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IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 17^th September, 2018

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CRL.M.C. 2621/2016 and Crl. M.A nos. 11228/2016 and

11230/2016

MOHD USMAN

..... Petitioner

Through: Mr. Ashok Kumar Arya, Advocate

versus

THE STATE (GNCT OF DELHI) & ANR ..... Respondents

Through: Mr. Mukesh Kumar, APP for the

State

Mr. Pradeep Kumar, Mr. Javed Ahmed and

Mrs. Syed Maria A., Advocates

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBA

ORDER (ORAL)

1.

On the petition (CC no.V-313/13) of the first respondent

presented before the Metropolitan Magistrate under Section 12 of the

Protection of Women from Domestic Violence Act, 2005 (for short,

“Domestic Violence Act”), proceedings were taken out leading to the

judgment dated 30.10.2014 being passed in terms of which the

petitioner was burdened with the responsibility to pay compensation in

the sum of Rs.5,000/- and maintenance allowance in the sum of

Rs.4,000/- p.m. from the date of the filing of the said petition till the

second respondent continued to be legally entitled to for such

maintenance, this in addition to Rs.1,000/- p.m. towards right to

residence, it being equivalent to the amount payable by her as rent.

2.

The petitioner challenged the said order by criminal appeal

presented on 22.12.2015 in the court of Sessions, it being registered as

Crl. A 1112/2016. The first appellate court, referring to the law laid

down in Rajeev Preenja vs. Sarika, 159 (2009) DLT 616 called upon

the petitioner to deposit the arrears of maintenance and since he did

not make any such deposit, inter alia, taking the plea that the second

respondent is not legally wedded wife, the appeal was dismissed by

order dated 11.03.2016.

3.

The aforesaid orders are sought to be assailed by the petition at

hand invoking the inherent powers of this court under Section 482 of

the Code of Criminal Procedure, 1973 (Cr.PC)

4.

The prime contentions urged by the petitioner at the hearing are

that the second respondent had failed to show Nikahnama and,

therefore, she has failed to prove that she is his legally wedded wife.

He also contends that the ex parte judgment was rendered without

service of notice, the counsel who had appeared on his behalf having

never been formally authorized or instructed to do so.

5.

A perusal of the record would show that on 31.07.2013, the first

respondent had entered appearance through counsel who had sought

time from the Metropolitan Magistrate to file written submission. A

number of opportunities were taken and granted. Eventually, the right

to file reply was closed on 12.05.2014. On account of non-

appearance, the petitioner was set ex parte and it is on the basis of the

ex parte evidence led by the second respondent that the impugned

judgment of the Metropolitan Magistrate was rendered, it having been

found that the first respondent is the legally wedded wife of the

petitioner, her case of domestic violence at his hand leading to the

monetary relief in the nature of maintenance, compensation and right

to residence being accepted.

6.

On being asked, the counsel for the petitioner submitted that no

complaint has been lodged with the Bar Council against the advocate

who had appeared in the court of the Metropolitan Magistrate on his

behalf. From this, it has to be inferred that the advocate would have

appeared on being instructed to do so. From this, it also naturally

follows that the petitioner had due notice and knowledge of the

proceedings arising out of the petition under Domestic Violence Act

before the Metropolitan Magistrate.

7.

The petitioner, inspite of notice, failed to appear or to contest

the petition under the Domestic Violence Act by way of pleadings or

evidence. In these circumstances, the pleadings and evidence of the

second respondent had gone unimpeached and unchallenged. The

same, thus, have been rightly accepted by the courts below. The

finding about the relat