Delhi District Court
(2)Baby Anjali D/O Smt. Neeraj vs Sh. Pardeep S/O Late Sh.Devi Ram on 10 December, 2010
IN THE COURT OF MS. NISHA SAXENA: ADDL.
SESSIONS JUDGE05(NE): KARKARDOOMA COURTS:
DELHI.
Cr. R. No.17/10
(1)Smt. Neeraj w/o Shri Pardeep
D/o Sh. Hazari Lal Shankerwal
(2)Baby Anjali d/o Smt. Neeraj
Petitioner /respondent No.2 Through her mother/
Natural Guardian i.e. petitioner /revisionist No.1.
Both R/o H.NO.D601/11,
Gali No.7, Ashok Nagar, Delhi110093.
... Revisionists
Vs
Sh. Pardeep s/o Late Sh.Devi Ram,
R/o 10/295, Dakshinpuri, New Delhi.
... Respondent
ORDER:
1. This is a criminal revision petition filed u/s 397 read with Section 399 Cr.P.C. for setting aside the impugned order dated 1.2.2010 passed by the court of Ms. Shuchi Laler, Ld.M.M., Mahila Court, North East, dismissing in default a petition u/s 125 of Cr.P.C. Cr.R No.17/10 1/7
2. I have heard Counsel for the revisionist Mr. Rajan Lal and Counsel for respondent Mr. Amit Manchanda and gone through the record.
3. It has been submitted by the counsel for the revisionist that the petition u/s 125 Cr.P.C. was dismissed in default on 1.2.2010 for non appearance of the revisionists without issuing any court notice. The respondent had filed a petition u/s 9 of H.M.Act against the revisionist No.1 and the revisionist No.1 filed an application u/s 24 & 26 of H.M. Act for grant of maintenance pendentelite and litigation expenses in the same case before Ld. A.D.J Ms. Shailender Kaur at Tis Hazari Courts, Delhi, whereby an order of maintenance was passed in favour of the revisionists for Rs.900/ and Rs.600/ i.e. total Rs.1500/ for both the revisionists and litigation expenses amounting to Rs.5000/. The petition u/s 9 of H.M.Act was dismissed as withdrawn on the ground that both the parties i.e. husband and revisionist No.1 were living together during the pendency of the said petition at the matrimonial home. The Ld. Trial Court of Ms. Shuchi Laler also passed an order for interim maintenance u/s 125 Cr.P.C. granting the equal amount as ordered by the matrimonial court under Hindu Marriage Act. On 23.5.2009, the respondent threw out revisionist No.1 from her matrimonial home and since then she has been living Cr.R No.17/10 2/7 with her parents at her parental home. That the revisionist No.1 last appeared before the trial court on 28.1.2009 and due to living at the matrimonial home she was not allowed to attend the court of Ms. Shuchi Laler, Ld. M.M., on the subsequent dates. The order passed by the trial court has been challenged on the ground that the trial court should have issued court notice to the revisionists if they were unable to appear to know as to why the revisionists were not appearing. That the revisionist No.1 moved the present revision petition immediately after coming to know about the dismissal in default of the petition u/s 125 Cr.P.C. and that the trial court ought to have considered principles of natural justice and should have given proper time to the revisionist after issuing court notice. The revision petition is accompanied by another application u/s 473 Cr.P.C. read with Section 5 of the Limitation Act for condonation of delay on behalf of the revisionist wherein revisionist reiterated the above mentioned pleadings and also stated that due to living at matrimonial home she was not allowed to attend the court of Ms. Shuchi Laler, Ld.M.M. and when she came to know about the order of dismissed in default she engaged a counsel, furnished the material instructions and hence the revision petition.
4. The revision petition has been vehemently opposed on behalf of the respondent on various grounds. It is stated that the revision Cr.R No.17/10 3/7 petition is not maintainable as the petition u/s 125 Cr.P.C. was dismissed in default on 1.2.2010 and the present revision petition has been filed on 12.8.2010 after about seven months and as per law the revisionists has to explain each and every day of delay in filing the revision petition. The revisionist has not given any reason for delay in filing the revision petition, which is more than four months and hence the revision petition is liable to be dismissed. It is also contended that at present revisionist No.2 Baby Anjali, the elder daughter of the parties is not in the custody of petitioner No.1 - revisionist No.1. and is in custody of the respondent and as such, the petition on behalf of the revisionist No.2 Baby Anjali is not maintainable, at all.
