Quick Contact
- Office No.101, Himland House, Commercial Complex,Karampura, Delhi-110015, India
- 8171974067
- info@lawvs.com
Copyright ©2025 Lawvs.com | All Rights Reserved
IN THE COURT OF XXXXX, LD.M.M.; MAHILA COURT, EAST DIST.,
KARKARDOOMA COURTS, DELHI.
IN THE MATTER OF:
XXXXX :
RESPONDENT
N.D.O.H.:- XXXXX
APPLICATION
FOR AND ON BEHALF OF THE APPLICANT / RESPONDENT UNDER SECTION 28(2) OF D.V.
ACT, TO SET ASIDE THE EX-PARTE ORDER / JUDGMENT.
MOST
RESPECTFULLY SHOWETH :-
1.
That the above noted matter was fixed before this Hon’ble
Court on 02.12.2022 and due to non appearance of the respondent this Hon'ble
Court was pleased to proceed ex-parte against the respondent and passed the
ex-parte judgment on 27.05.2023 against the respondent.
2.
It is submitted that the Petitioner wanted to buy a land in
the mountains. Respondent had to pay huge amount of Rs. 30 Lacs (Rupees Thirty
Lacs) despite all the suffering and injuries inflicted by the Petitioner. The
Sale Deed for the 1/ land admeasuring approx. 8 nali was executed exclusively
in favour of the Petitioner. Petitioner wanted and insisted to be the sole
owner of the land although the Respondent arranged all the required permission
from different Govt. authorities for the purchase of the land with lot off
running around and difficulty.
3.
It is further submitted that Petitioner on several
occasions threatened the Respondent that she would commit suicide and implicate
the Respondent for the same. Respondent submits that he has tried his level
best to reconcile with the Petitioner but all of his efforts have not only been
wasted but have backfired in front of the cruel behaviour of the Petitioner.
Petitioner has left no scope for any kind of reconciliation and has harassed
the Respondent to the core. Respondent submits that there is no scope for
reconciliation. Respondent wishes to legally dissolve this marriage. The
Respondent submits that there has been irretrievable breakdown of marriage
between the Respondent and the Petitioner. There has been a trail of emails and
messages sent by the Petitioner to the Respondent, which clearly envisages the
physical and mental cruelty and stress the Respondent is being subjected to by
the Petitioner under his marriage. He has no permanent place to stay and was
staying with relatives and friends. That this all lead to lot of stress for the
Respondent and affected his efficiency and productivity. That the Respondent
almost stopped going to office, which impacted his professional commitments and
performance. That by 31.12.2018 the Respondent was forced to quit his job with PWC
due to all these incidents.
4.
It is further submitted that after a great difficulty the
Respondent got a job in a much smaller Organization called Dhruva consultants,
LLP. The career growth of the Respondent was permanently impacted. However,
Respondent once again put in all his hard work to regain his professional
reputation, which has been destroyed by the Petitioner, by putting him in lot
of mental stress. Respondent also took a house on rent in Gurgaon as his new
office was situated in Gurgaon only. Petitioner has created huge amount of
trouble in the new rented house and the new office of the Respondent that he
was asked by his organization to take sabbatical effective from 30.11.2019 till
XXXX 20** without pay. Respondent's company may consider about his employment
in the month of April 2020. In other words, Respondent does not have any
employment anymore and any source of revenue. Respondent’s reputation and
goodwill in professional world is severely tarnished. He had suffered
irrevocably. Respondent is in way jobless since then.
5.
It is further submitted that in March 2019, Petitioner
approached the Delhi High Court Mediation Centre for pre-lit mediation.
Respondent was happy that the Petitioner wants to settle the matter amicably.
Petitioner made illogical demands regarding finance. Looking into the situation
as the Petitioner was expecting a child, Respondent agreed to pay Rs 2.75 lakhs
per month for time being. Settlement terms were discussed between the parties,
and settlement agreement was drawn which was also exchanged between the
parties. After everything was finalized, Petitioner because of her malafide
intent, refused to sign the Agreement.
6.
