Delhi District Court
Dharmender vs . Priyanka on 11 August, 2023
Dharmender Vs. Priyanka
IN THE COURT OF ARUN SUKHIJA: ADDL. SESSIONS
JUDGE-03 (EAST): KARKARDOOMA COURTS: DELHI.
CRIMINAL APPEAL NO. 58/2023
Sh. Dharmender
S/o Sh. Uma Shankar
R/o H. No. B-219, 2nd Floor,
Kotla Village, Near Idgah,
Mayur Vihar Phase-1, Delhi-110091. ........Appellant
Vs.
Smt. Priyanka
W/o Sh. Dharmender
D/o Lt. Sh. Guru Prasad Srivastava
R/o Flat No.20, 5th Floor,
B-3, Block-B, Harizan Basti,
Old Kondli, Delhi-110096. ........Respondent
Arising out of CT Case No. 2502/2019 titled as Priyanka Vs. Dharmender P.S. New Ashok Nagar Date of Institution : 08.02.2023 Judgment Reserved on : 18.07.2023 Date of Judgment : 11.08.2023 ::- J U D G M E N T -::
1. Vide this judgment, this Court shall dispose of the appeal filed by the appellant against the order dated 11.11.2021, whereby, the application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (in short "PWDV Act") was allowed and Ld. Trial Court has granted a sum of Rs. 2,000/-
per month as interim maintenance, to be paid by the appellant herein/R-1 (husband) to complainant/wife. The present petition was filed as Revision Petition, however, vide order dated Crl. Appeal No. 58/2023 Page - 1 of 8 Dharmender Vs. Priyanka 02.03.2023, the same was treated as an Appeal. This Court shall also dispose of the application under Section 5 of the Limitation Act, 1963 before disposing the present appeal.
2. The appellant is husband before the Ld. Trial Court and the respondent is complainant-wife and they are referred according to their original status as in the Trial Court.
3. R-1/ husband, in his application under Section 5 of Limitation Act, prayed for condonation of delay in filing the present Criminal Appeal on the ground that his previous counsel Mr. Brij was not keeping good health from long time and the applicant is a handicapped person with 75% disability and he is unable to move further without the help of any other person and therefore, he could not prefer the present appeal within time.
4. Ld. counsel for the complainant/wife has opposed the present application stating therein that the said application is false and frivolous and no sufficient ground has been given by R-1/ husband, which prevented him from filing the present appeal within time. The same is liable to be dismissed.
5. I have heard ld. counsels of the parties on the said application and perused the application and reply thereto.
6. Considering the circumstances explained and also in view of the case reported as Balwant Singh v. Jagdish Singh, (2010) 8 SCC 685, wherein, it is held that it is not the length of delay which is material for condonation of delay but the acceptability of the explanation, and also the fact that the matters should not be thrown out just taking a pedantic and technical Crl. Appeal No. 58/2023 Page - 2 of 8 Dharmender Vs. Priyanka approach, this court hereby allowed the prayer seeking condonation of delay. Besides the above, factum of illness of ld. previous counsel of R-1/appellant and R-1/appellant is alleged to be a handicapped person, the present application is allowed and delay in filing the present Appeal is condoned subject to cost of Rs.3,000/- to be paid to wife/complainant on or before the NDOH.
7. The complainant has filed the petition/complaint under Section 12 of PWDV Act claiming several reliefs against the R-1/husband. Ld. Trial Court, after considering the material on record, came to the conclusion that R-1/husband is liable to pay interim maintenance of Rs.2,000/- p.m. to the complainant/wife from the date of filing of the petition till further orders. The said order has been challenged by R-1/husband on the following grounds:-
(A) Ld. Trial Court has passed the impugned order without going into the root of the matter and prayed this Court to set aside the said order.
(B) Ld. Trial Court has passed the impugned order without merits and without application of judicial mind.
8. Per contra, Ld. counsel for the complainant has argued that the complainant is totally unemployed and has no source of income to maintain herself and the R-1/ husband has failed to make provisions for her maintenance. Ld. counsel for the complainant further argued that the Ld. Trial Court has rightly decided the interim maintenance application and there is no illegality in the same.
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9. I have heard ld. counsels for the parties on the present Criminal Appeal and perused the record carefully.
