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Prince Kalra vs Heena Kalra & Others on 2 August, 2018

Criminal Misc.-M No. 7912 of 2017 (OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

Criminal Misc. -M No. 7912 of 2017 (OM)
Date of decision : August 02, 2018

Prince Kalra …..Petitioner

Versus

Heena Kalra and others ….Respondents

CORAM:- HON’BLE MRS. JUSTICE LISA GILL

Present: Mr. Gautam Dutt, Advocate
for the petitioner.

Mr. M.K. Sood, Advocate
for respondent No. 1.

Mr. Lovekirat Singh Chahal, Advocate
for respondents No. 2 and 3.

***
LISA GILL, J.

1. The petitioner is aggrieved of order dated 23.02.2017 passed by

the learned Sessions Judge, Faridabad whereby appeal preferred by

respondent No. 1 (petitioner’s wife) has been disposed of while upsetting the

directions given by the learned Judicial Magistrate First Class, Faridabad

vide order dated 06.01.2017 on an application under Section 23 of the

Protection of Women from Domestic Violence Act, 2005 (‘the Domestic

Violence Act’ – for short).

2. Brief facts necessary for the adjudication of the case are that

respondent No. 1 – wife of the petitioner, filed a petition under Sections 12,

17 to 20, 22 and 23 of the Domestic Violence Act with the averments that

her marriage was solemnised with the petitioner on 15.08.2014 at Faridabad.

It was their second marriage, both of them being divorced prior to their

marriage. Applicant-respondent No. 1 had a son from the first marriage and

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she had custody of the said child. The petitioner, it was stated, expressed

eagerness to adopt the child of respondent No. 1 from the first marriage.

Accordingly, the child was adopted by the petitioner on 16.08.2014.

Adoption deed No. 1089 was registered on 16.01.2015. However, after

marriage, behaviour of the petitioner and his parents i.e. respondents No. 2

and 3 was rude towards the son of respondent No. 1. The couple was

blessed with twins (both sons on 21.06.2015).

3. It is pleaded that the behaviour of the petitioner and his parents

became worse after the birth of twins. Respondent No. 1 was pressurised

for cancellation of adoption deed and in order to save her matrimony she

was compelled to give her consent for cancellation of the adoption deed.

Civil suit was filed on 17.09.2015 wherein respondent No. 1 and her father

admitted the claim set forth by the petitioner. Adoption deed was,

accordingly, declared null and void. Respondent – wife, it is stated, was

compelled to hand over the custody of her child from first marriage to her

parents. CCTV cameras were installed in the matrimonial house.

Respondent – wife was allegedly restrained from meeting her eldest son.

Allegations regarding demand of dowry as well as unnatural sexual

intercourse, sodomy etc. were raised against the petitioner. Immoral and

illicit relations with other woman by the petitioner were also alleged. It was

pleaded that on 17.12.2016 respondent – wife had gone to parental home to

see her eldest son (from first marriage), however, when she returned to her

matrimonial home the house was found locked. The petitioner, his parents

alongwith twin children had fled from the house. Lock of the house was not

opened despite information to the police. The respondent – wife, it is stated

was compelled to live in veranda of the house. Thus aggrieved, above said

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petition was filed by the respondent – wife praying for:-

(i)grant the residence order of three bedroom on the ground
floor at shared house No. 5M/123 5M/55 NIT Faridabad;

(ii)restraining the respondents not to interfere in the life of
appellant/applicant and children;

(iii)restraining the respondents from alienating or creating any
third party interest on the shared house;

(iv)compensation under Sections 20 22 of the Domestic
Violence Act for treatment, mental pressure, emotional
stress, mental and physical violence upon the
appellant/applicant, and to grant protection order under
Section 18 of the Domestic Violence Act;

(v)to give the possession of all her Istridhan, and valuable
clothes, jewelery etc;

(vi)relief of `20 lakhs alongwith monthly maintenance of `10
lakhs;

(vii)claimed immediate custody of both the minor children; and

(viii)for unlocking the premises etc.

