Delhi District Court
In Re vs Ks on 24 March, 2022
Crl. Appeal No. 62/2021
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL SESSIONS JUDGE - 03, NORTH DISTRICT
ROHINI COURTS, DELHI.
CNR No.DLNT010070442021
Crl. Appeal No. 62/2021
In re:
Sh. Gautam Kant Niman
S/o Sh. Kailash Chand,
R/o 24-D, DDA Flats,
Behind Lakshmi Bai College,
Ashok Vihar, Phase-3,
Delhi ........Appellant
Versus
1. KS
W/o Sh. Gautam Kant Niman
D/o Sh. A.K. Sharma
2. Master N
S/o Sh. Gautam Kant Niman
3. Baby N
D/o Sh. Gautam Kant Niman
All R/o 24-D, DDA Flats,
Behind Lakshmi Bai College,
Ashok Vihar, Phase-3,
Delhi
Presently at
C/o Sh. A.K. Sharma
Flat No. 80, Vidya Vihar Apartments,
Gautam Kant Niman v. KS & Ors. Page No. 1 of 8
Crl. Appeal No. 62/2021
Sector-9, Rohini,
Delhi-110085 .......Respondents
Date of filing of Criminal Appeal : 28.09.2021
Date on which arguments were heard : 22.03.2022
Date of pronouncement of judgment : 24.03.2022
JUDGMENT:
1. This appeal under Section 29 of The Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act') is directed against the order dated 13.07.2021 passed by Ld. MM (Mahila Court-01), North District, Rohini Courts, Delhi in complaint case under Section 12 of the Act titled 'K.S. & Ors. v. Gautam Kant Niman & Ors..' whereby the appellant/husband has been directed to pay Rs. 25,000/- per month towards maintenance of both the minor children from the date of order.
2. Respondent no.1 is the wife of the appellant. Respondents no. 2 & 3 are the minor children born from their wedlock.
3. Along with the appeal, an application for condonation of delay of 7 days in filing the appeal was also preferred. In this regard, it is pertinent to mention that vide order dated 10.01.2022 passed in Suo Motu Writ Petition (C) No. 3/2020, it has been directed by the Hon'ble Apex Court that the period from Gautam Kant Niman v. KS & Ors. Page No. 2 of 8 Crl. Appeal No. 62/2021 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation prescribed under the general law of limitation or under any special laws due to the outbreak of Covid-19 pandemic. Hence, the instant appeal is within the period of limitation.
4. The brief background relevant for the disposal of the appeal is that the respondents instituted the complaint under Section 12 of the Act against the appellant, his parents, brother, married sister and brother in law on 28.10.2020. Vide order dated 12.01.2021, notice of the complaint was directed to be issued only to the appellant, his parents and brother for 20.04.2021. In the wake of Covid-19 pandemic, the matters listed on 20.04.2021 were adjourned enbloc to 10.09.2021. On 30.06.2021, the respondents preferred an application for early hearing. Upon being notified of the application, the appellant appeared through his counsel on 05.07.2021. At the request of the counsel for the appellant, the trial court directed the respondents to supply the copy of the complaint under Section 12 of the Act to the appellant within two weeks and also directed the appellant to file reply to the application for early hearing by 12.07.2021. On 12.07.2021, the appellant failed to appear and after hearing the arguments on behalf of the respondents at 11:00 am, the trial court reserved the application Gautam Kant Niman v. KS & Ors. Page No. 3 of 8 Crl. Appeal No. 62/2021 for order. On 13.07.2021, the trial court directed the appellant to pay Rs. 25,000/-per month towards the maintenance of both the children from the date of order and observed that the entitlement of the children to maintenance from the date of the complaint shall be decided after giving an effective opportunity to the appellant to file his reply and income affidavit. Aggrieved therefrom, the appellant is before this court.
5. The counsel for the appellant has assailed the impugned order essentially on the ground that the same has been passed by the trial court without providing reasonable and adequate opportunity of hearing to the appellant. She submitted that though the copy of the complaint had been supplied to the appellant through whatsapp by the counsel for the respondents but due to lockdown in the wake of Covid-19 pandemic, the appellant could not procure the requisite documents including the statement of the bank accounts and Income Tax returns and thus, the reply to the application for early hearing could not be prepared within the short time of one week granted by the court. She has submitted that on 12.07.2021, the previous counsel for the appellant could not appear in the matter till 11:00 am and instead of waiting for his appearance, the trial court proceeded to hear the arguments on behalf of the Gautam Kant Niman v. KS & Ors. Page No. 4 of 8 Crl. Appeal No. 62/2021 respondents and reserved the application for order. She has argued that since the impugned order has been passed without giving adequate opportunity of hearing to the appellant, the same is bad in the eyes of law and deserves to be set aside.