FINDINGS & CONCLUSIONS OF THE COURT
10. After perusing the judicial record and order dated 11.11.2021, it appears that Ld. Trial Court was intending to decide the ad- interim maintenance and not disposing/deciding the interim maintenance. It also appears from the record that the complaint case under PWDV Act was filed on 01.07.2019 and thereafter, on 02.07.2019, Ld. Trial Court was pleased to summon the R-1/ husband in the said matter. Thereafter, on 30.10.2019, the R-1/ husband appeared before the Ld. Trial Court and on the joint request of both the parties, the matter was referred to Mediation Centre and the matter was adjourned for 18.03.2020. It further appears from the record that on 07.02.2020, on the request of the Mediation Centre, the parties were again directed to appear before the Mediation Centre on 26.02.2020 at 11 a.m. Thereafter, due to outbreak of COVID-19 Pandemic, the functioning of the Courts was suspended and after that, the said matter was taken-up on 23.01.2021 and 23.09.2021 through VC but no effective hearing was conducted due to the directions of Hon'ble High Court of Delhi regarding restrictions imposed due to COVID-19 Pandemic. It also appears from the record that till date, the R-1/ husband has not filed his reply to the petition, reply to the application under Section 23 of the PWDV Act and Income Affidavit before the Ld. Trial Court but even thereafter, Ld. Trial Court decided the interim maintenance application and without closing the said Crl. Appeal No. 58/2023 Page - 4 of 8 Dharmender Vs. Priyanka rights of the R-1/husband. It is also matter of record that no report from the Mediation Centre received by the Court, whether the settlement has been arrived at between the parties or it has been failed. In the order dated 11.11.2021, Ld. Trial Court, after disposing of the interim maintenance application, directed both the parties to file the income, assets and expenditure affidavits, as per the latest judgment passed by Hon'ble Apex Court titled as Rajneesh Vs. Neha (Crl. App. No. 730/2020 in SLP (Crl.) No. 9503/2018 decided on 04.11.2020 with the directions to provide advance copy of the same to the opposite party and similar directions were further passed by Ld. Trial Court vide its orders dated 27.04.2022 and 03.09.2022.
11. It appears that vide order dated 11.11.2021, Ld. Trial Court was not intending to decide interim maintenance application, rather passed an ad-interim maintenance order of Rs.2,000/- p.m. and that is why, Ld. Trial Court further directed the parties to file their respective income affidavits so that an application under Section 23 PWDV Act can be adjudicated.
12. This Court is of the view that reply to the petition, reply to the application under Section 23 PWDV Act and income affidavits of R-1/husband are not filed and the impugned order dated 11.11.2021 was passed in the absence of same, including the affidavits of both the parties, in terms of the judgment of Rajneesh Vs. Neha (supra).
13. Considering the totality of overall facts and circumstances of this case, this Court is of the considered opinion that the order Crl. Appeal No. 58/2023 Page - 5 of 8 Dharmender Vs. Priyanka of maintenance of Rs.2,000/- p.m. passed by the Ld. Trial Court be construed as ad-interim maintenance and not interim maintenance under Section 23(2) of PWDV Act as the complaint case under PWDV Act was filed by the complainant/wife in the year 2019 and since then, she has not been maintained by the R-1/husband and also looking to the fact that the escalation in livelihood expenses during these days and also considering the fact that the Ld. MM has made reasonable inquiry from R-1/ husband and then, applied its judicial mind to grant Rs.2,000/- p.m. as maintenance. This Court does not deem fit to set aside the quantum of maintenance @ Rs.2,000/- p.m. granted to the complainant/wife and therefore, the order dated 11.11.2021 is modified accordingly.
FINAL ORDER:
14. In view of the above observations, the Criminal Appeal is partly allowed in the following terms:-
(a) The application under Section 5 of the Limitation Act is allowed subject to cost of Rs.3,000/-, to be paid by the appellant/husband to the complainant/wife on or before NDOH i.e. 25.08.2023 before the Ld. Trial Court, failing which, the present appeal is deemed to be dismissed.
(b) Subject to fulfillment of clause-14 (a) above, the application under Section 23 PWDV Act is revived and the same be heard afresh by the Ld. Trial Court and without influencing the order passed by this Court.
(c) Subject to fulfillment of clause-14 (a) above, the
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impugned order dated 11.11.2021 is modified and it is directed that R-1/husband shall pay a sum of Rs.2,000/-
p.m. as ad-interim maintenance from the date of passing of the impugned order dated 11.11.2021 till the decision of application under Section 23 of PWDV Act. The appellant/husband is directed to pay the said amount on or before 15th day of each English calender month either directly to the wife/complainant or in her bank account, which may be provided by her in Ld. Trial Court. The appellant/husband is directed to pay arrears (till the month of July, 2023), if any, to complainant/wife within two months from the date of passing of this Judgment and it is further directed to continue to pay/deposit the ad-interim maintenance amount, as per the aforesaid directions.
(d) Parties are directed to file affidavits of income, assets and expenditure, as per the directions passed by Hon'ble Apex Court in Rajneesh Vs. Neha (supra) before Ld. Trial Court, within 30 days from today.
(e) The appellant/husband is also at liberty to file his reply to the petition as well as applications, including the application under Section 23 of PWDV Act and respective affidavits before the Ld. Trial Court within 30 days from today, failing which, the right of the husband/appellant is deemed to be closed.
(f) The husband/appellant is directed to pursue his matter before the Ld. Trial Court efficiently and promptly.
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(g) The parties shall bear their own respective costs.
(h) A copy of this judgment be placed in TCR and be sent to
Ld. Trial Court immediately.
Appeal file be consigned to Record Room after due compliance.
Announced in the open Court on this 11th day of August, 2023.
(ARUN SUKHIJA)
Addl. Sessions Judge-03 (East)
Karkardooma Courts: Delhi
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