Shabana Ali & Anr vs Farman Ali @ Shahil
2016 Latest Caselaw 3090 Del

$~11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of Decision: 29thApril, 2016


+      MAT.APP.(F.C.) 90/2015 & CM No. 9542/2016
       SHABANA ALI & ANR                     ..... Appellant
                       Through : Md. Azam Ansari, Advocate.

                          versus

       FARMAN ALI @ SHAHIL                 ..... Respondent
                    Through :         Mr.Sartaj Ali, Advocate.
                                      Respondent in person.

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE I.S.MEHTA

GITA MITTAL, J. (ORAL)

1. We have heard learned counsel for the parties.

2. The appellant has assailed the order dated 16th December, 2014, passed by the Family Court in M.L. No. 07/2014. The primary ground of grievance is that the Family Court is not complying with the order/directions made by this court in a previous appeal.

3. The Division Bench of this Court on 21st July, 2015, while deciding the MAT APP. (F.C.) 90/2015 considered it necessary to note the factual matrix of the case in detail. We refrain from repetition. Suffice to say that the respondent herein has filed a petition seeking restitution of conjugal

rights on a plea that he was married to the appellant No. 1. By way of his second prayer, the respondent has sought a declaration that the marriage of the appellant No. 1 with the appellant No. 2 be declared null and void for the reason that the appellant No. 1 had a valid and subsisting marriage with him/respondent. The petition of the respondent filed under Section 7 of the Family Courts Act, 1984 read with Muslim Personal Law seeking restitution of the conjugal rights against the appellant No. 1 was registered as M.L. No. 07/2014.

4. This claim and prayer was vehemently contested by the appellant No. 1 before the Family Court. The appellant No. 1 categorically stated that though the parties had a live-in-relationship for some time, she was never married to the respondent. The appellant No. 1 had also filed an application under Section 151 CPC seeking dismissal of the petition filed by the respondent for restitution of conjugal rights before the learned Family Court. This application was not being considered by the court compelling the appellants to file MAT. APP. (F.C.) 90/2015. In this appeal, the appellants herein had also challenged the very issuance of the notice on the respondent's petition. This appeal was considered by the Division Bench of this court and disposed of on 21st July, 2015 inter alia directing as follows:

"In the above circumstances, we are of the view that interest of justice would be best met if the learned Family Court first decide the application moved by the appellant No. 1 seeking dismissal/rejection of the petition preferred by the respondent instead of insisting

upon the appellant No. 1 to file written statement. Sufficient material has been placed by the appellant No. 2 to show that he lawfully married appellant No. 1 on 23rd October, 2014 and in the light of this material placed on record, we find that the pleas raised by the appellant No. 1 on the application filed, deserves consideration.

We, accordingly, direct the learned Family Court to decide the said application filed by the appellant No. 1 after completing the pleadings in the same. The appeal is disposed of in the above terms."

(Underlining by us)

The Court had thus given a clear direction to the Family Court to decide the application of the appellant.

5. We are informed that the respondent had separately made a complaint under the provisions of the Indian Penal Code against the appellants and had filed proceedings under Section 156 (3) of the Cr.P.C. seeking registration of FIR against them. Learned counsel for the respondent submits that FIR No. 1470 dated 20th October, 2015 has been registered at P.S. Binda Pur under Sections 380/494 IPC on the said complaint which is pending investigation. No chargesheet has been filed till date.

6. There is no dispute that a copy of the order of this court has been duly served upon the trial court. Apart from the copy of the impugned order dated

5th March, 2016, the appellant had also placed before us, copies of order dated 20th January, 2016 as well as order dated 27th February, 2016. The above noted application for dismissal/rejection of M.L. No. 07/2014 has been listed on several dates before the Family Court after passing of the order dated 21st July, 2015 by this court.

7. We find that instead of deciding the application of the appellant for dismissal of M.L. No. 07/2014 on the pleadings as directed, by the impugned order, the trial court has called a status report from SHO PS Bindapur regarding the investigations made in the FIR No. 1470/2015, observing that the same would assist the court to decide the application dated 23rd May, 2015 filed by the appellants. To say the least, this is most unfortunate. Investigations are nowhere in the nature of evidence. The Family Court has thus failed to comply with the specific directions made by this court on 21st July, 2015

8. Learned counsel for the respondent is also of the view that the application dated 23rd March, 2015 filed by the appellant No. 1 deserves to be considered on its own merits and ought to have been decided by the Family Court uninfluenced by the pendency of the criminal investigation.

9. We may note that on 28th April, 2016 the respondent had stated before us that he was married to the appellant No.1 at the Nizamuddin Dargah and that she had taken away the 'nikahnama'. Therefore, he has not produced it anywhere.

On the other hand, the appellant No.1 had stated that she had never gone to the Nizamuddin Dargah and no nikah was ever performed with the respondent.

Admittedly, no 'nikahnama' or copy thereof has been produced by the respondent before any court or authority. It is not as if the respondent could not have produced copies if it existed. The legal consequences, therefore, would follow.

10. In view of above, we direct as follows:

(i) The order dated 5th March, 2016 passed in ML No. 07/2014 is hereby set aside and quashed.

(ii) A direction is issued to the Family Court to hear the application of the appellant for dismissal/rejection of ML No.07/2014 in terms of the directions made by this court (on 21st July, 2015) on the next date of hearing, which we are informed is 28th May, 2016 and to decide the same in accordance with law on the basis of material before it.

11. This appeal and the application are disposed of in the above terms.

Dasti to parties.

GITA MITTAL (JUDGE)

I.S.MEHTA (JUDGE) APRIL 29, 2016/j