4. It was averred that the petitioner was a businessman in his own

right having an income of more than `40 lakhs per month as well as rental

income. The petitioner was stated to be the owner of various residential

properties in Faridabad and Gurgaon as well agricultural land. Application

under Section 23 of the Domestic Violence Act for interim relief was also

moved by respondent No. 1.

5. The petitioner upon notice resisted the petition while raising a

number of preliminary objections. All allegations of physical, mental cruelty

and domestic violence were denied. It was averred that respondent – wife

was only interested in grabbing the property of the petitioner’s parents. The

twin minor children born out of the wedlock were never looked after in a

proper manner by her and she never breast fed them. It was averred that still

effort was made to save the matrimony. Consequently, the parties decided to

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live separately and premises were taken on rent but the respondent – wife

was not interested to live with the petitioner. The petitioner ultimately filed

a petition under Section 13 of the Hindu Marriage Act on 15.11.2016 in

which notice was issued for 17.12.2016. It was denied that the son of the

respondent – wife from her first marriage was ever adopted by the petitioner

or that any adoption deed was executed. It was, thus, submitted that the

respondent – wife was not entitled to any relief.

6. Learned trial Court while dealing with the application under

Section 23 of the Domestic Violence Act observed that the house in

question is the exclusive property of the father-in-law, therefore, cannot be

termed as a shared household. However, while noting the consent of the

petitioner to provide separate accommodation, liberty was afforded to the

respondent – wife to occupy the flat bearing No. C3/1402 Puri Pranayam,

Faridabad.

In respect to the custody of the minor children, learned trial

Court noticed the alleged admitted conversation between the respondent –

wife and her parents and some transcripts thereof. It was observed that the

recording in question was played in Court wherein the respondent – wife

alleged that the children be kept barefoot and out in the sun etc. Learned

trial Court while observing that though the said recordings are not

conclusive proof but it prima facie appeared that the respondent – wife was

not interested in the children, thus, directed that the custody of the minor

children shall remain with the petitioner though the respondent – wife

would be at liberty to meet her twin children once every week on Sundays at

12 noon to 5.00 p.m. at a convenient place. `13,000/- per month was

directed to be paid to respondent wife as ad interim maintenance allowance.

7. Aggrieved therefrom, an appeal was filed by the respondent –

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wife. Learned Additional Sessions Judge, Faridabad set aside order dated

06.01.2017 passed by learned Judicial Magistrate First Class, Faridabad

with the following directions:-

(i)that appellant/applicant is entitled to the restoration of
possession of same matrimonial premises, till pending
enquiry w.r.t. the ownership of the other properties;

(ii)that respondent No. 1 will immediately hand over the
custody of minor twin sons namely Yuvraj Sehraj to
appellant/applicant/wife, with liberty to join the
cohabitation, if he so desires;

(iii)that appellant/wife is entitled to at least 1/3rd income of her
husband which comes to Rs. 55,000/-, subject to allowing
her for enjoying the residential right in the matrimonial
house, and the other facilities like conveyance and domestic
helpers etc.;

(iv)that respondents are directed to remove all the CCTV
cameras, recording machines etc. installed in the matrimonial
house for surveillance of appellant/applicant/wife, and allow
her to live in the said premises peacefully without any
interference;

(v)that respondents will not restrain Aryan, son from previous
marriage to live and reside, or to meet the
appellant/applicant at her matrimonial house;

(vi)that in case during the enquiry respondents prove the fact
that respondent No. 1 is not the owner of the other
residential houses, then in that case, respondent No. 1 will be
liable to pay the monthly rent of three bedroom suitable
accommodation to appellant/applicant/wife near her
matrimonial or parental house at NIT, Faridabad; and

(vii)that appellant/applicant/wife will give due love and care
to her minor twin sons, and will not commit any negligent or
intentional act in this regard.

8. Present petition has been filed by the petitioner – husband

challenging order dated 23.02.2017 passed by the learned Additional

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Sessions Judge, Faridabad.

