Delhi District Court
Bhawna Garg vs Pawan Garg on 28 October, 2020
IN THE COURT OF SH. AJAY KUMAR JAIN
ASJ/SPECIAL JUDGE(NDPS), PATIALA HOUSE COURTS
NEW DELHI
IN THE MATTER OF
CA No. 234/19
Bhawna Garg
D/o Sh A P Batra
R/o PO Box 41, Black Town,
NSW, 2148, Sydney,
Australia.
............ Appellant/Complainant/Wife
Versus
Pawan Garg
S/o Sh M P Garg
R/o 14A/8, WEA Karol Bagh,
New Delhi 110005.
Also at:
42 DLF Industrial Area,
Kirti Nagar,
New Delhi110015. ............... Respondent/Husband
JUDGMENT
1. Vide this appeal, the appellant/complainant/wife has challenged the impugned order dated 21.08.2019 (CC No. 4900/17, Old no. 230/4/16) vide which the Ld MM/Mahila Court dismissed the complaint for want of appearance of complainant and for non prosecution and non compliance of judicial orders.
2. Brief averments as per appeal filed is that the complaint under DV Act was filed on 01.12.2016 against respondent/husband on the ground of extreme mental, physical, emotional cruelty and domestic violence perpetrated upon appellant by the respondent/husband. Thereafter vide order dated 20.12.2016, Ld. MM was pleased to pass and grant exparte protection orders to the complainant/appellant qua respondent whereby the CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 1 of 13 respondent evicted from matrimonial house bearing no. D5/1601, World Spa West, Sector30, Gurgaon, Haryana within four hours of receipt of order dated 20.12.2016 and also denied interim custody of minor daughters. That soon after the said order, the respondent/husband stopped paying the rent of matrimonial home and also the school fees of minor daughters, thus in order to maintain two daughters and appellant herself, the appellant had no other option but to resort financial and emotional support from her parents in Australia. Moreover, since the respondent stopped paying the rent, the appellant was evicted from the said house as she did not have enough money to support herself and two school going children, thus appellant had no option but to leave India and take shelter in her parental home at Australia.
3. It is also averred in the appeal that soon after appellant moved to Australia along with her two minor daughters, respondent/husband sought orders from Family Courts, Gurugram in a guardianship petition instituted by respondent/husband for production of minor daughters and appellant before Family Court, Gurugram. After seeking the orders for personal appearance of appellant along with minor daughters, respondent/husband also moved the Family Court at Australia seeking custody of minor daughters who are both New Zeland passport holders, thereafter vide order dated 24.09.2018 the Family Court at Australia in custody proceedings initiated by respondent/husband was pleased to restrain the appellant to take minor daughters outside the jurisdiction of Australian court and said order till date is in operation and any willful disobedience on the part of complainant would amount to contempt of court.
4. It is also averred that respondent/husband in the garb of orders dated 17.05.2019 passed by Mahila Court and orders dated 09.10.2018, 06.02.2019 and 31.05.2019 passed by the Family Court, Gurugram kept pressing for appearance of appellant despite the fact that he himself sought for an injunction against appellant and minor daughters from Sydney, CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 2 of 13 Family Court.
5. It is also averred that till date no interim orders of maintenance has been granted in favour of appellant and two minor daughters, and the primary reason for appellant to take shelter with her parents for financial support since the complainant had no means to survive in India with her two minor daughters, and also with the amount of domestic violence that has been casted upon appellant, and she also has an apprehension that she will be entangled in false cases if travelled to India. It is also averred that vide order dated 15.07.2019, the Australian court in guardianship case directed appellant to return the minor child to India however the appeal filed against the said order and the appellate court vide order dated 05.08.2019 stayed its operation.
6. The appellant also moved an application dated 21.08.2019 before Mahila Court seeking modification of order dated 17.05.2019 and also sought exemption from personal appearance, and had sought permission to be represented through her attorneys, and the appellant to be examined through VC however Ld. MM even not issued notice on the said application. Ld. trial court without considering the order dated 24.09.2018 passed by Family Court, Australia dismissed the complaint vide impugned order dated 21.08.2019 on the ground of non prosecution and non compliance.
