Delhi District Court
Pratibha Mehra vs Aman Naugyal on 31 July, 2017
IN THE COURT OF SH. SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-05, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO.204186/2016
In the matter of:
Pratibha Mehra
D/o Sh. L.K. Mehra
Presently Residing at
House No.292, Ashoka Apartments,
Phase-4, Ashok Vihar, New Delhi ......Appellant
Versus
Aman Naugyal
S/o Major General Chandan Nugyal (Retd.)
R/o H. No.20, Sector 28,
Noida-201303 ......Respondent
Reserved on: 27.07.2017
Pronounced on: 31.07.2017
JUDGMENT
This criminal appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (in short "D.V. Act") has been preferred by the appellant/husband of the respondent against the impugned order dated 17.11.2015 passed by the learned Metropolitan Magistrate-01 (Mahila Courts), South East District, Saket Courts, New Delhi in CC No. 1544/03/13, Police Station C.R. Park titled as "Pratibha Mehra v. Aman CA No.204186/2016 Pratibha Mehra v. Aman Naugyal Page No.1 of 4 Naugyal" whereby order on maintainability was passed but in para no. 15 thereof it is mentioned that "needless to say that the amount of maintenance paid in any other proceedings shall be adjusted. Interim maintenance application disposed off accordingly". In the present appeal, impugned order on maintainability has not been challenged and only para no. 15 of the said order has been challenged. Said order on maintainability was earlier challenged by the respondent herein and same was disposed off vide order dated 23.11.2016 passed by learned Additional Sessions Judge Court and Special Judge (NDPS), South-East District, Saket Courts, New Delhi.
2. Learned counsel for the appellant has submitted that impugned order was passed on the maintainability of the application/petition but in said order, it is also mentioned in para no. 15 that "needless to say that the amount of maintenance paid in any other proceedings shall be adjusted. Interim maintenance application disposed off accordingly". The learned trial court has not given any finding regarding not granting any relief in terms of Section 23 of the D.V. Act and therefore, said portion of the order dated 17.11.2015 may be set aside and case may be remanded back with direction to dispose off the application under Section 23 of D.V. Act afresh.
3. Learned counsel for the respondent has submitted that he was not the counsel when impugned order was passed by learned Metropolitan Magistrate, but the learned Metropolitan Magistrate had not given any finding/reason not granting any relief of maintenance. Learned counsel has further submitted that application/petition under Section 12 of the D.V. Act CA No.204186/2016 Pratibha Mehra v. Aman Naugyal Page No.2 of 4 is not maintainable because respondent is married man and appellant is divorcee and further, case does not fall within the definition of shared household and therefore, appellant is not entitled for maintenance. Learned counsel has placed reliance upon the decisions, namely, Indra Sarma v. V.K.V. Sarma, Criminal Appeal No. 2009 of 2013 passed by Hon'ble Supreme Court and D. Velusami v. D. Patchaiammal, (2010) 10 SCC 469.
4. The appellant herein had filed an application under Section 12 of the D.V. Act against the respondent herein & others before the learned Metropolitan Magistrate. Application to grant interim maintenance under Section 23 of the D.V. Act was also filed before the learned Metropolitan Magistrate. Trial court record shows that the argument on maintainability of the case was heard on 02.09.2015 and matter was posted for remaining arguments, if any, otherwise for orders. On next date of hearing i.e. 14.10.2015, written arguments were filed on behalf of the appellant herein and matter was posted for order on maintainability. On next date of hearing i.e. 17.11.2015, present impugned order on maintainability was passed but in para no. 15 it is mentioned that "needless to say that the amount of maintenance paid in any other proceedings shall be adjusted. Interim maintenance application disposed off accordingly". No arguments on application for interim maintenance under Section 23 of the D.V. Act was heard by the learned Metropolitan Magistrate as reflected from the order sheets. No reasons/ findings for not granting interim maintenance have been given in the impugned order. But it is mentioned in the said order that the interim maintenance application disposed off accordingly. It is also mentioned in the said impugned order that needless to say that the amount CA No.204186/2016 Pratibha Mehra v. Aman Naugyal Page No.3 of 4 of maintenance paid in any other proceedings shall be adjusted. Generally, order/observation to the effect that "the amount of maintenance paid in any other proceedings shall be adjusted" is given only when maintenance is granted. Herein, I find no order of granting maintenance and therefore, it is not clear as to why the phrase "the amount of maintenance paid in any other proceedings shall be adjusted" is mentioned in the impugned order. Learned counsel for the respondent has also fairly conceded that there is no finding/reason in the impugned order for not granting maintenance.
5. In view of above discussion, the impugned order dated 17.11.2015 to the extent of mentioning in para no.15 thereof that "needless to say that the amount of maintenance paid in any other proceedings shall be adjusted. Interim maintenance application disposed off accordingly" is set aside. The appeal is allowed accordingly. Learned Metropolitan Magistrate is at liberty to dispose off the application under Section 23 of the D.V. Act as per law.
Announced in the open court
on 31.07.2017 (SANJEEV KUMAR)
Additional Sessions Judge-05
South East District, Saket Courts
New Delhi
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