Delhi District Court
Firoz Khan vs Sultana on 13 July, 2018
IN THE COURT OF DR. NEERA BHARIHOKE,
ADDITIONALSESSIONS JUDGE06, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL No.90/2017
Firoz Khan
S/o Aas Mohammad
R/o H.No.A193, BlockA,
Masjid Wali Gali,
Durga Vihar,
New Delhi . . . . . . . Appellant
Versus
Sultana
W/o Shri Firoz Khan
D/o Shri Jammu
R/o H.No.413, Gali No.3,
BlockF, Khadda Colony,
Jaitpur Extension,
New Delhi
. . . . . . . Respondent
Date of Institution : 23.02.2018
Date of Arguments : 07.07.2018
Date of Judgment : 13.07.2018
JUDGMENT
1. Vide this Judgment, I shall decide the present appeal filed under section 29 of the Protection of Women from Domestic Violence Act, CA No. 90/18 Page No. 1 of 8 2005 (hereinafter referred to as "DV Act") against the impugned order dated 07.02.2018 passed in complaint case bearing No.999/18 titled "Sultana vs. Firoz Khan".
2. The respondent/complainant, Sultana, filed applications under section 12 and 23 of DV Act before learned trial court. By the impugned order, learned trial court took up the adinterim application of the appellant/complainant filed under section 23 (2) of DV Act against the appellant/respondent no.1 and awarded the exparte interim maintenance to the respondent @ Rs.5,000/ per month till the disposal of the application under section 23(2) of DV Act and the same is payable from the date of order on 5th day of each calendar month.
3. The appellant has submitted that the respondent had given false details of all mental and physical abilities, harassment, torture, abuses and beatings upon her for their demands of dowry or that the appellant/husband of complainant and his family members neglected and refused to maintain the respondent without any proper reason. It has also been argued that the impugned order is bad in law and the same had been passed without consideration and application of judicial mind resulting into gross miscarriage of justice. It has been argued that learned trial court wrongly awarded interim exparte maintenance to the respondent through the impugned order which has been passed by learned trial court on the basis of assumptions and presumptions. The appellant has contended that at the time of passing the impugned order learned trial court failed to consider that the CA No. 90/18 Page No. 2 of 8 appellant himself is the victim in the hands of the respondent and has not committed any domestic violence with her. At the time of passing the impugned order, learned trial court failed to consider the provision of section 12 of DV Act i.e. before passing any order under the said provision, the Magistrate shall take into consideration any domestic incidental report before him from the domestic officer or the service provider. It has been argued that learned trial court gravely erred in passing the interim maintenance order in favour of respondent as domestic incident report was called but was not filed by the protection officer in the complaint case before learned trial court on the date of passing the impugned order and hence in the absence of domestic violence report, the impugned order is totally illegal and not sustainable in the eyes of law. Ld. Counsel for appellant has relied upon in law laid down in Ravi Dutta Vs. Kiran Dutta & Anr. And Kiran Dutta Vs. State & Anr., 208 (2014) DLT 61 where it has been observed : "...........5. After having heard both sides and on perusal of the impugned order, trial court order and the decisions cited, I find that Section 12 of D.V. Act mandates that before passing any order on such an application, a 'Domestic Incident Report' has to be taken into consideration and in the instant case, when the impugned order was passed by trial court, Domestic Incident Report was still awaited. No doubt, Section 28 of the DV Act does permit the Court dealing with cases under DV Act to lay down its own procedure for deciding applications CA No. 90/18 Page No. 3 of 8 under Section 12 or subsection 2 of Section 23 of DV Act but the procedure so evolved has to be fair and reasonable. In any case, the Court trying cases under DV Act cannot bypass a mandate of Section 12 of DV Act which requires consideration of Domestic Incident Report prior to passing any other order under Section 12 of DV Act."
4. It has also been contended that before passing the interim ex parte order, the Magistrate has to consider the affidavit in such form as has been prescribed however the affidavit in support of the application filed by the respondent under section 23 (2) of DV Act is not as per the form prescribed in that DV Act.
5. The other ground taken by the appellant is that learned trial court failed to consider that the respondent had not filed even a single document in support of her contention that the respondent is a builder or his income is ₹5 Lakh per month. Appellant has submitted that he is a daily wager doing the work of welder and his monthly income from all sources is ₹7,000/. It has been argued that both the appellant and the respondent belong to lower class and that the respondent is guilty of suppressing the truth that the appellant has the responsibility to maintain his two minor children as well and learned trial court had awarded ₹5,000/ per month exparte maintenance in favour of the respondent. Feeling aggrieved, the present appeal has been filed by the appellant.
CA No. 90/18 Page No. 4 of 86. The respondent has not filed any formal reply to the appeal and directly arguments have been advanced on behalf of respondent. Respondent has denied all the submissions made in the appeal and has rather submitted that the awarding of about of ₹5,000/ per month is too low in view of her specific submission that her husband, i.e. appellant, is earning ₹5 Lakh per month.
