JUDGMENT

SWARANA KANTA SHARMA, J.

1. The instant petition under Articles 226 and 227 of Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) has been filed on behalf petitioner assailing the judgment dated 19.12.2022 passed by learned Additional Sessions Judge-02, South-West District, Dwarka, Delhi in Criminal Appeal no. 189/2022 filed under Section 29 of Protection of Women from Domestic Violence, 2005 („DV Act‟).

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2. Briefly stated, the facts of the case are that the marriage between petitioner no. 1 and respondent was solemnized on 17.04.2002 as per Hindu rites and ceremonies. During the course of time, respondent had filed petitions seeking divorce alongwith petitions for maintenance under Section 125 Cr.P.C. on the ground that petitioners had forced her to quit her studies, had abused her, had physically assaulted her, and also had demanded dowry. It is also alleged that petitioner no. 1 had attempted to kill respondent, however, all the petitions were dismissed. On 03.01.2011, the respondent/wife had filed a complaint under Section 12 of DV Act against petitioners herein. The petitioners had filed an application under Section 9 read with Section 151 of Code of Civil Procedure, 1908 („CPC‟) seeking dismissal of complaint under Section 12 DV Act filed by respondent however, the learned Trial Court had dismissed the application on 10.08.2011. The learned Trial Court in order dated 11.11.2013 had passed an order rejecting the arguments on maintainability and held that there was no ground to dismiss the complaint filed by respondent. On 04.01.2014, petitioners had filed an appeal under Section 29 of DV Act against the order dated 11.11.2013 which was dismissed by the learned Appellate Court vide order dated 11.07.2017. Thereafter again, the Appellate Court had dismissed the review application preferred by petitioners vide order dated 31.08.2017. The petitioners had filed an appeal under Section 29 of DV Act against respondent which was dismissed vide impugned order dated 19.12.2022.

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3. Learned counsel for petitioners states that the learned Trial Court or Appellate Court had not decided the issue of maintainability. The learned Trial Court had decided application under Section 23 of DV Act moved by respondent despite it being not maintainable. It is stated that learned Trial Court had not applied its judicial mind while passing the impugned order. It is also stated that respondent had concealed the documents revealing her income and employment status alongwith other litigation documents. It is further stated that learned Trial Court had not considered the grounds led on record by the petitioners and, therefore, the impugned judgment be set aside.

4. Despite service, the respondent did not file reply nor anyone appeared on her behalf to address arguments.

5. This Court has heard arguments addressed on behalf of learned counsel of petitioner and have perused the material on record.

6. At the outset, it would be appropriate to look into the provision of Section 23 of DV Act which reads as under:

“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.”

7. The relevant portion of impugned judgment dated 10.10.2022 reads as under:

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