Saturday, 29 October 2016

Whether divorced muslim wife is entitled to make application under Domestic violence Act?

Thus a woman having lived in a domestic relationship
with a male, is entitled to claim monetary relief under the
Act irrespective of the fact that the status of the
matrimonial relationship survives or not. That apart, the
assertion made by Shri Jain that the husband Mohd. Rafique
had legally divorced Smt. Rahmat Bano is per se untenable.
The revisionist Mohd. Rafique was put a specific question
during cross-examination that in order to give divorce to his
wife, a Muslim husband is required to pay her the Mehar
and the Iddat amount. He agreed to this suggestion.
However, he did not state that while forwarding the alleged
divorce notice (Ex.NA/11), the wife Rahmat Bano was
offered and paid the Mehar and the Iddat amount. All that is
mentioned in the divorce notice is that the Mehar amount of
Rs.351/- was paid earlier. At what point of time, was the
amount paid is not reflected in the document nor did Shri
Mohd. Rafique during his evidence state anything about the
payment of Mehar and the Iddat money to Rahmat Bano.
Thus, the contention advanced by Shri Jain that Smt.
Rahmat Bano was legally divorced and the matrimonial
relationship stood severed leading to an inference that the
lady ceased to be an aggrieved person is not sustainable on
facts.
Reportable
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
(1) S.B. CRIMINAL REVISION PETITION No.636/2015
Mohd. Rafique vs. State of Rajasthan & Ors.