7. Detailed arguments have been heard. Record has been perused.
8. As regards the contention learned trial court could not have passed the impugned order in absence of filing of domestic incident report, the same is not sustainable in view of law laid down in Shambhu Prasad Singh vs Manjari, CRL.M.C. 3083/2011 & CRL.M.A.10914/2011, decided on 17 May, 2012 by Hon'ble High Court of Delhi. It has been held in the said matter that where the DIR has not been prepared, or has not been submitted to the Magistrate, he is under no obligation to call for the same for consideration as a precondition to exercising his power, and making such orders as the justice and the facts of the case may warrant. It has also been held in the said case that Parliamentary intent is not to make provision of relief under the Act subject to the filing of the DIR and the plenitude of section 23 which empowers the Court to make wide ranging exparte orders, and section 25 (2) which permits the Court to devise its own procedure, having regard to the exigencies of the case, are uniquely suited mechanisms intended by Parliament to empower the Court to CA No. 90/18 Page No. 5 of 8 take into consideration unique situations which might confront it, whenever relief is applied for by an aggrieved person, or on her behalf. Thus, it was not necessary for the learned trial court to call for always for filing of DIR to decide the application the section 23 of DV Act filed by the respondent before the learned trial court. The law laid down in Ravi Dutta Vs. Kiran Dutta (supra) as relied upon by Ld. Counsel for appellant is not applicable to the facts of the present case as the same pertains to section 12 of DV Act.
9. It has been noticed that learned trial court in the impugned order has specifically observed the submission of the appellant that the respondent no.1/appellant herein forced the complainant/respondent herein to live separately by treating her cruelly and compelling her to stay with her parents. The appellant knowingly and intentionally filed a suit for injunction through his mother, which is at the stage of filing of WS. It cannot thus be said that the order has been passed without taking into consideration the incidents of domestic violence allegedly committed by appellant upon respondent. Learned trial court also observed that complainant had submitted that her husband/appellant is a builder and earning ₹5 Lakh per month and that the application under section 23 of DV Act is supported with an affidavit of the complainant/respondent herein. Thus learned trial court took into consideration all the relevant submissions alleged by the complainant before it. Learned trial court has specifically noted that the complainant has deposed that she is 5th class passed and unemployed and living at her parental house and on the other hand appellant herein is 12 th CA No. 90/18 Page No. 6 of 8 passed and builder by profession and earning ₹5 Lakh per month. Learned trial court took into consideration the nikahnama as well as copy of petition filed by mother of appellant herein wherein the factum of marriage between the appellant and the complainant has been admitted before proceeding further in deciding the application. It has also been observed that the complainant/respondent herein had shown ground for urgent relief and thus the application was allowed by learned trial court directing the appellant to pay ₹5000/ per month to respondent towards the monthly maintenance till the disposal of application under section 23 of the Act to be payable from the date of order on the 5th day of each English Calendar month. Fixing a figure of ₹5000/ per month as maintenance despite there being a specific submission by the complainant of her husband/appellant earning ₹5 Lakh per month can by no stretch of imagination be considered to be an unreasonable maintenance/high quantum of maintenance. Further, the learned trial court has yet not disposed of the application of maintenance under section 23 of the Act as it has been specifically recorded in the impugned order that the maintenance has to be paid by the appellant to the respondent/complainant till the disposal of application under section 23 of the Act and the impugned order has been passed on adinterim maintenance. Appellant is at liberty to oppose the application on merits by taking all the defences before learned trial court which have been raised here as grounds for challenging the impugned order.
10. In view of these observations, I find no infirmity in the impugned CA No. 90/18 Page No. 7 of 8 order and the same is accordingly upheld and appellant is directed to clear the arrears of maintenance due as on date within two weeks from today by depositing before Ld. Trial Court and respondent is at liberty to withdraw the same within one week of depositing of the same. Since the appellant has filed the present appeal and is thus aware of the proceedings before learned trial court, he is deemed to have been served with the notice of CC No.999/18 titled "Sultana vs. Firoz Khan" and is directed to appear before learned trial court on date fixed. Respondent is also directed to appear before learned trial court on date fixed. Complete paper book be supplied to appellant personally or through his counsel within a week from today.
11. The appeal is therefore dismissed in the aforesaid terms.
12. A true copy of the Judgment alongwith TCR be sent back to Ld. Trial Court concerned.
13. Copy of the order be given dasti to appellant.
14. Appeal file be consigned to record room.
Announced in the open court on 13.07.2018 (Dr. Neera Bharihoke) Additional Sessions Judge06, South East,Saket Courts, New Delhi CA No. 90/18 Page No. 8 of 8