It is further submitted that the parties had their second
child born on 07.05.2019. Respondent was present at the time of birth of their
Son. Respondent took good care of the Petitioner in the hospital at the time of
birth of his children. Petitioner's is so impulsive and erratic in her behavior
that just after 10 days of her new born she drove all the way from Noida to
Gurugram at 3AM in the morning and came to the Respondent's house, leaving her
new born and small daughter behind. The Petitioner has been doing this more
than often coming to Respondent's Gurugram house at odd hours without informing
him. Petitioner keeps stalking the Respondent in Order to disturb his peace and
sanity and also to check on him. It is pertinent that Petitioner has not
allowed to meet Respondent with his daughter, since last more than one year
although she kept visiting him in his rented house of Gurgaon on and often
unannounced at odd hours.
7.
It is further submitted that as the marriage between the
Parties had completely broken and there was no chance of reconciliation,
Respondent filed a Petition under Section 13(B) (1) of the Hindu Marriage Act,
for divorce before the Family Court, Greater Noida. Petitioner has been defending
the matter and has filed an application under Section 24 of the Hindu Marriage
Act. Petitioner also filed a separate Petition under Section 125 Cr.P.C. before
the Family Court, Greater Noida. Petitioner has also filed a complaint on which
an FIR No. XX of 20** under Section 498-A, 323 and 504 of IPC, Police Station, XXXXX,
Phase -2, Noida, UP has been registered against the Respondent, his widowed
mother, his divorced sister, his cousin and his cousin's wife. The FIR is based
on the similar allegations and even in the FIR the entire grievances of the
Petitioner is that the Respondent is not providing money to her. After a
detailed investigation, the police has submitted Closure Report and has held
that no case/s is made out against the Respondent, his widowed mother, his
divorced sister, his cousin and his cousin's wife.
8.
It is further submitted that in the proceedings before the
Family Court, Noida on one pretext or the other, the Petitioner delayed in
filing her income affidavit. Thereafter, she had been taking adjournments. It is pertinent to mentioned herein that the petitioner
herself admitted the jurisdiction of Noida, U.P., despite the filing of all
these cases at Noida Court, and deliberately and malafidely she concealed all
these proceedings from this Hon’ble Court and the filed the Domestic Violence
case.
9.
It is further submitted that while all these proceedings
were pending, Petitioner filed a Complaint under Section 12 of the Protection
of Woman under Domestic Violence Act, before this Hon’ble Court. On 18.08.2022
Respondent filed an Application under Section 25(2) of the Protection of Woman
under Domestic Violence Act, on the ground that the Court below does not have
territorial jurisdiction to entertain the Complaint. Notice was issued in the
Application. On the next date of hearing, i.e. on 06.10.2022 the Ld. Judge was
on leave, and the Counsel for the Respondent herein marked his presence but the
same was not recorded.
10.
It is further submitted that in April-May 20** as there was
non -payment of school fees of children, discussion took place among the
Parties, and the Parties agreed to pay the school fees jointly. In terms of the
arrangement, it was agreed that the Respondent would clear the dues of one of
the children and the Petitioner would clear dues of another child. Inspite the
fact that the Respondent being jobless, and having no money, he borrowed money
from his friends to pay the school fees of his daughter.
11.
It is further submitted that on 02.12.2022, when the matter
before the Hon’ble Court was called, the associate of the main Counsel for the Respondent
was held up in another Court, and on first call itself, the Hon’ble Court wrongly
recording that there was no appearance on the previous date, proceeded ex-parte.
On 24.12.2022, the Hon’ble Court was on leave again, the associate of the main
Counsel marked his presence. Thereafter the Associate of the main Counsel took
up a new job, and while handing over process, inadvertently did not mention of
the Order dated 02.12.2022 and mentioned that the matter has been adjourned for
further proceedings. Due to multiple cases between the Parties, the present
matter remains unnoticed and as Parties were in Mediation since March, 2023. Respondent
was appearing in the matter before the Family Court, District East Karkardooma
filed by the Petitioner on behalf of the minor children seeking maintenance. Respondent
has also moved an application under Order VII Rule 10 on the ground that the
Court does not have the territorial jurisdiction. Hence there was no reason for
the Respondent not to appear before this Hon’ble Court in the proceedings under
Domestic Violence Act.
12.
