Farzana Ansari Vs. Abid Ali Ansari - Court Judgment

1. Heard Mr. Bhobe, learned Counsel appearing on behalf of the petitioner and Mr. Agha, learned Counsel appearing on behalf of the respondent.

2. Rule. Rule made returnable forthwith. Mr. Agha waived service of notice on behalf of the respondent. By consent heard forthwith.

3. By this petition, the petitioner has challenged the order dated 19/11/2013 passed by the learned Additional Sessions Judge, FTC-II, Margao ("Appellate Court", for short) in Criminal Appeal No.92 of 2012. The said Criminal Appeal was directed against the order dated 31/08/2012 passed by the learned Judicial Magistrate, First Class "C" Court, Vasco-da-Gama ("J.M.F.C.", for short), in Criminal Case No.27/DVA/2010/C. The petitioner was the complainant whereas the respondent was respondent no.1 in the said Criminal Case, wherein there were five more respondents. Parties shall hereinafter be referred to as per their status before the learned J.M.F.C.

4. The complainant had filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ("the act", for short) against the respondents which came to be registered as Criminal Case No.27/DVA/2010/C. It was the case of the complainant that she is the legally wedded wife of the respondent No.1 and their marriage was solemnized on 09/11/2009 according to the Muslim rites and ceremony at Kushi Nagar, Uttar Pradesh. The respondents are permanent resident of Haryana and the respondent no.1 is working as a professor in Kurushetra University in Mass Communication Department and is drawing salary of Rs.40,000/- per month. After the marriage, the complainant was residing at the marital abode at Gharaunda Karnal, Haryana, but after a period of 3 to 4 days of the marriage, there was a sudden change in the attitude of the respondent No.1 and the respondent No.1 told the complainant that he will keep the divorce papers ready and both of them would separate. Thereafter, according to the complainant, the respondent No.1 started harassing her and there were demands for dowry and other valuable items which were fulfilled to some extent by the parents of the complainant. However, the harassment against the complainant by the respondents continued and besides the verbal abuses, there were also physical assaults and mental tortures. The complainant stated that on 18.09.2010, the respondents assaulted her and she managed to come out of the house and contacted her father in Goa and narrated all the incidents of harassment to him, due to which finally on 19th September, 2010, the father and brother of the complainant came to the house and took her to the closest Government Hospital near the matrimonial house and after treatment She came to her parents and has been residing in her parental house at Vasco being unable to bear physical and mental torture.

5. The respondents did not file any reply.

6. The complainant examined herself as PW1 and her father namely Mohamad Ansari as PW2. The respondents did not lead any evidence before the learned J.M.F.C.

7. Upon consideration of entire evidence on record and after hearing the learned Counsel for the parties, the learned J.M.F.C. held that the complainant proved that she was subjected to physical assault and abuse by the respondents and, therefore, she was entitled to protection order under Section 18 of the Act. The complainant also proved that the respondent No.1 did not maintain her and, therefore, she was entitled for maintenance under Section 20 of the Act. It was held that the complainant also proved that she was entitled for compensation for mental and physical agony. Accordingly, the application under Section 12 of the Act was partly allowed. The complainant was secured with protection order under Section 18 of the Act and the respondents were restrained by way of injunction from committing any act of domestic violence against the applicant and her family. The complainant was also secured with monetary relief under Section 20 of the Act and the respondent No.1 was directed to pay an amount of Rs.10,000/- as maintenance to the complainant and to deposit the same with the Nazir of the Court on or before 7th day of every month. All the respondents were further directed to pay an amount of Rs.1,00,000/- to the complainant as compensation for physical and mental agony undergone by her on account of domestic violence meted out by the respondents. The Protection Officer as well as Police Inspector of the concerned Police Station were directed to assist the complainant in implementing the order. It was made clear in paragraph 23 of the order that since the amount of Rs.10,000/- was granted as maintenance to the complainant under Section 125 of Cr.P.C., the maintenance in the present proceedings will not be separate amount of maintenance and either of the maintenance amount could be paid to the complainant.

8. Aggrieved by the said Judgment and order dated 31/08/2012, only the respondent no.1 filed Criminal Appeal No.92 of 2012. The learned Appellate Court allowed the appeal and quashed and set aside the order dated 31/08/2012 passed by the learned J.M.F.C.. The said order dated 19/11/2013 passed by the Appellate Court is impugned in the present petition.

