Mahesh Chanda Sharma, J.
1. The complainant petitioner has filed instant revision petition under Section 397 read with 401 Cr.P.C. against the impugned Judgment dated 3.6.2008 passed by Addl. District & Sessions Judge, No. 7, Jaipur City, Jaipur (for short 'appellate Court') in Criminal Appeal No. 40/2007 by which it Criminal Appeal No. 40/2007 by which it quashed and set-aside the order dated 25.6.2007 passed by Civil Judge (Jr. Division) & Judicial Magistrate No. 18, Jaipur City, Jaipur (for short 'trial Court') in criminal case No. 17/2007 and allowed the criminal appeal filed by respondent with certain directions.
2. Brief facts of the case are that on 12.6.2007 respondent Dr. Rahul Gupta filed an application before trial Court under the provisions of Protection of Women from Domestic Violence Act, 2005 (for short 'the Act of 2005') for handing over custody of his son Anmol Gupta on each and every Sunday from 8:00 AM to 8:00 PM so that he along-with his parents can give love and affection to Anmol Gupta. Certain other facts were also mentioned in the afore said application. Trial Court after hearing rejected the application of respondent vide order dated 25.6.2007 mainly on two counts: firstly, maintainability of the application filed by respondent; secondly, custody of Anmol.
3. Against the aforesaid order of trial Court respondent Dr. Rahul Gupta preferred a criminal appeal before appellate Court. The appellate Court after hearing both the Counsel allowed the appeal vide judgment dated 3.6.2008 and quashed and set-aside the order dated 25.6.2007 passed by trial Court and gave direction that the petitioner Dr. Nishi Gupta along-with Anmol Gupta will reach at Plot No. B-180, Janta Colony, Jaipur to meet with natural guardian Dr. Rahul Gupta, grand-father Dr. Om Prakash Gupta because at presently she is separately residing in her house situated in Shyam Nagar. The petitioner will not refuse respondent and Dr. Om Prakash Gupta (grand-father of respondent) to meet with Anmol Gupta and if she refuses then it will be contempt of Court.
4. Against impugned Judgment of appellate Court dated 3.6.2008, complainant petitioner has fifed instant revision petition before this Court.
5. Mr. U.N. Bhandari, Sr. Advocate with Dr. P.C. Jain, Counsel appearing for the petitioner submit that judgment passed by appellate Court dated 3.6.2008.is illegal, erroneous and against the Act of 2005 and cannot be sustained in the eye of law. The appellate Court has not even cared to see the provisions of law in respect of the maintainability of the application moved by the respondent in view of definition arrived at by the Act of 2005 itself. The words 'aggrieved person' are defined in Section 2(ka) of the Act of 2005, which run as under:
2 (ka) 'aggrieved person' means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
6. The act of 2005 also provides the definition of 'respondent' which is reproduced as under:
2(q) 'respondent' means any adult male person who is, or has been, in a domestic relationship with the aggrieved, person and against whom the aggrieved person has sought any relief under this Act;
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partners.
7. According to them, in the light of the aforesaid definitions the application moved for and on behalf of respondent was not maintainable in trial Court as well as before appellate Court but the appellate Court while deciding the appeal has not even touched the main and important point 'as to maintainability of the application moved by the respondent under the Act of 2005.' They submit that the application of the respondent was only to the fact that he and his father were interested in meeting with the child Anmol Gupta once in a week, despite that appellate Court has exceeded its jurisdiction while passing the impugned Judgment dated -3.6.2008. They further submits that appellate Court has not complied with the provisions of Section 385(2) Cr.P.C. Lastly, they submit that in this case appellate Court has exceeded its jurisdiction, the result of which appellate Court has not decided the actual controversy involved in the matter and in the name of 'principles of natural justice' appellate Court has passed the impugned Judgment dated 3.6.2008.
8. Mr. Dheeraj Tripathi, Counsel appearing for respondent vehementally controverted the afore-mentioned arguments but at the same time a question was asked by the Court from Mr. M.M. Ranjan, Advocate 'Whether such type of application filed by respondent Dr. Rahul Gupta, who is father of Anmol Gupta under the Act of 2005 is maintainable or not?' For this question Mr. M.M. Ranjan, Advocate straightforward answered that 'such type of application under the Act of 2005 is not maintainable.'
9. Mr. Tripathi, Counsel for respondent pointed out that so far question of custody of 'Anmol Gupta' is concerned, in this regard writ petition bearing SBCW P. No. 10037/2006 is pending before this Court.
10. I have heard learned Counsel for the respective parties and carefully gone through the entire material available on record.
11. In my view, appellate Court has commuted an illegality and irregularity in passing the judgment impugned dated 3.63008 In not touching main and Important point as to maintainability of the application moved by respondent Dr. Rahul Gupta under the Act of 2005, which is affirmed In question asked for from Mr. MM Ranjan, Advocate and the writ petition regarding custody of Anmol Gupta Is pending before this Court.
12. In view of above discussion, this criminal revision petition is allowed and the impugned Judgment dated 3.6.2008 passed by Addl. District & Sessions Judge S. No. 7, Jaipur City, Jaipur in criminal appeal No. 40/2007 is quashed and set-aside. The Dy. Registrar (Judicial) is directed to send a copy of this Judgment to concerned Addl. District & Sessions Judge S. No. 7, Jaipur City, Jaipur.