Delhi District Court
Dheeraj Gupta vs Megha Chhabra on 13 May, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-000405-2024
CRIMINAL APPEAL No.: 15/2024
DHEERAJ GUPTA,
S/o. Shri. Vijay Gupta,
R/o. 177, Ground Floor,
Gyaan Khand-3, Indirapuram,
Ghaziabad, UP-201014. ... APPELLANT
VERSUS
MEGHA CHHABRA,
W/o. Dheeraj Gupta, D/o. Anil Chhabra,
R/o. 56/3, Second Floor,
Old Rajinder Nagar, Delhi-110060,
Also at; 31, River City Apartment no. 1110,
Jersey City, NJ-07310. ... RESPONDENT
Date of filing : 09.01.2024
Date of institution : 11.01.2024
Date when judgment was reserved : 13.02.2025
Date when judgment is pronounced : 13.05.2025
JUDGMENT
1. The present appeal has been preferred under Section
29 of the Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as the ‘DV Act‘) against the common order
dated 02.12.2023 (hereinafter referred to as the ‘impugned order’),
passed by the learned Metropolitan Magistrate (Mahila
Court)-01/Ld. MM (Mahila Court)-01, Central, Tis Hazari Court
(hereafter referred to as the ‘Ld. Trial Court/Ld. MM’), in case
titled as; ‘Megha Chhabra v. Dheeraj Gupta, Case Regn. No.
1420/2022’, PS. Rajinder Nagar, determining the application
moved by the respondent, seeking directions against/to the
appellant to sign the documents for renewal of passport of the
minor son of the respondent and the appellant as well as
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.05.13
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application moved by/on behalf of the appellant under Order VII
Rule 10 read with Section 151 of the Code of Civil Procedure,
1908 (hereinafter referred to as the ‘CPC‘). Pertinently, by virtue
of the said order/impugned order, Ld. Trial Court, while
dismissing the application of the appellant under Order VII Rule
10 read with Section 151 CPC, allowed the application of the
respondent and directed the appellant to sign the documents
pertaining to the renewal of passport of the minor child.
2. Succinctly, the facts leading to the filing of the instant
appeals are that the respondent initiated a proceeding under DV
Act, by filing an application/petition under Section 12 of DV Act
before the Ld. Trial Court. Markedly, in her said application, the
respondent inter alia asserted that in the month of August 2012, she
joined Colt Technology Services Group Ltd., where she met with
the appellant, who was working there since December 2011. As
per the respondent, since both she and the appellant were working
in the same team, their bond developed and of eight months of
courtship, marriage proposal between the two ensued.
Consequently, on 22.07.2013 roka ceremony of the respondent and
the appellant was performed. However, as per the respondent, soon
thereafter, the appellant and his family member started subjecting
her as well as her family members for demands in form of money,
furniture, jewellery, etc. Soon thereafter, as per the respondent, the
appellant and his family members continued to subject the
respondent as well as her family members for demand of dowry,
which the respondent and her family members were constrained to
meet. It was further asserted that all the articles/ stridhan articles
given to the respondent at the time of her engagement were taken
by the appellant’s family members under the pretext that the same
would be returned later on. Correspondingly, it was proclaimed
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ABHISHEK GOYAL
GOYAL Date: 2025.05.13
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under the said complaint by the respondent that her father/family
spent a sum of around Rs. 5,00,000/- (Rupees Five Lakhs only) in
cash, in her engagement ceremony and another sum of Rs.
15,00,000/- (Rupees Fifteen Lakhs only) in the respondent’s and
appellant’s marriage, which was solemnised on 13.11.2013 at
Vatika Banquet, Kirti Nagar, New Delhi, as per Hindu rites,
ceremonies and customs. As per the respondent, soon after
marriage, she was subjected to harassment, ridicule and
taunts/threats at the behest of/in the hands of the appellant and his
family members. As per the respondent, after some days of
marriage, respondent’s in-laws/relatives of the appellant started
harassing her, besides instigated the appellant, leading to the
appellant taking out all his vengeance on the respondent by
subjecting her to physical and verbal abuse. Correspondingly, the
respondent proclaimed that when the appellant decided to shift to
Gurugram on the pretext that it was getting difficult for him to
commute to his work, the appellant’s relatives hurled abuses on the
respondent, accusing her of brainwashing the appellant. The
complaint further records that the respondent was subjected to
persistent demands for money by the appellant as well as his
family members, besides her stridhan articles were taken over by
the family members of the appellant. Concomitantly, as per the
respondent, the appellant even subjected her as well as her family
members to purchase a house for him as well as to pay majority of
EMI against such purchase. It is further the case of the respondent
that the appellant used to harass the respondent for his fertility
issues, besides subjected her to extreme cruelty by breaking
household articles and in the month of July 2016, even tried to
strangulate respondent’s neck so as to compel her to fulfil
unreasonable monetary demands of the appellant. The complaint
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ABHISHEK GOYAL
GOYAL Date: 2025.05.13
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further chronicles that even during the respondent’s pregnancy, she
was imperilled with emotional, verbal and physical abuse in the
hands of the appellant. Subsequently, in the month of June 2017,
the appellant as well as the respondent are asserted to have shifted
to USA for the job of the respondent, however, the appellant is
proclaimed to have not deterred in his behavior. As per the
complainant, their minor child was born on 15.03.2018, however,
the appellant is asserted to have not mended his ways, rather, is
avowed to have continued to subject the respondent as well as her
mother, who was taking care of the minor child, to verbal abuses.
The respondent further proclaimed that on 01.12.2019, the
respondent, appellant and their minor child landed in India,
however, immediately on such landing, she/respondent was
subjected to harassment/abuse in the hand of the appellant at the
airport. Consequently, the respondent is avowed to have stayed at
her parental house as the appellant cut all his contacts with her and
even refused to permit to enter his house. Subsequently,
constrained by the conduct of the appellant, the respondent is
stated to have filed a complaint at CAW Cell in March 2021,
leading to the registration of FIR at PS Kamla Market.
Correspondingly, as aforenoted, under such facts and
circumstances, the respondent moved the instant/said application
under Section 12 DV Act for seeking reliefs, inter alia envisaged
under Sections 18, 19, 20, 21 and 22 of DV Act. Correspondingly,
the wife also moved an application under Section 23 of DV Act,
seeking interim reliefs.
2.1. Notably, upon such complaint being filed, Ld. Trial
Court vide order dated 01.09.2022, called for Domestic Incident
Report (hereinafter referred to as ‘DIR’) to be filed through
concerned protection officer, besides issued notice to the appellant.
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Subsequently, on receipt of DIR and on the appellant’s entering
appearance as well as filing his reply on the petition/pending
applications, matter was listed for consideration on 07.11.2022.
