Delhi District Court
Nida Sattar vs Mohd. Zuheb Zafar on 19 November, 2015
IN THE COURT OF SH LOKESH KUMAR SHARMA ADDITIONAL SESSIONS
JUDGE04 & SPECIAL JUDGE SOUTH EAST
SAKET COURTS: NEW DELHI
Criminal Appeal No. 179 of 2015
ID No. 02406R0210492015
Nida Sattar,
D/o Abdul Sattar Ghazi,
R/o 257/3, Jamia Nagar,
New Delhi 25 ......Petitioner
Versus
Mohd. Zuheb Zafar,
S/o Mohd. Zafar
Mohd. Zafar,
S/o Unknown
Kehkasha,
W/o Mohd. Zafar,
(all r/o 6 ULLS, Water Crescent,
Kingston Vale, SW15, R. Q. London, UK) .......Respondent
Instituted on : 06.07.2015
Argued on : 07.11.2015
Decided on : 19.11.2015
J U D G M E N T
1 Feeling aggrieved from the exparte judgment dated 04.06.2015 passed by the court of Ms. Vandana Jain, Ld. MM03, Mahila Court, SouthEast District, Saket Courts, New Delhi in CC No. 36/01 case tittled as "Nida Sattar Vs. Mohd. Soheb Zafar & Ors.", whereby Ld. MM was pleased to dismiss the petition u/s 12 of Protection of Women against Domestic Violence Act, 2005, ( DV Act) filed by the appellant, the appellant had challenged the same by way of present appeal on the following amongst various other grounds: Nida Sattar v. Mohd. Zuheb Zafar & Ors CA No. 179 of 2015 1/6 That the impugned order as passed by the Ld. MM was against the law and facts as well, hence deserved to be set aside in appeal as the Ld. MM had failed to appreciate that SPA holder was not only a witness in this case, but also happened to be the father of the petitioner and the complaint was duly supported by affidavit and the SPA holder, being the father of the complainant, had simply filed his affidavit in support of ex parte evidence only and thus the observations of the Ld. MM that SPA holder was not an aggrieved person was against the facts and the law, and the Ld. MM had also lost sight of the fact that present proceedings were semi criminal and semi civil in nature and the complaint pertained to the date 5.3.2013 whereas the SPA was executed only on 14.2.2014, i.e. after filing the complaint.
It was stated further that the complainant/appellant herein had also put her appearance before the Ld. Trial Court by filing her complaint and had also tendered her evidence on record before the Ld. Trial Court but the Ld. MM had failed to consider the evidence as well as the documents produced on record and the ratio of the law of the superior courts in this regard as well, hence, the impugned order deserved to be set aside in appeal.
2 Brief facts that had given rise to filing of the present appeal are succinctly given as under: The appellant was married with respondent no. 1 herein on 26.10.2009 at Jamia Nagar Community Center, New Delhi as per Mulim Law with "Meher Mauzal" Rs. 15 lacs and thereafter the said marriage was also got registered on 2.11.2009 under Special Marriage Act, at New Delhi before the Marriage Officer.
It was stated further that an amount of Rs. 85 lacs was spent by the parents of the appellant in the said marriage, as per demand and directions of the Nida Sattar v. Mohd. Zuheb Zafar & Ors CA No. 179 of 2015 2/6 respondents and entire "stridaan" was also entrusted to the respondents at the time of marriage at New Delhi and after solemnization of marriage, appellant came to the matrimonial home at A222, New Friends Colony, New Delhi, a rented accommodation, which the respondents had taken on rent at monthly rent of Rs. 1 lac, for the purpose of this marriage after hailing down from London, UP. The marriage was consummated and the appellant had also discharged all her marital obligations.
It was stated further that soon after the marriage, the inlaws of the appellant started taunting her that the marriage was not performed according to their status and after some days, respondents no. 2 and 3 with their family members and relatives who had come with them from London, went back to London alongwith the dowry articles, leaving the appellant and respondent no. 1 back in India, who were supposed to go on Honeymoon and then to UK.
Further, it was stated that during this period of cohabitation, behavour of respondent no. 1 qua the appellant was not satisfactory and affectionate but was very cruel. On the night of 04.11.2009, when appellant was in her sound sleep, respondent no. 1 had put a pillow on her mouth which resulted into suffocation but the appellant took it lightly. On 07.11.2009 respondents no. 2 and 3 made a telephonic all to respondent no. 1 and demanded Rs.20 lac to improve their business, which was being run under the name and style of M/s Asim Motors. When the appellant refused to fulfill the aforesaid demand of the respondent no.1, then he started torturing and harassing her in Delhi and cancelled the proposed homenoon trip to Switzerland and France and fled away to London alone leaving the appellant at New Delhi and when this episode came to the knowledge of her parents, then, her Nida Sattar v. Mohd. Zuheb Zafar & Ors CA No. 179 of 2015 3/6 parents paid Rs. 5 lacs, only then, the appellant was allowed to join the company of the respondent no. 1 at London and hence, the appellant flew away to London alone on 26.2.2010 to join the company of the respondents but there also, she was treated like a maid and on 27.10.2010 she was thrown out of her matrimonial home by respondents no. 1 to 3 in her wearing clothes and thus she was forced to return to India. Respondent no. 1 even sent the "Talak" to the appellant by post and the said talaknama was received and accepted by the appellant.