9. Learned counsel for the petitioner submits that learned

Additional Sessions Judge, Faridabad has predetermined the entire dispute

vide impugned order dated 23.02.2017. It has been wrongly observed by the

learned Additional Sessions Judge, Faridabad that adverse circumstances

were created by the petitioner by first adopting the first child of the

respondent – wife, thereafter disowning him and compelling the respondent

– wife and her parents for cancellation of the adoption deed after the birth

of the twins. It is contended that it is a matter of record that petition under

Section 13 of the Hindu Marriage Act was filed by the petitioner on

15.11.2016. Notice of this petition was issued to the respondent – wife for

17.12.2016. It is further contended that the petitioner never at any stage

adopted the eldest son of the respondent – wife (born out of her first

marriage). Therefore, there was no question of any cruelty to the respondent

– wife on this count. Moreover, no appeal whatsoever was ever preferred

against decree dated 26.08.2016 (Annexure P-1). Twin children were born

to the petitioner and respondent – wife on 21.06.2015. Suit for cancellation

of the adoption deed dated 16.01.2015 was instituted by the petitioner prior

thereto on 17.09.2015. It was specifically averred in the suit that the

adoption deed was procured by way misrepresentation, concealment and

fraud and the same is not binding on the petitioner. As per the written

statement filed on behalf of the father of the respondent – wife, it was

mentioned that a mistake had occurred on the part of the Advocate, who had

wrongly drafted the adoption deed contrary to instructions given by them. It

is reiterated that no appeal was preferred.

10. Learned counsel for the petitioner further argues that the

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petitioner was still ready and willing to try and reconcile the differences

with his wife, keeping in view the future of the minor children. During the

pendency of this petition, premises to the liking of respondent No. 1 were

taken on rent. As reflected in orders dated 15.03.2017 and 27.03.2017 in

this petition, petitioner and respondent No. 1 started residing together.

Respondent No. 1 regularly visited her eldest child from the first marriage

who was residing with her parents. No objection was ever raised thereto by

the petitioner. It is contended that respondent – wife, however, left the

matrimonial home (subsequently rented premises) on 17.05.2016. It is

submitted that the petitioner is looking after the minor children continuously

in a proper manner. Handing over their interim custody to the respondent –

wife would not be in the welfare of the children. Reference is made to the

conversations between the respondent- wife and her parents to contend that

she does not have any affection towards the twin children and their interest

would not be safeguarded by her. It is alleged that in the said conversations

respondent – wife stated that she did not care about the twin children and

that they could very well be kicked out after a proper settlement. It is

submitted that specific amount in question was being discussed by the

respondent – wife with her parents/brother. It is contended that the learned

trial Court had passed a reasonable order after duly hearing the said

conversations, which were admitted by the respondent – wife.

11. In respect to the matrimonial house, it is submitted that the

house in question does not belong to the petitioner and cannot be termed a

shared household and in any case he has been living separately at the rented

premises. Premises taken on rent, as per the wishes of the respondent – wife

during the pendency of this petition, are still being maintained by him.

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Respondent – wife, it is contended, is not entitled to right of residence at the

house, which belongs to the petitioner’s parents i.e. respondents No. 2 and 3.

It is further submitted that a sum of `55,000/- awarded to the respondent –

wife as maintenance is excessive and unjustified. It is, thus, prayed that

this petition be allowed and order dated 23.02.2017 passed by the learned

Additional Sessions Judge, Faridabad be set aside.

12. Per contra learned counsel for respondent No. 1 has refuted the

arguments as above. It is contended that respondent No. 1 has been

subjected to immense cruelty and domestic violence at the hands of the

petitioner and respondents No. 2 and 3. It is submitted that the petitioner

and his parents were very well aware of the first marriage of the respondent

– wife. Adoption deed in respect to her eldest son out of the first marriage

was duly registered on 16.01.2015. However, it was under pressure that the

same was cancelled and, accordingly, no appeal was preferred only in order

to save her marriage. It is submitted that the petitioner is a businessman

having handsome income in his own right, therefore, the interim

maintenance has been rightly fixed. Moreover, it cannot be disputed that the

respondent – wife is entitled to the right of residence at the house where the

petitioner was living alongwith his parents after solemnisation of their

marriage. It is vehemently argued that as many as three maids had been

employed, therefore, there was no question of neglect of the minor children.

