Tuesday, 15 May 2018

Whether muslim woman is entitled to get rights conferred under domestic violence Act?


As   till   the   time   the   Talaq   is   not   proved,   the
respondent continues to be legally weeded wife of the petitioner and
in   that  contingency   the   question   is  whether  the   wife   who  is  in
domestic relationship with the petitioner is entitled to seek the relief
under the provisions of the Domestic Violence Act.   Though the

learned counsel for the petitioner had vehemently argued that the
parties are governed by Muslim Personal Laws and therefore the
provisions  of   the   Domestic   Violence  Act   cannot   be  invoked,  per
contra  Mrs.Irani  would   submit  that  there   is  no  intention  of   the
legislature to restrict the provisions of Protection from Womens of
Domestic Violence Act, 2005 to a particular category of women and
to specifically exclude the women belonging to the Muslim religion.
8. Perusal of the provisions of the Protection of Women
from   Domestic   Violence   Act,   2005   would   reveal   that   it   is   an
enactment   to   provide   for   more  effective  protection   for   rights   of
women   guaranteed   under   the   Indian   Constitution   who   are   the
victims of the violence.  The enactment no way intends to restrict its
application to any particular category of women but it intends to
protect the women aggrieved, who are victims of Domestic Violence.
The   definition   and   connotation   of   “Domestic   Violence”   under
Section­3  of   the  enactment   do  not  indicate   any  intention   either
express or implied to exclude Muslim women.   Section­36 of the
said enactment provides that the provisions of the Act shall be in
addition to and not in derogation of the provisions of any other law
for the time any force.  Thus, the scheme of the enactment do not
restrict the applicability of the provisions of the Act to a particular

category   of   women,   nevertheless   to   a     woman   belonging   to   a
particular religion.  No doubt the Muslim women are also governed
by   several   other   enactments   in   the   form   of   Muslim   Women
(Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim
Marriage Act, 1939 etc., however, the rights conferred under the
said enactments can in no way curtail the operation or Protection
granted under The Protection of Women from Domestic Violence
Act.  In these circumstances the contention advanced by the learned
counsel for the petitioner that the respondent­wife could not avail
the   provisions   of   the   Domestic   Violence   Act   is   not   sustainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 114 OF 2018
WITH 
CIVIL APPLICATION NO.518 OF 2018

Mr.Ali Abbas Daruwala  V/s. Mrs.Shehnaz Daruwala.
­­­­
CORAM : SMT.BHARATI H. DANGRE, J

PROUNCENED ON : 04th MAY 2018




1. The   present   petition   is   filed   by   the   petitioner
challenging the order dated 22.06.2017 passed by the Family Court
at   Bandra   below   Exh­7   in   petition   No.A­1097/2015,   thereby
allowing   the   application   and   directing   the   petitioner   to   pay   an
amount of Rs.25,000/­ per month to the petitioner and Rs.20,000/­
per month each for both the children towards interim maintenance
from the date of the filing of the application including the house
rent.   The petitioner is aggrieved by the said order and prays for
quashing and setting aside the said order on the ground that the

Family Court has exceeded its jurisdiction in passing the said order.
A brief chronology of facts and events leading to the filing of present
petition is culled out in the subsequent paragraphs.
2. The  petitioner  and the   respondent belong  to Islamic
Alvi Bohra Community and were married on 16.10.1997.  Out of the
said marriage three children were born and one eldest son expired
on 28.10.2014.  The other two children are aged 14 and 13 years
respectively.  
The respondent­wife filed petition for divorce under the
Dissolution of Muslim Marriage Act, 1939 seeking dissolution of the
marriage, before the Family Court at Bandra on 15.04.2015 and
invoked   provisions   of   Section   2(viii)(a)(d)   of   the   Dissolution   of
Muslim   Marriage   Act,   1939   and   also   prayed   for   custody   of   the
children, maintenance and accommodation.   The said prayer for
divorce was opposed by the petitioner by filing written statement.
On   the   very   same   day   when   the   proceedings   were
instituted   for   divorce,   the   respondent­wife   moved   an   interim
application  seeking maintenance  and accommodation  and in  the
said application she reiterated the statements made in the petition
and claimed an amount of maintenance for herself as well as two
minor children, taking into consideration the earning capacity of the