7. In reply, the preliminary submissions on behalf of the respondent/husband are that no prayer was made by the respondent seeking prevention of appellant from leaving Australia and no such order was passed and the order sought by the Australian court was on the basis that the appellant fled India on 24.08.2017 when she was directed to appear before the Family Court, Gurugram on 30.08.2017. The appellant did not disclose that she had gone to Australia, and it was only on court's repeated queries that her counsel revealed on 16.09.2017 that the appellant had gone to Australia. The appellant had also not given any reason for non compliance of order dated 05.09.2017, 30.08.2017, 16.09.2017, CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 3 of 13 09.10.2017, 01.12.2017 and 06.02.2018 passed by the Family court, Gurugram and lastly vide order dated 02.06.2019, the appellant was directed to appear before the Family Court. The order passed by the Family Court, Sydney was restraining the appellant from removing the minor daughters from Australia and not restraining the appellant coming to India. Admittedly, the appellant has her parents and brother is residing in Sydney.
8. The appellant also repeatedly absented herself from the Domestic Violence proceedings before the Trial court. Ld. Trial Court vide order dated 17.05.2019 has extensively dealt about the absence of appellant from the proceedings. Ld. Trial Court directed the appellant / complainant vide order dated 02.08.2018 to appear on 26.10.2018 failing which the petition would be dismissed for non prosecution, and again on 17.12.2018 and 14.01.2019, the matter was kept for same purpose. Ld. Trial Court on 14.01.2019 heard the arguments on dismissal of petition and kept it for orders on 13.03.2019, then on 17.05.2019. Thereafter vide detailed order dated 17.05.2019 directed the appellant to file fresh income affidavit, and again directed the appellant to comply order dated 17.05.2019 and directed to appear on 22.07.2019. However, the said order was not complied and appellant filed an application for modification of order dated 17.05.2019. The appellant has concealed the fact that she had more than Rs. 70 lacs with her in the year 2017 when she left India for Australia and this has been conclusively shown by the respondent by filing the documents showing fixed deposits in excess of Rs. 46 lacs and nearly Rs. 18 lacs in her saving bank account. The appellant has no intention to return to India and the appellant is not threatened with domestic violence in jurisdiction of Ld. Trial court. As such the continuation of present proceedings is without any cause of action and defeats the very object of the DV Act. Ld. Trial Court also recorded the factum of the appellant residing in Australia since 2017, working in Australia and the fact that appellant herself in her affidavit about not wanting to travel to India. She has permanently removed herself from the CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 4 of 13 DV Courts order.
9. In para wise reply, respondent submits that appellant concealed in her petition about the factum of filing of complaint under section 498 A/406/377 IPC. The appellant also concealed the order dated 18.02.2017 passed by the appellate court whereby the order dated 20.12.2016 was vacated to the extent sought by the respondent husband. It is also denied that the respondent husband stopped paying rent and stopped paying the school fee of two minor daughters. On the other hand, respondent husband volunteered to pay Rs. 35,000/ per month and continued to transfer the same by NEFT till August, 2019. It is also denied that appellant was evicted from the house in apartment in World Spa, Gurugram and that she has also no enough money and thereafter left India. She was having more than Rs. 70 lacs when she was in India. The appellant fled out of India only when the court of Gurugram passed an order dated 05.08.2017 directing the appellant to appear with the minor daughters on 30.08.2017.
10. It is further averred in reply that the respondent filed the proceedings in Australia seeking return of the appellant and the minor daughters. However, the Australian court has not prevented the complainant/appellant to return to India. It is also denied that till date no interim maintenance has been granted. However, appellant till 21.08.2019 has never pressed the said application and has been avoiding the Trial court because of the repeated non appearance. It is also averred that after filing the application dated 11.08.2017 under section 20 of DV Act seeking payment of school fees of two minor daughters, the appellant left India on 24.08.2017 thereby rendering the said application infructuous. It is also denied that vide order dated 15.07.2019 passed by the Australian Court in Guardianship case instituted by the respondent husband, the appellant was directed to return the minor daughters to India as the Australian Family Court exercise summary jurisdiction and directed repatriation of minor daughters to India. However, the said order was set aside only on the ground that no CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 5 of 13 independent child lawyer was not appointed and the matter was remanded back to Trial court.