Dated: 23/04/2016
HON'BLE MR. JUSTICE SANDEEP MEHTA

Citation:2016 ALLMR(CRI)JOURNAL468

These two revisions are directed against the order
dated 25.04.2015 passed by the learned Additional Sessions
Judge No.2, Jodhpur Metropolitan in two appeals, one filed
by Mohd. Rafique and the other filed by Smt. Rahmat Bano
and Mohd. Shafeeq. The appellate court rejected both the
appeals and affirmed the order dated 21.01.2014 passed by
the learned Metropolitan Magistrate, Jodhpur Metro in
Criminal Case No.455/2010.
The learned Metropolitan Magistrate, by the above
order, had accepted the application filed by Smt. Rahmat
Bano and Mohd. Shafeeq being the wife and minor son
respectively of Shri Mohd. Rafique under the provisions of2.
the Domestic Violence Act and directed that Mohd. Rafique
shall make payment of an amount of Rs.1,000/- per month
to each of the applicants in addition to the maintenance
already being received by them under the orders passed by
different courts. Shri Mohd. Rafique was also directed not
to commit any domestic violence upon Smt. Rahmat Bano
and Mohd. Shafeeq.
The wife and the son, challenged the order passed by
the learned Metropolitan Magistrate by filing an appeal in
the Sessions Court on the ground that the learned
Magistrate, did not pass any order on the relief claimed by
them under Sections 18, 19, 20, 21 and 22 of the Domestic
Violence Act and that, while treating the income of the
respondent to be Rs.80,000/- per month, he be directed to
pay 1/3
rd of the said amount to them by way of monetary
relief. Mohd. Rafique challenged the order passed by the
Magistrate in appeal claiming that the monetary relief
granted to the respondents was unjustified and excessive.
His income was only Rs.3,000/- per month and his old aged
parents were dependent on him. The claimants had already
been awarded a sum of Rs.4,000/- per month by way of
maintenance in proceedings under Section 125 of the
Cr.P.C. and thus, the impugned order should be set aside.
The appellate court, by its order dated 25.04.2015, rejected
both the appeals and affirmed the order dated 21.01.20143.
passed by the learned Magistrate. Hence these revisions.
Shri Vineet Jain, learned counsel for the petitioner
Mohd. Rafique submitted that the parties are living
separately for a long time and the applicants have already
been awarded substantive maintenance in the application
filed before the Family Court under Section 125 Cr.P.C. The
petitioner Mohd. Rafique has divorced the respondent
Rahmat Bano and thus, she ceased to be an aggrieved
person within the meaning of the definition provided under
the Domestic Violence Act and therefore, the very
application under Section 12 of the Domestic Violence Act
was not maintainable. In support of this contention, he
relied upon the following observations made by the Hon'ble
Supreme Court in the case of Krishna Bhatacharjee vs.
Sarathi Choudhary & Anr., reported in 2016(2) SCC
705:-
“In view of the aforesaid pronouncement, it is quite
clear that there is a distinction between a decree for
divorce and decree of judicial separation; in the
former, there is a severance of statute and the parties
do not remain as husband and wife, whereas in the
later, the relationship between husband and wife
continues and the legal relationship continues as it has
not been snapped. Thus understood, the finding
recorded by the courts below which have been
concurred by the High Court that the parties having
been judicial separated, the appellate wife has ceased
to be an “aggrieved person” is wholly unsustainable.”4.
Drawing attention of the Court to the statement of
Rahmat Bano recorded before the Family Court, Jodhpur on
26.11.2009, Shri Jain contended that Smt. Rahmat Bano
admitted that her husband had sent her a written divorce
notice which she received on 21.05.2010. He relied on the
document (Ex.NA-11) in support of this contention. He also
relied upon the order-sheets (Ex.P/8) drawn up in the
proceedings under Section 125 Cr.P.C. going on before the
Family Court inter-se between the parties and contented
that during those proceedings, the wife accepted the offer
of Rs.5,000/- per month made by the petitioner by way of
maintenance and therefore, she is not entitled to claim any
maintenance under the Domestic Violence Act.
Per contra, Ms. Farzana Baoo, learned counsel
representing the applicants wife and the minor son,
contended that there is no material on the record of the
case to show that Mohd. Rafique had divorced Smt. Rahmat
Bano. She contended that no such plea was taken in the
reply filed by Mohd. Rafique before the trial court that he
had divorced Smt. Rahmat Bano. She further urged that
during cross-examination of Rahmat Bano, no specific
suggestion was given that Shri Mohd. Rafique had divorced
her. She further urged that even if, it is assumed that the
registered notice of divorce was sent by Mohd. Rafique to
Rahmat Bano then too, it did not satisfy the requirements of5.
a valid divorce under the Muslim Law. Thus, she contended
that Smt. Rahmat Bano, being an aggrieved person within
the meaning of the Divorce Act, is indeed entitled to claim
maintenance from Mohd. Rafique. Learned counsel for the
respondent further contended that the acceptance, which is
reflected in the order-sheets (Ex.P/8), is regarding the
amount of arrears of maintenance deposited by Mohd.
Rafique before the Family Court in execution proceedings.
So far as the final order of maintenance is concerned, the
same was not a consent order and therefore, no adverse
interference can be drawn by the so-called consent reflected
in the order-sheets of the Family Court. She thus urged that
the revision filed by Mohd. Rafique is devoid of merit. On
the contrary, she pleaded that the amount of monetary
relief granted by trial court to the applicants is grossly
inadequate and is required to be enhanced.
Heard the arguments advanced by the learned counsel
representing the parties and perused the material available
on the record. Carefully considered the judgment rendered
by the Hon'ble Supreme Court in the case of Krishna
Bhatacharjee (supra). Suffice it to say that the
observations made in the said judgment on which, Shri Jain
heavily relied upon, do not give any support to the
petitioner's claim that once divorce had been given and
status of husband and wife is severed, thereafter, the6.
woman would not be entitled to claim any maintenance
under the provisions of Domestic Violence Act. The
definition of an aggrieved person as provided in Section 2 of
the Domestic Violence Act reads as below:
“(a) “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.”
Thus a woman having lived in a domestic relationship
with a male, is entitled to claim monetary relief under the
Act irrespective of the fact that the status of the
matrimonial relationship survives or not. That apart, the
assertion made by Shri Jain that the husband Mohd. Rafique
had legally divorced Smt. Rahmat Bano is per se untenable.
The revisionist Mohd. Rafique was put a specific question
during cross-examination that in order to give divorce to his
wife, a Muslim husband is required to pay her the Mehar
and the Iddat amount. He agreed to this suggestion.
However, he did not state that while forwarding the alleged
divorce notice (Ex.NA/11), the wife Rahmat Bano was
offered and paid the Mehar and the Iddat amount. All that is
mentioned in the divorce notice is that the Mehar amount of
Rs.351/- was paid earlier. At what point of time, was the
amount paid is not reflected in the document nor did Shri
Mohd. Rafique during his evidence state anything about the
payment of Mehar and the Iddat money to Rahmat Bano.
Thus, the contention advanced by Shri Jain that Smt.
Rahmat Bano was legally divorced and the matrimonial
relationship stood severed leading to an inference that the
lady ceased to be an aggrieved person is not sustainable on
facts. Therefore, the judgment rendered by the Hon'ble
Supreme Court in the case of Krishna Bhatacharjee
(supra) has no application whatsoever to the case at hand.
The provisions of the Domestic Violence Act in themselves
provide that the order of monetary relief under the Act can
be passed in addition to the maintenance which might have
been awarded to the aggrieved person under Section 125 of
the Cr.P.C. Therefore, from the mere fact that the Family
Court has awarded maintenance to the wife and the minor
child under section 125 Cr.P.C. cannot disentitle them from
claiming monetary relief under the Domestic Violence Act.
The so-called consent given by the wife in the proceedings
before the Family Court was apparently in the proceedings
for recovery of arrears of maintenance and thus, does not in
any manner, cause any prejudice to the entitlement of the
lady to claim monetary relief under the provisions of the
Domestic Violence Act.
Now, coming to the revision filed by the wife and the
minor child for claiming relief in addition to what has been
granted by learned trial court. Having considered the8.
entirety of facts as available on the record, this Court is of
the opinion that the applicant wife and child of Mohd.
Rafique are already drawing significant amount of
maintenance in proceedings under Section 125 of the
Cr.P.C. and thus no enhancement is called for in the
monetary relief over and above what already stands
granted to them by the learned trial court by the order
dated 21.10.2014. Rival claims of the parties have been
thoroughly considered and adjudicated upon by two
competent courts of concurrent jurisdiction by detailed
orders which do not suffer from any infirmity whatsoever.
Thus no interference is called for therein in the exercise of
the revisional powers of this Court.
As a consequence of the above discussion, both the
revisions and stay applications being devoid of any merit
are hereby dismissed.
Record be sent back.
(SANDEEP MEHTA), J.
/tikam daiya/
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