petitioner­husband and her requirements.  The amount of Rs.2 lakhs
was claimed towards maintenance for herself and an amount of
Rs.1,50,000/­ was claimed towards the maintenance of the children
along with the cost of litigation.  The petitioner filed his response to
the said application on 23.04.2016 opposing the said claim.  
The husband raised an objection by filing application
under Order 7 Rule 11(a) of the Civil Procedure Code which came
to be rejected by the Family Court by observing that the petition for
dissolution of marriage cannot be dismissed in such a fashion.  On
20th  May   2016   the   wife   again   filed   an   application   for   monthly
maintenance for herself and her minor children which was marked
as Exh.­34.  
3. It is a specific case of the petitioner that he gave Talaq
to the respondent on 29.03.2017 and since the wife herself was
claiming divorce, he was under an impression that she would not
object to the same.  The wife objected to the divorce granted by the
petitioner and according to the petitioner she accepted the amount
of Mehar and she returned the said amount only on 08.05.2017.
According to the petitioner since, the wife herself had approached
and filed the proceedings under the Dissolution of Muslim Marriage
Act, she had no justification to oppose the said Talaknama dated

29.03.2017.  The Family Court vide order dated 06.05.2017 passed
a restrain order, restraining the petitioner for performing the second
marriage.   The petitioner moved an application for deciding the
maintainability   of   the   petition   and   also   praying   for   framing
preliminary   issue   of   jurisdiction   under   Section   9A   of   the   Civil
Procedure   Code.   The   learned   Family   Court   by   order   dated
17.07.2017 ordered that the issues raised in the application would
be added to other issues to be dealt by the Court.
On   09.06.2017   the   respondent   filed   an   application
under Section 12, 18, 19, 20, 22 and 23 of the Domestic Violence
Act, 2005 and prayed for the similar relief which she had prayed in
the earlier application.  On 22.06.2017 the Family Court passed an
impugned order which is assailed in the present petition.
4. In   support   of   the   petition   I   have   heard   Ms.Angha
Nimbkar appearing for the petitioner she would submit that the
petitioner and respondents are governed by the Muslim Personal
Laws and different enactments govern their personal relationship of
including The Muslim Personal Law (Shariat) Application Act 1937,
The  Dissolution  of   Muslim   Marriage   Act,  1939 and  The  Muslim
Women (Protection of Rights on Divorce) Act, 1986.   The learned
counsel would invite attention to the provisions contained in the

Muslim Women (Protection of Rights on Divorce) Act, 1986 and
specifically to the provision contained in Section­3 of the said Act
which contemplate a reasonable and fair provision of maintenance
to be made and paid to a wife during iddat period.    She would also
invite attention to Section­3 of the said Act which reads thus :­
“(3) Where an application has been made under subsection
(2) by a divorced woman, the Magistrate may,
if he is satisfied that­
(a) her husband having sufficient means, has failed
or neglected to make or pay her within the Iddat period
a reasonable and fair provision and maintenance for
her and the children; or
(b) the amount equal to the sum of mahr or dower
has not been paid or that the properties referred to in
clause(d) of sub­section (1) have not been delivered to
her, make an order, within one month of the date of the
filing of the application, directing her former husband
to   pay   such   reasonable   and   fair   provision   and
maintenance   to   the   divorced   woman   as   he   may
determine as fit and proper having regard to the needs
of the divorced woman, the standard of life enjoyed by
her during her marriage and the means of her former
husband or, as the case may be, for the payment of
such mahr or dower or the delivery of such properties
referred   to   in   clause   (d)   of   sub­section   (1)   to   the
divorced   woman:  Provided  that   if   the  Magistrate
finds it impracticable to dispose of the application

within the said period, he may, for reasons to be
recorded by him, dispose of the application after
the said period.”
5. She   would   also   make   reference   to   Section­2   of   The
Dissolution of Muslim Marriage Act, 1939 and would submit that
the said Act permits a women to obtain a decree for dissolution of
marriage on the grounds set out in the said section.   The learned
counsel for the petitioner would thus submit that the Family Court
has erred is not considering the fact that divorce sought under the
Act for all practical purposes is by way of “Khula” and that is a
reason there is no provision for any other reliefs for maintenance,
custody of children etc., provided in the Act.  She would submit that
“Khula” is a mode of dissolution of marriage by agreement between
husband and wife and the divorce by “Khula” is divorce by consent
at the instance of the wife in which she gives or aggrieves to give a
consideration to the husband for release from marriage.  She would
submit that the husband after following the established procedure
under the Muslim Law are has pronounced “Talaq” on 29.03.2017
thereby dissolving the marriage solemnized between the parties and
amount of mehar/dower of Rs.60,000/­ was send to the respondent
on   30.03.2017,   which   came   to   be   returned   by   her   only   on

