respondent /complainant in April, 2017, made submissions before Ld. Trial Court that she does not want to pursue her application for maintenance and want to proceed with matter on merits of case.
5. It is stated that appellant No. 1 filed application U/sec 340 Cr.
P. C in 125 Cr. P. C petition which came to disposed of vide order dated 02.07.2014 with observation that "Moreover the consequence of such a concealment has been the dismissal of the Maintenance petition of the petitioner".
6. It is stated that appellants filed application under Section 340 Cr. P. C r/w Section 195 Cr. P. C before Ld. Trial Court which is pending adjudication. It is stated that respondent /complainant has claimed herself as housewife for the purpose of maintenance whereas it is a matter of fact that respondent was working prior to her marriage in Genpact Company at Gurgaon which fact has been further strengthened in view of company producing record in this regard on application filed u/sec 91 Cr. P. C. It is stated that respondent has no respect for court of law and has been trying to twist facts as per her wishes to obtain favourable order. Hence, clear Page no3 of 10 Ravi Shankar & Ors Vs. Abha Sharma Case Registration No. 289/2018 case is made out against respondent U/sec 340 Cr. P. C for reasons mentioned above.
7. It is stated that appellant no. 1 also filed divorce petition against respondent which was granted by Ld. Principal Judge, Family Courts at Patiala House. It is stated that it is pertinent to mention that in the said case, neither respondent sought any maintenance U/sec 24 of HMA nor court was pleased to grant any maintenance U/sec 24 or 26 HMA.
8. It is stated that respondent clearly submitted before Ld. Trial Court not to press her interim application which fact is evident from order dated 02.05.2017 wherein she has stated that she is not pressing for interim maintenance and wanting the case to be decided on merits. It is stated that the said order dated 02.05.2017 is still in operation.
9. It is stated that after dissolution of marriage, respondent has remarried and has one child from the said marriage and that their does not exist husband wife relationship as on date between the parties.
10. The appellant has taken following grounds to challenge impugned order: Page no4 of 10 Ravi Shankar & Ors Vs. Abha Sharma Case Registration No. 289/2018
a) Because impugned order dated 18.07.2018 passed by Ld. Trial Court is perverse and bad in law.
b) Because Ld. Trial Court failed to notice that respondent had to approach Ld. Trial Court with clean hands but has suppressed material facts.
c) Because Ld. Trial Court has not explained as to under what provisions of law, it could recall its own order dated 02.05.2017.
d) Because Ld. Trial Court wrongly interpreted combined reading of Section 2 (a) (f) (q) (s), 3, 12 and 18 to 13 of the Act which leads to irresistible and definite conclusion that remedy as provided for under Section 12 covers Act of Violence.
e) Because Ld. Trial Court failed to appreciate that domestic relationship between parties has ceased and therefore petition filed by respondent is not maintainable.
f) Because Ld. Trial Court failed to notice that allegations put forth by respondent are of general in nature without any authentic proof which does not carry any relevancy in law.
g) Because Ld. Trial Court failed to notice that prayer of petition of respondent is to claim interim maintenance and no purpose is left to proceed the said case for reasons mentioned above.
h) Because Ld. Trial Curt failed to notice that respondent has been Page no5 of 10 Ravi Shankar & Ors Vs. Abha Sharma Case Registration No. 289/2018 living separately in PG house in Gurgaon and is happy with her life and that is why, respondent did not bother to make any effort for restitution of Conjugal Rights.
I) Because respondent has been giving wrong and incorrect contradictory statements time and again.
j) Because only purpose of respondent is to harass appellants for extorting money under the said case.
11. It has been prayed to set aside impugned order dated 18.07.2018 and to drop proceedings of petition U/sec 12 r/w Section 21 and 22 of Protection of Women from Domestic Violence Act, 2005 as interim application as well as petition of respondent is not maintainable.
12. I have heard arguments addressed by respective counsels and perused the record including TCR and judgments filed on behalf of appellants.
13. Appellants are aggrieved with order of Ld. Trial Court dated 18.07.2018 vide which Ld. Trial Court disposed of application filed by appellants seeking dismissal of petition as well as dismissal of application for interim maintenance filed by respondent.
14. Perusal of TCR shows that vide order dated 23.02.2018, Ld. Trial Court disposed of an application filed by respondent Page no6 of 10 Ravi Shankar & Ors Vs. Abha Sharma Case Registration No. 289/2018 /complainant seeking disposal of interim application filed by respondent and gave liberty to address arguments on application for grant of interim maintenance on next date of hearing.
