# Smt. Rekha Sabharwal & Anr vs $ Sh. Jitender Sabharwal & Anr on 6 April, 2010

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Crl. M.C. No. 4264/2009 %

Date of Decision: 06th April,2010

# Smt. Rekha Sabharwal & Anr. …..

PETITIONERS ! Through: Ms. Sapna Sinha, Advocate.

VERSUS $ Sh. Jitender Sabharwal & Anr. …..

RESPONDENTS ^ Through: Mr. Subodh K. Pathak, Advocate.

CORAM: Hon’ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment?

NO 2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported in the Digest? NO

S.N.AGGARWAL, J (ORAL)

There are two petitioners in this case and they are related as mother and daughter. Petitioner No. 1 was married with respondent No. 1 according to Hindu rites and ceremonies on 16.05.1998. From their wedlock, a female child Mansi Sabharwal was born on 24.06.1999. On account of matrimonial temperamental incompatibilities between the couple, they started living separate from each other since October, 2003.

2. While petitioner No. 1 was living separate from the family of her husband, Domestic Violence Act, 2005 was enacted and this Act came into force w.e.f. 26.10.2006. The Domestic Violence Act, 2005 conferred certain rights on females and in exercise of those rights, the petitioners filed a complaint on 30.10.2007 and claimed various reliefs including relief for maintenance, right of residence etc. against the respondents Crl. M.C. No.4264/2009 Page 1 of 3 available to them under the provisions of Domestic Violence Act, 2005. This complaint filed by the petitioners before the Mahila Court (East), Karkardooma Court, Delhi was registered as case No. 69/2007 and was allowed by the Mahila Court (East) vide order dated 23.07.2009. The order of the trial court dated 23.07.2009 is at pages 49-57 of the paper book.

3. Aggrieved by the order of the trial court dated 23.07.2009, the respondents filed an appeal as provided in Section 29 of the Domestic Violence Act, 2005 which was registered as CA No.33/2009 and has been allowed by the court of Mr. Atul Kumar Garg, ASJ, Delhi vide order dated 25.09.2009. The order of the appellate court is Annexure P-1 at page 18 to 24 of the paper book.

4. The complaint under Domestic Violence Act, 2005 filed by the petitioners has been dismissed by the appellate court vide its order dated 25.09.2009 as not maintainable on the ground that the cruelty alleged by petitioner No. 1 was for the period prior to enactment of Domestic Violence Act, 2005 which came into force w.e.f. 26.10.2006. The respondents are real brothers. Respondent No. 1 is the husband of petitioner No. 1 and father of petitioner No. 2. It is not disputed on behalf of the respondents that the marriage between petitioner No. 1 and respondent No. 1 still subsists and has not been dissolved. It has been recently held by the Hon’ble Supreme Court that an estranged wife is entitled to maintain her complaint under Domestic Violence Act, 2005 in respect of cruelties pertaining to the period prior to coming into force of Domestic Violence Act, 2005. This legal proposition is not disputed by Mr. Subodh K. Pathak learned counsel appearing on behalf of the respondents. Since the marriage between petitioner No. 1 and respondent No. 1 still subsists, the petitioners are entitled to rights Crl. M.C. No.4264/2009 Page 2 of 3 available to them under the provisions of Domestic Violence Act, 2005 even in relation to acts of omission and commission on the part of the respondents pertaining to the period prior to coming into force of the said Act. The impugned order dated 25.09.2009 passed by the Sessions Court is therefore not maintainable and is hereby set aside. This petition is allowed.

5. With the consent of counsel for both the parties, the case is remanded back to the concerned trial court for proceeding with the complaint of the petitioners in accordance with law. The parties are directed to appear before the concerned trial court for directions at 02:00 PM on 22.04.2010. The concerned trial court is directed to decide the complaint of the petitioners as expeditiously as possible preferably within six months to be reckoned from 22.04.2010. A copy of this order be sent to the concerned trial court for information. This petition stands disposed of in terms referred above.

APRIL 06, 2010 S.N.AGGARWAL, J ‘A’ Crl. M.C. No.4264/2009 Page 3 of 3

http://www.indiankanoon.org/doc/323922/

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