Subsequently, the respondent moved an application under Section
23 DV Act seeking directions against the appellant to executed
passport documents of minor child, while the appellant moved an
application under Section 21 of DV Act for visitation and
periodical custody rights of minor child. Thereafter, another
application for seeking directions against the appellant for
executing passport documents of minor child was moved by the
respondent, while the appellant moved an application under Order
VII Rule 10 read with Section 151 CPC, challenging the
jurisdiction of the Ld. Trial Court. Consequently, during the course
of proceedings before Ld. Trial Court, the appellant and the
respondent filed their respective replies/arguments on the said
application and upon completion of such pleadings, arguments
were addressed by/on behalf of the appellant and the respondent
before the Ld. Trial Court on the pending applications. As
aforenoted, upon conclusion of the said arguments, the Ld. Trial
Court, vide impugned order/order dated 02.12.2023, while
dismissing the application of the appellant under Order VII Rule
10 read with Section 151 CPC, allowed the said application of the
respondent and directed the appellant to sign the documents
pertaining to the renewal of the minor child. Apposite in this
regard to reproduce the relevant extracts from the impugned
order/order dated 02.12.2023 of the Ld. Trial Court, as under;
“…Record perused.
After perusal of the record, this court is of the
view that the object and aim of the Act is to provide
more effective protection of the rights of women
guaranteed under the Constitution who are victims of
violence of any kind occurring within the family and
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.05.13
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+0530
for matter connected therewith or incidental thereto. A
plain reading of Section 27 of PWDV Act makes it
clear that the petition under the D.V. Act can be filed
in a court where a person aggrieved permanently or
temporarily resides or carries on business or is
employed.
In the present case, it is alleged by the Ld. Counsel
for complainant that after separation from respondent
no. 1, complainant came back to her parental home
and accordingly, she is permanent resident of 56/3,
2nd floor, Old Rajinder Nagar, Delhi, as shown in her
Aadhar Card, and temporarily she resides in USA for
job purpose along with her minor son, and when the
present complaint was filed, then also, she was
permanent resident of 56/3, 2nd floor, Old Rajinder
Nagar, Delhi. As the Ld. Counsel for complainant has
prima facie shown the jurisdiction of this court, this
court deems it fit to try the present matter.
The judgments relied upon by the Ld. Counsel for
respondent no. 1 are found not relevant in the present
case as the same are distinguished based on facts and
circumstances of the present case and they are dealing
with temporary jurisdiction of the complainant.
Accordingly, the application under Order 7 Rule 10
r/w 151 CPC moved on behalf of respondent no. 1
stands dismissed and disposed of accordingly.
Further, with regard to the application of the Ld.
Counsel for complainant for seeking direction to
respondent no.1 to sign documents for renewal of
passport of minor son of complainant namely Varenya
Gupta, this court is of the considered opinion that as
the presence of the complainant is required to proceed
in the present case and the complainant cannot travel
without her minor child, hence, in the interest of
justice, the application of the complainant seeking
direction to respondent no.1 to provide the signed
document for renewal of passport of minor son, stands
allowed as the same is quintessential for the just
decision of the present case. Accordingly, respondent
no.1 is directed to sign the documents pertaining to the
renewal of the passport of the minor child. Further,
complainant is directed to appear before the court
along with the minor child on the next date of hearing.
Now, be put up on 05.03.2024 for further
proceedings…”
(Emphasis supplied)
2.2. Noticeably, as per the appellant the facts stated in the
instant applications are false and concocted. On the contrary, the
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GOYAL
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appellant outrightly asserted that the respondent herself left the
company of the appellant and despite repeated endeavors on the
part of the appellant, respondent has refused to resume
cohabitation. As per the appellant, the nuptial bond between the
parties was tried with the consent of families of both, the appellant
as well as the respondent, besides the wedding ceremony and other
functions were undertaken at the wishes of the
respondent/respondent’s family. It was further proclaimed by the
appellant that he entered into the matrimonial bliss to attain love,
affection and support along with lifelong of companionship with
the respondent, besides the appellants’ family welcomed the
respondent into their home with love, care and affection. However,
it is asserted that immediately after the marriage, the respondent
revealed her actual inclination as well as started pressurizing,
harassing and emotionally blackmailing the appellant to leave his
parental house. The appellant further avowed that even the
respondent’s nature was indecent, quarrelsome, indecorous and
rude since the inception of their marriage. Correspondingly, as per
the appellant in April 2014, the respondent succeeded in her
ulterior motive to get, the appellant separated from his old-aged
parents. Consequently, the appellant started living separately from
his old-aged parents in Gurgaon, under the compulsion of
respondent and to salvage his married life. At that point in time, as
per the appellant, the respondent took all her sridhan articles with
her, while she moved to Gurugram in April 2014 along with the
entire furniture of the petitioner room and other household things,
etc. However, due to complete disregard shown by the respondent
as well as owing to such separation, the appellant’s mother is
asserted to have started facing severe health issues. In fact, it is the
appellant’s case that he was not even allowed/permitted by the
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GOYAL Date: 2025.05.13
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respondent to meet his aged parents. On the contrary, the
respondent, in order to coerce as well as falsely implicate him in a
case, used to scream at the gate that she was being subjected to
harassment/abuse in the hands of the appellant. Synchronously, as
per the appellant, the respondent used to act aggressively over an
argument with the appellant over petty issues and on several
occasions, is proclaimed to have slapped the appellant. The
appellant also avowed that the respondent even induced him to sift
and settle abroad in countries like Canada, USA, etc., and in the
month of June 2017, the respondent managed to get internal job
transfer from American Express India to American Express New
York, USA. Subsequently, as per the appellant, the respondent
forced the appellant to quit his job and to shift to USA. The
appellant further declared that upon the birth of their child on
15.03.2018, the respondent taunted the appellant that he was an
impotent and even kicked the appellant out of their house in USA
on 21.03.2018. As per the respondent, on 01.12.2019, when they
visited India, to attend marriage of respondent’s cousin, the
respondent started abusing and misbehaving with the appellant’s
parents and did not even allow them to meet their grandson. The
appellant further asserted that while the respondent kept assuring
him of return, however, clandestinely and unlawfully took their
child to USA on 28.12.2019, without informing about the same to
appellant. Correspondingly, as per the appellant, respondent left
the appellant in a pre-planned manner and registered a false and
fabricated case against him/the appellant and his family members,
with an intention to harass them as well as malign their reputation
and standing in the society.
3. Learned Counsel for the appellant submitted that
impugned order was passed by the Ld. Trial Court on surmises and
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conjectures, oblivious of the correct facts and the circumstances of
the present case as well as, unmindful of the settled law governing
the field of grant of interim maintenance. Further, as per the Ld.
Counsel, impugned order is arbitrary, illegal and perverse, having
been passed by the Ld. Trial Court in a cursory manner,
overlooking the material placed on record. Ld. Counsel further
submitted that the impugned order suffers from manifest error of
law, which is apparent on face of record, which has resulted in
severe miscarriage of justice, hence, is unsustainable and liable to
be set aside. It was further asserted that the impugned order is
patently based on extraneous consideration and as such, is totally
premised on concocted stories set up by the respondent, without
demonstrating any proof thereof. In this regard, Ld. Counsel
vehemently asserted that the Ld. Trial Court failed to appreciate
the respondent, illegally and without prior consent and/or
knowledge of the appellant, took their minor child away from the
custody of the appellant and further, the respondent restrained the
minor child from interacting with the appellant, demonstrating
gross malafide on the part of the respondent in depriving the
appellant of his parental rights and duties towards the minor child.