5. It has also been denied that the revisionist was appearing on each and every date before the trial court. It is submitted that the revisionist No.1 did not appear before the trial court on any date after 28.1.2009; that she was absent on 16.2.2009, 19.3.2009, 5.6.2009 and thereafter on 21.11.2009 and on all these dates, the trial court did not dismiss the petition in default. On 21.11.2009, the case was adjourned for evidence. On 1.2.2010, the respondent was present and the case was called several times but the revisionist No.1 did not appear. The case was called in the morning, then at 11.28 A.M., then at 1.29 P.M. and then at 2.32 P.M. and when the revisionist No.1 was not present at Cr.R No.17/10 4/7 all the times there was no requirement of issuing the notice to the revisionist. That as the revisionist was regularly absent on various dates and as such, the petition u/s 125 of Cr.P.C. was dismissed in default rightly and legally and there is no fault in the order of the trial court. It is also stated that the petitioner was not thrown out of the matrimonial home on 23.5.2009 rather she herself picked up a fight. On 24.3.2009 at about 7 P.M., she visited alongwith her father came to matrimonial home and told the respondent that she did not want to live with him and wanted divorce and the proceedings u/s 9 of H.M. Act was a big hurdle and as such, the respondent should withdraw the case at any cost on 25.3.2009 otherwise she would make a false complaint to the police. Accordingly, the respondent withdrew the petition u/s 9 of H.M. Act on 25.3.2009. It is stated that the application for condonation of delay in filing the revision petition is not maintainable as the trial court dismissed the petition u/s 125 of Cr.P.C. in default on 1.2.2010 and the present application was moved on 12.8.2010 i.e. after about seven months and as per the law the revisionist was to explain each and every day of delay. However, the revisionist has not given any reason for delay in filing, which is more than 4 months and as such, the revision petition is liable to be dismissed without going into merits.
Cr.R No.17/10 5/7
6. The petition u/s 9 of H.M. Act was dismissed as withdrawn on 25.3.2009. Allegedly revisionist No.1 was thrown out from the matrimonial home on 23.5.2009. Her petition u/s 125 Cr.P.C. was dismissed in default on 1.2.2010 and the present revision petition has been filed on 12.8.2010. The revision petition has been filed almost after six months of the dismissal of the proceedings u/s 125 Cr.P.C. However, Counsel for the revisionist has contended that when she was staying at the matrimonial home the respondent did not allow her to attend the proceedings and therefore, she lost track of the case and could not appear on various previous dates. First she could not ascertain the date and after she came to know of the proceedings having been dismissed in default she could not afford fees of the lawyers. I am satisfied that the delay in filing the present revision petition has been duly explained and therefore, I condone the delay in filing of the revision petition. It has also been submitted by counsel for the revisionist that the revisionist is a destitute lady with no means of maintenance. The respondent has already withdrawn the petition u/s 9 of H.M. Act and since the petition u/s 125 of Cr.P.C. also stands dismissed, she is without any means to support her and if the present revision petition is not allowed she would be starving on the roads.
7. In these facts and circumstances, keeping in view the special facts Cr.R No.17/10 6/7 and circumstances of the case and the fact that the revisionist has no source of income, I set aside the order dated 1.2.2010 passed by the court of Ld. M.M. , Ms. Shuchi Laler. However, it is directed that in case the revisionist No.1 fails to file her evidence by way of affidavit in one opportunity no further opportunity shall be granted to her. It is also stated that baby child revisionist No.2 namely Anjali is in the custody of the respondent. Therefore, the revisionist No.1 may suitably amend the proceedings pending before the court of Ld. M.M. The revision petition , accordingly, stands allowed. A copy of this order be sent to court of Ld. M.M. File of revision petition be consigned to record room.
Announced in open court (Nisha Saxena)
Dated: 10.12.2010 Addl. Sessions Judge05(NE);
Karkardooma Co urts, Delhi.
Cr.R No.17/10 7/7