On 31.05.2023, the matter between the Parties was listed
before the Noida Court, when it was mentioned that the present DV Complaint has
been disposed of on 27.05.2023. It was shocking for the Respondent that the
matter has been disposed while the Parties were in Mediation. Thereafter on
06.06.2023, the Respondent's Counsel applied for certified copy and filed the
Appeal against the ex-parte judgment dated 27.05.2023 passed by this Hon’ble
Court.
13.
That this Hon’ble Court vide its order dated 27.05.2023 was
pleased to decide the petition under Section 12 o DV Act, filed by the Petitioner
and passed ex-parte judgment against the Respondent; it is recorded in para 14
that;-
“I deem it fit to grant a monthly maintenance of
Rs.1,50,000/- to the Petitioner, from the date of filing of the present
petition till further orders, for the maintenance of herself and her two minor children, to be paid by the Respondent Said amount is directed to
be paid into the bank account of the Petitioner before 15th day of
every month Arrears are directed to be cleared within 6 months of this
order."
14.
That in the aforesaid para, this
Hon'ble Court has directed to clear the arrears within six months of the order
and the period of six months expires on 27.11.2023. The Petitioner has filed
the execution petition and the total outstanding arrears as per Column 7 and 10
of her execution petition is a sum of Rs.3,00,000/- (Three Lakh Rupees).
15.
That the said ex-parte order and judgment was came to know
when the police person from the Preet Vihar Police visited the residence of the
Respondent’s mother at Aster 2904 SKA Greenarch, Gulshan Bellina Road,
Sector-16B, Greater Noida, on 01.11.2023 and asked about the Respondent and
further said that there is a warrant of arrest against the Respondent Amit
Bhagat in Execution petition bearing No. XXXX filed by the Petitioner. The
Respondent had moved an application for cancellation of warrant before this
Hon’ble Court and the Hon’ble Court had issued notice and stayed the execution
of warrant of arrest till the next date of hearing i.e. 15.12.2023.
16.
That on 04.11.2023, again the
Police person came to the above noted address and showed a warrant of
attachment of movable and immovable properties in Ex. Crl. No. XXXX for a sum
of Rs.21,00,000/- (Twenty-one Lakh Rupees).
17.
That as per the order dated
27.05.2023, this Hon'ble Court had directed the Respondent to pay the arrears
in six months completing on 27.11.2023 and the Execution Petition filed by the
Petitioner is for a sum of Rs.3,00,000/- (Three lakh rupees). The Petitioner
has misled this Hon'ble court and misrepresented the facts and has played a
fraud on the court, and thus has got a warrant of attachment of movable/
immovable properties for a sum of Rs.21,00,000/- executed through SDM and the
two address are that 401, Tower No. 8, Unitech
Harmony, Sector 50, Gurgaon, Haryana, And Flat No. XXXX Orchards Wishtown,
Jaypee Greens, Sector 125, Noida.
18.
That in the warrant of attachment
of movable and immovable properties, the above two noted addresses are
mentioned but the police person has visited the residence of the JDV mother at
Aster 2904 SKA Greenarch, Gulshan Bellina Road, Sector 16B, Greater Noida,
Uttar Pradesh, to harass the old widow mother. It further shows the connivance
between the Petitioner and the police persons.
19.
That further, the Petitioner filed an old salary slip of
January 2018 of the Respondent to mislead this Hon'ble Court, and concealed the material fact that the Respondent is unemployed,
and he is completely in debt.
20.
That the Petitioner herself
stated in her section 12, Domestic Violence Petition that "that the
complainant and both the minor children are residing in Flat no. XX, ATS Green
Village, Sector 93A, Noida, UP 201301." And in the affidavit she has
stated that she is temporarily residing at XXX, Nirman Vihar, Delhi.
21.
That the Respondent has no
permanent place to stay in Delhi, Noida or Gurgaon, he is homeless, so in these
circumstances, he requested his first cousin brother, namely Vishal Kumar, to
kindly permit the Respondent to use his residence address for the correspondence
purpose. That is the reason the Respondent provides this address in the
affidavits. That no process server has ever visited this address because, the
process server never met Respondent first cousin, Vishal Kumar. It is also
pertinent to mention that nobody can enter the main gate of the apartment
complex without the permission of the owner. The Petitioner is malafidely not
binding the order passed by this Hon'ble Court dated 27.05.2023.