06.05.2017.  The learned counsel would submit that the respondent
is a divorced wife and her rights are enumerated and limited under
the Muslim Women (Protection of Rights on Divorce) Act, 1986.
She   would   submit   that   the   petition   filed   before   the   Court   was
exclusively  under   the   Dissolution   of  Muslim  Marriage   Act,  1939
where there is no provision for any ancillary reliefs, as are available
under the Domestic Violence Act, 2005.  She would also submit that
the learned Family Court did not consider that the complaint under
Section­12 was filed as an after thought, after after filing of the
application for maintenance.   She would also emphasis that the
respondent has not mentioned the provision  of law under which the
relief was claimed.   She would also assail the order of the Family
Court   on   the   ground   that   the   Court   did   not   consider   the
qualifications of the wife and her potential to earn a livelihood for
herself.
Per contra learned counsel Ms.Irani would support the
impugned order.   She would submit that in no contingency it is a
case of 'Khulla'.  She would submit that the provisions of Protection
of Domestic Violence Act do no create any restriction on the wife to
invoke the provisions of the said enactment on the ground that she
is governed by Muslim Personal Law.  Mr.Irani would submit that the
wife had instituted proceedings under the Dissolution of Muslim

Marriage Act 1939 specifically invoking Section­2(viii)(a) and (d).
She would submit that for the married Muslim women there was no
provision   available   to   obtain   a   decree   from   the   Court   seeking
Dissolution of Marriage, in case the husband neglect to maintain her
and make  her  life miserable  by inflicting cruelty on  her  and in
absence of such a provision being available, Muslim women were
subjected to utmost misery.   In order to provide a remedy to such
oppressed women, the Dissolution of Muslim Marriage Act, 1939
came to be enacted enabling a women married under Muslim Law
to   obtain   a   decree   for   Dissolution   of   Marriage   on   the   grounds
enumerated under Section­2.  According to the learned counsel the
wife   had   invoked   the   provisions   of   the   said   enactment   seeking
divorce on ground of cruel treatment meted out to her.  
Ms.Irani would submit that the in the said proceedings
the   wife   moved   an   application   seeking   reliefs   available   under
Section­12 of the D.V. Act including the monetary relief.  She would
submit   that   there   is   no   legal   embargo   in   her   approaching   the
competent Court by invoking the said provision.  She would pray for
upholding   of   the   impugned   order   and   would   submit   that   the
proclamation of Talaq by the husband cannot nullify the benefits
flowing to her unless the factum of Talaq is proved by sufficient
evidence.   

6. On   consideration   of   the   arguments   advanced   by   the
parties in support of their respective claim, the first point which
arise for consideration is whether the Family Court was justified in
entertaining the application filed by the respondent­wife in light of
the fact that the parties belong to Islamic Alvi Bohra Community
and specifically in the backdrop of Muslim Women (Protection of
Rights on Divorce) Act, 1986.   The issue is whether proceedings
claiming relief under D.V. Act, can be entertained specifically when
the main petition filed by the wife is under the Dissolution of the
Muslim Marriage Act, 1939.
It   is   not   in   dispute   that   the   wife   has   instituted
proceedings   for   divorce   praying   for   dissolution   of   marriage
solemnized on 17.09.1997 under the provisions of Section 2(viii)(a)
and (d) of Dissolution of Muslim Marriage Act.  The said provision
permits the  woman  married under  the  Muslim  Law to obtain  a
decree for dissolution of  marriage on the ground that the husband
has treated her with cruelty  or made her life miserable and that he
has disposed of her property or prevent her from exercising her legal
rights over it.
In   the   said   proceedings   the   wife   had   moved   an
application   at   Exh.­7   by   way   of   an   interim   application   on
15.04.2015.     The   said   application   is   titled   as   “Application   for

