Razzak Khan and Ors. vs. Shahnaz Khan
Court : Madhya Pradesh
Citations : 2008(4)MPHT413
Judge : S.C. Sinho, J.
Subject : Family;Criminal
Decided On : 2008-03-25
Disposition : Petition dismissed
Casenote:
Criminal - Share - Alternative Accommodation - Section 9(b),
37(2)(c) and Section 19(1)(f) of Protection of Women from
Domestic Violence Act, 2005 - R She is in a better financial
position whereas Ramzan Khan is a photo copy mechanic and
living with brothers and hardly able to maintain himself. Shahnaz
Khan is working as a clerk, therefore, her financial position is
much better than her husband who is casually working as a
photo copy mechanic and suffering from heart problem. 15. If
circumstances required so, divorcee wife Shahnaz Khan in view
of Section 19(1)(f) of the 'Act 2005' in the alternative husband
Ramzan Khan is directed to secure same level of alternate
accommodation for Shahnaz Khan as enjoyed by her in the
shared house with the help of Protection Officer or he will pay
Rs.
Judgment:
ORDER
S.C. Sinho, J.
1. These two revisions against the order passed in Criminal
Appeal No. 501/07 (Razzak Khan and 2 Ors. v. Smt. Shahnaz
Khan) and Criminal Appeal No. 595/07 (Smt. Shahnaz Khan
v. Razzak Khan and 2 Ors.) dated 19-12-2007, passed by 6th
Additional Sessions Judge, Jabalpur arising out of the order
passed in Complaint Case No. 23/2007 order dated 29-9-2007
by learned JMFC Jabalpur in proceeding under Section 9(b),
37(2)(c) of Protection of Women from Domestic Violence Act,
2005 (in short 'Act 2005') whereby these revisions have been
filed before this Court.
2. This is undisputed that Ramzan Khan and Smt. Shahnaz
Khan had taken divorce on 3-5-2007 in presence of witnesses.
Razzak Khan, Rehman Khan and Ramzan Khan are real brothers
and Smt. Shahnaz Khan is the daughter of real sister of the
applicants whose first marriage has been performed with
Musarraf Khan and out of first wedlock Master Shoaib was born
who is presently 16 years of age. After lapse of 12 years of the
death of her first husband, Shahnaz Khan has performed Nikah
with Ramzan Khan on 19-3-2003 and both of them were living
in a rented house. Ramzan Khan after the death of his father
Rasool Khan, on 7-2-2006 started living in ancestral house with
his two brothers along with his wife Shahnaz Khan.
3. The Shahnaz Khan filed a complaint under Section 9(b), 37(2)
(C) of the 'Act 2005' for claiming relief under Section 18 to 20
before JMFC Jabalpur. The JMFC vide order dated 29-9-2007
granted following reliefs to Smt. Shahnaz Khan.
1. Smt. Shahnaz Khan is entitled for sum of Rs. 16,439/- as
expense of delivery and medicines from Ramzan Khan.
2. Ramzan Khan shall not restrain Smt. Shahnaz Khan for going
to service (work place) nor he will snatched her salary.
3. Ramzan Khan shall give Rs. 2000/- per month towards the
maintenance to Smt. Shahnaz Khan and son Gazi Khan.
4. Ramzan Khan shall not assault and abuse the applicant (Smt.
Shahnaz Khan)
5. Shri Ramzan Khan shall pay necessary medical expenses in
relation to newly born baby.
6. Protection Officer was directed to ensure the delivery of the
Stridhan as per annexed to the complaint in his presence.
4. In Criminal Appeal No. 595/07, learned 6th Additional
Sessions Judge modified relief to Smt. Shahnaz Khan and
directed Protection Officer for providing accommodation in the
ancestral house of husband under Section 19(1)(f) of the 'Act
2005' and further granted Rs. 500/- per month maintenance in
favour of the foster son Shoaib Khan.
5. Learned Advocate of Shri Razzak Khan, Rahman Khan and
Ramzan Khan argued in detailed that Smt. Shahnaz Khan is
working as a Clerk in MPSRTC and comfortably living in her
parental house with her sons. She is in a better financial position
whereas Ramzan Khan is a photo copy mechanic and living
with brothers and hardly able to maintain himself. However,
Shri Usmani has conceded that even now he is prepared to pay
500/- per month to Smt. Shahnaz Khan and children. Learned
Advocate has further argued that it will not be proper in view of
the fact that Shahnaz Khan after divorce will live in the shared
house with Ramzan Khan and she is living very comfortably in
her ancestral house with her parents and brothers.
However,
6.
Shahnaz Khan has demanded enhancement of the quantum
of maintenance regarding Gazi Khan from Rs. 1000/- to Rs.
2000/- and regarding foster son Shoaib Khan from Rs. 500/-
to Rs. 1000/- per month from the date of application and also
demanded adequate compensation in terms of Section 20 and
22 of 'Act 2005'. Shri Imtiaz Hussain learned Counsel for Smt.
Shahnaz Khan has argued that looking to the price index meager
relief is granted to her and children. Therefore, this amount
should be enhanced.
in
Criminal
Revision
7. Both the learned Counsels were heard at length.
8. It is admitted position that Ramzan Khan has given divorce to
Smt. Shahnaz Khan on 3-5-2007. Smt. Shahnaz Khan is working
as a clerk in the MPSTRC at Jabalpur and living in her parental
house.