22.
Section 28 (2) of DV Act again came into interpretation
before the Hon’ble High Court of Delhi while dealing with the review power of
the court in the case titled Himani Maini v. Chirag Maini, 2018 SCC OnLine
Del 10566 and the relevant observation is as under:
“She consequently
was advised to approach the Court of Metropolitan Magistrate again to pursue
her remedies under the Protection of Women from Domestic Violence Act, 2005. In
the above chronology of events, her grievances against the respondent in the
period after the settlement will have to be seen, examined, construed and
adjudicated upon in the light of the past alleged conduct. There is undoubtedly
a continuity of events involved. Since the law, by virtue of Section 28(2),
permitted the Metropolitan Magistrate to lay down “own procedure”, the view
taken by the said court by order dated 10.04.2015 leading to the revival of the
proceedings in the Domestic Violence case earlier filed cannot be faulted. The
opinion on the basis of which the revisional court set the said order at naught
seems to be hyper-technical and, therefore, liable to be set aside.”
23.
That this Hon’ble Court may be pleased to appreciate that
there has been appearances by the respondent from the institution of this
petition and his non appearance on some date of hearings was due to justifiable
reasons.
24.
That in adversarial system, a
party should be given adequate opportunity to participate in the proceedings
and processual law should not be construed in a manner so as to leave the party
helpless. Processual law has to do substantial justice and is always
subservient to and is an aid of justice. It should not be construed in a manner
to obstruct a party from pleading it’s case and representing himself.
25.
That the intention of the respondent is bonafide as he has
been making appearances in the past even when his previous counsel was not
appearing. That the respondent is a honest citizen of the country and respects
the Indian judicial system.
26.
That non-appearance of the respondent is neither
intentional and nor deliberate, but due to the facts stated as here in above.
27.
That in case the ex-parte proceeding order dated 02.12.2022
is not set aside and the case is not decided on merits by allowing the
respondent to take part in the proceedings then the respondent shall suffer an
irreparable loss and injury, which cannot be compensated in terms of money.
PRAYER:-
It is, therefore, most respectfully
prayed that this Hon’ble Court may be
pleased to:-
a. Allow the present application and further
to set-aside the order dated 02.12.2022 / ex-parte judgment dated 27.05.2023 passed
by this Hon’ble Court, which will be in the interest of justice.
b. Such other or further orders as this
Hon’ble Court may deem fit and proper in the facts and circumstances of the
case be also passed.
DELHI APPLICANT / RESPONDENT
DATED :- THROUGH
XXXXX
ADVOCATE
XXXXX
Email: XXXXX
IN THE COURT OF XXXXX, LD.M.M.; MAHILA COURT, EAST DIST.,
KARKARDOOMA COURTS, DELHI.
IN THE MATTER OF:
XXXXX :
RESPONDENT
Affidavit of XXXX S/o
XXXX, aged about 48 years, R/o XXX, Tower-4, XXXX Sector-**, Gurgaon-1220**, do
hereby solemnly affirm and declare as under:
1.
That I am the respondent in the above
case and am thoroughly conversant with the facts and circumstances thereof and
am competent to swear this affidavit.
2.
That the contents of accompanying application
Under Section 28(2) of D.V. Act, have been drafted by my counsel as per my
instruction and the contents of the same have been duly read over and
understood by me and after fully understanding the contents of the same, I
hereby state that the facts therein are all true and correct to my knowledge.
3.
The contents of the said application
may kindly be read as part and parcel of this affidavit also as the contents of
the same have not been repeated herein for the sake of brevity.
VERIFICATION
:-
Verified at Delhi
on ___ day of December, 2023 that the contents of above affidavit are true and
correct to my knowledge, no part of it is false and nothing material has been
concealed therefrom.
DEPONENT
IN THE COURT OF XXXXX, LD.M.M.; MAHILA COURT, EAST DIST.,
KARKARDOOMA COURTS, DELHI.
IN THE MATTER OF:
XXXXX :
RESPONDENT
N.D.O.H.:- XXXXX
APPLICATION
FOR AND ON BEHALF OF THE APPLICANT / RESPONDENT UNDER SECTION 5 OF LIMIATION
ACT, FOR CONDONATION OF DELAY IN FILING THE APPLICATION UNDER SECTION 28(2) OF
D.V. ACT.