maintenance   and   residential   accommodation”,   without   specifying
the section.   Perusal of the application would however reveal that
the  wife  has  alleged  that she  has  filed petition  for  divorce   and
custody of her children and she sought to place reliance on the said
petitions.   In the said application the wife has claimed an interim
maintenance  from the husband for meeting the expenses of her
children as well as her own expenses.  The said application no doubt
do not mention the provision which is sought to be invoked.  The
learned counsel for the petitioner had advanced a submission that
the parties being governed by the Muslim Women (Protection of
Rights on Divorce) Act, 1986 which governs the  entitlement for
maintenance of Muslim women who have been divorced by and who
have   obtained   divorce   from   husband.     As   per   the   petitionerhusband,
pursuant to filing of the said proceeding he had given
Talaq to the respondent­wife to 29.03.2017.  The contention of the
husband is that the wife was otherwise seeking divorce and he has
granted divorce which would partake a form of “Khula”.  He would
submit that the wife had accepted the amount of Mehar in pursuant
to the Talaq being pronounced on 30.03.2017.  However, she turned
back and returned the Meher on 08.05.2017.  It is the specific case
of   the   petitioner­husband   that   on   28.04.2017,   the   husband   remarried
since the wife had accepted the Meher thereby leading to a

conclusion   that   the   Talaq   pronounced   by   the   husband   was
acceptable to her.  However, it is a specific case of the wife that the
said dissolution of marriage cannot be treated as Khula and in fact
Mrs.Irani had invited attention to the pleadings and would submit
that she has not accepted the said Talaknama and rather in light of
the latest pronouncement of the judgment by the Apex Court in the
case of Shayara Bano V/s. Union of India & Ors. (2017­9­SCC­1),
the Talaknama is not valid.  Mrs.Irani would submit that under the
Muslim Law, in certain circumstances the power to initiate divorce
proceeding   is   given   to   the   wife   and   she   had   instituted   the
proceedings for the said purpose.  However, she would submit that
her client has not accepted the Talaknama dated 29.03.2017 and in
any contingency she would take appropriate steps to deal with the
said issue separately.  
7. In the present case the pronouncement of the Talaq is
disputed by the wife and the husband will have to be prove the said
factum   of   Talaq.     As   till   the   time   the   Talaq   is   not   proved,   the
respondent continues to be legally weeded wife of the petitioner and
in   that  contingency   the   question   is  whether  the   wife   who  is  in
domestic relationship with the petitioner is entitled to seek the relief
under the provisions of the Domestic Violence Act.   Though the

learned counsel for the petitioner had vehemently argued that the
parties are governed by Muslim Personal Laws and therefore the
provisions  of   the   Domestic   Violence  Act   cannot   be  invoked,  per
contra  Mrs.Irani  would   submit  that  there   is  no  intention  of   the
legislature to restrict the provisions of Protection from Womens of
Domestic Violence Act, 2005 to a particular category of women and
to specifically exclude the women belonging to the Muslim religion.
8. Perusal of the provisions of the Protection of Women
from   Domestic   Violence   Act,   2005   would   reveal   that   it   is   an
enactment   to   provide   for   more  effective  protection   for   rights   of
women   guaranteed   under   the   Indian   Constitution   who   are   the
victims of the violence.  The enactment no way intends to restrict its
application to any particular category of women but it intends to
protect the women aggrieved, who are victims of Domestic Violence.
The   definition   and   connotation   of   “Domestic   Violence”   under
Section­3  of   the  enactment   do  not  indicate   any  intention   either
express or implied to exclude Muslim women.   Section­36 of the
said enactment provides that the provisions of the Act shall be in
addition to and not in derogation of the provisions of any other law
for the time any force.  Thus, the scheme of the enactment do not
restrict the applicability of the provisions of the Act to a particular