Ergo, under such circumstances, the order/direction passed by the
Ld. Trial Court, encumbering the appellant to execute the passport
documents of the minor child are perverse and liable to be set
aside. Even otherwise, as per the Ld. Counsel, Ld. Trial Court,
while passing the said direction, failed to consider that it was
devoid of jurisdiction to encumber the appellant to execute the
documents, as otherwise directed. Correspondingly, as per the Ld.
Counsel, the respondent preferred a vague application(s) before
the Ld. Trial Court, without specifying any enabling provision or
relevant Sections of law or specifying the source of power, which
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empowers the Ld. Trial Court to pass such order/direction(s). In
this regard, it was fervently asserted that the jurisdiction of the Ld.
Trial Court is limited to the relief, as envisaged under Sections 17-
23 thereof and not for encumbering the appellant to execute
documents, as otherwise directed under the impugned order.
Further, as per the Ld. Counsel, the Ld. Trial Court failed to record
that the respondent filed several/frivolous applications for the
same relief, which is nothing but an endeavour to harass the
appellant and to waste the precious judicial time. Correspondingly,
as per the Ld. Counsel, the respondent has no intention of returning
to India and has been filing such frivolous applications, solely to
arm twist and harass the appellant. Further, as per the Ld. Counsel,
the said application is grossly misconceived and even the
respondent misled the Ld. Trial Court by asserting that such
documents are necessary for continued stay of their minor child in
USA, despite the fact that the said child is a US citizen.
3.1. Learned Counsel for the appellant further submitted
that the Ld. Trial Court further failed to consider that it is devoid of
jurisdiction to try the complaint/petition/application under Section
12 DV Act, preferred by the respondent. In this regard, Ld.
Counsel argued that the Ld. Trial Court, erroneously passed an
order dated 02.12.2023/impugned order, dismissing the
appellant’s application under Order VII Rule 10 read with Section
151 CPC, preferred by the appellant. As per the Ld. Counsel, the
Ld. Trial Court failed to consider the fact that the respondent is
neither a temporary nor a permanent resident, within the territorial
jurisdiction of the Ld. Trial Court. Correspondingly, as per the Ld.
Counsel, neither the respondent resides or carries on business nor
is she employed, within territorial jurisdiction of the Ld. Trial
Court. Further, as per the Ld. Counsel, no cause of action arose
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within the jurisdiction of the Ld. Trial Court, as no act of cruelty
has been alleged by the respondent, to have been committed by
any of the appellant or his family members, within the territorial
jurisdiction of the Ld. Trial Court. As per the Ld. Counsel, even at
the time of filing of the instant complaint, the respondent was
working and residing in USA. Correspondingly, as per the Ld.
Counsel, the instant complaint was preferred by the respondent’s
mother (as SPA Holder), before the Ld. Trial Court, where such
SPA Holder was based, solely to harass the appellant and his
family members. Ergo, Ld. Counsel reiterated that the Ld. Trial
Court failed to consider the fact that that the respondent wrongly
invoked the jurisdiction of the Ld. Trial Court, as the residence of
SPA Holder does not confer jurisdiction under DV Act.
Accordingly, as per the Ld. Counsel for the appellant, the
respondent is not entitled to any relief or indulgence, as sought for
and the impugned order deserves to be set aside, for the reasons, as
aforementioned. In support of the said contentions, reliance was
placed upon the decisions in; Smt. Parvati Kumari & Ors. v. State
of U.P., through Principal Secretary, Misc. Bench No.
13419/2018, dated 09.01.2019 (Hon’ble Allahabad High Court);
and Afia Rasheed Khan v. Dr. Mazharuddin Ali Khan, WP No.
4184/2021, dated 25.11.2021 (Hon’ble Bombay HC).
4. Per contra, Ld. Counsel for respondent submitted that
impugned order suffers with no illegality and/or impropriety,
being passed by the Ld. Trial Court, cognizant of all the settled
judicial precedents as well as being wary of the facts and
circumstances brought forth. As per the Ld. Counsel, not only is
the present appeal filed beyond the statutory period of limitation,
rather, the appellant has himself admitted the address of the
respondent, being the permanent address of the respondent at 56/3,
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2nd floor, Old Rajinder Nagar, Delhi, within the jurisdiction of the
Ld. Trial Court. In this regard, Ld. Counsel further asserted that the
said permanent address of the respondent is specified under her
Aadhar Card, marriage certificate and even the passport of the
respondent. Ld. Counsel further submitted that while the appellant
and his family members have repeated accentuated in
need/necessity of respondent’s physical presence in India,
including in a proceeding before the Hon’ble High Court of Delhi,
on the other hand, the appellant is deliberately refusing to sign the
passport documents of their minor child. Correspondingly, as per
the Ld. Counsel, the respondent’s parents are old and there is no
surety of their life/death and even on the occurrence of any
untoward incident, the respondent would not be in a position to
return to India, considering the blatant disregard of the directions
of the Ld. Trial Court by the appellant. As per the Ld. Counsel, the
present proceedings have been initiated solely to harass the
respondent as well as to further pressurize/humiliate her. Even
otherwise, Ld. Counsel asserted that the appellant has misdirected
this Court by concocting false and frivolous facts, to prejudice this
Court to grant a favourable order. Ld. Counsel further submitted
that the Ld. Trial Court was well within his jurisdiction/power to
pass order, directing the appellant to execute the passport
documents of the minor child in view of the provisions under
Sections 2/3 and Section 28(2) of DV Act read with Rule 8 of the
Protection of Women from Domestic Violence Rules, 2006
(hereinafter referred to as the ‘DV Rules’). Further, as per the Ld.
Counsel, even the order directing dismissal of the appellant’s
application under Order VII Rule 10 read with Section 151 CPC
was passed by the Ld. Trial Court, cognizant of the settled judicial
precedents as well as the facts of the present case. Ergo, Ld.
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Counsel entreated that the present appeal deserves to be dismissed
as misconceived and frivolous. In support of the said contentions,
reliance has been placed upon the decisions in; Shyamlal Devda &
Ors. v. Parimala, AIR 2020 SC 762; Vijay Kumar Gupta & Ors. v.
State (NCT of Delhi), WP (Crl.) 3155/2023, dated 19.09.2024
(Hon’ble DHC); and Vikram v. Vrushali & Prs., 2023 (2)
Bom.CR(Crl.) 884.
5. The arguments of Ld. Counsel for the appellant and
that of Ld. Counsel for the respondent have been heard and the
record(s), including the Trial Court Record(s), written
submissions/written arguments as well as case laws filed by/relied
upon by the parties have been thoroughly perused.
6. Before proceeding with the determination of the
merits of the present case, this Court deems it apposite to deal with
the application/prayer for condonation of delay in filing the
present appeal. In this regard, it is outrightly noted that against the
impugned order dated 02.12.2023, the present appeal was after
about delay of about 5 (five) days. Notably, in the application for
condonation of delay, the reason for said delay is specified as the
appellant’s unawareness of the passing of the impugned order and
its ramification, as well as of the legal recourse available against
the same. In particular, it is specified under the said application
that the impugned order was passed on 02.12.2023. However, as
per the Ld. Counsel, the appellant was not aware of the actual
reasoning of the Ld. Trial Court under the impugned order and the
same was brought to the attention of the appellant only after a
certified copy of the judgment was obtained by the appellant on
16.12.2023. Thereafter, the appellant is asserted to have contacted
the counsel as well as duly and diligently filed the instant appeal
through on 09.01.2024, however, in the said process delay ensued
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in filing of the same. Notably, during the course of arguments, Ld.
