Delhi District Court
Firoz vs Smt. Jayda on 16 August, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT:
SHAHDARA: KARKARDOOMA COURT: DELHI.
Crl. (A) No. 12/18
New Crl. (A) No. 53/2018
1. Firoz
S/o. Sh. Alijaan
R/o. F376, Chunna Bhatti Road,
Saheed Nagar,
PS. Sahibabad,
District Ghaziabad, U.P
............Appellant
Versus
1. Smt. Jayda
W/o. Sh. Firoz
D/o. Sh. Yunus
R/o. Old Seema Puri,
Delhi.
............Respondent
ORDER
1. This appeal is preferred by the appellant u/s. 29 of the Protection of Women From Domestic Violence Act, 2005 __________________________________________________________________ CA No. 53/2018 Page 1 of 9 Firoz Vs. Jayda (hereinafter referred to as D.V.Act) challenging the order dt. 01.08.2017, ExParte order dt. 09.08.2017 & ExParte Judgment dt. 12.10.2017 passed by Ms. Babita Puniya, Ld. MM (Mahila Court), Shahdara, in Case bearing V.No. 52/14, titled as Jayda Vs. Firoz & Ors.
2. Arguments have been advanced by Sh. Firoz Khan, Ld. Counsel for appellant as also by Sh. Abdul Salam, Ld. Counsel for respondent. I have also perused the Trial Court record.
3. Ld. Counsel for appellant argued that Ld. Trial Court vide impugned order dt. 01.08.2017 noted that the said order was passed in presence of both the parties as well as their counsels but in fact the matter was not listed on that day and therefore, there was no question of presence of parties before Ld. Trial Court. Ld. Counsel for appellant further argued that on 01.08.2017 he was at Lucknow and therefore, his presence before Ld.Trial Court was not possible. Ld. Counsel for appellant vehemently argued that after passing the impugned order matter was again taken up on 08.08.2017 and on that day appellant was proceeded exparte and on next day i.e on 09.08.2017 matter was listed for exparte evidence. Ld. Counsel for appellant further argued that his application u/s. 340 Cr.P.C was also pending and Ld. Trial Court __________________________________________________________________ CA No. 53/2018 Page 2 of 9 Firoz Vs. Jayda did not pass any order on the said application.
4. On the other hand, Ld. Counsel for respondent argued that impugned order dt. 01.08.2017 was passed in presence of both the parties as well as their counsels and there is no reason why Ld. Trial Court would mention the presence of parties in the said order in their absence. Ld. Counsel for respondent further argued that respondent is a poor lady having three minor children and appellant, who is having a flourishing business of body making of Truck and Containers has not given a single penny to the respondent and this appeal is filed only to harass the respondent. Ld. Counsel for respondent further argued that there is no illegality in the impugned order dt. 01.08.2017 and same was passed in the presence of both the parties as well as their counsels.
5. The impugned orders & judgment have been assailed mainly on the grounds that impugned order dt. 01.08.2017, exparte order dt. 09.08.2017 & exparte judgment dt. 12.10.2017 are based on conjectures and surmise and are against the settled principle of law; that on 01.08.2017 none had appeared on behalf of respondent/appellant, however, presence of appellant with counsel has been marked; that in fact judicial file was not traceable on 01.08.2017 and Ld. MM had directed to check out the status after a __________________________________________________________________ CA No. 53/2018 Page 3 of 9 Firoz Vs. Jayda day or two, which was not informed despite repeated enquiry made by counsel for appellant hence the entire proceedings took place after 01.08.2017 are bad in law and liable to be set aside; that Ld. MM did not apply its judicial mind while passing the impugned orders and exparte judgment and that case was not listed on 08.08.2017 and 09.08.2017 and was not mentioned in cause list; that Ld. MM did not consider the written statement/reply filed by appellant to the application for interim maintenance and erred in passing the interim maintenance against the appellant @ Rs.5,000/ and further erred in awarding maintenance @ Rs.14,000/ vide ex parte judgment dt. 12.10.2017 and that Ld. MM erred in assuming the income of appellant to be Rs.20,000/ without there being any documentary proof or evidence.
6. In brief, the facts of the case are that marriage between the parties was solemnized on 12.03.2002 as per Muslim rites and ceremonies. Out of the said wedlock, three children namely Baby Ayasha, Master Mohd. Faizan and Baby Sadab were born. It is stated that appellant/respondent no.1 solemnized his second marriage with Farida i.e respondent no.8 and when the petitioner objected, respondent no.1 threatened her that second marriage is allowed in their religion and if petitioner does not follow the same then she will be thrown out. It is alleged that on 15.12.2013, __________________________________________________________________ CA No. 53/2018 Page 4 of 9 Firoz Vs. Jayda petitioner was mercilessly beaten and the matter was reported to the local Police and again on 19.02.2014, respondents tried to kill the petitioner, for which a case FIR No. 474/13 was registered at PS Sahibabad. It is case of the petitioner that appellant/respondent no.1 is doing the work of making body of heavy vehicles and his monthly income is Rs.80,000/ to Rs. 90,000/ and he has no other liability except to maintain the petitioner and her minor children.
