Full Text
Date of Decision: 09.12.2019
(exemption)
JASMEET KAUR ..... Appellant
Through Ms.Anu Narula, Adv. with Mr.Aman Usman, Adv.
Through Mr.Jai Bansal, Adv. for R-1.
Mr.Jasmeet Singh, Adv. for R-2 & 3.
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
CM No. No.52901/2019 (exemption)
1. Exemption allowed subject to all just exceptions.
2. The application stands disposed of. CM No.52900/2019 (stay)
1. This application has been preferred by the appellant challenging an order dated 06.11.2019 passed by the learned Single Judge in CM No.47846/2019 preferred in WP(C) No.13538/2018 whereby the learned Single Judge has called for the presence of this appellant on the next date of hearing which is tomorrow i.e. 10.12.2019, before him.
2. Having heard the counsel for both sides and looking to the facts 2019:DHC:6790-DB and circumstances of the case, it appears that as alleged by the original petitioner in WP(C) No.13538/2018 who is respondent no.1 in this appeal, divorce has already been granted by a Court of United States of America (USA) between the appellant and respondent no.1 on 03.09.2019, for which the appellant is also going to prefer appropriate proceedings for quashing and setting aside the said order/decree as submitted by counsel for the appellant.
3. It further appears from the facts of the case that the appellant is presently residing in USA with her child born out of the wedlock between the appellant and respondent no.1. The child is about eleven years of age.
4. A complaint has been filed by the appellant against her husband/respondent no.1, for domestic violence and the same is pending before the Metropolitan Magistrate, Rohini Courts, Delhi.
5. FIR No.682/2018 has also been lodged by the appellant against the respondent no.1, registered at Mukherjee Nagar Police Station, New Delhi, for the offences under Sections 498A and 406 read with Section 34 of the Indian Penal Code (IPC). After investigation, a chargesheet has been filed by the investigating officer and the same is pending before the Metropolitan Magistrate, Rohini Courts, Delhi.
6. Another FIR has been filed by the appellant against the respondent no.1/husband for the offences punishable under Sections 420,468 and 471 of the IPC at Mukherjee Nagar Police Station, New Delhi. The same is pending for further investigation before the police authorities.
7. It appears that cognizance has been taken by the trial Court in one of the FIR’s in which a chargesheet has been filed and ultimately, Regional Passport Officer has also issued a notice to respondent no.1 on 10.07.2018 and another notice was issued by Consulate General of India at San Franciso, USA, on 24.10.2018, and said notices were replied by respondent no.1 on 26.07.2018 and 07.11.2018 respectively.
8. It further appears from the facts of the case that the passport of respondent no.1 was an Indian passport. The same has been cancelled by the Consulate General of India at San Francisco, USA, on 21.11.2018.
9. Being aggrieved and feeling dissatisfied by the aforesaid action of the cancellation of his passport, respondent no.1 preferred a writ petition being WP(C) No.13538/2018 before this Court.
10. Now the facts for the present LPA starts. Learned Single Judge vide order dated 19.12.2018, insisted for the presence of this appellant. However, the appellant is not concerned with the process of cancellation of passport of the respondent no.1 nor is involved in the process of issuance of Look Out Circular (LOC).
11. Being aggrieved and feeling dissatisfied with the order of the learned Single Judge dated 19.12.2018 passed in WP(C) No.13538/2018, the appellant, who was a proforma respondent in the original writ petition, preferred this Letters Patent Appeal (LPA) No.72/2019 before this Court.
12. In this LPA, stay was granted by this Court on 01.02.2019, against the order passed by the learned Single Judge on 19.12.2018. Thus, the presence of this appellant which was insisted by the learned Single Judge in the writ petition, preferred by respondent No.1, was stayed by this Court.
13. Thereafter, the stay was extended from time to time till 30.07.2019. Before the learned Single Judge, the writ petition came up for final hearing but due to an application preferred by the respondent no.1, who is petitioner in WP(C) No.13538/2018, the said writ petition was adjourned for 01.08.2019.
