Delhi District Court
Khadija Sarwat vs Sana Hashmi on 24 December, 2018
In the Court of Dr. Satinder Kumar Gautam:
Additional Sessions Judge -(03) (East)
Karkardooma Courts: Delhi.
Criminal Appeal No. 154/2018
Khadija Sarwat
W/o Late Fareed Uzzaman
R/o 79B/38, Zakir Nagar,
New Delhi.
........ Appellant
Vs.
Sana Hashmi
D/o Sh. Syed Ishrat Ali
R/o Z-4, Taj Enclave,
Geeta Colony
New Delhi
.....Respondent
Arising out of
DV Case No. 10784/2016
titled as Sana Hashmi
Vs Safi Uzzaman & Ors
Date of Institution : 01.11.2018
Judgment Reserved on : 21.12.2018
Date of Judgment : 24.12.2018
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JUDGMENT:
1. The sole appellant Mst. Khadia Sarwat, vide present criminal appeal, challenges the order dated 01.10.2018 passed by learned MM (East) vide which the application seeking discharge of the appellant stood dismissed vide impugned order.
2. Necessary facts for disposal of the present criminal appeal, succinctly, are that the respondent herein, being petitioner filed a complaint case under Sec. 12 of PWDV Act, married with respondent no. 1 on 30.03.202 as per muslim rites, as mentioned in the said PWDV Act and respondents no. 2 to 4 are her in-laws after her said marriage. It is submitted that said marriage was solemnised with great pomp and show and out of said wedlock one male child was born out on 06.11.2013. It is alleged that respondent no. 2 herein was mentally and physically tortured on account of dowry demands and ultimately she filed the said complaint under Sec. 12 PWDV Act seeking various reliefs and during the proceedings of the said case, while disposing of the applications seeking discharge of the respondents therein including appellant herein stood dismissed.
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3. Aggrieving of said impugned order dated 01.10.2018, present appeal has been filed by the appellant.
4. Notice of the present criminal appeal was issued to the respondent, who appeared in the court and filed reply to the present criminal appeal. Trial Court Record was also summoned.
5. Ld. counsel for the appellant submitted that impugned order passed by ld. trial court is erroneous, without considering the facts and circumstances of the case further submitting that marriage between the parties concerned stood dissolved by way of talaq and also that parties concerned were residing at different place than to appellant. Ld. counsel further submitted that validity of the talaq was not challenged by the respondent herein and that ld. trial court misinterpreted the issue and passed illegal order. Ld. counsel for the appellant thus, prayed for setting aside the impugned order passed by ld. trial court qua appellant herein. Cases reported as Harbans Lal Malik Vs. Payal Malik, MANU/DE/1842/2010; Poonam Vs. V.P. Sharma, MANU/DE/2707/2014; Vijay Verma Vs. State. Crl. MC No. 3878/2009 decided on 13.08.1990; Vijaya Vasant Sawant Vs. Shubhangi Shivling Parab & Ors. MANU/MH/1067/2013; Hima Chugh Vs. Pritam Ashok Sadaphule & Ors., MANU/DE/0830/2013; Satish Sharma Vs. State & Ors. Crl. Appeal No. 154/2018 Khadija Sarwat Vs. Sana Hashmi Page No. 3 of 7 MANU/DE/3450/2011 and Prabhakar Mohite & Ors. Vs. The Stae of Maharashtra & Ors, MANU/MH/2780/2018 were relied upon by ld. counsel for the appellant in support of his contentions.
6. On the other hand, ld. counsel for the respondent/complainant submitted that she got married with son of the appellant on 30.03.2012 and one male child out of said wedlock is also born out. He further submitted that the only issue in question is that whether appellant and respondent herein have any domestic relationship as per the Act or not. Ld. counsel further submitted that filing of the present criminal appeal is only delay tactics and prayed for dismissal of the same with costs. Ld. counsel for the respondent has placed reliance on the cases reported as Afzalummisa Begum & etc. Vs. State of A.P. & Anr., 2009 Crl. L.J 4191; Krishna Bhatacharjee Vs. Sarathi Choudhury & Anr. 2016 (1) JCC 31 and Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade & Ors, III (2011) CCR 337 (SC) in support of his contentions.
7. Rival submissions considered and record has also been perused with law on the issue in question.
8. Marriage between the parties concerned on the date mentioned therein the petition and birth of a son out of said wedlock are not denied by parties. Appellant took the plea that now the said marriage stood dissolved by way of talaq and said fact is denied by respondent herein. The another Crl. Appeal No. 154/2018 Khadija Sarwat Vs. Sana Hashmi Page No. 4 of 7 plea taken by the appellant is that she has no domestic relations with respondent herein as appellant and respondent herein were residing at different places and even marriage has been dissolved.
9. Perusal of the Protection of Women from Domestic Violence Act, 2005 is clear that "domestic relationship" has been defined under Sec. 2 (f) of the of said Act. To facilitate the matter, said definition is reproduced as under:
"domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
10. Perusal of the above definition is clear to the affect that "relationship between two persons who live or have, at any point of time, lived together in a shared household, when they related by consanguinity, marriage or through a relationship in the nature of marriage" would come under the domestic relationship. It is undisputed fact that after the marriage, respondent no. 2 joined the matrimonial home with appellant herein.
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11. I have also perused the impugned order. Said order is detailed and well reasoned. Ld. trial court after discussing the each and every point in detail with the help of the definitions and passed the impugned order. Case is at the initial stage and parties have to lead their respective evidence.
12. Though not important but relevant to mention here that respondent no. 3 & 4 of the main petition filed by the petitioner/respondent herein have already been discharged by the ld. trial court vide the said impugned order and that no appeal has been filed by the respondent no. 1 (in the main petition)/husband of the respondent herein against the impugned order.
13. Cases relied upon by ld. counsel for the appellant are on different ground and are not applicable to the present case. It is to be kept in mind that each case has its own peculiar facts and circumstances.
14. With these observations, this court is also concur with the order passed by the ld. trial court and of the view that there is no illegality, perversity or error in the impugned order and same does not deserves any interference.
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15. Considering the above discussion, present criminal appeal is disposed of being dismissed and impugned order is hereby upheld qua the appellant herein.
16. Copy of the present judgment be placed in TCR and same be sent to ld. trial court concerned for information.
17. Parties are directed to appear before the ld. trial court concerned on 05.01.2019 at 10 a.m.
18. Appeal file be consigned to Record Room.
Announced in open Court SATINDER KUMAR Digitally signed by SATINDER KUMAR GAUTAM on 24th day of December, 2018 GAUTAM Date: 2018.12.24 16:01:49 +0530 (Dr. Satinder Kumar Gautam) Addl. Sessions Judge-03 (East) Karkardooma Courts: Delhi Crl. Appeal No. 154/2018 Khadija Sarwat Vs. Sana Hashmi Page No. 7 of 7