category   of   women,   nevertheless   to   a     woman   belonging   to   a
particular religion.  No doubt the Muslim women are also governed
by   several   other   enactments   in   the   form   of   Muslim   Women
(Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim
Marriage Act, 1939 etc., however, the rights conferred under the
said enactments can in no way curtail the operation or Protection
granted under The Protection of Women from Domestic Violence
Act.  In these circumstances the contention advanced by the learned
counsel for the petitioner that the respondent­wife could not avail
the   provisions   of   the   Domestic   Violence   Act   is   not   sustainable.
Further, the submission of the learned counsel for the petitioner that
the wife had moved an application namely Exh.­7 in a proceeding
which she had instituted under the Dissolution of Muslim Marriage
Act, 1939 and therefore they are not tenable, needs to be cursorily
dealt with.  The Section­26 of the Act of 2005 permits the relief to
be availed under Sections­18, 19, 20, 21 and 22 to be sought in any
legal proceedings before a Civil Court, Family Court or Criminal
Court   affecting   the   aggrieved   person   whether,   such   proceedings
were initiated before or after the commencement of this Act.  SubSection
2 of Section­26 makes it amply clear that in such relief may
be sought for in addition to and alongwith any other relief that the
aggrieved person may seek in such suit or legal proceeding before

Civil or Criminal Court.
9. In the present case wife had instituted the proceedings
by   taking   aid   of   Section­2(viii)   and   has   specifically   filed   the
proceedings on the ground of the cruel treatment meted out to her
and her children by making her life miserable by subjecting her to
cruelty and by preventing her to exercise her legal right over the
property.  On perusal of the proceedings filed by the wife it revealed
that she had taken out proceedings for dissolution of the marriage
on the ground of cruelty, which is a form of Domestic Violence.  The
term Domestic Violence is assigned a specific meaning in the Act of
2005 which include an act of harming, injuring, and  endangering
the health, safety, life or well being, whether physical or mental of
the   aggrieved   person   including   the   physical,   sexual,   verbal   and
emotional abuse and also economical abuse.  Thus, the ground on
which the wife has sought dissolution of marriage is cruelty and the
proceedings initiated though under the provisions of Dissolution of
Muslim   Marriage   Act,   1939   stand   on   the   same   platform   as
proceeding   instituted   by   wife   under   the   provisions   of   Domestic
Violence seeking relief under Section­12 of the Act, she being an
aggrieved women.  
In any contingency by taking recourse to Section­26 of

the Domestic Violence, it is permissible for the respondent­wife to
file proceedings seeking the relief under Sections­18, 19, 20, 21 and
22 of the Domestic Violence Act, in addition to and along with the
relief that she has otherwise sought in the pending proceedings.
Thus, the claim for interim maintenance filed by the wife cannot be
said to be completely alien to the provisions under which she has
approached the Court by way of main petition seeking Dissolution of
Marriage on the ground of cruelty.  By way of an interim relief she
has sought maintenance from the husband and since there is no bar
for   her   to   invoke   the   provisions   of   The   Protection   of   Domestic
Violence Act, 2005, such an application is duly entertained by the
Judge Family Court, such an application cannot be thrown away
only   on   the   ground   that   it   is   not   mentioned   as  to   under   what
provision of law, the said application has been preferred.  The Court
has   entertained   the   said   application   considering   the   factum   of
destitution being put forth by the wife and has treated her as an
aggrieved   person   and   has   entertained   the   said   application   for
interim   maintenance   and   directed   payment   of   amount   of
Rs.25,000/­ to the wife and Rs.20,000/­ for the children along with
rent of the house at rate of Rs.40,000/­.  The Court has considered
that   the   wife   has   been   subjected   to   vagrancy   and   is   unable   to
maintain  herself  and her  children  whereas the  husband owed a

moral   responsibility   to   maintain   his   wife   and   the   children
specifically in case of subsisting marriage and therefore has passed
the impugned order dated 22.06.2017.  
9. The  case  of the  husband is that he  has pronounced
Talaq on 29.03.2017 and in light of this development such an order
is not justified, is also liable to be ignored since the factum of Talaq
has not been proved by the husband and merely because Talaknama
is  tendered in the Court, the marriage cannot be said to have been
dissolved.   Even assuming for the sake of it the marriage stands
dissolved by Khula taking it to be divorce by consent at the instance
of   the   wife,   the   husband   cannot   be   completely   absolved   of   his
liablity to maintain his wife and children, in the specific background,
that he has remarried and he is maintaining two children of the wife
whom he had re­married.  The learned counsel for the petitioner has
also invited attention of the Court on a subsequent application filed
by   the   wife   under   Sections­12,   18,   19,   20,   22   and   23   of   the
Protection   of   Women   from   Domestic   Violence   Act,   2005   on
09.06.2017 and she would submit that if this application is filed
under   the   provisions   of   the   Domestic   Violence   Act,   under   what
provision   of   law   did   the   Family   Court   entertained   the   earlier
application and passed an order below Exh­7.   As this Court has