9. Learned Advocate of Razzak Khan and others Shri Ahdullaha
Usmani argued that because Smt. Shahnaz Khan is working as
a clerk, therefore, her financial position is much better than her
husband who is casually working as a photo copy mechanic and
suffering from heart problem. The learned Appellate Court after
considering the evidence produced by both the parties held that
Smt. Shahnaz Khan and her children are entitled for Rs. 2500/
- per month relief. Shri Usmani, learned Counsel argued that
applicant Smt. Shahnaz Khan did not refer name of her foster
son Shoaib Khan in original application before JMFC therefore,
learned Appellate Court without any cause granted Rs. 500/-
maintenance to Gazi Khan. It is admitted position that Gazi Khan
is foster son of Smt. Shahnaz Khan and Razzak Khan and strict
rule of pleadings are not applicable in proceedings under the 'Act
2005'. Shri Imtiaz Hussain, learned Advocate of Shahnaz Khan
has argued at length that looking to the present price index
quantum of monthly maintenance of Rs. 1000/- to Gazi Khan
and Rs. 500/- to Shoaib Khan should be enhanced and further
adequate compensation be granted to Smt. Shahnaz Khan.
10. It is admitted position that Smt. Shahnaz Khan is working
as a clerk in MPSRTC, Jabalpur whereas her husband Ramzan
Khan is a photocopy mechanic and not getting regular salary,
he is also suffering from heart ailment. In these circumstances,
both the Courts below after appreciation of evidence has given
findings of income, regarding financial status of the parties. This
Court is of the view that the monthly maintenance granted by
learned Appellate Court is justified.
11. Shri Ahdullaha Usmani learned Advocate for Razzak Khan
and others has vehemently argued that if divorcee wife Smt.
Shahnaz Khan will stay in the shared house with applicant
then it will create many problems. Further Smt. Shahnaz Khan
is living comfortably with her brother in her parental house
and therefore, the Revisional Court has committed a grave
mistake in ordering for providing accommodation to her in the
house of husband and brothers. He has further argued that
because Ramzan Khan has given divorce to Smt. Shahnaz Khan
therefore, jurisdiction under 'Act 2005' is not attracted.
12. It is clear that applicant and his two brother are staying in a
three-storied house at Jabalpur. In this regard it will be proper to
reproduce Section 17(1) of the Act of 2005.
17. (1) Right to reside in a shared household.
Notwithstanding anything contained in any other law for the
time being in force, every woman in a domestic relationship shall
have the right to reside in the shared house hold, whether or not
she has any right, title or beneficial interest in the same.
This Section lays down that irrespective of any contrary proviso
in any other law, every woman in a domestic relationship
shall have the right to reside in the shared household and the
aggrieved person shall not be evicted or excluded from the
shared household by the respondent except in accordance with
the procedure established by law. Further Section 2 of 'Act
2005' defines 'aggrieved persons' and 'domestic relationship'
and 'shared household' as given below:
2. Definitions.-
(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;
(f) 'domestic relationship' means a relationship between two
persons who live or have, at any point of time, lived together
in a shared household, when they are related by consanguinity,
marriage, or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family;
(s) 'shared household' means a household where the person
aggrieved lives or at any stage has lived in a domestic
relationship either singly or along with the respondent and
includes such a household whether owned or tenanted either
jointly by the aggrieved person and the respondent, or owned
or tenanted by either of them in respect of which either the
aggrieved person or the respondent or both jointly or singly have
any right, title, interest or equity and includes such a household
which may belong to the joint family of which the respondent
is a member, irrespective of whether the respondent or the
aggrieved person has any right, title or interest in the shared
household.
13. Thus, it is clear that every women in a domestic relationship
shall have the right to reside in the shared house except in
accordance with the procedure established by law therefore, this
argument of applicant has no force that divorcee wife Shahnaz
Khan has no right to reside in an ancestral house of husband or
such living will amount to 'Haram'.14. Further as held by Apex Court in S.R. Batra v. Smt. Tarun
Batra Civil Appeal No. 5837/06 (SC), decided on 15-12-2006, it
is made clear that the claim for alternative accommodation can
only be made against husband Ramzan Khan and she is entitled
a right to residence in a shared house would only mean house
belonging to husband Ramzan Khan or house which belongs to
joint family of which husband is a member.
15. If circumstances required so, divorcee wife Shahnaz Khan
in view of Section 19(1)(f) of the 'Act 2005' in the alternative
husband Ramzan Khan is directed to secure same level of
alternate accommodation for Shahnaz Khan as enjoyed by her
in the shared house with the help of Protection Officer or he will
pay Rs. 900/- per month rent to Smt. Shahnaz Khan from date
of Trial Court order i.e., 29-9-2007.
16. Suffice it to say that the learned Additional Sessions
Judge, Jabalpur, has not committed any error of law and fact
in impugned Criminal Appeal No. 501/2007 and 595/2007,
dated 19-12-2007. This Court does not find any such illegality,
irregularity or perversity in the impugned order to interfere
in these revision petitions except modification as provided in
Section 19(1)(f) of the 'Act 2005'.
With this modification, both revisions are dismissed.
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