Counsel for the appellant, while supplementing the said
contentions, vehemently contended that the delay in preferring the
present appeal was accentuated by the fact that the appellant is not
legally educated and unaware of the limitation period in preferring
the appeal. Even otherwise, it was asserted by the Ld. Counsel that
the delay in preferring the appeal was neither deliberate nor
intentional and that in case the delay in preferring the present
appeal is not condoned, grave and irreparable loss would accrue
upon the appellant, whist, no loss/damage would be caused to the
respondent, in case the prayer, as sought for is granted. Needless to
mention here, Ld. Counsel for the respondent sternly objected to
the said prayer for condonation on the ground that considering the
period of delay in filing the present appeal, no
relaxation/indulgence may be granted in favour of the appellant
herein, besides the conduct of the appellant is such that disentitles
the appellant to seek any indulgence/leave from this Court.
7. Ergo, in light of the foregoing and before delving into
the arguments addressed before this Court on the aspect of delay, it
would be relevant to make a reference to Section 29 of DV Act,
which provides, “…there shall lie an appeal to the Court of Session
within thirty days from the date on which the order made by the
Magistrate is served on the aggrieved person or the respondent, as
the case may be, whichever is later” . Clearly, from the said
provision, it is noted that the limitation period of preferring an
appeal against the order of magistrate under the said
enactment/DV Act, is a period of thirty days from the date on
which such an order is served on the aggrieved person or the
respondent, as the case may be, whichever is later. However, it is
further incumbent to refer to the provisions under Section 29(2) of
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the Limitation Act, 1963 (hereinafter referred to as the ‘Limitation
Act‘), which provides as under;
“29. Savings-(1) Nothing in this Act shall affect
section 25 of the Indian Contract Act, 1872 (9 of
1872).
(2) Where any special or local law prescribes for
any suit, appeal or application a period of limitation
different from the period prescribed by the Schedule ,
the provisions of section 3 shall apply as if such period
were the period prescribed by the Schedule and for the
purpose of determining any period of limitation
prescribed for any suit, appeal or application by any
special or local law, the provisions contained in
sections 4 to 24 (inclusive) shall apply only in so far
as, and to the extent to which, they are not expressly
excluded by such special or local law…”
(Emphasis supplied)
8. Strikingly, a conscientious and conjoint perusal of the
aforesaid provision demonstrates that though, DV Act provides for
no specific provisions for condonation of delay in preferring an
appeal against the order of a magistrate, however, by virtue of the
provisions under Section 29(2) of the Limitation Act, provisions
under the said enactment/Limitation Act, in particular, provisions
under Section 4 to 24 of the said enactment shall continue to apply
only in so far as and to the extent to which, they are no excluded by
DV Act/such special or local law. Clearly, under such
circumstances, this Court unambiguously records that the delay in
preferring such an appeal can be condoned in terms of the
provisions under Section 5 of the Limitation Act, on demonstration
of sufficient cause to the court. Reference in this regard is made to
the decision in K.M. Revanasiddeshwara v. K.M. Shylaja,
MANU/KA/0236/2012, wherein the Hon’ble High Court of
Karnataka explicated the law in respect of the foregoing, as under;
“17. Therefore, it is clear that Sub-section (3) of
Section 29 only bars the application of the provisions
of the said Act in respect of any law relating to
marriage and divorce. Since the matter relating to
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Protection of Women from Domestic Violence Act,
has not been included in Sub-section (3) of the said
Act, the question of provisions of the Limitation Act.
not being applicable to the proceedings before the
lower appellate court and the question of the
application under Section 5 of the Limitation Act also
not being maintainable in respect of the appeal
preferred under the Domestic Violence Act therefore
cannot arise.
18. The lower appellate court committed serious
error in rejecting the application filed under Section 5
of the Limitation Act for condonation of delay . It is a
different matter, whether the petitioner has made out a
case for condonation of delay or not, but i.e., not a
ground to hold that the application filed under Section
5 of the Limitation Act itself is not maintainable.
Since, a reading of the provisions contained in the
Domestic Violence Act does not bar the application of
the provisions of the Limitation Act in respect of the
appeal, the view taken by the court below cannot be
sustained in law.”
(Emphasis supplied)
9. Reverting now to the relevant legal provision, in
particular that under Section 5 of the Limitation Act, this Court
reiterates that the said provision inter alia provides for condonation
of delay/extension of prescribed period in certain cases on
demonstration of ‘sufficient cause’, which term(s)/words have
been repeated asserted by superior courts to be elastic and liberally
construed, in the interest of justice in a given case. In this regard,
reference is made to the decision of the Hon’ble Supreme Court in
Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12
SCC 649, wherein the Hon’ble Court, while painstakingly
collating the guiding principles governing the exercise of court’s
power to condone delay as well as the meaning of the said words,
enunciated as under;
“21. From the aforesaid authorities the principles
that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic,
justice-oriented, non-pedantic approach while dealing
with an application for condonation of delay, for theCA No. 15/2024 Dheeraj Gupta v. Megha Chhabra Page No. 16 of 34
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courts are not supposed to legalise injustice but are
obliged to remove injustice.
21.2. (ii) The terms “sufficient cause” should be
understood in their proper spirit, philosophy and
purpose regard being had to the fact that these terms
are basically elastic and are to be applied in proper
perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and
pivotal the technical considerations should not be
given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to
deliberate causation of delay but, gross negligence on
the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party
seeking condonation of delay is a significant and
relevant fact.
21.6. (vi) It is to be kept in mind that adherence to
strict proof should not affect public justice and cause
public mischief because the courts are required to be
vigilant so that in the ultimate eventuate there is no
real failure of justice.
21.7. (vii) The concept of liberal approach has to
encapsulate the conception of reasonableness and it
cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between
inordinate delay and a delay of short duration or few
days, for to the former doctrine of prejudice is
attracted whereas to the latter it may not be attracted.
That apart, the first one warrants strict approach
whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a
party relating to its inaction or negligence are relevant
factors to be taken into consideration. It is so as the
fundamental principle is that the courts are required to
weigh the scale of balance of justice in respect of both
parties and the said principle cannot be given a total
go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted
or the grounds urged in the application are fanciful,
the courts should be vigilant not to expose the other
side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets
away with fraud, misrepresentation or interpolation
by taking recourse to the technicalities of law of
limitation.
21.12. (xii) The entire gamut of facts are to be
carefully scrutinised and the approach should be
based on the paradigm of judicial discretion which is
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founded on objective reasoning and not on individual
perception.
21.13. (xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude.
22. To the aforesaid principles we may add some
more guidelines taking note of the present day
scenario. They are:
22.1. (a) An application for condonation of delay
should be drafted with careful concern and not in a
haphazard manner harbouring the notion that the
courts are required to condone delay on the bedrock of
the principle that adjudication of a lis on merits is
seminal to justice dispensation system.
22.2. (b) An application for condonation of delay
should not be dealt with in a routine manner on the
base of individual philosophy which is basically
subjective.