It is the petitioner, who created such adverse circumstances that it was not

possible for the respondent – wife to co-habit with him. All efforts were

made to resume cohabitation pursuant to orders dated 15.03.2017 and

27.03.2017. However, it appears that the whole exercise was merely a ruse

on the part of the petitioner. It is denied that respondent No. 1 left the rented

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premises. To the contrary, it is submitted that she was dropped at her parents

house by the petitioner on 17.05.2017 and told to be ready to come present

before this Court for the hearing in this case on 19.05.2017. However,

petitioner did not pick her up from her parental home. It is contended that

the petitioner alongwith the twin children is presently living with his

parents. Rented accommodation has been locked. It is additionally

submitted that relief of interim custody to the father is not permissible in

the present proceedings. It is, thus, prayed that this petition be allowed.

13. I have heard learned counsel for the parties at length and have

gone through the file.

At the outset, it is relevant to note that the petitioner and

respondent No. 1 had initially agreed to resume cohabitation alongwith the

twin children. Relevant part of order dated 15.03.2017 of this Court reads as

under:-

” Respondent No. 1 duly identified by her counsel is
present in Court. The parties are agreeable to live with each
other alongwith their twin children in separate rented premises
away from each others parents. Respondent No. 1, however,
submits that the premises, which have been taken on rent by the
petitioner, are not very suitable.

Learned counsel for the petitioner submits that the
petitioner is amenable to take any other premises on rent in a
locality pointed out by respondent No. 1 subject to his financial
capabilities. Respondent No. 1 has stated that she would
indicate the said localities/areas where she would like to reside
in the rented premises by 7.00 p.m. today to her counsel
for onward transmission to the learned counsel for the
petitioner. Learned counsel for the petitioner submits that the
needful shall be done in this regard within one week thereafter.
In the given circumstances, interim order shall enure till the

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next date of hearing.

List on 27.03.2017.”

It is pertinent to note at this juncture that status quo regarding

custody of the children as well as residence was directed to be maintained

till the next date of hearing vide order dated 08.03.2017.

Order dated 27.03.2017 reads as under:-

” Learned counsel for the petitioner submits that suitable
premises in accordance with the wishes of respondent No. 1 i.e.
House No. 866, First Floor, Sector 15- A, Faridabad, have been
taken on rent by the petitioner. This fact is not disputed by the
learned counsel for respondent No. 1.

Learned counsel for the petitioner and respondent No. 1
are ad idem that the petitioner and respondent No. 1 shall live
together along with their twin children on the said premises.
Their respective parents shall not interfere in their matrimonial
life and neither will the parties invite their interference.

The petitioner and respondent No. 1, who are present in
Court agree that respondent No. 1 would visit her child from
her first marriage residing with her parents every Monday from
2.00 p.m. to 8 .00 p.m. The petitioner would look after the twin
children during this period.

Respondent No. 1 shall join the petitioner at the above
said premises tomorrow i.e. 28.03.2017 at 4.00 p.m. The
petitioner would be present at that time at House No. 866, First
Floor, Sector 15- A, Faridabad.”

14. The petitioner and respondent No. 1 on 21.04.2017 while

appearing before this Court submitted that both of them were living together

alongwith the twin children. It was further agreed that respondent No. 1

apart from visiting her eldest child on every Monday from 2.00 p.m. to 8.00

p.m. shall also proceed to visit the child on every Thursday from 5.00 p.m.

to 8.00 p.m.

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15. Thereafter, CRM-24979-2017 was moved by respondent No. 1

for preponement of the date of hearing of the case on the ground that the

petitioner had dropped her at her parents home on 17.05.2017. The

petitioner was to pick her up on 19.05.2017 for hearing of this case,

however, he did not come forward to pick her up. The petitioner alongwith

the twin children, it was stated, had started residing at his parent’s home

after locking out the rental accommodation.