15. On next date of hearing i.e. 05.03.2018, Ld. Trial Court directed appellant no. 1 and respondent to file their last month's salary slip on next date of hearing before order on interim application is passed. On next date of hearing i.e. 23.03.2018, parties did not file their income affidavits. Further direction was given by Ld. Trial Court on 23.03.2018 to parties to file income affidavits on next date of hearing. On next date of hearing i.e. on 21.04.2018, respondent filed her income affidavit and appellant No. 1 also filed certain documents whereafter matter was fixed for arguments on interim application on 26.05.2018.
16. On 26.08.2018, appellant No. 1 filed application for dropping of proceedings and for dismissing application of respondent for deciding interim application. Ld. Trial Court observed that appellant No. 1 has not filed statement of account and ITR as per last order. Ultimately, application filed by appellant No. 1 was disposed of vide impugned order dated 18.07.2018 wherein Ld. Trial Court observed that contention of appellant No. 1 that respondent is not entitled to any interim maintenance in view of statement given in May, 2017 Page no7 of 10 Ravi Shankar & Ors Vs. Abha Sharma Case Registration No. 289/2018 that she did not want to press any interim relief is an issue which shall be considered while deciding application for interim maintenance.
17. After listening to respective submissions, I am of the view that real root cause of aggrievement of appellants is order dated 23.02.2018 vide which Ld. Trial Court disposed of application of respondent for disposal of application for interim application and granted liberty to respondent to address arguments on the application on the next date.
18. Appellants should have filed appeal against order dated 23.02.2018 had they been aggrieved by decision of Ld. Trial Court to listen arguments on application of respondent for grant of interim maintenance but they did not file any appeal U/sec 29 of Protection of Women from Domestic Violence Act, 2005 and rather when appellant No. 1 was pressed to file his statement of account and ITR, appellant No. 1 filed application which was disposed of by Ld. Trial Court vide impugned order. Vide application filed by appellant No. 1 before Ld. Trial Court, appellant No. 1 sought review of order dated 23.02.2018 which is not permissible but application appears to have been filed by appellant No. 1 in order to create right of appeal by filing application before Ld. Trial Court.
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19. Contention of appellant that respondent on 02.05.2017 submitted that she is not pressing on interim relief and that because of this reason, respondent could not agitate her application for grant of interim maintenance is a point which has been observed by Ld. Trail Court in impugned order to be decided alongwith application of respondent for grant of interim maintenance. There is no provision in Protection of Women from Domestic Violence Act, 2005 for dismissal of main petition when evidence in the matter is being recorded which will amount to pre mature disposal of main petition which is not permissible under law.
20. Various judgments were filed on behalf of appellants during course of arguments. Judgments of Adalat Prasad Vs. Roop Lal Jindal and Others, Mohammed Zakir Vs. Shabana and Ors and Atul Shukla Vs. The State of Madhya Pradesh & Anr deal with Section 362 Cr. P. C which is regarding alteration of judgment but the said judgments are not applicable in facts and circumstances of present case when the contention raised by appellants has been mentioned in the impugned order to be looked into by Ld. Trial Court while deciding interim maintenance application of respondent.
21. Judgments in case titled as "Rachna Kathuria Vs. Ramesh Kathuria, Ranu Mittal Vs. Anil Mittal and Ravindra Haribhau Page no9 of 10 Ravi Shankar & Ors Vs. Abha Sharma Case Registration No. 289/2018 Karmakar Vs. Ms. Shaila Ravindra Karmakar" are not applicable as application for interim maintenance filed by respondent before Ld. Trial Court is yet to be decided.
22. In view of my abovemade discussion, I am of the view that appellants in garb of filing application for dropping proceedings and dismissing application of respondent for grant of interim maintenance before Ld. Trial Court have tried to create circumstances leading to filing of present appeal which actually they could not have filed being time barred being really aggrieved from order dated 23.02.2018 which cannot be permitted. Hence, appeal filed by appellants is held to be without merits and is accordingly dismissed.
23. Trial court record be sent back along with the copy of this judgment.
24. Appeal file be consigned to record room.
Dictated and Announced in the open court on 13.12.2019 (Sonu Agnihotri) Additional Sessions Judge02, (South West) Dwarka Courts, New Delhi Page no10 of 10