22.3. (c) Though no precise formula can be laid
down regard being had to the concept of judicial
discretion, yet a conscious effort for achieving
consistency and collegiality of the adjudicatory
system should be made as that is the ultimate
institutional motto.
22.4. (d) The increasing tendency to perceive
delay as a non-serious matter and, hence,
lackadaisical propensity can be exhibited in a
nonchalant manner requires to be curbed, of course,
within legal parameters.”
(Emphasis supplied)
10. Unmistakably, the rules of limitation, which are
premised on the principles enshrined in a Latin maxim, ‘interest
reipublicae up sit finis litium1’, are designed not to destroy the
legal rights of parties, rather, to ensure that the parties do not resort
to dilatory tactics. Ergo, considering the objective of the law and
further being wary of the fact that there is no presumption under
law that the delay in approaching courts was deliberate, courts 2
have repetitively professed for adoption of a pragmatic, justice-
oriented approach, in variance to, technical interpretation, while
1
It is for the general welfare that a period be put to litigation.
2
J.M. Ramachandra & Sons v. Customs Excise & Gold (Control) Appellate Tribunal, 2001 SCC OnLine Del 1082.
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determining ‘sufficient cause’ in a case. Needless to mention that it
is equally a settled law3, “decisive factor for condonation of delay
is not length of delay but sufficiency and satisfactory
explanation.” Apposite in respect of the foregoing to make a
reference to the decision of the Hon’ble Supreme Court in State of
U.P. v. Satish Chand Shivhare & Brothers, 2022 SCC OnLine SC
2151, wherein the Hon’ble Court, while professing for the
adoption of a balanced as well as liberal approach in the
determination of a prayer for limitation/condonation of delay,
asserted as under;
“22. When consideration of an appeal on merits is
pitted against the rejection of a meritorious claim on
the technical ground of the bar of limitation, the
Courts lean towards consideration on merits by
adopting a liberal approach towards ‘sufficient cause’
to condone the delay. The Court considering an
application under Section 5 of the Limitation Act may
also look into the prima facie merits of an appeal.
However, in this case, the Petitioners failed to make
out a strong prima facie case for appeal. Furthermore,
a liberal approach, may adopted when some plausible
cause for delay is shown. Liberal approach does not
mean that an appeal should be allowed even if the
cause for delay shown is glimsy. The Court should not
waive limitation for all practical purposes by
condoning inordinate delay caused by a tardy
lackadaisical negligent manner of functioning.”
(Emphasis supplied)
11. Consequently, in light of the aforenoted judicial
dictates/principles governing limitation; arguments addressed by
the Ld. Counsel for the appellant and Ld. Counsel for the
respondent; as well as appreciating the facts and circumstances
and brought forth to the notice of this Court, this Court is of the
considered opinion that the prayer for condonation of delay in
filing the instant appeal, deserves to be allowed. As aforenoted, the
reasons for delay in the present case are stated to have been
3
Dineshbhai Rameshbhai Minama v. State of Gujarat, 2018 SCC OnLine Guj 2610.
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attributed to the fact of appellant’s unawareness of the contents of
the impugned order, which was received by the appellant only on
16.12.2023, once applied for on 14.12.2023 (as seen from the
documents filed along with the application for condonation of
delay); appellant’s unfamiliarity with the procedure prescribed
under law/legal provision; as well as of appellant’s lack of proper
guidance. Further, it is observed from the records that no reasons
for delay or deliberate omission on the part of the appellant in
pursuing the instant remedy is forthcoming, rather, as aforenoted,
the appellant submitted before this Court that he was not aware of
the reasoning under the impugned order, besides he came to know
of the same only once a certified copy of the impugned order was
received, whereupon the instant appeal was drafted and filed
before this Court. Clearly, in light of the foregoing, the reasons for
preferring the present appeal by/on behalf of the appellant with
delay, as aforenoted, cannot be treated to be intentional, deliberate
or dilatory in any manner. On the contrary, the explanation
tendered by the appellant appears to be quite plausible and
appealing to the senses of this Court. Consequently, this Court
unswervingly observes that the prayer for condonation of delay in
filing the present appeal deserves to be allowed, in the facts and
circumstances placed on record, as well as the submissions made.
Accordingly, for the foregoing reasons, this Court allows the
appellant’s prayer for condonation of delay and the period of delay
in filing/preferring the present appeal is, hereby, condoned.
12. Markedly, proceeding further with the determination
of the rival contentions of the parties, this Court deems it pertinent
to reproduce the relevant provisions under law/DV Act, as under;
“2. Definitions-In this Act, unless the context
otherwise requires,-(a) “aggrieved person” means any
woman who is, or has been, in a domestic relationship
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with the respondent and who alleges to have been
subjected to any act of domestic violence by the
respondent;…
*** *** ***
(f) “domestic relationship” means a relationship
between two persons who live or have, at any point of
time, lived together in a shared household, when they
are related by consanguinity, marriage or through a
relationship in the nature of marriage, adoption or are
family members living together as a joint family;
*** *** ***
21. Custody orders-Notwithstanding anything
contained in any other law for the time being in force,
the Magistrate may, at any stage of hearing of the
application for protection order or for any other relief
under this Act grant temporary custody of any child or
children to the aggrieved person or the person making
an application on her behalf and specify, if necessary,
the arrangements for visit of such child or children by
the respondent:
Provided that if the Magistrate is of the opinion
that any visit of the respondent may be harmful to the
interests of the child or children, the Magistrate shall
refuse to allow such visit.
*** *** ***
23. Power to grant interim and ex parte orders-(1)
In any proceeding before him under this Act, the
Magistrate may pass such interim order as he deems
just and proper.
(2) If the Magistrate is satisfied that an application
prima facie discloses that the respondent is
committing, or has committed an act of domestic
violence or that there is a likelihood that the
respondent may commit an act of domestic violence,
he may grant an ex parte order on the basis of the
affidavit in such form, as may be prescribed, of the
aggrieved person under Section 18, Section 19,
Section 20, Section 21 or, as the case may be, Section
22 against the respondent.
*** *** ***
27. Jurisdiction-(1) The court of Judicial
Magistrate of the first class or the Metropolitan
Magistrate, as the case may be, within the local limits
of which-
(a) the person aggrieved permanently or
temporarily resides or carries on business or is
employed; or
(b) the respondent resides or carries on business or
is employed; or
(c) the cause of action has arisen, shall be the
competent court to grant a protection order and other
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orders under this Act and to try offences under this
Act.
(2) Any order made under this Act shall be
enforceable throughout India…”
(Emphasis supplied)
13. At the outset, it is observed that the objective4 behind
the enactment of DV Act is to accord statutory protection to
victims of violence in domestic sector, who had no proprietary
rights. The said enactment provides for security and an armour to a
‘victim’, inter alia by permitting issuance of protection orders that
can prohibit the abuser from contacting or approaching the victim,
as well as guarantees, endowment of financial support and victim’s
access to shared property. In fact, the superior courts have
persistently avowed5 that the inherent aspiration for bringing forth
the said enactment is to secure various rights to a woman living in
matrimony or in a relationship akin to matrimony, or any domestic
relationship, “to move to Court for any of the reliefs outlined in
Section 12 through either a comprehensive proceeding, claiming
maintenance, right to residence, compensation etc. or even move
to Court seized of any other pending proceeding, such as divorce
and maintenance etc.” Reference in this regard is further made to
the decision of the Hon’ble Supreme Court in Indra Sarma v.