9. Mr. Bhobe, learned Counsel appearing on behalf of the complainant, submitted that the learned J.M.F.C. had directed all the respondents to pay an amount of Rs.1,00,000/- to the complainant as compensation for physical and mental agony and had secured her with protection order under Section 12 of the Act against all the respondents. He pointed out that the appeal before the Appellate Court was filed only by the respondent No.1 in spite of which the order of the learned J.M.F.C. was set aside by the Court as against all the respondents. He pointed out that besides the evidence of PW1 and PW2, there was documentary evidence of hurt certificate dated 19/09/2010 issued by the Medical Officer. He submitted that there was neither any reply nor any rebuttal evidence from the respondents and, therefore, the judgment of the learned J.M.F.C. could not have been set aside, in the exercise of revisional jurisdiction, by the Appellate Court. Mr. Bhobe, learned Counsel further submitted that salary certificate was not produced by the respondent No.1 and that the complainant had obtained the salary certificate of the respondent no.1 under Right to Information Act. He submitted that the harassment to the complainant had taken place within four corners of the house and there was justification for the complainant to leave the house. He submitted that the respondent No.1 has divorced the complainant and the complainant is not maintained by the respondent No.1. He submitted that the complainant is unemployed and unable to maintain herself. The learned Counsel therefore urged that the impugned judgment and order passed by the Appellate Court be quashed and set aside and the order of the learned J.M.F.C. be restored.

10. On the other hand, Mr. Agha, learned Counsel appearing on behalf of the respondent No.1, submitted that there was maintenance application bearing No.2/N/2011/C filed by the complainant under Section 125 of the Code of Criminal Procedure ("Cr.P.C.", for short) before the learned J.M.F.C., which was allowed with a direction to the respondent No.1 to pay maintenance of Rs.10,000/- per month on or before 7th day of each month. He submitted that Criminal Revision Application No.29 of 2012 was filed by the respondent No.1 against the said order and the learned Sessions Judge had allowed the said revision and had quashed the order of maintenance passed by the learned J.M.F.C. He further submitted that against the said order of the Sessions Judge, Criminal Revision Application No.38 of 2013 was preferred by the complainant before this Court and by order dated 24/02/2014 the said Revision Application was partly allowed and the respondent No.1 has been directed to pay Rs.5,000/- per month to the complainant towards maintenance under Section 125 of Cr.P.C., on or before 7th day of every month. He submitted that the respondent no.1 was also directed to pay arrears of maintenance from the date of filing of the maintenance application. He submitted that the respondent No.1 has paid the arrears and has been regularly paying the maintenance amount to the complainant.

The learned Counsel pointed out that the learned J.M.F.C., in order dated 19/11/2013, has already held that since an amount of Rs.10,000/- was already granted as maintenance to the complainant in an application under Section 125 of Cr.P.C., the maintenance amount in the Criminal Case No.27/DVA/2010/C will not be a separate amount as maintenance and that either of the maintenance amount can be paid to the complainant. Learned Counsel urged that the said order was not challenged by the complainant. He, therefore, submitted that since the complainant is already being paid the maintenance amount of Rs.5,000/- per month, there is no scope for interference with the impugned judgment and order, passed by the Appellate Court. He also urged that since another order dated 19.11.2013, passed by the appellate court, in Criminal Appeal No.90/2012, which was filed against the same impugned order, has not been challenged, the findings therein have become final and hence no relief can be granted in the present petition.

11. I have gone through the material on record. I have also considered the submissions made by the learned Counsel for the parties.

12. The learned Appellate Court has not considered the fact that the respondents had not at all filed any reply resisting the application under Section 12 of the Act filed by the complainant nor had they produced any oral or documentary evidence. It is also pertinent to note that though there were seven respondents in Criminal Case No.27/DVA/2010 and though vide the impugned order, all the respondents were directed to pay an amount of Rs.1,00,000/- to the complainant as compensation for physical and mental agony undergone by the applicant, however, the respondents No.2 to 6 have not challenged the said order dated 31/08/2012. In the circumstances above, the Appellate Court could not have set aside the order dated 19/11/2013 insofar as the directions to the respondents No.2 to 6 to pay the amount of Rs.1,00,000/- to the complainant and restraining them from committing any act of domestic violence against the complainant and her family, are concerned.

13. The harassment, as claimed by the complainant, was within four corners of the house and, therefore, it cannot be expected that any outsider would come to know about the same. Be that as it may, the complainant had examined herself and also her father and both had narrated all the facts regarding the harassment meted out to the complainant by the respondents. It should be kept in mind that during the course of evidence, the complainant (PW1) as well as her father (PW2) deposed that the complainant was assaulted on 18/09/2010 by the respondent No.1 and in support of the said statement, the complainant had produced the hurt certificate which showed that actually she had sustained injuries. It is also pertinent to note that the respondent No.1 has already obtained divorce though the said order of divorce is under challenge. On account of above, it cannot be expected that the respondent No.1 would pay any maintenance amount to the complainant. In terms of Section 2(a) of the Act, "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. "Domestic violence" in terms of section 2(g) of the Act, has the meaning as assigned to it in section 3 of the Act. Section 3(a) of the Act includes economic abuse within the meaning of domestic violence. Explanation I(iv) to Section 3 of the Act, inter alia, defines "economic abuse" to include deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom, etc.

