The court emphasized the importance of the Magistrate applying their mind to the facts of the case before summoning the respondent and highlighted that the lower courts were only required to make up their minds on the basis of the material on record and not appreciate evidence at the stage of issuing summons.

JUDGMENT

Swarana Kanta Sharma, J. - Vide the instant petition, the petitioner has challenged the judgment dated 10.07.2018 ('Impugned Judgment') passed by learned ASJ (FTC), North West, Rohini, Delhi and order dated 20.02.2017 passed by learned MM, Mahila Court, North West, Rohini, Delhi in CC No. 40/4/16 filed under Section 12 of the Domestic Violence Act read with Section 23 of the Protection of Women from Domestic Violence Act, whereby summons were issued against the present petitioner. The operative portion of the summoning order passed by the learned MM observed as under:

 '...DIR received. Perused. Heard. There are specific allegations against all the respondents in the DIR dated 19.08.2016. Steps have not taken by the petitioner to get notice issued to respondent no.

2. One more opportunity granted to the petitioner. Issue notice to the respondent no. 2, 3 and 4 as well on filing PF through SHO PS concerned for the next date of hearing...'

3. Being aggrieved by the said order dated 20.02.2017, the petitioner challenged the said order passed by the learned MM before the court of sessions.

4. Vide order dated 10.07.2018, learned ASJ had upheld the order of the learned MM and had observed as under:-

'...8. Perusal of Gas Connection Receipt dated 08.03.2013 reveals that one gas connection was issued in the name of appellant at the address 210, First Floor, Harsh Vihar, Pitampura, Delhi. Even in gas delivery receipt dated 09.02.2017, the address of the appellant is mentioned as 210, First Floor, Harsh Vihar, Pitampura, Delhi. These documents reveal that the appellant applied for one LPG connection for the kitchen situated on the first floor of the said property on 08.03.2013 which was allowed and continued till 09.02.2017. These documents have been filed by the appellant herself and are contrary to the submissions made by the appellant that she has been using a separate kitchen at the second floor of the said property. Hence, the submissions made by the counsel for the appellant are not sustainable in law.

5. Aggrieved by these orders present petition was filed.

6. Brief facts leading to the filing of the present petition are as under:-

a. The petitioner was married to Mr. Gaurav Mittal on 03.12.2003 and two daughters were born out of the wedlock. Together, they reside at 210, Harsh Vihar, 2nd Floor, Pitam Pura, Delhi - 110034. The petitioner is the sister-in-law of the respondent. b. It is the case of the petitioner that the respondent deliberately and willfully deserted her husband on 23.02.2016 and she has been misusing the process of law by filing fabricated applications under section 12 of the Domestic Violence Act as well as section 23 of the Protection of Women from Domestic Violence Act ('DV Act') with oblique and ulterior motives.

7. The counsel for the petitioner argued that learned MM as well as learned ASJ had committed error in not appreciating that in the rejoinder filed by the respondent dated 30.06.2016, the respondent specifically stated that '...the respondent No. 1's brother (husband of the petitioner) and the respondent No. 4 (petitioner) shifted to the second floor only after November, 2014 due to their quarrelsome nature...' which proves that the petitioner and her husband were residing in a separate residential unit and thus the question of committing domestic violence on the respondent does not arise. It is also submitted that there are three different gas connections for each of the three floors in the house in which the parties reside, thereby proving that a separate kitchen is being run on each floor. It is further submitted that the averment made in the complaint and the Domestic Incident Report (DIR) as well as other material on record does not disclose any prima facie case of domestic violence against the petitioner, another fact not taken into consideration by the learned Appellate Court.

8. The counsel for the respondent on the other hand submitted that this Court cannot re-appreciate evidence once the s