MOST
RESPECTFULLY SHOWETH :-
1.
That the above noted matter was fixed before this Hon’ble
Court on 02.12.2022 and due to non-appearance of the respondent this Hon'ble
Court was pleased to proceed ex-parte against the respondent and passed the
ex-parte judgment on 27.05.2023 against the respondent.
2.
It is submitted that as the marriage between the Parties
had completely broken and there was no chance of reconciliation, Respondent
filed a Petition under Section 13(B) (1) of the Hindu Marriage Act, for divorce
before the Family Court, Greater Noida. Petitioner has been defending the
matter and has filed an application under Section 24 of the Hindu Marriage Act.
Petitioner also filed a separate Petition under Section 125 Cr.P.C. before the
Family Court, Greater Noida. Petitioner has also filed a complaint on which an
FIR No. 134 of 2022 under Section 498-A, 323 and 504 of IPC, Police Station,
Gautam Budh Nagar, Phase -2, Noida, UP has been registered against the
Respondent, his widowed mother, his divorced sister, his cousin and his
cousin's wife. The FIR is based on the similar allegations and even in the FIR
the entire grievances of the Petitioner is that the Respondent is not providing
money to her. After a detailed investigation, the police had submitted Closure
Report and held that no case/s is made out against the Respondent, his widowed
mother, his divorced sister, his cousin and his cousin's wife. It is pertinent
to mentioned herein that the petitioner herself admitted the jurisdiction of
Noida, U.P., despite the filing of all these cases at Noida Court, and
deliberately and malafidely she concealed all these proceedings from this
Hon’ble Court and the filed the Domestic Violence case.
3.
It is further submitted that while all these proceedings
were pending at Noida, U.P., Petitioner filed a Complaint under Section 12 of
the Protection of Woman under Domestic Violence Act, before this Hon’ble Court.
On 18.08.2022 Respondent filed an Application under Section 25(2) of the
Protection of Woman under Domestic Violence Act, on the ground that the Hon’ble
Court below does not have territorial jurisdiction to entertain the Complaint.
4.
It is further submitted that on 02.12.2022, when the matter
before the Hon’ble Court was called, the associate of the main Counsel for the
Respondent was held up in another Court, and on first call itself, the Hon’ble
Court wrongly recording that there was no appearance on the previous date,
proceeded ex-parte. On 24.12.2022, the Hon’ble Court was on leave again, the
associate of the main Counsel marked his presence. Thereafter the Associate of
the main Counsel took up a new job, and while handing over process,
inadvertently did not mention of the Order dated 02.12.2022 and mentioned that
the matter has been adjourned for further proceedings. Due to multiple cases
between the Parties, the present matter remains unnoticed and as Parties were
in Mediation since March, 2023. Respondent was appearing in the matter before
the Family Court, District East Karkardooma filed by the Petitioner on behalf
of the minor children seeking maintenance. Respondent has also moved an
application under Order VII Rule 10 on the ground that the Court does not have
the territorial jurisdiction. Hence there was no reason for the Respondent not
to appear before this Hon’ble Court in the proceedings under Domestic Violence
Act.
5.
On 31.05.2023, the matter between the Parties was listed
before the Noida Court, when it was mentioned that the present DV Complaint has
been disposed of on 27.05.2023. It was shocking for the Respondent that the
matter has been disposed while the Parties were in Mediation. Thereafter on
06.06.2023, the Respondent's Counsel applied for certified copy and filed the
Appeal against the ex-parte judgment dated 27.05.2023 passed by this Hon’ble
Court.
6.
It is submitted that the Applicant / respondent was came to
know about the said ex-parte order dated 02.12.2023 when the counsel for the
petitioner was e-mail to the applicant / respondent on dated ……… about the
ex-party judgment has been passed by the Hon’ble Court vide judgment dated
27.05.2023 against the applicant / respondent.
7.