already observed that the said application was filed in Petition No.A­
1097/2015 instituted by the wife for Dissolution of Marriage under
the Dissolution of Muslim Marriage Act, 1939 and she would submit
that this Act contains no provision for any interim maintenance or
provision   for   custody   of   children.     However,   perusal   of   the
provisions of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 would reveal that certain rights are conferred even on a
woman who has been divorced by who have obtained divorced from
her husband and make such a woman entitled to a reasonable and
fair provision and maintenance to be paid to her within the period
of Iddat.  Not only this such a woman is also entitled to an amount
equal to some of Mehar or dower agreed to be paid to her at the
time of the marriage according to the Muslim Law and also entitled
for all the properties given to her before and at the time of the
marriage   and   after   the   marriage   by   her   relative,   friends   or   her
husband.  
10. The purpose of any provision of law which is beneficial
to   a  woman   is  to   provide  some  solace   to  a   woman   during  the
subsistence of the marriage or even after she is divorced out of the
said marriage and since the Domestic Violence Act is an enactment
to provide effective protection of rights of woman, who are victims

of violence, the respondent ­wife cannot be denied the umbrella of the said
legislation.   The   respondent­wife   has   staked   her   claim   by   filing
proceedings   under   the   Domestic   Violence   Act   2005   claiming   monthly
maintenance   for   herself   and   her   children   vide   Exh­34.     On   the   said
application, the respondent ­husband has been directed to produce all or
any of the documents which are in existence or his possession and which
are not produced by him so as to reflect his earnings.   Though it is a
specific case of the petitioner­husband that he has divorced to his wife, it
cannot be expressed as a gospel truth specifically in light of the latest
pronouncement of the Hon'ble Apex Court in case of Shayara Bano V/s.
Union   of   India   &   Others  as   to   what   would   be   the   effect   of   such
Talaknama.   In any contingency this Court is not concerned with the
validity of the said Talaknama at this stage and in this proceedings.  This
Court will have to restrict itself to the impugned order dated 22.06.2017
passed   by   the   Family   Court   at   Bandra   directing   the   husband   to   pay
monthly amount for maintenance of the wife and the children and also to
pay for the rent of the house where the wife is residing.
The     objection   raised   by   the   learned   counsel   for   the
petitioner   Ms.Anagha     Nimbkar     to     the     maintainability     of     the
application   on which the impugned order came to be   passed is not
sustainable  for  the  reasons  stated  above  and  since  this Court  at
arrived   at   a   conclusion   that   the   parties   being   governed   by the
Muslim  Personal  Law  is  not  an  impediment in  the  wife  invoking  the

jurisdiction   of   the   Court   under   the   provisions   of   the   Domestic
Violence Act and there is no embargo of the said Court to confer the
relief on the women who is an “aggrieved person” within the scope
and  meaning  of   the  Act  merely  because   she   belongs  to  Muslim
religion. The contention of the learned counsel for the petitioner
therefore deserves to be rejected.  
The impugned order has taken into consideration the
earning capacity of the husband and the needs of the wife.  In the
application filed by the wife a statement was made that the husband
was depositing an amount of Rs.10,000/­ to Rs.15,000/­ per month
in her account, which was not found to be sufficient to maintain
herself.  The Court taken in to consideration the said aspect of the
matter and also the statement that the husband is regularly paying
certain amount to the wife from which she is withdrawing some
regular amount.   The Court has also noted that the wife has no
shelter and in such circumstances the impugned order cannot be
faulted with and their appears to be no illegality or perversity in the
said order which would warrant and inference at the instance of this
order.   In the result the impugned order is upheld.   The present
petition being devoid of any merit and substance, is liable to be
dismissed.
(SMT.BHARATI H. DANGRE, J.)

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