V.K.V. Sarma, (2013) 15 SCC 755, wherein the Hon’ble Court,
noted the objective behind the enactment of DV Act in the
following terms;
“15. The DV Act has been enacted to provide a
remedy in civil law for protection of women from
being victims of domestic violence and to prevent
occurrence of domestic violence in the society . The
DV Act has been enacted also to provide an effective
protection of the rights of women guaranteed under
the Constitution, who are victims of violence of any
kind occurring within the family.
4
Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC OnLine Bom 412.
5
Shambhu Prasad Singh v. Manjari, 2012 SCC OnLine Del 2895.
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16. “Domestic violence” is undoubtedly a human
rights issue, which was not properly taken care of in
this country even though the Vienna Accord, 1994
and the Beijing Declaration and Platform for Action
(1995) had acknowledged that domestic violence was
undoubtedly a human rights issue. The UN
Committee on Convention on Elimination of All
Forms of Discrimination Against Women in its
general recommendations had also exhorted the
member countries to take steps to protect women
against violence of any kind, especially that occurring
within the family, a phenomenon widely prevalent in
India. Presently, when a woman is subjected to cruelty
by husband or his relatives, it is an offence punishable
under Section 498-A IPC. The civil law, it was
noticed, did not address this phenomenon in its
entirety. Consequently, Parliament, to provide more
effective protection of rights of women guaranteed
under the Constitution under Articles 14, 15 and 21,
who are victims of violence of any kind occurring in
the family, enacted the DV Act.”
(Emphasis supplied)
14. Conspicuously, considering the expansive scope of
the DV Act, it is quite intelligible that the said Act provides for a
wide jurisdiction under Section 27 thereof, which an aggrieved
persons may agitate their concerns. As aforenoted, Section 27 DV
Act, confers jurisdiction under the said enactment to court of
Judicial Magistrate of the first class or the Metropolitan
Magistrate, as the case may be, within the local limits of which,
“(a) person aggrieved permanently or temporarily resides or
carries on business or is employed; or (b) the respondent resides or
carries on business or is employed; or (c) the cause of action has
arisen, shall be the competent court to grant a protection order and
other orders under this Act and to try offences under this Act… ”
Strikingly, for the purposes of present discourse, it is apposite to
confine to the provisions under Section 27(1)(a) of DV Act, which
confers jurisdiction on the court, where the persons aggrieved,
permanently or temporarily resides or carries on business or is
employed. At this stage, this Court deems it apposite to make a
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reference to the decision of the Hon’ble Supreme Court in Jagir
Kaur & Anr. v. Jaswant Singh, AIR 1963 SC 1521: 1964 SCR (2)
73, wherein the Hon’ble Court, while explicating the contours of
the term, ‘resides’, remarked as under;
“…In Santpoornam v. N. Sundaregan (1952) 2
M.LJ 573, it was held that the word “resides” implied
something more than a brief visit. but not such
continuity as to amount to a domicile. In Khairunissa
v. Bashir Ahmed, (1929) I.L.R. 53 Bom. 781, on a
consideration of the relevant authorities it was pointed
out that a casual or a flying visit to a place was
excluded from the scope of the word “resides”. A full
Bench of the Allahabad High Court, in Flowers v.
Flowers, (1910) I.L.R. 32 All. 203, expressed the view
that a mere casual residence in a place for a temporary
purpose with no intention of remaining was not.
covered by the word “resides”. In Balakrishna v.
Sakuntala Bai, A.I.R. 1942 Mad. 66 it was held that
the expression “reside” implied something more than
“stay” and implied some intention to remain at a place
and not merely to pay it a casual visit. In Charan Das
v. Surasti Bai, A.l.R, 1940 Lah. 449, it was held that
the sole test on the question of residence was whether
a party had animus manendi, or an intention to stay for
an indefinite period, at one place; and if he had such
an intention, then alone could he be said to “reside”
there.
The decisions on the subject are legion and it
would be futile to survey the entire field. Generally
stated no decision goes so far as to hold that “resides”
in the sub-section means only domicile in the
technical sense of that word. There is also a broad
unanimity that it means something more than a flying
visit to or a casual stay in a particular place. They
agree that there shall be animus manendi or an
intention to stay for a period, the length of the period
depending upon the circumstances of each case.
Having regard to the object sought to be achieved, the
meaning implicit in the words used, and the
construction placed by decided cases thereon, we
would define the word “resides” thus: a person resides
in a place if he through choice makes it his abode
permanently or even temporarily ; whether a person
has chosen to make a particular place his abode
depends upon the facts of each case…”
(Emphasis supplied)
15. Germane for the purpose of present discourse to
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further refer to the decision of the Hon’ble High Court of Delhi in
Sharad Kumar Pandey v. Mamta Pandey, Crl.M.C. No. 4044/2009,
dated 01.09.2010, wherein the Hon’ble Court while considering
the meaning of the terms, residence/temporary residence, in light
of the scope and ambit of DV Act, observed as under;
“9. All legislative enactments on matrimonial
disputes or custody matters make ordinary residence
or residence or the place where parties lived together
or the place of cause of action as a ground for
invocation of jurisdiction of the Court. Domestic
Violence Act is the first Act where a temporary
residence of the aggrieved person has also been made
a ground for invoking the jurisdiction of court. The
expression “residence” means “to make abode” – a
place for dwelling. Normally place for dwelling is
made with an intention to live there for considerable
time or to settle there. It is a place where a person has
a home. In Webster Dictionary, the residence means
to dwell for length of time. The words “dwelling
place” or abode are synonyms. A temporary
residence, therefore, must be a temporary dwelling
place of the person who has for the time being decided
to make the place as his home. Although he may not
have decided to reside there permanently or for a
considerable length of time but for the time being, this
must be place of her residence and this cannot be
considered a place where the person has gone on a
casual visit, or a fleeing visit for change of climate or
simply for the purpose of filing a case against another
person.
10. I, therefore, consider that the temporary
residence, as envisaged under the Act is such
residence where an aggrieved person is compelled to
take shelter or compelled to take job or do some
business, in view of domestic violence perpetuated on
her or she either been turned out of the matrimonial
home or has to leave the matrimonial home. This
temporary residence does not include residence in a
lodge or hostel or an inn or residence at a place only
for the purpose of filing a domestic violence case.
This temporary residence must also be a continuing
residence from the date of acquiring residence till the
application under Section 12 is disposed of and it must
not be a fleeing residence where a woman comes only
for the purpose of contesting the case and otherwise
does not reside there…”
(Emphasis supplied)
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16. Quite evidently, it is seen from the above that the
superior courts have repeatedly professed for an adoption of liberal
and expansive interpretation to the provisions of DV Act,
including the meaning of term, ‘residence’/’resides’ under the said
Act. Needless to mention that that objective behind the same is to
ensure effective protection of rights of women/aggrieved persons,
who are victims of violence of any kind, manifested upon her.
