High Court of Delhi was dealing with the petition filed under Sections 397/401 read with Section 482 of Cr.P.C. seeking revision against impugned order and judgment dated 9th June 2017 filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”) passed by learned Additional Sessions Judge/Special Judge, New Delhi.
Brief Facts:
In this case the disputes are arising out of matrimonial relations between the parties. The marriage between the parties was solemnized on 6th May 2011 according to Hindu rites and ceremonies. Due to the temperamental differences, Petitioner and Respondent decided to live separately and despite attempts of reconciliation, the relationship ultimately broke down. Then, four FIRs got registered by the Respondent-wife against the Petitioner-husband and his mother. The complaint case under Section 12 of DV Act has also been filed by the Respondent against the Petitioner and mother-in-law in the Court of Metropolitan Magistrate-02, New Delhi. Learned Metropolitan Magistrate decided the said compliant ex parte vide judgment and order dated 20th August 2016. Learned Metropolitan Magistrate award a sum of Rs.20,000/- per month to the wife as well as Rs 25,000/- towards her minor child by the husband as monetary relief. The appeal under Section 29 of DV Act was filed by the wife before the Court of Additional Sessions Judge, New Delhi against the ex-parte judgment passed by learned Metropolitan Magistrate for modification and enhancement of the maintenance as awarded. The Appellate Court confirmed the order passed by the learned Metropolitan Magistrate. The instant criminal revision petition is preferred against the order passed by the Appellate Court.
Petitioner’s Contention:
Learned counsel for the petitioner submitted that the ex-parte judgment passed by the learned Trial Court was without application of judicial mind and the judgment of Appellate Court upholding the ex-parte award passed by the learned Trial Court was erroneous, improper and illegal. She submitted that the summons before the learned Trial Court were not served to the Petitioner in accordance with law and as such the Petitioner was not given a proper and reasonable opportunity to be heard.
She submitted that despite the directions of the learned Metropolitan Magistrate, there is no proof or record to show that service was affected through Registered Courier. It was submitted the Appellate Court did not consider that the twin conditions mandated under Order V Rule 17 CPC were not satisfied while serving of summons before the learned Trial Court. She submitted that the Process Server, acting in prudence and caution, should have made at least three attempts to find the Petitioner and serve the summons to him in person.
She also submitted that the proceedings under DV Act are not similar in nature to those for maintenance under Section 125 Cr.P.C or the Hindu Adoption and Maintenance Act, 1956. The proceedings under DV Act require a finding that the husband is guilty of domestic violence and only then the Magistrate could proceed to adjudge upon the reliefs sought by the wife.
Respondent’s Contention:
Learned Counsel for the respondent submitted that the conduct of the Petitioner throughout the proceedings of the case before the learned Trial Court and the Appellate Court has been in gross abuse of the rights granted to him under law. It was submitted that the Petitioner had only appeared before the learned Trial Court at the time when the matter was listed for orders and not before that.
He submitted that the Petitioner, acting most perjuriously, presented a forged judicial document, that is, the decree of divorce from his first marriage, on pretext of which he married the Respondent, and by the same his fraudulent intentions and motive of extorting money out of the Respondent was apparent. He further submitted that since, an application or appeal was never filed against the judgment at any stage, the Petitioner has not evoked the jurisdiction of this Court in due and proper manner and in accordance of law.
HC’s Observations:
After hearing both the sides HC observed that “It is pertinent to restate that as a Court exercising Revisional Jurisdiction under Sections 397/401 of Cr.P.C, this Court will restrict itself to the question of correctness, legality and propriety of the judgment passed by the Appellate Court. This is not a stage where this Court will appreciate evidence or go beyond the judgment and findings of the Appellate Court.”
The Court observed that the learned Trial Court had at various occasions noted the absence of the Petitioner before the Court and gave enough opportunities to the Petitioner to appear before the Court and make his representation. However, the Petitioner failed to appear and this indisposition indicated that he had been attempting to flee from justice.
The Court relied upon the case of Rameshwar Prasad vs. Shambehari Lal Jagannath where the SC held that “Rule 33 really provides as to what the appellate court can find the appellant entitled to. It empowers the appellate court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only to the nature of the decree or order in so far as it affects the rights of the appellant. The Court is thus given wide discretion to pass such decrees and orders as the interests of justice demand. Such a power is to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the various parties.”
The Court observed that “the power given to Appellate Courts under Order 41 Rule 33 is discretionary and exceptional. It cannot be said that if an Appellate Court refuses to exercise its powers under Order 41 Rule 33, it is in gross illegality or violation. In the present case also, the Appellate Court, had the option to exercise power under Order 41 Rule 33 but irrefutably, it was just an option and not an obligation.”
The Court further stated that “the CPC is, undoubtedly, a lengthy, elaborate, complex and extensive Code for procedure but it should not be the case that the parties after years of matter being pending keep on approaching the Court citing one provision or the other for the sole reason of exhausting their options which they had previously waived or chosen not to exercise.”
HC Held:
After evaluating various case laws and submissions by both the parties the Court held that “the Petitioner had ample opportunity to exercise the rights conferred to him in due timely and orderly manner by approaching the Court as and when he was aggrieved of the order of the learned Magistrate, but instead he chose to not take an action relying on the protection that he could have under the said Order 41 Rule 33. On the issue of service of summons upon the Petitioner under the DV Act, it was found that since the Petitioner has not challenged the ex-parte order passed by the learned Metropolitan Magistrate at any stage, it attained finality. Now, at this stage, he cannot take the ground of improper service of summons upon him in the Revisional Jurisdiction after lapse of five years.”
The HC dismissed the petition.
Bench: Hon’ble Mr. Justice Chandra Dhari Singh
Case Title: Monish Das v. Rubina Rathore
Case Details: CRL.M.A. 12937/2021 & CRL.M.A. 16918/2021
Read Judgment ;
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