* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26^th NOVEMBER, 2024 IN THE MATTER OF:

+ CRL.REV.P. 797/2022 NAZIA HABEEB .....Petitioner Through: Ms. Reema Roy and Md. Arif, Advocates with Petitioner in person.

versus MOHD NAJAM KHAN .....Respondent Through: Respondent in person CORAM:

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

1. The Petitioner has approached this Court challenging an Order dated 22.09.2022 whereby the learned Additional Sessions Judge, Patiala House Courts has set aside the summons issued to the Respondent herein in proceedings initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'Domestic Violence Act'). The learned Additional Sessions Judge by the impugned judgment has held that the proceedings under the Domestic Violence Act could not have been initiated by the Petitioner herein against the Respondent for the reason that the Respondent had already divorced the Petitioner and since the marriage between the Petitioner and the Respondent does not subsist, the proceedings under the Domestic Violence Act cannot be initiated.

2. Shorn of unnecessary details, the facts of the case reveals that the nikah between the parties was solemnized according to the Muslim rites and ceremonies on 29.12.2007. It is stated that two children were born out of the Signature Not Verified Digitally Signed CRL.REV.P. 797/2022 Page 1 of 20 said wedlock. The elder child is a son who was born on 11.02.2009 and the younger child is a daughter born on 13.02.2019.

3. It is stated that the Petitioner gave a complaint against the Respondent to the Crime Against Women Cell on 22.10.2019 which resulted in filing of FIR No.712/2020 for offences under Section 498A, 406 & 34 IPC at Police Station Sagarpur.

4. The Petitioner thereafter has filed a petition under Section 125 CrPC for grant of maintenance and an interim maintenance for the sum of Rs.13,000/- has been awarded to the Petitioner. It is the case of the Petitioner that the Respondent is not paying the monthly maintenance.

5. It is pertinent to mention that despite the said proceedings, the Petitioner was residing at the residence of the Respondent and apprehending that the Petitioner would be evicted from the shared household, the Petitioner herein filed a petition under Section 12 of the Domestic Violence Act.

6. It is the case of the Respondent that after the proceedings under Section 125 CrPC were initiated, the Respondent has divorced the Petitioner through talaq-e-ahsan over three months through three separate notices. The three separate notices are dated 03.09.2020, 03.10.2020 and 03.11.2020. It is also stated that a sum of Rs.1,16,270/- which is the Mehar amount has also been given by the Respondent and therefore the divorce is complete.

7. The Order dated 24.03.2021 passed by the learned Metropolitan Magistrate, Mahila Courts issuing summons to the Respondent was challenged by the Respondent/husband by filing CA No.62/2021 stating that since the Respondent has divorced the Petitioner, no matrimonial relationship existed between the parties and since no relation existed Signature Not Verified Digitally Signed CRL.REV.P. 797/2022 Page 2 of 20 between the parties, which could be covered under the Domestic Violence Act to invoke jurisdiction, there was no jurisdiction to entertain the said petition.

8. The Petitioner has raised a contention that the said divorce was not a valid divorce under Section 3 & 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. The First Appellate Court has entered into the correctness or otherwise of the divorce as to whether the divorce pronounced was talaq-e-ahsan or talaq-e-biddat as contended by the wife. The Trial Court held that the Petitioner herein had nowhere specifically argued that the divorce pronounced by the Respondent herein was talaq-e- biddat or any such similar form of talaq having effect of instantaneous and irrevocable divorce pronounced by a Muslim hus