7. Appellant/respondent filed written statement before Ld. Trial Court admitting the marriage and birth of three children. It is stated by the appellant/respondent that he gave divorce to the petitioner on 01.12.2011 and thereafter, he remarried with respondent no.8. Appellant in his affidavit stated that his monthly income is Rs.7,000/ to Rs. 8,000/ and his monthly expenditure is Rs.10,000/.
Section 2 (a) of Domestic Violence Act reads as under:
"aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
Section 3 Definition of domestic violence, says that For the purposes of this Act, any act, omission or commission or __________________________________________________________________ CA No. 53/2018 Page 5 of 9 Firoz Vs. Jayda conduct of the respondent shall constitute domestic violence in case it
(b) "harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security;.
8. The relationship between the parties is admitted and they have resided together in a shared household, which shows domestic relationship between appellant and respondent. Complainant/ respondent has levelled specific allegations of domestic violence as well as registration of case FIR against the appellant. Although complainant/respondent claimed that appellant is earning more than Rs.80,000/to Rs.90,000/ per month by the business of body making of heavy vehicles, however, appellant in his detailed affidavit has stated that he is earning Rs.7,000/ to Rs.8,000/ p.m and claimed himself a very simple person but has not denied the business of body making of heavy vehicles allegedly being run by him.
9. The first plea of Ld. Counsel for appellant is that on 01.08.2017, the file was not traceable, therefore, matter was not __________________________________________________________________ CA No. 53/2018 Page 6 of 9 Firoz Vs. Jayda taken up by Ld. Trial Court and later on they came to know that by mentioning presence of both the parties, the impugned order dt. 01.08.2017 has been passed. It was further argued by Ld. Counsel for appellant that on 21.07.2017, he moved an application for inspection of judicial file but could not inspect the file as file was not traceable. In support of his contention, Ld. Counsel for appellant has also filed the original application for inspection of judicial file, which was allowed by Ld.MM on 21.07.2017, on record but on the application there is no endorsement of the concerned Ahlmad that file is not traceable. Moreover, Ld. Counsel for appellant vehemently argued before the court that on 01.08.2017, he was at Lucknow, therefore, there is no question of his presence before Ld. Trial Court but in para no. 5 of the appeal it is mentioned that Counsel for the appellant noticed that on 01.08.2017 matter was not listed in the Trial Court and accordingly, he enquired the same from the court staff and it was informed that file of the case has been placed (although, it appears that appellant wants to take a plea that file was misplaced). These contradictory pleas taken by appellant demolish the stand of the appellant that impugned order dt. 01.08.2017 was passed in his absence. Usually if a case file is not traceable in a court of law, a Parcha Yadast is prepared by the reader of the court, so that after marking the presence of the parties the concerned file may be traced and be put __________________________________________________________________ CA No. 53/2018 Page 7 of 9 Firoz Vs. Jayda up before the Presiding Officer on the date as mentioned therein. There is no explanation that if the file was not traceable as stated by appellant in para no.5 of the appeal, why Parcha Yadast was not prepared. The contents of a judicial order regarding presence of parties are proof of the proceedings as mentioned therein, therefore, in absence of any material brought on record, I do not find any force in the plea of Ld. Counsel for appellant that impugned order dt. 01.08.2017, by which interim maintenance of Rs.5,000/p.m was awarded in favour of respondent and her three minor children, was passed in absence of the appellant or his counsel. I do not find any illegality in the impugned order dt. 01.08.2017.
10. Appellant was proceeded Exparte on 08.08.2017 and impugned exparte judgment was passed on 12.10.2017. Appellant has not filed any application for setting aside the order dt. 08.08.2017 or exparte judgment dt. 12.10.2017 or for taking the application u/s. 340 Cr.P.C, as filed by the appellant for hearing before Ld. Trial Court. Appellant did not choose to appear before Ld.Trial Court till exparte judgment dt. 12.10.2017 was passed, his application u/s. 340 Cr.P.C deemed to be dismissed alongwith disposal of the main petition filed by the petitioner/respondent. A perusal of impugned exparte judgment dt. 12.10.2017 shows that Ld. Trial Court also considered the affidavit of income as filed by __________________________________________________________________ CA No. 53/2018 Page 8 of 9 Firoz Vs. Jayda appellant/respondent, wherein he has shown his monthly income as Rs.7,000/ to Rs.8,000/ and monthly expenditure as Rs.10,000/ i.e more than his earning. Appellant has not disputed or disclosed his business in the affidavit filed alongwith written statement. Ld. Trial Court has rightly considered the monthly income of appellant as Rs.20,000/ per month and after dividing the said income in seven units, i.e two units for adults and one unit each for the minor children, granted Rs.14,000/ per month to the respondent as well as to her three minor children. Therefore, I do not find any illegality in the impugned exparte order dt. 09.08.2017 and ex parte judgment dt. 12.10.2017. The appeal is dismissed being devoid of any merit. Trial Court record be sent back alongwith a copy of this order. Appeal file be consigned to record room.
SANJEEV KUMAR MALHOTRA Digitally signed by SANJEEV KUMAR MALHOTRA Location: Karkardooma Courts, Delhi Announced in the open court Date: 2018.08.16 16:19:14 +0530 on 16.08.2018 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi __________________________________________________________________ CA No. 53/2018 Page 9 of 9 Firoz Vs. Jayda