Sunday, 1 November 2015

Whether Muslim woman can claim dahej articles after divorce in domestic violence proceeding?

 Both the sides showed relevant record to
this Court and some argument was advanced on the
basis of provisions of the Domestic Violence Act.
It was mainly submitted by the learned counsel for
the   Petitioner   that   it   is   the   contention   of   the
husband   that   the   parties   have   taken   divorce   by
mutual consent and document of Khulanama has been
executed   and   so   the   proceeding   is   not   tenable
under the provisions of Domestic Violence Act. To
ascertain as to whether even after the dissolution
of   the   marriage,   proceeding   can   be   filed,   the
Scheme   of   the   Domestic   Violence   Act   needs   to   be
seen   and   particularly   definitions   of   "domestic
relationship"   given   in   Section   2(f)   and   "shared
household" given in Section 2(s) of the Act needs
to be considered. These two definitions show that

it is sufficient for the aggrieved person to show
that   at   any   stage   she   had   lived   in   a   domestic
relationship   with   the   respondent,   husband.   Then
the   definitions   of   "aggrieved   person"   and
"domestic   violence"   need   to   be   seen.   They   are
given in Section 2(a) and 2(g) of the Act. Section
2(g) shows that the meaning given in Section 3 of
the Domestic Violence Act needs to be considered.
Section 3(iv) of the Act shows that economic abuse
is   included   in   the   definition   of   "domestic
violence".   Further,   in   Chapter   IV   there   are
provisions made regarding Procedure for obtaining
reliefs. Section 20 of the Act is with regard to
monetary reliefs. This Court has no hesitation to
hold   that   Section   20(1)(c)   of   the   Domestic
Violence  Act can be used  in a case like  present
one. 
                                       
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
   CRIMINAL  WRIT PETITION NO.457 OF 2014
Syed Akram Ali s/o Syed Sultan,

       VERSUS             
Rubina Begum w/o Syed Akram Ali,
     
              CORAM:  T.V. NALAWADE, J.
              DATE : 20TH NOVEMBER, 2014
   Citation; 2015 CRLJ(NOC)484 Bom

                                 
1. Heard   learned   counsels   for   both   the
parties.

2. The   Petition   is   filed   to   challenge   the
Judgment and Order passed in Criminal Appeal No.73
of   2012,   which   was   pending   in   the   Court   of   3rd
Additional   Sessions   Judge,   Aurangabad.   In   the
proceedings   filed   under   the   provisions   of   the
Protection   of   Women   from   Domestic   Violence   Act,
2005   (for   short   "Domestic   Violence   Act"),
direction is given against the present Petitioner,
husband   to   return   Dahej   (Jahez)   articles   to   the
Respondent   or   to   pay   Rs.2,00,000/­   in   lump   sum
towards   the   price   of   those   articles   to   the
present Respondent.
3. It   is   the   case   of   the   wife   that   the
articles given in Jahez, which include ornaments,
are in the custody of the husband and he has not
returned   those   articles   though   the   parties   are
living   separate.   In   the   proceedings   filed   under
Domestic   Violence   Act,   many   reliefs   were   claimed
but   the   aforesaid   relief   is   granted   by   the

Sessions Court in Criminal Appeal. This relief was
refused   by   learned   J.M.F.C.   by   making   some
observations   on   the   basis   of   the   record   of
compromise.
4. Both the sides showed relevant record to
this Court and some argument was advanced on the
basis of provisions of the Domestic Violence Act.
It was mainly submitted by the learned counsel for
the   Petitioner   that   it   is   the   contention   of   the
husband   that   the   parties   have   taken   divorce   by
mutual consent and document of Khulanama has been
executed   and   so   the   proceeding   is   not   tenable
under the provisions of Domestic Violence Act. To
ascertain as to whether even after the dissolution
of   the   marriage,   proceeding   can   be   filed,   the
Scheme   of   the   Domestic   Violence   Act   needs   to   be
seen   and   particularly   definitions   of   "domestic
relationship"   given   in   Section   2(f)   and   "shared
household" given in Section 2(s) of the Act needs
to be considered. These two definitions show that

