Delhi District Court
Priya Dagar vs ) Deepak Dagar on 7 January, 2023
IN THE COURT OF MS. ANU AGGARWAL, ASJ-07
PATIALA HOUSE COURTS, NEW DELHI DISTRICT,
NEW DELHI
CNR No.DLND01-007534-2022
Criminal Appeal No.162/2022
IN THE MATTER OF :
Priya Dagar
D/o Sh. Ranbir Gill
R/o D-2/2, Shanti Kunj, Church Road
Vasant Kunj, New Delhi-110070. ......... Appellant.
Vs.
1) Deepak Dagar
S/o Sh. Baljeet Dagar
R/o Flat No. 2111, C-2,
Vasant Kunj, New Delhi-110070.
2) Baljeet Dagar
S/o Sh. Deshram
R/o Flat No. 2111, C-2,
Vasant Kunj, New Delhi-110070.
3) Naresh Dagar
W/o Baljeet Dagar
R/o Flat No. 2111, C-2,
Vasant Kunj, New Delhi-110070. ......... Respondents.
Date of institution : 06.09.2022
Date on which order reserved : 22.11.2022
Date of order : 07.01.2023
ORDER
1. The present appeal has been filed against order dated 04.08.2022 passed by Ld. MM, Mahila Court-01/NDD/PHC/New Delhi whereby the Ld. MM decided an application for visitation right u/s 21 of Protection of Women from Domestic Violence Act-2005(hereinafter referred to as PWDV Act) of the respondent and allowed the respondent to meet the child in children's room of Ld. Family Court, Patiala House Court, New Delhi from 12.00 Noon to 01.30 PM in the presence of CA No. 162/2022 Page No.1/4 child's mother on every first Saturday of the month.
2. The impugned order has been assailed on the ground that the application u/s 21 of PWDV Act cannot be filed by the respondent. It is argued by the Ld. Counsel that the right to file the application for custody or visitation rights u/s 21 of PWDV Act is exclusively with the aggrieved person or any other person on her behalf and no such application can be filed by respondent. It is argued that Ld. MM has failed to appreciate the fact that it would be stressful for the minor child to suddenly meet someone who has not even cared to even speak to him in the last four years even once.
3. Ld. Counsel for the appellant has submitted that he would be limiting his arguments only on the legal issue as to whether an application u/s 21 of PWDV Act can be filed by the respondent. Ld. Counsel has argued that it is clear from the provision of Section 21 of the PWDV Act that only the aggrieved person or any other person on her behalf can file the application for visitation right u/s 21 of PWDV Act and therefore, the application filed by the respondent before the Ld. MM was not maintainable. However, the Ld. MM has failed to decide the maintainability of the application. The Ld. Counsel has further argued that the legal question as to whether the adult male member other than the aggrieved person, has the right to file an application u/s 21 of PWDV Act, for seeking visitation right is pending before Hon'ble Supreme Court of India in case Hemant Baburav Vasante Vs. The State of Gujarat, Special Leave Petition (criminal) Diary No. 14955/18.
4. Ld. Counsel for the respondent has argued that the application u/s 21 of PWDV Act is very much maintainable and the respondent No.1, being father of the minor child, has all the rights to meet the child and to file an application u/s 21 of PWDV Act. The Ld. Counsel for the respondent has relied upon the CA No. 162/2022 Page No.2/4 following judgments in support of his arguments.
1. Vikas Ahuja Vs. State (NCT of Delhi) Crl. Revision No. 161/2017 passed by Sh. Sanjiv Jain, Ld. Additional Sessions Judge/Fast Track Court, South-East Saket Court, New Delhi.
2. Mrs. Payal Sudeep Laad @ Payal Sharma Vs. Sudeep Govind Laad Criminal Application No.186 of 2018 passed by Hon'ble High Court of Judicature at Bombay.
3. Sandeep Kumar Thakur Vs. Madhubala, Cr. MMO No. 206/2016 passed by Hon'ble High Court of Himachal Pradesh.
5. In the present case, the perusal of the trial court record reflect that the application u/s 21 of PWDV Act was filed by the respondents on 17.09.2019 and the said application was dismissed vide order dated 10.12.2019. Against the order dated 10.12.2019, appeal was filed vide CA No. 37 of 2020 by the respondents and the same was decided vide order dated 03.06.2022 passed by Ld. ASJ-04/ NDD/PHC/New Delhi. Vide the said order, the Ld. ASJ opined that the application was dismissed only with short reasoning which is not sustainable and accordingly, remanded the matter back to the concerned court to decide the application u/s 21 of PWDV Act afresh by passing the reasoned order.
6. Thereafter, the application u/s 21 of PWDV Act was allowed vide impugned order dated 04.08.2022. Vide impugned order, the application was allowed and the respondent no. 1, being father was allowed to meet the child in children's room of Ld. Family Court, Patiala House Court, New Delhi from 12 noon to 1:30pm in the presence of child's mother every first Saturday of the month. The perusal of the impugned order reflect that the appellant had raised the issue of maintainability of the application u/s 21 of PWDV Act and had made submissions that the application is not maintainable in the eye of law. Even though, the issue regarding the maintainability of the application was raised but CA No. 162/2022 Page No.3/4 the Ld. MM did not decide the said issue. Without deciding the issue regarding the maintainability of the application, as raised by the appellant, the Ld. MM passed the impugned order only on the ground that the respondent no. 1 is the father of the child. Once the issue was raised before the Ld. MM regarding the maintainability of the application, the Ld. MM ought to have decided the said issue before deciding the application on merits. However, Ld. MM failed to do so.
7. It is incumbent to observe that previously also a cryptic order was passed by the Ld. MM due to which the matter was remanded back by the Coordinate Bench and after the matter was remanded back, the Ld. MM again passed a cryptic order without even deciding the issue as raised regarding the maintainability of the application. In fact, the perusal of the impugned order reflect that no proper reasoning has been given by the Ld. MM in the impugned order. Therefore, without commenting on the merits of the case, the impugned order is set aside and the case is remanded back to the Ld. Trial Court to pass a proper reasoned order on the application of the respondent filed u/s 21 of PWDV Act. Since this is the second round of litigation between the parties as regard the application u/s 21 of PWDV Act is concerned as both the times, the Ld. MM did not pass proper reasoned order, the Ld. MM is expected to deal with all the contentions of the parties as per law and to pass a proper reasoned order.
8. The present appeal is disposed off.
9. Trial Court Record alongwith copy of this order be sent to the concerned trial court.
10. Appeal file be consigned to Record Room.
Announced in the open court On 07.01.2023 (Anu Aggarwal) ASJ-07/PHC/New Delhi 07.01.2023 CA No. 162/2022 Page No.4/4