That the said ex-parte order and judgment was also came to
know when the police person from the Preet Vihar Police visited the residence
of the Respondent’s mother at Aster 2904 SKA Greenarch, XXXX, Sector-XXXX,
Greater Noida, on 01.11.2023 and asked about the Respondent and further said
that there is a warrant of arrest against the Respondent Amit Bhagat in
Execution petition bearing No.XXXX filed by the Petitioner. The Respondent had
moved an application for cancellation of warrant before this Hon’ble Court and
the Hon’ble Court had issued notice and stayed the execution of warrant of
arrest till the next date of hearing i.e. 15.12.2023.
8.
That on 04.11.2023, again the
Police person came to the above noted address and showed a warrant of
attachment of movable and immovable properties in Ex. Crl. No. 96/2023 for a
sum of Rs.21,00,000/- (Twenty-one Lakh Rupees).
9.
That as per the order dated
27.05.2023, this Hon'ble Court had directed the Respondent to pay the arrears
in six months completing on 27.11.2023 and the Execution Petition filed by the
Petitioner is for a sum of Rs.3,00,000/- (Three lakh rupees). The Petitioner
has misled this Hon'ble court and misrepresented the facts and has played a
fraud on the court, and thus has got a warrant of attachment of movable/
immovable properties for a sum of Rs.21,00,000/- executed through SDM and the
two address are that XX, Tower No. X, XXXXX, Sector XX,
Gurgaon, Haryana, And Flat No. XXXXX Orchards Wishtown, XXXXX, Sector XX,
Noida.
10.
That in the warrant of attachment
of movable and immovable properties, the above two noted addresses are
mentioned but the police person has visited the residence of the JDV mother at
Aster 2904 SKA Greenarch, Gulshan Bellina Road, Sector 16B, Greater Noida,
Uttar Pradesh, to harass the old widow mother. It further shows the connivance
between the Petitioner and the police persons.
11.
That the Respondent has no
permanent place to stay in Delhi, Noida or Gurgaon, he is homeless, so in these
circumstances, he requested his first cousin brother, namely Vishal Kumar, to
kindly permit the Respondent to use his residence address for the correspondence
purpose. That is the reason the Respondent provides this address in the
affidavits. That no process server has ever visited this address because, the
process server never met Respondent first cousin, Vishal Kumar. It is also
pertinent to mention that nobody can enter the main gate of the apartment
complex without the permission of the owner. The Petitioner is malafidely not
binding the order passed by this Hon'ble Court dated 27.05.2023.
12.
That due to above said reason the
Application under Section 28(2) of D.V. Act has not been filed by the Applicant
/ respondent and delay has been caused and therefore the applicant / respondent
is filing the present application for condone the delay of __ days in filing of
the Application under Section 28(2) of D.V. Act which
neither intentional nor deliberate.
PRAYER:-
It is, therefore, most respectfully
prayed that this Hon’ble Court may be
pleased to:-
a. Allow the present application and may
further to condone the delay of __ days in filing the Application under Section 28(2) of D.V. Act before this
Hon’ble Court, in the interest of justice.
b. Such other or further orders as this
Hon’ble Court may deem fit and proper in the facts and circumstances of the
case be also passed.
DELHI APPLICANT /
RESPONDENT
DATED
:- THROUGH
XXXXX
ADVOCATE
XXXXX
XXXXX
Email: XXXXX
IN THE COURT OF XXXXX, LD.M.M.; MAHILA COURT, EAST DIST.,
KARKARDOOMA COURTS, DELHI.
IN THE MATTER OF:
XXXXX :
RESPONDENT
Affidavit of XXXXX S/o
XXXXX, aged about 48 years, R/o XXX, XXX, XXXX, Gurgaon-XXXX, do hereby
solemnly affirm and declare as under:
1.
That I am the respondent in the above
case and am thoroughly conversant with the facts and circumstances thereof and
am competent to swear this affidavit.
2.
That the contents of accompanying
application Under Section 5 of Limitation Act, have been drafted by my counsel
as per my instruction and the contents of the same have been duly read over and
understood by me and after fully understanding the contents of the same, I
hereby state that the facts therein are all true and correct to my knowledge.
3.
The contents of the said application
may kindly be read as part and parcel of this affidavit also as the contents of
the same have not been repeated herein for the sake of brevity.
VERIFICATION
:-
Verified at Delhi
on ___ day of December, 2023 that the contents of above affidavit are true and
correct to my knowledge, no part of it is false and nothing material has been
concealed therefrom.
DEPONENT