it is sufficient for the aggrieved person to show
that   at   any   stage   she   had   lived   in   a   domestic
relationship   with   the   respondent,   husband.   Then
the   definitions   of   "aggrieved   person"   and
"domestic   violence"   need   to   be   seen.   They   are
given in Section 2(a) and 2(g) of the Act. Section
2(g) shows that the meaning given in Section 3 of
the Domestic Violence Act needs to be considered.
Section 3(iv) of the Act shows that economic abuse
is   included   in   the   definition   of   "domestic
violence".   Further,   in   Chapter   IV   there   are
provisions made regarding Procedure for obtaining
reliefs. Section 20 of the Act is with regard to
monetary reliefs. This Court has no hesitation to
hold   that   Section   20(1)(c)   of   the   Domestic
Violence  Act can be used  in a case like  present
one. It runs as under:
"20. Monetary reliefs.­(1) While disposing
of an application under sub­section (1) of
section 12, the Magistrate may direct the

respondent to pay monetary relief to meet
the expenses incurred and losses suffered
by  the  aggrieved   person  and  any  child  of
the   aggrieved   person   as   a   result   of   the
domestic   violence   and   such   relief   may
include, but is not limited to,­
(a)................  (b)................
(c)   the   loss   caused   due   to   the
destruction,   damage   or   removal   of   any
property from the control of the aggrieved
person." 
5. Thus, in law there is nothing to prevent
the   Magistrate   to   grant   the   relief   of   return   of
Jahez articles. All these provisions are enabling
provisions and that object always needs to be kept
in   mind   by   Court   exercising   the   powers   for   the
interpretation of the aforesaid provisions.
6. The   learned   counsel   for   the   Petitioner,
husband   took   this   Court   through   the   compromise
document. This document dated 26th May, 2008 shows

that   the   wife   had   agreed   to   return   to   the
matrimonial house and on the same day she returned
to the matrimonial house. There is a mention that
the wife was to take with her the ornaments which
were in her possession, to the matrimonial house.
This mention in the compromise document dated 26th
May,   2008   cannot   lead   to   the   inference   that   all
the ornaments were with her right from beginning,
and     particularly   ornaments   given   as   Jahez
articles were also with her.
7. The execution of document like Khulanama
is also not disputed by the parties. The wife has
challenged Khulanama also, but that challenge need
not   be   considered   for   the   purpose   of   present
proceeding.     This   document   of   Khulanama   dated
25th August 2008 shows that Jahez articles as per
list  were to be returned  by the  husband  on 26th
August,  2008.  It is not  the  case  of the  husband
that   as   per   this   promise   he   had   returned   Jahez
articles.   In   view   of   the   aforesaid   circumstances

the only point that remains is as to whether Jahez
articles as claimed in the Petition were given at
the time of marriage. A list of Jahez articles is
produced   by   the   wife   and   which   is   apparently
signed by father of the husband. In the list, in
addition   to   the   household   articles,   there   is   a
mention of gold and silver ornaments. The weights
of the ornaments are also mentioned. As the order
of   return   of   these   ornaments   was   made   on   1st
March, 2014, it can be said that the value of the
ornaments was required to be ascertained as on 1st
March, 2014. In March 2014, the value of gold was
more   than   Rs.27,000/­   per   10   gm.   The   value   of
silver was around Rs.40,000/­ per kg. Even today
the value of gold per 10 gm. is around Rs.27,000/­
though   the   value   of   silver   has   come   down   upto
Rs.35,000/­ per kg. If the value of the gold and
silver   is   calculated   and   the   value   of   the
household   articles   given   in   the   list   is
calculated,   then   it   can   be   said   that   amount   of
Rs.2,00,000/­ is not on higher side. There is no

other   list   with   the   husband   to   show   that   list
available   with   the   wife   is   not   correct   one.   In
view of these circumstances, this Court holds that
there   is   no   possibility   of   interference   in   the
decision given by the Sessions Court.
8. Learned   counsel   for   the   Petitioner,
husband   placed   reliance   on   the   case   reported   in
2010(3)   Mh.L.J.,   Page   No.305   (Jayesh   Uttamrao
Khairnar and others vs. State of Maharashtra and
others).   In   that   matter,   protection   order   was
claimed when divorce was given by competent Court
in favour of the husband and during the relevant
period of one year or immediately before filing of
the   application   under   this   Act,   there   was   no
conjugal   relationship.   The   Court   held   that
provisions   of   Section   12,   16,   20   and   22   of
Domestic   Violence   Act   were   not   available   to   the
wife. The facts were different. This reported case
is of no help to the present Petitioner, husband.

9. In   the   result,   the   Writ  Petition   stands
dismissed.
                             [T.V. NALAWADE, J.]

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