Final Order 5

Order Details: COPY OF ORDER
Pdf Text: CA No. 83/2023
Sanno Begum Vs. The State
04.12.2023
Present: Sh. Priyanshu Jaiswal proxy counsel for Sh.
Trilok Chand Ld. Counsel for appellant.
Sh. Sobit, Ld. Additional PP for the State/
respondent no.1.
Ms. Anita Dhingra and Ms. Muskan Malhotra
Ld. Counsel for respondents no. 2 and 3.
On the earlier occasion, I have heard
arguments on appeal u/sec.29 DV Act against
order dated 15.05.2023 of the trial Court.
1 The brief facts of the case as per the
record/trial court record are that there was one
person namely Sh. Jameel Khan @ Sikander.
He married twice. Firstly, he married Smt.
Sanno Begum (R2 in petition of trial court).
From this wedlock, there were children
including a son namely Mujamill (R3 in petition
of trial court). This Jameel Khan again married
to Smt. Parveen (petitioner no.1 in trial court).
From this second wedlock, Master Shabir
Hussain (son, petitioner no. 2 in the trial court)
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was born.
2 Jameel Khan @ Sikander expired on
11.02.2013.
3 The application u/sec.12 of PWDVA 2005 was
filed by Smt. Parveen and her son against
Bundu Khan (the father of her husband, R1 in
trial court), Smt. Sanno Begum and Mujamill on
the ground that after the demise of Sh. Jameel
Khan @ Sikander they had inherited the Estate
of Jameel Khan @ Sikander. The petitioners
have sought the maintenance and residence
orders.
4 The petition was contested by the respondents
no. 2 and 3 by filing reply. It was denied that
any property was left by Jameel Khan @
Sikander.
5 Replication to the reply of respondents no. 2
and 3 was filed by the petitioners.
6 On 29.11.2021, the trial court had passed an
interim order directing the respondent no.2 to
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pay Rs.4,000/ as monthly maintenance to the
complainant.
7 This order was challenged by the respondents
Smt. Sanno and Sh. Mujamill by way of an
appeal. Vide judgment dated 25.02.2022, the
said appeal was dismissed.
8 Thereafter, on 28.02.2023 the matter was fixed
for hearing arguments on the maintainability of
the petition. However, vide order dated
15.05.2023, the court held that the
maintainability of the petition was already
decided vide order date 08.09.2021. However,
in the later part of the order, court had held “the
complainant is entitled to claim maintenance
from the respondent no.2 and 3 and this issue
has already been decided by Ld. Predecessor
of this court”.
9 The present appeal has been filed against this
part of order dated 15.05.2023.
10 In this appeal, it is stated that nowhere in the
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record, there is any order of paying
maintenance for respondent no.3 to pay to the
petitioners. It is further stated/argued that,
even on the date of filing of the petition u/sec.12
PWDVA 2005, petitioner no. 2 was major i.e.
more than 18 years of age, so no maintenance
should have been passed for petitioner no.2
(Master Shabir Hussain).
11 Reply to this appeal was filed in which the non
appellants/respondents have denied the facts
mentioned in the appeal.
12 Written arguments were filed.
13 Final arguments were heard.
14 I have gone through the appeal, its reply and
submissions forwarded by Ld. Counsels for
parties and written arguments submitted by
party/s.
15 As far as order dated 29.11.2021 is concerned,
the same is upheld by the appellate court. So,
there is no confusion that there is a direction of
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Rs.4,000/ per month to the complainant.
16 The confusion arose in order dated 15.05.2023,
in which the court observed the maintenance is
to be paid by respondents no. 2 and 3.
17 It is submitted by Ld. Counsel for appellant that
there is no provision in which one wife is to pay
maintenance to the other wife. It is further
stated that there is no evidence on record which
suggests that the deceased husband had left
any Estate which is being enjoyed by Smt.
Sanno (first wife) and the petitioner no.1
(second wife) is to be maintained from that
income/Estate.
18 As far as this argument is concerned, the same
was also heard by court who decided the
appeal vide judgment dated 25.02.2022 so the
same cannot be reagitated in this appeal.
19 Here, in this appeal, order dated 15.05.2023 is
only assailed. On 25.09.2023, Ld. Counsel for
Smt. Parveen and Master Shabir Hussain gave
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a statement in which she had admitted that
Master Shabir Hussain was more than 18 years
of age on the date of filing of complaint u/sec.12
DV Act. She further stated that order dated
29.11.2021 is only against Smt. Sanno and she
shall not press the execution petition (for
enforcing order dated 29.11.2021) against Sh.
Mujamill.
20 So, in these circumstances, it appears that
order dated 25.05.2023 is passed with wrong
facts stating that respondents no. 2 and 3 i.e.
Smt. Sanno and Sh. Mujamill has to pay
maintenance. It can be safely held that the
order was only against respondent no.2 Smt.
Sanno.
21 So, in these circumstances, the appeal is
disposed off holding that in order dated
15.05.2023, it is to be read that the
maintenance is to be paid only by Smt. Sanno.
22 It was argued by Ld. Counsel for appellant that
Master Shabir Hussain is not entitled for any
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maintenance and the order to that effect be
passed and consequently the quantum of
maintenance be altered. As far as this relief is
concerned, the same is not sought in this
appeal and thus beyond the purview of this
appeal. Moreover, the appellant have remedies
in terms of PWDVA 2005, so appellants are at
liberty to avail the same.
23 In these circumstances, the appeal is disposed
off.
24 TCR be sent back with copy of the order.
25 File of appeal be consigned to Record Room.
(Rakesh Pandit)
ASJ07/SHD/KKD Courts/Delhi
04.12.2023
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