When Magistrate should examine father of wife as court witness in domestic violence case?

After   carefully   examination   of   the   evidence   of   the 
non­applicant, I have come to the conclusion that her father was a material 
witness who could have thrown light on differences between the applicant 
and   the   non­applicant   and   causes   thereof.     In   the   given   circumstances, 
though   father   of   the   non­applicant   was   not   examined   as   witness   by   the 
non­applicant, it was incumbent on the part of the learned trial Magistrate to 
call father of the non­applicant as a court witness to satisfy himself about the 
correctness   and   genuineness   of   evidence   of   the   non­applicant.     Since   the 
material witness who could have assisted the Court in arriving at a correct 
decision is available, it is just and proper that instead of deciding the revision 
application on the basis of evidence of the applicant and non­applicant, this 
Court remands  the  matter  back to  the  learned  trial  Magistrate  for  calling 

father  of the  non­applicant as  a  court  witness.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
  

CRIMINAL REVISION APPLICATION NO.11 OF 2013

Mohammad Ghouse s/o Abdul Mannan,
Vs
Asiya Ismat w/o Mohammad Ghouse,

                             CORAM : M.L. TAHALIYANI, J.
                              DATED   : 27   FEBRUARY , 2014.

Citation; 2014 ALLMR(cri) 1844 Bom


Admit.     Heard   finally   by   consent   of   the   learned   Counsel 
2.
appearing for the parties.
3.
This   revision   application   impugns   the   judgment   and   order 
passed by the learned Additional Sessions Judge, Nagpur in Criminal Appeal 

No.6/2012.   The appeal before the learned Additional Sessions Judge had 
arisen out of the order passed by the learned Judicial Magistrate First Class, 
Nagpur   in   Miscellaneous   Criminal   Application   No.305/2010   under   the 
Protection of Women from Domestic Violence Act, 2005.   The applicant and 
his mother non­applicant No.2 were the non­applicants before the learned 
Magistrate   in   the   complaint   filed   by   the   complainant   Asiya   Ismat   w/o 
Mohammad Ghouse.   The learned Magistrate came to the conclusion that 
non­applicant No.2 Sultana Begum was guilty of domestic violence and no 
orders   were   passed   against   her.     However,   non­applicant   No.1   i.e.   the 
applicant herein was found guilty of domestic violence and the learned trial 
Magistrate passed the following order. 
“1. 
The application is partly allowed.
2.
The non­applicant No.1 is prohibited from repeating any  
act of Domestic Violence mentioned in the application. 
3.
The   applicant   is   allowed   to   continue   access   to   her  
personal effects. 
4.
The non­applicant No.1 is prohibited from alienating or  
damaging the Stridhan of applicant and directed to return the  

same to the applicant as mentioned in the list.

5.
The   non­applicant   No.1   is   directed   to   pay   the  
maintenance of Rs.3,000/­ per month to the applicant from the  
date of filing of application. 
6.
The   non­applicant   No.1   is   directed   to   pay   the  
compensation of Rs.50,000/­ to the applicant.
4.
Copy of judgment be supplied to the parties free of cost.”

7.
The   applicant   moved   the   Sessions  Court  by  way  of   filing   an 
appeal.  The appeal was partly allowed and the following order was passed 
by the appellate Court.
“i)
The appeal is allowed partly.
ii)
The   impugned   judgment   and   order   in   Misc.  
Criminal Application No.305 of 2010, dated 17­11­2011, so far  
as Clause No.4 in the operative order is concerned, is set aside  
and modified as below :
“The   non­applicant   is   prohibited   from   alienating   and  
damaging the Stridhan of the applicant and is directed to return  
the   same   to   the   applicant   as   admitted   by   him   in   his   written  
statement.”
iii)
5.
Parties to bear their own costs.”
The main grievance of the applicant is that he is not liable to 
pay Rs.3,000/­ per month to the non­applicant as the non­applicant herself 
had deserted the applicant.  The applicant is still willing to accept her as his 
wife.  The non­applicant is staying with her father.

In this regard, it may be noted here that the non­applicant had 
6.

examined   herself   as   P
.W.1   before   the   learned   trial   Magistrate   and   the 
applicant had also examined himself.   There were no additional witnesses 
from either side.  I have gone through the evidence of the applicant and the 
non­applicant  recorded   by  the  learned   trial   Magistrate.    The   learned   trial 

Magistrate   had   accepted   the   evidence   of   the   non­applicant   without   any 
corroboration.     However,   the   learned   trial   Magistrate   has   rejected   the 
telling lies. 
evidence of the applicant and has expressed the view that the applicant was 
7.
After   carefully   examination   of   the   evidence   of   the 
non­applicant, I have come to the conclusion that her father was a material 
witness who could have thrown light on differences between the applicant 
and   the   non­applicant   and   causes   thereof.     In   the   given   circumstances, 
though   father   of   the   non­applicant   was   not   examined   as   witness   by   the 
non­applicant, it was incumbent on the part of the learned trial Magistrate to 
call father of the non­applicant as a court witness to satisfy himself about the 
correctness   and   genuineness   of   evidence   of   the   non­applicant.     Since   the 
material witness who could have assisted the Court in arriving at a correct 
decision is available, it is just and proper that instead of deciding the revision 
application on the basis of evidence of the applicant and non­applicant, this 
Court remands  the  matter  back to  the  learned  trial  Magistrate  for  calling 

father  of the  non­applicant as  a  court  witness.   In this regard, it may be 
submitted here that learned Counsel Shri P
.N. Mehta submits that the non­
applicant   is   ready   and   willing   to   examine   her   father   as   P
.W.2   before   the 
In   the   meantime,   issue   of   interim   maintenance   of   the   non­

8.
learned trial Magistrate.
applicant also will have to be resolved.  Since the earlier order was passed by 
the learned trial Magistrate and modified by the learned Sessions Court, is 
being set aside by this order, it is necessary for this Court to pass some orders 
by way of interim measure in favour of the non­applicant.  Hence, I pass the 
following order. 
The   judgment   and   order   dated   03­12­2012   passed   by   the   learned 
Additional Sessions Judge, Nagpur in Criminal Appeal No.6/2012 and the 
judgment and order dated 17­11­2011 passed by the Judicial Magistrate First 
Class, Nagpur in Misc. Criminal Application No.305/2010 are set aside.
The non­applicant is at liberty to examine her father as P
.W.2.  In case 
the non­applicant fails to examine her father as a witness, the learned trial 
Magistrate   shall   call   her   father   as   a   witness   and   examine.   This   does   not 
prevent the learned trial Magistrate to examine any other witness either on 
behalf   of   the   applicant   or   on   behalf   of   the   non­applicant.     The   learned 
Magistrate shall pass fresh order after recording evidence of father of the 
non­applicant.
The   applicant   shall   pay   Rs.1,500/­   per   month   by   way   of   interim 

maintenance to the non­applicant with effect from the date of filing of the 
application.     The   amount   already   deposited   by   the   applicant   shall   be 
adjusted towards the amount of maintenance, which is ordered to be given 
by   way   of   interim   relief.     This   interim   order   shall   cease   to   operate 
immediately after final decision of the Magistrate.
The   parties   to   appear   before   the   learned   trial   Magistrate   on 

The revisions application stands disposed of. 
       

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