16. On the other hand, the petitioner moved application CRM-

18227-2017 seeking to place on record certain events which according to

him took place after 21.04.2017. Counter allegations were raised against

respondent No. 1 that in fact she left the company of the petitioner on

17.05.2017 and refused to join his company and not vice versa. The

children, it was stated, were left by her with the petitioner.

17. Thereafter, an effort was made to amicably resolve the dispute

between them. The matter was placed before the Mediation and Conciliation

Centre of this Court, however, mediation between the parties has failed.

18. This Court is extremely conscious of the tender age of the

twin children who are now about three years old. It is a settled position that

interim custody of children of such a tender age should normally be handed

over to the mother without hesitation. It is only in extreme cases that it

should be denied to the mother. The Court is under an onerous duty to

ensure the welfare, well being and interest of the minor children as the same

is the paramount consideration.

19. The Hon’ble Supreme Court in K.M. Vinaya versus B.R.

Srinivas 2015 (16) SCC 405 has referred to its earlier decision (Lekha v. P.

Anil Kumar, (2006) 3 SCC 555) and extracted relevant paras of two other

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decisions which read as under:-

“16. In Samuel Stephen Richard v. Stella Richard, AIR 1955
Mad 451, the High Court in deciding the question of custody
held as follows:

” In deciding the question of custody, the welfare of the minor
is the paramount consideration and the fact that the father is the
natural guardian would not ‘ipso facto’ entitle him to custody.
The principal considerations or tests which have been laid
down under Section 17, in order to secure this welfare, are
equally applicable in considering the welfare of the minor
under Section 25. The application of these tests casts an
‘arduous’ duty on the court. Amongst the many and
multifarious duties that a Judge in Chambers performs by far
the most onerous duties are those cast upon him by the
Guardians and Wards Act. He should place himself in the
position of a wise father and be not tired of the worries which
may be occasioned to him in selecting a guardian best fitted to
assure the welfare of a minor and thereafter guide and control
the guardian to ensure the welfare of the ward–a no mean task
but the highest fulfilment of the dharmasastra of his own
country. It is only an extreme case where a mother may not
have the interest of her child most dear to her. Since it is the
mother who would have the interest of the minor most at heart,
the tender years of a child needing the care, protection and
guidance of the most interested person, the mother has come to
be preferred to others.”

17. In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha
Dolikuka, (1982) 2 SCC 544, this Court held as under:
“17. The principles of law in relation to the custody of a minor
appear to be well established. It is well settled that any matter
concerning a minor, has to be considered and decided only
from the point of view of the welfare and interest of the minor.
In dealing with a matter concerning a minor, the Court has a
special responsibility and it is the duty of the Court to consider

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the welfare of the minor and to protect the minor’s interest. In
considering the question of custody of a minor, the Court has to
be guided by the only consideration of the welfare of the
minor.”

20. In Roxann Sharma versus Arun Sharma 2015 (8) SCC 318

the Hon’ble Supreme Court has observed as under:-

” The HMG Act postulates that the custody of an infant or
a tender aged child should be given to his/her mother unless the
father discloses cogent reasons that are indicative of and
presage the likelihood of the welfare and interest of the child
being undermined or jeopardised if the custody retained by the
mother. Section 6(a) of HMG Act, therefore, preserves the right
of the father to be the guardian of the property of the minor
child but not the guardian of his person whilst the child is less
than five years old. It carves out the exception of interim
custody, in contradistinction of guardianship, and then
specifies that custody should be given to the mother so long as
the child is below five years in age. We must immediately
clarify that this Section or for that matter any other provision
including those contained in the GW Act, does not disqualify
the mother to custody of the child even after the latter’s
crossing the age of five years.”

It was further observed that suitability of the father for custody

is not relevant where the child in dispute is below five years as the mother

is per se best suited to care for the infant. It is for the father to plead and

prove unsuitability of the mother. Firm and strong doubt has to be cast on

the mother’s suitability.

