HC declined to quash DV under Section 482

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. No.28/2011 & Crl.MAs. 121-122/2011 Decided on 07.01.2011

IN THE MATTER OF :

RAMANAND AMIT ….. Petitioner Through : Mr. Ajay Rai, Adv.
versus
RUHI RAMANAND ….. Respondent Through : Nemo.

CORAM : HON’BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner under Article 227 of the Constitution of India read with Section 482 Cr.P.C. praying inter alia for setting aside/quashing of the order dated 5.4.2010 passed by the learned ASJ, disposing of his appeal filed under Section 29 of the Protection of Woman from Domestic Violence Act, 2005 (in short ‘the Act’), against the ex parte judgment and order dated 13.4.2009, passed by the learned Metropolitan Magistrate, Mahila Court, Delhi.

2. Under the ex parte judgment dated 13.4.2009, the Mahila Court directed the petitioner to pay to the respondent, rent for the house in which she resides, at the rate of `2,500/- from April 2008 onwards, and thereafter pay a 10% increase in each successive year, alongwith `3,000/- per month as maintenance from the date of the complaint till the complainant is legally entitled to the same. The petitioner was also directed to pay `50,000/- as lump sum compensation and `5,000/- as litigation expenses to the respondent within 3 months from the order. He was called upon to clear the arrears of maintenance within 6 months from the date of order and thereafter, make the monthly payment on or before the 10th day of every month, by way of money order or by depositing the amount in the account of the respondent.

3. While setting aside the aforesaid ex parte judgment dated 13.4.2009 and calling upon the parties to appear before the trial court, the learned ASJ directed that as interim relief, the appellant would continue to pay to the respondent, a sum of `3,000/- as maintenance and `2,500/- as rent from April 2008 onwards till the petition filed by her under Section 12 of the Act is decided on merits. It was clarified by the appellate court that the respondent would be entitled to interim maintenance from the date of the complaint itself and the petitioner would be liable to pay arrears, if any, on the final disposal of the petition under Section 12 of the Act.

4. On a pointed query raised as to whether the petitioner has complied with the interim order dated 5.4.2010, counsel for the petitioner admits that out of the amount of `1,09,500/-, admittedly due under the impugned order, he has paid only a sum of `45,142/- to the respondent. He states that in execution proceedings, attachment of certain household articles has taken place. He however is unable to explain the reason for his having approached the Court after a delay of 9 months.

5. As far as the impugned order is concerned, it is stated by the counsel for the petitioner that the respondent is not the wife of the petitioner and he was not in a relationship with her in the nature of marriage and hence, she is not entitled to invoke the Act. He further submits that the petitioner has his own family to maintain and is not in a position to comply with the impugned order, whereunder interim relief was granted in favour of the respondent.

6. In light of the fact that till date, the petitioner has not paid the entire sum due and payable as per the interim order of 5.4.2010 and he has been unable to provide a satisfactory explanation for the delay of 9 months in assailing the impugned order, it seems that the present petition has been filed more with an intention to delay the execution proceedings, rather than for appealing against the impugned order on merits. The submission of the counsel for the petitioner that the respondent is not the wife of the petitioner and that he was not in a relationship with her in the nature of marriage, is a factual averment, which can only be established before the Mahila Court. This Court cannot go into the said issue at this stage. None of the grounds taken by the petitioner are of such a nature so as to invoke the extraordinary jurisdiction of this Court as sought by the petitioner.

7. It is stated by the counsel for the petitioner that insofar as the petition filed by the respondent under Section 12 of the Act is concerned, the petitioner has filed his reply thereto and the matter is now listed before the trial court in February 2011 for completion of pleadings and for further proceedings. It is for the petitioner to make his submissions on merits, before the said Court.

8. In view of the aforesaid facts and circumstances, this Court declines to interfere with the impugned order. The petition is therefore dismissed, along with the pending applications.

HIMA KOHLI,J

JANUARY 07, 2011

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