11. Ld. Trial court also passed the reasoned order dated 17.05.2019, 22.07.2019 and 21.08.2019 and the present appeal fails to deal with the reasoning mentioned in the said orders.
12. Ld. counsel for the appellant submits that Ld. MM failed to appreciate that vide order dated 24.09.2018 passed by the Family court of Australia, the appellant and her two minor daughters were restrained to leave Australia till further orders therefore, it cannot be held that appellant willfully did not appear in India. The appellant also moved an application before the Trial court to prosecute her complaint through attorneys and through video conferencing and Apex court in Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari & Anr. 2016 SCC Online SC 531 clearly enunciated that even in proceedings under DV Act, application under Order 6 Rule 17 CPC is maintainable seeking amendment in the proceedings. Ld. counsel submits that Ld. Trial Court till date has not granted any interim maintenance. The domestic violence proceedings are predominantly civil in nature and does not require presence of appellant on every hearing. Reference is craved from the judgment titled as Rakhi @ Srashti Panjwani Vs. Rahul Panjwani & Ors. II (2019) DMC 559 (MP), therefore, Ld. Trial Court ought to have not dismissed the domestic violence complaint for want of appearance of appellant and nonprosecution when her counsel was present on every date of hearing. The trial court vide order dated 17.05.2019 directed the complainant to file the fresh income affidavit, when restraining order was in operation and finally the trial court dismissed the complaint arbitrarily and without any application of mind.
13. Ld. counsel for appellant submits that during the stay in India, the appellant was severely beaten by the respondent husband and she was apprehension of her life and life of her minor daughters, and in this regard the charge sheet under section 498 A has already been filed and the CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 6 of 13 complainant is entitled for reliefs under section 18, 19, 20, 21 and 22 of the DV Act. Ld. counsel submits that the impugned order be side aside and the complainant be allowed to represent her case through video conferencing.
14. Ld. counsel for the respondent submits that when the appellant has removed herself from the jurisdiction of this court without intention of coming back then court is not supposed to keep the matter for infinite period, and proceedings conducted before the Family Court at Gurugram and before trial court clearly suggest that the appellant had no intention to return. Furthermore, admittedly litigations are pending in Family Court at Australia and children are getting interim maintenance from the said court as recorded in order dated 17.05.2019 of trial court. The complainant also not filed the fresh affidavit of income/ assets in terms of order dated 17.05.2019 and also with repeated opportunities not filed evidence by way of affidavit and there is no infirmity in dismissal of complaint for want of appearance of complainant and for non prosecution and for non compliance of judicial orders. Ld. counsel for respondent submits that even prior to order dated 24.09.2018 of Sydney court, the appellant has not appeared and furthermore the appellant is not restrained by the said order to visit India. Furthermore in terms of affidavit dated 16.01.2019 filed before Australia court, it is recorded that respondent is paying maintenance and complainant is working as full time. Ld. counsel further submits that no relief through video conferencing be given as video conferencing came into effect on 01.06.2020 which is not in retrospective, and furthermore there is willful non compliance by the appellant of various order of trial court thus no benefit could be given to her. Ld. counsel submits that the complaint is dismissed not only for non appearance but primarily for non compliance of various orders passed by the trial court and there is no infirmity in the impugned order passed by the trial court.
15. Heard. Record perused.
CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 7 of 1316. The brief background facts are that appellant and respondent married on 14.09.2002 out of the said lock, two daughters born. The appellant alleged that she was physically abused and police report was also filed and furthermore and respondent/husband is also living adulterous life and further subjected the appellant with unnatural intercourse and even given beatings on 12.11.2009 and also made complaint in New Zealand High Commission. On 23.10.2010 the appellant's face fractured by respondent for which she was treated at BL Kapoor hospital, thereafter left Australia on 27.11.2010 however came back on assurance on 27.07.2011 and shifted the rented accommodation to Gurugram. Later on January 2016 got a job at British school, Chanakyapuri and respondent/husband also started levelling the allegations of loose character on appellant/wife. Due to beatings by respondent/husband, kalandara proceedings were also initiated at Gurugram.