However, the superior courts have also cautioned that where a
person has gone on a casual visit, or a fleeing visit for change of
climate or simply for the purpose of filing a case against another
person, courts have to cautioned to nip the tendence of
unscrupulous litigants to exploit such beneficial provision to the
detriment of the respondent. Ergo, with such understanding, when
the facts of the present case are conscientiously evaluated, in light
of the material placed on record, it is observed that the respondent
explicitly records under her complaint/petition under Section 12 of
DV Act, as a permanent place of residence as; 56/3, 2 nd floor, Old
Rajinder Nagar, Delhi. Apposite in this regard, to reproduce the
relevant extract from the respondent’s said complaint/petition, as
under;
“…10. That the Complainant is the permanent
resident of 56/3 Second Floor, Old Rajinder Nagar,
Delhi-110060 which is the parental house of the
Complainant which falls within the jurisdiction of this
Ld. Court. Therefore, this Ld. Court has the
jurisdiction to try and decide the present matter…”
(Emphasis supplied)
17. Relevantly, in the instant case, it is fervently argued
by Ld. Counsel for the appellant that the respondent has not been
residing with her parents at her parental home, at present or after
her marriage. Correspondingly, as per the Ld. Counsel for the
appellant, the respondent is presently in USA for her job and has
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been there for quite some time, divesting her from claiming her
residence, either temporary or permanent at 56/3, 2 nd floor, Old
Rajinder Nagar, Delhi, within the jurisdiction of the Ld. Trial
Court. However, on scrupulous analysis of the material placed on
record, this Court finds it difficult to concede with the said
submissions of the Ld. Counsel. On the contrary, the documents
placed on record, clearly denote the permanent residence of the
respondent as; 56/3, 2nd floor, Old Rajinder Nagar, Delhi, besides it
is not the case of the appellant that the respondent has since
abdicated her citizenship of India by correspondingly obtaining
citizenship of USA. Needless to mention that the said
residence/respondent’s parental home has been set up and acquired
by her parents in the ordinary course and it is not the appellant’s
case that the said premise was set up with a sole intention to file a
DV Act case. Au contraire, considering the present nature of stay
of the respondent in USA, in light of the ensuing marital discord,
should the respondent been encumbered to return to India, from
the material on record, the respondent has manifested her animus
to reside at 56/3, 2nd floor, Old Rajinder Nagar, Delhi. Ergo, under
such factual circumstances, this Court unambiguously reiterates
that it finds it difficult to concede that the respondent’s residence at
56/3, 2nd floor, Old Rajinder Nagar, Delhi is fleeting in nature,
disentitling her to invoke the jurisdiction of the Ld. Trial Court. On
the contrary, this Court is in concurrence with the finding of the
Ld. Trial Court that the application of the appellant under Order
VII Rule 10 read with Section 151 CPC, deserved to be dismissed.
As a corollary, this Court concedes that the Ld. Trial Court is
within its jurisdiction to entertain and try the complaint/petition
under Section 12 DV Act, filed by the respondent.
18. In so far as the contention of Ld. Counsel for the
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appellant pertaining to the directions issued by the Ld. Trial Court
to the appellant to provide the signed document for renewal of
passport of minor son is concerned, reference is made to the
provision under Section 12 of the DV Act, which provides as
under;
“12. Application to Magistrate-(1) An aggrieved
person or a Protection Officer or any other person on
behalf of the aggrieved person may present an
application to the Magistrate seeking one or more
reliefs under this Act:
Provided that before passing any order on such
application, the Magistrate shall take into
consideration any domestic incident report received
by him from the Protection Officer or the service
provider…”
(Emphasis supplied)
19. Quite evidently, it is seen from above that DV Act
provides for an aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person to move an
application before the Magistrate, seeking one or more reliefs
under the said Act. Correspondingly, from a scrupulous analysis of
the said Act, it is observed that the reliefs which may be so sought
by such applicant may be in the form of right to reside in a shared
household (under Section 17 DV Act); protection order (under
Section 18 DV Act); residence order (under Section 19 DV Act);
monetary relief (under Section 20 DV Act); custody order (under
Section 21 of DV Act); or compensation order (under Section 22 of
the DV Act). Simultaneously, as aforenoted, DV Act, also
empowers Magistrates to confer interim/ad-interim orders in
favour of said applicant(s) in terms of the provisions under Section
23 DV Act. However, nowhere under the said enactment, there is
any provision, which may constrain a parent to execute a
document, as directed by the Ld. Trial Court in the instant case.
Here, this Court deems it pertinent to note that it is cognizant that a
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ABHISHEK GOYAL
Date:
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+0530
beneficial legislation has to be liberally construed to achieve its
purpose and objective. However, even then, no relief, which is not
encompassed with the legislative umbrella can be granted by
courts, while swaying away with the purpose of introduction
thereof. In fact, the superior courts have persistently avowed 6 that
a beneficial legislation should not be construed in such a manner
so as to bring within its ambit a benefit which was not
contemplated by the legislature, to be given to the party. Reference
in this regard is made to the decision of the Hon’ble Supreme
Court in Regional Director, ESI Corpn. v. Ramanuja Match
Industries, (1985) 1 SCC 218: AIR 1985 SC 278, wherein the
Hon’ble Court in an akin context, remarked as under;
“…We do not doubt that beneficial legislations
should have liberal construction with a view to
implementing the legislative intent but where such
beneficial legislation has a scheme of its own there is
no warrant for the Court to travel beyond the scheme
and extend the scope of the statute on the pretext of
extending the statutory benefit to those who are not
covered by the scheme…”
(Emphasis supplied)
20. Ergo, in light of the foregoing, this Court is in
consensus with contention of the Ld. Counsel for the appellant that
the Ld. Trial Court could not have passed an order, directing the
appellant to provide the signed document for renewal of passport
of minor son. Needless to reiterate that the DV Act provides for no
such empowering provision upon the Ld. Trial Court to grant the
relief of an akin kind, especially when in the instant case the
application for custody of the child was still pending adjudication
at the time, when directions came to be passed by the Ld. Trial
Court. Here, this Court deems it further pertinent to observe that
the provisions under Section 28(2) of the DV Act would not come
6
Deddappa & Ors. v. The Branch Manager, National Insurance, AIR 2008 SC 767: 2008 (2) SCC 595.
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to the aid and rescue of the respondent in this regard, as pleaded by
the Ld. Counsel for the respondent. Clearly, from a conscientious
perusal of the said provision, it is observed that Section 28(2) DV
Act provides, “…Nothing in sub-section (1) shall prevent the court
from laying down its own procedure for disposal of an application
under section 12 or under sub-section (2) of section 23…” Clearly,
the powers envisaged therein relate to conferring power on the Ld.
Magistrate to device/adopt a procedure for disposal of applications
under Section 12 or Section 23(2), as the case may be and does not
confer any inherent powers on the Ld. Trial Court in so far as the
aspect of substantive provision/right or relief which may be
granted in favour of a party is concerned. Correspondingly, this
Court is also not convinced that such power can be exercised by
the Ld. Trial Court while seeking recourse to the provisions under
Rule 8 of the DV Rules. On the contrary, Rule 8(ii) of the DV
Rules merely enlists the duty of protection officer to provide an
aggrieved person, information on the rights under the Act, as given
in Form IV of the said Rules.