6. On the other hand, the counsel for the respondents has submitted that there is no infirmity in the impugned order and no interference is called for. She has contended that on 12.07.2021, the appellant deliberately chose not to appear in the matter and thus, the trial court rightly proceeded to hear the arguments on the application and pronounced the order on 13.07.2021. She has submitted that no sufficient cause has been shown by the appellant for his failure to appear either on 12.07.2021 or on 13.07.2021 and therefore, it is not open to him to agitate that he was not granted reasonable opportunity of hearing by the trial court. She has argued that the impugned order is even otherwise not a final interim order and the trial court has only made a provision for ad-interim maintenance of the respondents no. 2 & 3 considering the exigencies of the case.
7. Along with the complaint under Section 12 of the Act, the respondents had preferred an application under Section 23 of the Act seeking interim reliefs. In the prayer clause of the early Gautam Kant Niman v. KS & Ors. Page No. 5 of 8 Crl. Appeal No. 62/2021 hearing application, apart from seeking preponement of date of hearing, the respondents had also mentioned that the appellant be restrained from alienating or creating any third party interest in the movable and immovable properties as well as dowry articles and istridhan of the respondent no.1 and that interim maintenance be granted to them. The said additional reliefs mentioned in the early hearing application had also been sought by the respondents in their application under Section 23 of the Act. Even though the above additional reliefs had been mentioned in the application but the respondents were essentially seeking preponement of date of hearing of their application under Section 23 of the Act. On 05.07.2021, the trial court directed the appellant to file reply to the early hearing application on or before 12.07.2021. On 12.07.2021, the previous counsel for the appellant could not appear till 11:00 am and the trial court proceeded to hear arguments on behalf of the respondents and reserved the application for order at 4:00 pm. Since the trial court could not pronounce the order at 04:00 pm, it adjourned the application for order on the next day. On 13.07.2021, the trial court declined to restrain the appellant from alienating the properties and to grant interim maintenance to the respondent no.1 but directed the appellant to pay Rs. 25,000/- per month as maintenance to the respondents no. 2 & 3 from the date of order. Since the respondents had Gautam Kant Niman v. KS & Ors. Page No. 6 of 8 Crl. Appeal No. 62/2021 preferred the application for early hearing, consequent upon the failure of the appellant to appear on 12.07.2021, the trial court ought to have fixed a date for hearing arguments on the application under Section 23 of the Act. For the said purpose, the trial court ought to have granted sufficient time to the appellant to file reply to the application under Section 23 of the Act and direct him to file his income affidavit. Instead of adopting the above recourse, the trial court proceeded to grant interim maintenance to the minor children i.e. the respondents no. 2 & 3 till the adjudication of application under Section 23 of the Act vide the impugned order. It needs little emphasis that even for determining the quantum of maintenance for the children, the financial capacity of both the parents has to be taken into consideration and thus, it was incumbent upon the trial court to obtain the reply and income affidavit of the appellant before passing any order in that regard especially when no emergent and exceptional circumstance had been shown by the respondent no.1 for making a provision for the maintenance of minor children till the disposal of the application under Section 23 of the Act. Since the impugned order was passed without hearing the appellant and affording him sufficient time to file reply to the application under Section 23 of the Act, the same cannot be sustained.
Gautam Kant Niman v. KS & Ors. Page No. 7 of 8 Crl. Appeal No. 62/20218. For the foregoing reasons, the appeal is allowed and the order dated 13.07.2021 passed by the Ld. MM is hereby set aside. The matter is remanded to the trial court with the direction to expeditiously adjudicate the interim reliefs sought by the respondents in accordance with law.
The parties are directed to appear before the trial court on 28.03.22 at 2 pm. With the above directions, the appeal stands disposed of. Appeal file be consigned to record room.
Digitally
signed by
SMITA SMITA GARG
Date:
GARG 2022.03.25
13:03:12
+0530
Announced in the open court (Smita Garg)
on 24.03.2022 Addl. Sessions Judge03, (North)
Rohini Courts, Delhi.
Gautam Kant Niman v. KS & Ors. Page No. 8 of 8