Nidhi Jain v. Ankit Jain

1. Petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) read with Article 227 of the Constitution of India has been preferred on behalf of the petitioner challenging the order dated 07.06.2024 passed by learned Judge, Family Court, Dwarka Courts, Delhi, whereby applications preferred by the petitioner for summoning of witnesses were dismissed.

2. Briefly, the facts as stated in the petition are that Petitioner and Respondent got married on 16.02.2012. Since after marriage, she was subjected to domestic violence by the Respondent and his family to fulfill dowry demands. On 18.11.2012, the Respondent and his family locked the matrimonial home, leaving the Petitioner deserted without resources, after transferring her stridhan, jewellery and cash to their family accounts. Respondent falsely implicated the Petitioner and her family in multiple frivolous litigations, all of which were later dismissed or withdrawn. Despite the Respondent's concealment of his assets and income, including his appointment as Chief Financial Officer [“CFO”] in “Punj Lloyd Solar Power Limited”, the Petitioner filed a series of applications under Section 311 Cr.P.C. to prove these concealments and establish his true financial status, which were initially allowed by the court. However, the Family Court, on 07.06.2024, dismissed the Petitioner’s application to summon witnesses, and the case is now fixed for final arguments on 29.07.2024, despite the Petitioner’s repeated requests to address these crucial issues before proceeding to final arguments.

3. The Petitioner submits that the Family Court’s dismissal of her application dated 13.03.2024, which sought to summon witnesses, including bank authorities, to substantiate her statement in the Evidence Affidavit, is unjustified and contrary to the directions in the order dated 11.03.2025. The Petitioner specifically sought to authenticate the 'Shakti Nagar property' document, a critical piece of evidence that would shed light on the Respondent’s concealed financial status and substantial income. The Petitioner’s statement in her Evidence Affidavit reveals that the Respondent deliberately transferred the sale proceeds of his sole Noida property to his mother’s name, attempting to disguise his assets and financial capacity. Despite the Family Court’s earlier permission under Section 311 Cr.P.C. to prove the authenticity of this document, the refusal to summon the bank witnesses renders the Petitioner’s statement incomplete and undermines her attempt to substantiate her case.

4. It is further submitted that the Respondent, throughout the trial, has misrepresented his financial situation, falsely portraying himself as having no significant income or assets. The Petitioner argues that Respondent has deliberately concealed his assets, including his appointment as CFO in 2014 and ownership of multiple properties, in an attempt to avoid disclosing his true financial capacity. The application seeking to uncover these concealments, filed on 13.09.2017, was allowed by the Court, leading to the Petitioner’s examination and the subsequent cross-examination of the Respondent. During the pendency of the proceedings, the Petitioner discovered that the Respondent had transferred assets to his family members, including his mother and brother, in an effort to mislead the Court and avoid paying legitimate maintenance dues.

5. Reliance is placed on settled legal precedents, including the Supreme Court’s judgment in Rajnesh v. Neha Criminal Appeal 730/2020 and the case of Sandeep Walia v. Monika Uppal CRL.REV.P. 179/2019, which recognize that when a husband conceals his income or assets, the court must take into account his true financial status for the determination of maintenance under Section 125 Cr.P.C. Furthermore, the Petitioner cites the case of Vikas Ahluwalia v. Simran Ahluwalia FAO143/2013 and Pasupuleti Venkateswarlu v. The Motor & General Traders Civil Appeal Nos. 2120 to 2122 of 1972, where courts have acknowledged that assets are often transferred in matrimonial disputes to avoid paying rightful dues. The Petitioner further asserts that the Respondent’s actions, including domestic violence, illegal retention of stridhan, and filing of frivolous litigations, are part of a larger scheme to deprive her of her legal entitlements.

6. Per contra, Learned Counsel for the Respondent submits that the Petitioner has come to the Court with unclean hands, citing several instances of delay tactics employed by the Petitioner in the proceedings. It is contended that the Petitioner filed numerous applications with the intent to derail the maintenance petition, and such actions have caused undue delays in the proceedings. The Respondent highlights that the issues in this matter were framed on 18.09.2013, and the Petitioner’s evidence was closed on 19.08.2014. Furthermore, the Respondent’s cross-examination was concluded on 17.02.2016, and the Petitioner filed an application under Section 311 Cr.P.C. shortly, thereafter, leading to further adjournments and delays, despite specific directions from the coordinate bench to expedite the matter.

7. The learned counsel appearing for Respondent while relying on the impugned order, submits that the witnesses sought to be summoned are not relevant to the Petitioner’s case. The Respondent asserts that the Petitioner has no substantial evidence to support her claims and that her actions are part of a deliberate attempt to prolong the litigation. The Respondent further refers to orders dated 18.11.2021 and 24.04.2023, where the trial court specifically noted the Petitioner’s delay tactics. It is submitted that the Petitioner’s conduct, including the filing of repetitive applications and non-cooperation, is an attempt to create litigation fatigue and further delay the proceedings in a case that involves a short-term marriage of approximately 6-8 months.

8. In the light of rival submissions made and material placed on record, this Court is of the view that learned Family Court erred in dismissing the petitioner’s application under Section 311 Cr.P.C, which reads as under:-

signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this Section unless the person has at some time been arrested in connection with such investigation or proceeding.]"

9. Section 311 Cr.P.C grants wide discretion to the Court to summon, recall or re-examine witnesses at any stage of the proceedings. The objective is to ensure that the truth emerges and justice is served. However, at the same time, such power must be exercised with caution, fairness and judicial prudence so that it does not become an instrument of delay or abuse.

10. It is apparent from the language that the Section consists of two parts. The first part is discretionary inasmuch as it allows the Court to summon or recall witnesses, if it thinks fit, while the second part is mandatory-if the evidence is essential to the just decision of the case, the Court must summon or recall the witnesses. Section 311 overrides the procedural technicalities in the interest of justice.

11. In the case of Zahira Habibullah Sheikh & Anr. vs. State of Gujarat & Ors 2004 4 SCC 158, the Supreme Court held that the Court has wide discretionary power to recall and re-examine the witnesses to arrive at the truth.

12. In Natasha v. CBI (State) Crl. Appeal no. 709/2013, the Apex Court inter alia held that Section 311 Cr.P.C. grants wide discretionary power to summon or recall witnesses at any stage to ensure a just decision. This discretion must be exercised judiciously, not arbitrarily.

13. In paragraph 8 of the impugned order, the learned trial Court crystallized the cumulative purpose of the three pending applications filed by the petitioner to summon the following documents:-