In my considered view, there was ample of evidence on record that there was domestic violence meted out by the respondents as against the complainant. The learned J.M.F.C. rightly held so after appreciation of the evidence on record. The evidence on record also established that though the complainant is a graduate, however she is unemployed and, therefore, requires money for her own maintenance. The income of the respondent No.1 was proved since his salary certificate is on record, showing that as on April 2012, the gross salary was Rs.40,628/- and after deductions, the net salary was Rs.26,105/-.

14. It should be kept in mind that in Civil Revision application No.38 of 2013, this Court, in the matter pertaining to the maintenance application under Section 125 of Cr. P.C., has held that the respondent no.1 is a professor drawing Rs.40,000/- per month as gross salary and that the salary certificate shows that his take home salary is Rs.26,105/-. Taking into account that the couple does not have a issue and in all other circumstances, this Court held that an amount of Rs.5,000/- per month towards the maintenance under Section 125 of Cr.P.C. would be an appropriate amount. There is absolutely no evidence on record to establish that the respondents have any other source of income than the salary of respondent no.1.

It is true that as per Section 26 of the Act, any relief available under Sections 18, 19, 20, 21 and 22 of the Act may also be sought in any legal proceeding, before a Civil Court, Family Court or a Criminal Court, affecting the aggrieved person. However the word 'may' used under Section 26 shows that discretion is given to the Magistrate. The learned J.M.F.C. in the impugned order, dated 31/08/2012 has held that the amount to be paid under Section 20 of the Act and that paid as maintenance under Section 125 of Cr.P.C. should not be separate amount and that either of the maintenance amount could be paid to the complainant. In my considered view, the said observation of the learned J.M.F.C. is appropriate in the facts and circumstances of the case. However in addition to the said amount of Rs.5,000/- per month, the learned J.M.F.C. has rightly directed all the respondents to pay an amount of Rs.1,00,000/- to the complainant as compensation for physical and mental agony undergone by her on account of domestic violence meted out to her by the respondents. The respondents No.2 to 6 have not challenged the order of the learned J.M.F.C. I do not see any reason in the impugned order dated 19/11/2013 as to why the said amount of Rs.1,00,000/- has been denied. In my view, therefore, the impugned judgment and order dated 19/11/2013 is unjust, illegal and arbitrary and hence liable to be quashed and set aside.

15. It was contended by the learned Counsel for the respondent No.1 that the same order dated 31.08.2012 passed by the learned J.M.F.C. was challenged by the complainant in Criminal Appeal No.90/2012, before the Appellate Court and the said Criminal Appeal was dismissed by order dated 19.11.2013. He submitted that the said order has not been challenged and hence the findings therein have become final. However, a perusal of the said order dated 19.11.2013, passed by the Appellate Court in Criminal Appeal No.90/2012, reveals that the said Criminal Appeal was restricted to the impugned order dated 31.08.2012, insofar as it rejected the prayer of return of the articles given in dowry as 'Stridhan', at the time of marriage and for the purpose of enhancement of the monthly allowance, after setting aside the impugned order. In the present appeal, the prayer is to quash and set aside the order dated 19.11.2013 of the Appellate Court and to restore the order dated 31.08.2012 of the learned J.M.F.C. Hence, there is no force in the above contention of the learned Counsel for the respondent No.1, as regards the order passed in Criminal Appeal No.90/2012.

16. In the result, the petition is partly allowed.

(a) The impugned order dated 19/11/2013 passed by the learned Appellate Court in Criminal Appeal No.92 of 2012 is quashed and set aside.

(b) The order dated 31/08/2012 passed by the learned J.M.F.C. in Criminal Case No.27/DVA/2000/C stands modified.

(c) The said order of the learned J.M.F.C., insofar as grant of protection under Section 12 of the Act and the restraint from committing any act of domestic violence against the complainant and her family is concerned, is maintained.

(d) The respondent No.1 is directed to pay an amount of Rs.5,000/-, instead of Rs.10,000/- as maintenance to the complainant and since the same amount has been already directed to be paid under Section 125 of Cr. P.C., the same need not be paid separately.

(e) The impugned order directing all the respondents to pay to the complainant an amount of Rs.1,00,000/- as compensation for physical and mental agony undergone by her on account of domestic violence meted out by the respondents, is maintained.

(f) Rule is made absolute in the aforesaid terms.

17. Petition stands disposed of accordingly.