21. In the present case, there is no dispute regarding the marriage

between the petitioner and respondent No. 1. The question of adoption of

the first child of respondent No. 1 by the petitioner and the circumstances in

which the adoption deed was cancelled is a matter of serious debate between

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the parties. Respondent – wife has taken a specific stand that the civil suit

for declaring the adoption deed a nullity was decreed on the admissions

made by her and her father as they wanted to save her second marriage out

of which the twin children had also been born. It is relevant to note at this

stage that the petition under the Domestic Violence Act is still pending trial.

Final adjudication has to be rendered by the learned trial Court after proper

and complete evaluation of the evidence that may be led by either of the

parties. To arrive at a definite conclusion that the respondent – wife does not

have the interest of the minor children at heart on the basis of the so-called

conversations between her and her parents/brother is not justified. At this

stage, it is not considered appropriate to express any opinion on the alleged

conversations of the respondent – wife with her parents/brother or the

adoption or otherwise of the child from the first marriage of the respondent

– wife as the same are subject to proof on the basis of evidence to be led by

the respective parties. The manner, context, tone and tenor of the

conversations would necessarily be examined by the learned trial Court on a

wholesome appreciation of the entire evidence. Similarly, the argument that

the children have been with the petitioner ever since the respondent – wife

left the matrimonial home and as many as three maids have been employed

to look after them is not a relevant consideration to afford interim custody to

the petitioner. Interim custody of the children has admittedly been with the

petitioner under orders of the Court. No benefit thereof can accrue to the

petitioner. The children are of a very tender age and indeed require love and

affection of the mother. It is, however, made clear that in case any incidence

of neglect or proper care and affection not being afforded to the minor

children comes to fore, the petitioner shall be at liberty to move necessary

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application. Therefore, direction of the learned Additional Sessions Judge,

Faridabad in respect to the custody of the children is upheld. Petitioner is,

however, afforded visitation rights i.e. once a week on every Friday before

the Mediation and Conciliation Centre, Faridabad between 3.00 p.m. to

5.00 p.m. Liberty is afforded to the parties for any mutual variation in the

time and day for the weekly visitation.

22. Respondent – wife shall be entitled to a sum of `55,000/- per

month as interim maintenance assessed by the learned Additional Sessions

Judge, Faridabad. Income tax returns of the petitioner for the year 2016-

2017 reflecting his income to be `27,88,436/- is not in dispute. However,

direction by the learned Additional Sessions Judge, Faridabad in respect to

restoration of possession of the same ‘matrimonial home/shared household’

is not justified in the factual matrix of the case. It has been stated during the

course of the proceedings that respondent No. 1 has retained the rented

premises i.e. House No. 866, First Floor, Sector 15A, Faridabad.

Respondent No. 1 shall be entitled to right of residence at the said premises.

The petitioner shall continue to regularly pay the rent of the said premises

without any default. However, the petitioner shall not access the said

premises without specific permission from the learned trial Court.

23. With following directions and modifications in order dated

23.02.2017 passed by the learned Additional Sessions Judge, Faridabad, this

petition is disposed of:-

i) Custody of the minor twins namely Yuvraj Sehraj shall be

handed over immediately by the petitioner to respondent

No. 1.

ii) The petitioner shall be entitled to visitation rights once a

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week on every Friday before the Mediation and Conciliation

Centre, Faridabad between 3.00 p.m. to 5.00 p.m.

iii)The petitioner shall deposit a sum of `55,000/- as interim

maintenance to respondent No. 1 during pendency of the

petition.

iv) Respondent No. 1 shall be entitled to reside at the rented

premises i.e. House No. 866, First Floor, Sector 15- A,

Faridabad. In case, the said premises have been vacated by

the petitioner, similar premises shall be taken on rent and

provided for residence to respondent No. 1 within four

weeks.

v) In view of the facts and circumstances of the case, learned

trial Court is directed to conclude the proceedings within

three months from the date of receipt of certified copy of this

order.

24. With the said modification in order dated 23.02.2017 passed by

the learned Additional Sessions Judge, Faridabad, this petition is disposed

of.

(Lisa Gill)
August 02, 2018 Judge
rts
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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