14. It appears from the facts of the case that once again, the learned Single Judge on 01.08.2019, directed personal appearance of this appellant in the writ petition, which has been preferred by respondent No.1/husband challenging cancellation of the passport and issuance of Look Out Circular, with which this appellant is prima facie not involved.
15. Being aggrieved and feeling dissatisfied by the order dated 01.08.2019, appellant preferred CM No.47846/2019 in WP(C) No.13538/2018. Varieties of reasons have been given in the application preferred by this appellant for waiving her presence before the learned Single Judge like:- (a) There is a restraint order passed by the Court of United States of America for shifting the custody of the child from USA as alleged by the counsel for the appellant. (b) If the appellant alone moves from USA to India, there shall be no one to take care of her child who is about eleven years of age.
(c) There is no immediate requirement by the High Court for presence of the appellant/wife in a case filed by the respondent no.1/husband challenging cancellation of his passport and issuance of a Look Out Circular.
(d) Appellant/wife is ready and willing to remain present in Court before the Metropolitan Magistrate, Rohini Courts, Delhi in relation to FIR No.682/2018 registered at Mukherjee Nagar Police Station in which the chargesheet has already been filed and she is also ready and willing to come as a witness before the Metropolitan Magistrate, Rohini Courts, Delhi. (e) The writ of the respondent no.1/husband is filed through an attorney whereas appellant submitted that she is not allowed to remain present through an attorney before the learned Single Judge. Presence of respondent no.3/wife/appellant in WP(C) No.13538/2018 can always be allowed through an attorney or advocate.
16. These aspects of the matter have not been appropriately appreciated by the learned Single Judge while dismissing Civil Miscellaneous No.47846/2019 in WP(C) No.13538/2018, preferred by this appellant, vide order dated 06.11.2019.
17. Being aggrieved and feeling dissatisfied by the aforesaid order dated 06.11.2019, passed by the learned Single Judge in Civil Miscellaneous Application No.47846/2019 in WP(C) No.13538/2018, the present Civil Miscellaneous Application No.52900/2019 has been preferred in this appeal.
18. Having heard counsel for both the sides and looking to the facts and circumstances of the case, it appears that earlier also, the learned Single Judge had passed an order dated 19.12.2018 for personal appearance of this appellant for which the present LPA was preferred, in which stay was granted by this Court vide order dated 01.02.2019. The stay was extended from time to time till 30.07.2019. Now, once again, the learned Single Judge had passed a similar order on 06.11.2019 and thereby directing personal appearance of the appellant before the writ Court.
19. It appears that the writ petition preferred by the respondent no.1/husband is against the cancellation of the passport by the Consulate General of India at San Francisco, USA and against the issuance of the Look Out Circular, which can be decided even without personal appearance of this appellant. Moreover, the present appellant who is respondent no.3 in WP(C) No.13538/2018, is already appearing through an advocate. Furthermore, this appellant is ready and willing to remain present before the learned Metropolitan Magistrate, Rohini Courts, Delhi in relation to the complaint filed by her against the respondent no.1/husband under Sections 498A and 406 to be read with Section 34 of the IPC in which chargesheet has already been filed by the police.
20. In view of the aforesaid facts, there is a prima facie case in favour of this appellant. Moreover, looking to the fact that her eleven years old son will be all alone in USA if she comes to India and also looking to the restraint order passed by the Court of USA, balance of convenience is also in favour of this appellant and an irreparable loss will be caused to this appellant if the stay as prayed for, is not granted by this Court.
21. We, therefore, stay the operation, implementation and execution of the order dated 06.11.2019 passed by the learned Single Judge in Civil Miscellaneous Application No. 47846/2019 in WP(C) No.13538/2018 as well as the order dated 01.08.2019.
22. This civil miscellaneous application is allowed and disposed of.
CHIEF JUSTICE C.HARI SHANKAR, J DECEMBER 09, 2019 aa