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Delhi District Court

Nitin Gupta vs . Ruchika Gupta C.A. No. 94/13 on 20 August, 2014

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                      Nitin Gupta Vs. Ruchika Gupta C.A. No. 94/13 

  IN THE COURT OF MS. RAJ RANI MITTRA: ASJ - 05 : SOUTH - EAST, 
                          SAKET COURTS, NEW DELHI



                                                                      Appeal No. 94/13 

Nitin Gupta,
S/o Sh. Phool Chand Gupta,
R/o H. No. 538, Sector­37,
Faridabad,
Haryana. 
                                                            ... Appellant 
                        Versus 


Ruchika Gupta,
W/o Sh. Nitin Gupta,
D/o Sh. Rakesh Kumar Jain,
R/o E­163, Greater Kailash­II,
New Delhi. 
                                                            ... Respondent


            DATE OF INSTITUTION: 31.03.2014 
            DATE OF ORDER: 20.08.2014


                                     O R D E R

The present criminal appeal is preferred by the appellant / husband against the impugned order dated 08.01.2013, passed by Ld. Metropolitan Magistrate, Mahila Court, Saket Courts, New Delhi in C.C. No. 867/3 titled as Ruchika Gupta Vs. Nitin Gupta U/s 25 of Protection of Women From Domestic Violence Act, 2005 (herein after referred as DV Act). 2

Nitin Gupta Vs. Ruchika Gupta C.A. No. 94/13 2 Alongwith appeal application U/s 5 of Limitation Act for condonation of delay in filing the appeal has been filed, submitting therein that dasti copy of order was given by Ld. Metropolitan Magistrate Court itself on 17.01.2013 despite the orders passed on 08.01.2013. That after receiving the orders, Counsel for the appellant took some time to prepare the appeal for filing the same before this Court. That the process of preparing the appeal took sometime and accordingly there is a delay in filing the present appeal. It is submitted that Counsel for appellant was not keeping well and hence it took sometime to prepare the appeal. That the delay in filing the appeal is unintentional and only because of the aforesaid reasons. Heard. In the interest of justice, the application U/s 5 of the Limitation Act seeking condonation of delay in filing the present criminal appeal is allowed. 3 Notice of the appeal was given to the respondent and trial Court record was summoned.

4 It is submitted the appellant that the application has not been decided as per the law. That application U/s 12 decided U/s 23(2) can be challenged U/s 25 but it has not been entertained illegally. That there is an inordinate delay because of the conduct of the respondent and as prescribed under the D.V. Act, the application U/s 12 need to be decided within three months from the date of filing whereas in this case the interim order dated 03.03.2008 has been in force for last five years without giving any attention to the fact of the case despite more than 100 hearings during this period. That 3 Nitin Gupta Vs. Ruchika Gupta C.A. No. 94/13 application U/s 12 is full of concocted story that the income of the appellant is 4 lakhs per month and court has been believing it for last five years though there hardly any iota of any fact about such allegation nor any proof is available on record. That appellant has submitted his income and asset accounts since 2004 onwards with IT returns and his ESI return of the employer in support of his income. That in number of criminal cases filed against the appellant, he had to suffer imprisonment which deprived him from proper job opportunity as no employer would employee a person who had been facing so many cases and police is after him and as a result of this respondent was asked to return his G Card in September, 2008 which left him no more than an unskilled labour. That the petitioner thereafter being aggrieved by the aforesaid order dated 21.05.2013 passed U/s 29 of D.V. Act preferred criminal misc. petition No. 3240 of 2009 before the Hon'ble High Court of Delhi, which was subsequently dismissed vide order dated 27.04.2012 on the grounds that the petitioner did not make the payment of Rs. 2 lakhs as directed by the Hon'ble High Court vide order dated 02.12.2011. That petitioner preferred a criminal SLP before the Hon'ble Supreme Court, however, the same was also dismissed. That the petitioner was not having money as asked for as he has no such source of income to pay such an amount, hence the petition filed by him was dismissed without hearing him on merits. That in the meanwhile respondent also filed a contempt petition bearing CCP No. 106 of 2012, which was dismissed by the Hon'ble High Court vide order dated 27.04.2012 on the ground that respondent 4 Nitin Gupta Vs. Ruchika Gupta C.A. No. 94/13 can file an execution petition which is the proper remedy for recovery of the maintenance amount, a ground that no Court can ask a person to perform the impossible, if he is not capable of doing the same, in such circumstances no contempt was made out.

6 The appeal is vehemently opposed by Ld. Counsel for respondent, submitting that the appeal of appellant is liable to be dismissed on the short ground that the appellant has not come with clean hands before the Court and has concealed material and relevant facts and as such the appeal filed by the appellant is liable to be dismissed with heavy cost in favour of the respondent and against the appellant. That this is a false and frivolous appeal filed by the appellant with intent to debar the respondent from getting her legal rights in the form of maintenance and to harass her with the intention that she might compromise the matter without claiming any maintenance. That the appellant being the husband of the respondent is duty bound to pay maintenance to the respondent and her son aged 7 years and as such the present appeal is liable to be dismissed in­limine. That by filing the present appeal, the appellant is trying to gain the benefit of his own wrong doings and misdeeds against the respondent. That appellant has made false and concocted grounds so as to gain more and more time which will ultimately lead to harassment of the respondent and that appellant does not have any proof to substantiate his claim in the petition. That Hon'ble High Court and Hon'ble Sessions Court had already perused all the material facts brought by the appellant on record at 5 Nitin Gupta Vs. Ruchika Gupta C.A. No. 94/13 length and had passed orders in favour of respondent in accordance with law without any defects or dis­merits. That appellant has made false and concocted grounds so as to gain more and more time which will ultimately lead to harassment of the respondent and appellant does not have any proof to substantiate his claim in the petition.

7 I have heard arguments and carefully perused the material placed before me.

8 Keeping in view the totality of circumstances, the fact that the order passed by Ld. ASJ dated 21.05.2008 has been upheld by the order dated 27.04.2012 by the Hon'ble High Court of Delhi. That application seeking modification of the order has also been dismissed by the Hon'ble High Court of Delhi vide order dated 06.07.2012. That certificate of employment of appellant as a purchase man dated 13.08.2008 and he himself made a statement / undertaking in the Court on 02.03.2009 that he will make payment of Rs. 30,000/­ per month to respondent which are self contradictory even on their face value. I find no merits in appeal and the impugned order dated 08.01.2013 passed by Ld. Metropolitan Magistrate, Mahila Court, South­East District, Saket Courts, New Delhi, does not require any interference and the same is confirmed. The appeal is accordingly dismissed.

Nitin Gupta Vs. Ruchika Gupta C.A. No. 94/13 9 Trial Court record be sent back alongwith a copy of the order. Appeal file be consigned to Record Room.

Announced in the open Court on the 20 day of August, 2014 th (RAJ RANI MITTRA) Addl. Sessions Judge­03/SE Saket Courts, New Delhi.