Smt. Rekha Sabharwal & Anr vs Sh. Jitender Sabharwal & Anr
2010 Latest Caselaw 1787 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl. M.C. No. 4264/2009

%                   Date of Decision: 06th April,2010


#     Smt. Rekha Sabharwal & Anr.
                                                            .....PETITIONERS

!                   Through:   Ms. Sapna Sinha, Advocate.

                                    VERSUS

$     Sh. Jitender Sabharwal & Anr.
                                                        .....RESPONDENTS

^                   Through:   Mr. Subodh K. Pathak, Advocate.


CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? NO

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported in the Digest? NO

S.N.AGGARWAL, J (ORAL) There are two petitioners in this case and they are related as

mother and daughter. Petitioner No. 1 was married with respondent No. 1

according to Hindu rites and ceremonies on 16.05.1998. From their

wedlock, a female child Mansi Sabharwal was born on 24.06.1999. On

account of matrimonial temperamental incompatibilities between the

couple, they started living separate from each other since October, 2003.

2. While petitioner No. 1 was living separate from the family of her

husband, Domestic Violence Act, 2005 was enacted and this Act came

into force w.e.f. 26.10.2006. The Domestic Violence Act, 2005 conferred

certain rights on females and in exercise of those rights, the petitioners

filed a complaint on 30.10.2007 and claimed various reliefs including

relief for maintenance, right of residence etc. against the respondents

available to them under the provisions of Domestic Violence Act, 2005.

This complaint filed by the petitioners before the Mahila Court (East),

Karkardooma Court, Delhi was registered as case No. 69/2007 and was

allowed by the Mahila Court (East) vide order dated 23.07.2009. The

order of the trial court dated 23.07.2009 is at pages 49-57 of the paper

book.

3. Aggrieved by the order of the trial court dated 23.07.2009, the

respondents filed an appeal as provided in Section 29 of the Domestic

Violence Act, 2005 which was registered as CA No.33/2009 and has been

allowed by the court of Mr. Atul Kumar Garg, ASJ, Delhi vide order dated

25.09.2009. The order of the appellate court is Annexure P-1 at page 18

to 24 of the paper book.

4. The complaint under Domestic Violence Act, 2005 filed by the

petitioners has been dismissed by the appellate court vide its order dated

25.09.2009 as not maintainable on the ground that the cruelty alleged by

petitioner No. 1 was for the period prior to enactment of Domestic

Violence Act, 2005 which came into force w.e.f. 26.10.2006. The

respondents are real brothers. Respondent No. 1 is the husband of

petitioner No. 1 and father of petitioner No. 2. It is not disputed on behalf

of the respondents that the marriage between petitioner No. 1 and

respondent No. 1 still subsists and has not been dissolved. It has been

recently held by the Hon'ble Supreme Court that an estranged wife is

entitled to maintain her complaint under Domestic Violence Act, 2005 in

respect of cruelties pertaining to the period prior to coming into force of

Domestic Violence Act, 2005. This legal proposition is not disputed by Mr.

Subodh K. Pathak learned counsel appearing on behalf of the

respondents. Since the marriage between petitioner No. 1 and

respondent No. 1 still subsists, the petitioners are entitled to rights

available to them under the provisions of Domestic Violence Act, 2005

even in relation to acts of omission and commission on the part of the

respondents pertaining to the period prior to coming into force of the said

Act. The impugned order dated 25.09.2009 passed by the Sessions Court

is therefore not maintainable and is hereby set aside. This petition is

allowed.

5. With the consent of counsel for both the parties, the case is

remanded back to the concerned trial court for proceeding with the

complaint of the petitioners in accordance with law. The parties are

directed to appear before the concerned trial court for directions at 02:00

PM on 22.04.2010. The concerned trial court is directed to decide the

complaint of the petitioners as expeditiously as possible preferably within

six months to be reckoned from 22.04.2010.

A copy of this order be sent to the concerned trial court for

information.

This petition stands disposed of in terms referred above.

APRIL 06, 2010                                 S.N.AGGARWAL, J
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