17. The appellant has filed the DV Act complaint before trial court and trial court vide order dated 20.12.2016 directed the respondent/husband to vacate the premises within 04 hours after intimation of this order and the interim custody of daughters was also given to complainant. During proceedings, the respondent/husband filed the reply and income and expenditure affidavit and thereafter voluntarily made statement to make a payment in the sum of Rs 35000/ towards maintenance of children. The respondent/husband on 26.09.2017 filed another application seeking modification of order dated 20.12.2016 on account of subsequent events and dismissal of complaint. The trial court listed all the pending applications for arguments. Vide order dated 02.08.2018 the trial court observed that the complainant is not appearing since July 2017 and directed for appearance of complainant and arguments on pending application on 26.02.2018 and also observed that in the event of failure on the part of complainant to proceed further, the matter would be dismissed for non prosecution.
CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 8 of 1318. However the complainant not appeared. Perusal of order dated 17.05.2019 shows that it is submitted on behalf of the respondent that complainant is not coming for last so many dates of hearing and one affidavit dated 28.11.2018 filed by the complainant in Australian court on 16.01.2019 that the complainant is not interested in coming to India and present proceeding litigation is continued just to harass the complainant. Ld. counsel for complainant on the other hand pointed out that vide order dated 24.09.2018, the Australian court not restrained the complainant to visit India or to go outside the jurisdiction of Australia. The Ld. trial court however observed that even prior to 24.09.2018 the complainant not appeared despite various orders and there is an opportunity to the complainant to approach concerned court in Australia with permission to pursue the present case in Indian and even the order dated 24.09.2018 only restrained the complainant to remove the minor child from the jurisdiction of Australian court. Thereafter, trial court observed that no party can be allowed to continue proceeding as per choice and parties are bound to follow the procedure. It is also then argued by the counsel for complainant that respondent stopped paying the fee of minor children therefor complainant had moved to Australia however trial court also observed that complainant in an affidavit in Australian court stated that respondent is paying some maintenance and also working as full time, and therefore directed the complainant to file fresh income affidavit and also observed that complainant has till date not filed any rejoinder therefore granted last and final opportunity to complainant to file fresh income affidavit along with bank statement for last 03 years and ITRs for last three years and also to file replication/rejoinder as well as appearance by way of affidavit with advance copies to opposite party and listed the matter for appearance of complainant and arguments on interim application for 22.07.2019.
19. However on 22.07.2019 the complainant not appeared and an adjournment sought on the ground that vide order dated 15.07.2019 the CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 9 of 13 Australian court permitted to complainant to come to India but on certain conditions, and trial court irrespective of fate of Australian court order granted the last opportunity to complainant, failing which the complaint will be dismissed on next date of hearing for non compliance of judicial orders as well as for non prosecution thereafter listed the matter for complainant evidence for 21.08.2019. However on 21.08.2019 the complainant not appeared therefore trial court passed the impugned order after hearing the parties.
20. The relief sought in the present complaint under DV Act since beginning is to restrain the respondent to have custody of minor children or to enter in the house of Gurugram, and thereafter to grant interim maintenance for complainant and children and also compensation on ground of physical and mental abuses on the part of respondent/husband. As far as the factum of living of respondent Pawan Garg in shared household in Gurugram is concerned, he is directed to leave the said premises within four hours of receiving order dated 20.12.2016 and there appears to be nothing on record that respondent/husband is violated the said order. Vide order dated 04.07.2017 the respondent/husband also acceded to pay adinterim maintenance of Rs 35000/ towards children however the application of maintenance and the pleadings are still pending, and matter was listed for CE. The complainant was directed number of times to appear and conduct the proceedings however she never appeared despite warnings.