It was stated further that appellant was a victim in the hands of the respondents who had, under the garb of marriage, extorted a huge amount of money from her parents and had also ruined her life and career. 3 I have heard Sh. Shesh Dutt Sharma, Learned Counsel appearing for the appellant and have gone through the material available on record. 4 So far as the contentions of Ld. Counsel related to competence of SPA Holder to appear as witness in the Court on behalf of principal is concerned, the same is neither disputed nor denied by this Court in view of the following pronouncements of various Hon'ble High Court & Hon'ble Apex Court:
i) Bhimappa & Ors v. Allisab & Ors, 2006(3) RCR(Civil) 660;
ii) Lilu Ram & Ors v. Smt. Sohni, 2008(2) RCR (Civil) 461;
iii) Satnam Channan v. Darshan Singh, 2006(2) RCR (Civil) 614;
iv) A. C. Narayanan Vs. State of Maharashtra and Sh. G. Kamalakar v. M/s
Surana Securities Ltd & Arn., 2013(4) RCR (Crl.) 306;
v) Janki Vashdeo Bhojwani v. Indusind Bank Ltd, 2005(1) RCR (Civil) 240;
5 Further I find myself in complete agreement with contention of the Ld.
Counsel for appellant that u/s 12 of DV Act, any person can file the petition on Nida Sattar v. Mohd. Zuheb Zafar & Ors CA No. 179 of 2015 4/6 behalf of the aggrieved person. However, in the present case, it has to be noted that it was the appellant herself, who had signed and filed the petition alongwith her supporting affidavit and not her attorney, who had appeared in the witness box to tender evidence on her behalf.
6 So far as the observations of Ld. MM related to the consideration of the photocopies of documents tendered by attorney during evidence are concerned, it has been submitted by Ld. Counsel for the appellant that originals were also brought by the attorney at the time of evidence, which were shown to the Court as well. However, I do not find any merits in this submission because neither the statement of attorney related to tendering of his affidavit in evidence either mentions this fact that he had produced the original documents as well for the perusal of the Court nor in his affidavit filed before the Ld. Trial Court, he had mentioned about the production of originals of the documents exhibited on record in support of factual assertions made in the petition filed by the appellant before the Ld. Trial Court. 7 Further, I do not even find any illegality or infirmity in the impugned judgment passed by Ld. MM, wherein she, after placing due reliance upon the citations of Hon'ble High court in "Vinay Jude Dias's case reported in 2008 (106) DRJ 183" had been pleased to hold that attorney was not a competent witness to depose about the facts, knowledge of which he had derived from his principal and which were not within his specific knowledge.
8 Admittedly, the facts of cruelty allegedly committed upon appellant by the respondents could not have been directly witnessed by her attorney, who had stepped in the witness box and thus same were purely of hearsay in nature and hence, were not admissible in evidence and were rightly discarded so by Ld. MM as Nida Sattar v. Mohd. Zuheb Zafar & Ors CA No. 179 of 2015 5/6 well.
9 However, from the perusal of the Trial Court record, it is further reflected that vide order dated 07.01.2015, vide which the Ld. Predecessor of the Trial Court had permitted the attorney to step into the shoes of petitioner and after taking his affidavit on record, she was further pleased to direct for closer of PE. However, neither the statement of attorney was recorded by the Ld. Predecessor in respect of closer of evidence nor the attorney was ever asked by the Ld. Trial Court as to whether some more witnesses were also required to be examined by him or not. Hence, from the aforesaid order it is reflected that a fair opportunity was not afforded to the appellant to have appeared before the Ld. Trial Court to tender her evidence as well.
10 In view of this fact, the present appeal is allowed and the impugned exparte judgment is set aside and petition is restored to its original number and remanded back to the Ld. Trial Court and one opportunity is granted to the appellant to appear before the Ld. Trial Court and to examine herself as a witness, if she choose to do so, after which Trial Court shall be at the liberty to pass fresh judgment after considering the entire evidence so adduced on record. 11 TCR be sent back to the Ld. Trial Court with the copy of the judgment through Ld. CMM(SED), New Delhi.
12 Appeal file be consigned to record room after compliance of all other necessary formalities in this regard.
Announced in the
open court on (LOKESH KUMAR SHARMA)
19th November, 2015 Additional Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
Nida Sattar v. Mohd. Zuheb Zafar & Ors CA No. 179 of 2015 6/6