21. At this stage, this Court deems it further apposite to
note that this Court is not convinced with the submission of Ld.
Counsel for the respondent that such order is necessary to ensure
the presence of respondent in India, which was within the domain
of the Ld. Trial Court to pass by seeking recourse to the provisions
under the said Act. On the contrary, under similar situation,
superior courts have directed the concerned passport authorities to
process the necessary applications for issuance of passport in cases
of denial of one of the spouses to consent to such approval, upon
furnishing necessary affidavit7/document and corresponding
7
Annexure ‘C’-“Specimen Declaration by applicant’s parent or guardian for issue of
Passport to minor when one parent has not given consent”
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ABHISHEK GOYAL
Date:
GOYAL 2025.05.13
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provision may be taken recourse to under the U.S. laws for renewal
of minor child’s passport, where one of the parents denies
execution of necessary documents. In fact, under such
circumstances, superior courts have ruled that the refusal of
consent by father (or any of the parents) to a minor child’s passport
application, cannot automatically prevent such a minor child from
procuring one. Needless to mention, in the considered opinion of
this Court, remedy under such circumstances would not lie by
seeking recourse to the provisions under DV Act, rather, before the
concerned passport authorities by yielding necessary
document/affidavit(s), as aforenoted. Reference in this regard is
made to the decision of the Hon’ble High Court of Bombay in Ms.
Yushika Vivek Gedam v. Union of India & Ors., W.P. No.
19042/2024, dated 08.01.2025, wherein the Hon’ble Court,
remarked under similar context as under;
“17. We may observe that the Passport Authority
is certainly bound to consider variety of facts and
circumstances in respect of the applications received
by it for issuance of a passport and the assessment of
such applications is required to be considered on the
touchstone of the requirement of the provisions of law
under the Rules also deal with variety of situations.
The Government being alive of the variety of such
requirements is writ large not only from the provisions
of the Rules but the different forms which have been
prescribed to deal with different situations. All such
rules and the forms thereunder are required to be
given due effect and on the touchstone of the mandate
as prescribed by the provisions of the passport Act. It
is in such context, we may observe that a specific
provision has been made when a declaration in terms
of Annexure-C is required to be made in cases where
one parent of the minor has not given consent. For
convenience, we note the contents of the declaration
issued in Annexure-C by the petitioner’s mother’s
mother which reads thus:
*** *** ***
21. The present case is also quite peculiar in as
much as on one hand, the petitioner’s father is
pursuing his case against the petitioner’s mother to
obtain a divorce nonetheless he objects to the issuance
CA No. 15/2024 Dheeraj Gupta v. Megha Chhabra Page No. 31 of 34Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.05.13
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of a NOC. It also appears to be clear that the petitioner
is staying with her mother. The petitioner is a bright
student having secured outstanding marks in the X
Standard examination, which has qualified her to be
eligible to be selected to participate in the study tour
visiting Japan, being undertaken by Kendriya
Vidyalaya. In these circumstances, in our opinion,
considering the well-settled position in law, it cannot
be that the petitioner’s right to travel abroad by
issuance of a passport can in any manner be scuttled
and/or taken away by denying her a passport to be
issued/re-issued merely for the reason that the father
for the only reason that he has disputes with the
mother, is not supporting the petitioner’s application
by consenting to it. Also the petitioner’s mother has
submitted a declaration in Annexure-C, which is now
required to be considered and processed by
respondent no. 2.
22. It is well-settled that the expression “person
liberty” which occurs in Article 21 of the Constitution
includes right to travel abroad and no person can be
deprived of that right except according to the
procedure established in law. It is held that the
procedure prescribed by law has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary. The
right to travel abroad is a facet of fundamental right
guaranteed under Article 21 of the Constitution of
India (See. Maneka Gandhi vs. Union of India (1978 1
SCC 248)). The petitioner is certainly entitled to such
constitutional right guaranteed under Article 21.
23. We may also observe that in the contemporary
times traveling abroad cannot be considered to be a
fanciful affair but has became an essential
requirement of modern life. Such need to travel which
may be the requirement of a child, a student or an
employee, professional or a person from any other
strata of the society, has undergone a monumental
change. Thus, the right to travel is required to be not
only recognized but made more meaningful. This can
be achieved and supported by the authorities
implementing the provisions of the Passport Act by
effectively recognizing such contemporary needs in
dealing with passport applications. The present case is
an example of a student being given an opportunity to
undertake a study tour by visiting a foreign country.
Any action of the Passport Authority in denying the
passport would have severe consequence not only
adversely affecting the applicant in a given situation,
but it may cause irreparable harm to the prospects of
the applicant, for any venture she or he intended toCA No. 15/2024 Dheeraj Gupta v. Megha Chhabra Page No. 32 of 34
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ABHISHEK ABHISHEK
GOYAL
GOYAL Date: 2025.05.13
16:27:49 +0530
undertake. Thus, a mechanical approach in this regard
by the Passport Authority cannot be countenanced…”
(Emphasis supplied)
22. Ergo, in light of the foregoing observation and the
material placed on record as well as considering the arguments
addressed by Ld. Counsel for the parties, this Court is of the
considered opinion that no fallacy can be attributed to the finding
of the Ld. Trial Court, rejecting/dismissing the appellant’s
application under Order VII Rule 10 read with Section 151 CPC,
challenging the jurisdiction of the Ld. Trial Court for the reasons,
as aforestated. However, this Court finds it difficult to concede that
by seeking recourse to the provisions under DV Act, Ld. Trial
Court have directed the appellant to provide the signed document
for renewal of passport of minor son.
23. Conclusively, in conspectus of above, this Court
unambiguously reaches a conclusion that the finding of the Ld.
Trial Court, rejecting/dismissing the appellant’s application under
Order VII Rule 10 read with Section 151 CPC, challenging the
jurisdiction of the Ld. Trial Court deserves to be sustained and is
hereby upheld. while the direction of the Ld. Trial Court to the
appellant to provide the signed document for renewal of passport
of minor son deserves to be reversed and is consequently, set aside,
under the order dated 02.12.2023 (impugned order), passed by Ld.
MM (Mahila Court-01), Central, Tis Hazari Courts, Delhi, in case
titled as; ‘Megha Chhabra v. Dheeraj Gupta, Case Regn. No.
1420/2022’, PS. Rajinder Nagar. Apposite at this stage to note that,
though, this Court holds highest regard for the decisions relied
upon by Ld. Counsel, however, the same would not, in the
considered opinion of this Court come to the aid/rescue of the
parties, in the manner as prayed for as the facts and circumstances
of the said cases/dictates are clearly, distinguishable.
CA No. 15/2024 Dheeraj Gupta v. Megha Chhabra Page No. 33 of 34
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.05.13
16:27:53 +0530
24. Accordingly, the present appeal is partly
allowed/disposed of in above terms.
25. Trial Court Record be sent back along with a copy of
this order/judgment with directions to proceed as per law.
26. Appeal file be consigned to record room after due
compliance.
Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.13 16:27:58 +0530 Announced in the open Court (Abhishek Goyal)
on 13.05.2025. ASJ-03, Central District,
Tis Hazari Courts, Delhi
CA No. 15/2024 Dheeraj Gupta v. Megha Chhabra Page No. 34 of 34
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