21. During the proceedings, the respondent/husband also filed proceedings before guardianship court at Gurugram and said court vide order dated 05.08.2017 directed the appellant to appear on 30.08.2017 however the appellant along with children had already left India on 24.08.2017 and without permission and information to trial court, the complainant thereafter also remained absent. The proceedings in Australian court initiated for return minor daughters and Australian court vide order CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 10 of 13 dated 15.07.2019 directed the complainant to return the minor daughters in India however appeal was filed and appellate court vide order dated 24.09.2018 restrained the operation of said order with direction that children will not leave Australia.
22. During the pendency of present complaint, the complainant not sought any permission to leave for Australia and after filing the application u/s 20 on 11.08.2018 for providing fees of minor daughters left India on 24.08.2017 and also avoided the proceedings of guardianship at Gurugram to be conducted on 30.08.2017. The main ground raised for leaving India is that she was evicted from the house at Gurugram and had no financial means to live in India however this fact is not substantiated from her conduct and proceedings before trial court, and furthermore the respondent also raised the plea that she was having the FDRs and the money in accounts for around Rs 70 lacs at that time. The trial court thus also sought the fresh income affidavit from appellant on the basis of affidavit filed before Australian court however appellant not chooses to file the fresh income affidavit. Therefore it can be easily inferred that the complainant is not pursuing the complaint diligently. Her relief that the husband not to visit the shared household in Gurugram and to pay school fees of children is already infructuous as she left India on 24.08.2017.
23. The only grievance remained is compensation for physical and mental abuses and maintenance for the appellant and children. The complainant not chooses to file fresh income affidavit despite opportunities and also not appeared before the court for CE and also not completed the pleadings despite various orders. Vide detailed order dated 17.05.2019, after going through the entire record and delay caused by the complainant in prosecuting the present complaint, the trial court directed the complainant as last and final opportunity to file fresh income affidavit and listed the matter for appearance of complainant and arguments on interim application if any and CE on 22.07.2019 however the complainant not CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 11 of 13 complied the said order, therefore, on 22.07.2019, the trial court categorically directed the complainant by way of last opportunity to comply the last order dated 17.05.2019 failing which the complaint will be dismissed for non compliance of judicial orders as well as for non prosecution, therefore effectively even prior to impugned order dated 21.08.2019, the complainant was made aware of the said proceedings however complainant neither challenged the order dated 17.05.2019 nor 22.07.2019 but on 21.08.2019 has filed an application for modification of order dated 17.05.2019 and also sought permission to examine the appellant through VC but trial court not considered the said plea and passed the impugned order on the ground of non compliance of judicial orders and non appearance. Ld. trial court has given enough opportunities to the complainant to pursue the complaint however the complainant not appeared and defied the orders. The complainant even not filed fresh income affidavit despite opportunity which is material for deciding the maintenance application. The complainant already left India on 24.08.2017 and it do not appear that she has any intention to return for prosecuting the present complaint.
24. For the physical abuses, the chargesheet in criminal case has already been filed. The complainant not only defied the order by non appearing before the court but also not complied the directions passed in the judicial orders and belatedly at last stage on the day of impugned order raised plea to conduct proceedings through VC. Ld. trial court has given number of opportunities to the complainant but the complainant has not complied the orders of the Ld. trial court, therefore Ld. trial court considering all the facts and circumstances, dismissed the complaint for want of non appearance, non prosecution and non compliance of judicial orders, therefore, I do not find any infirmity in the impugned order dated 21.08.2019 passed by Ld. trial court dismissing the complaint. Hence, present criminal appeal stands dismissed.
CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 12 of 1325. Present appeal stands disposed of accordingly. TCR be sent back along with copy of this judgment to Ld. trial court.
26. File be consigned to Record Room. Copy of the judgment be given dasti to parties.
Announced in the open court through VC on this 28th day of October, 2020 (AJAY KUMAR JAIN) ASJ/SPECIAL JUDGE (NDPS)/NEW DELHI CA No. 234/19 Bhawna Garg Vs Pawan Garg Dated 28.10.2020 Page 13 of 13