Bangalore District Court
Asifa vs Mufeed Khan on 20 March, 2024
KABC080031062019
Presented on : 03-05-2019
Registered on : 03-05-2019
Decided on : 20-03-2024
Duration : 4 years, 10 months, 17 days
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
TRAFFIC COURT - VI, AT BENGALURU
DATED THIS 20 TH DAY OF MARCH 2024.
PRESENT : Smt.AKHILA H.K. B.A., LL.B.,
M.M.T.C-VI, BENGALURU.
Crl.Misc.No.85/2019
Petitioner : Smt.Asifa
W/o Mufeed Khan,
Aged about 45 years,
R/at No.24/1, 4th Cross,
BTM Layout, 1st Stage
New Gurupannapalya,
Bangalore - 560 029.
V/s
Respondent : Sri.Mufeed Khan
S/o Habeed Khan,
Aged about 49 years,
Habeed Khan House,
Old Guruppanpalya,
Bannerghatta Road,
Bangalore - 560 076.
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J UD GME N T
The present petition is filed by the petitioners under
Sec.12 of Protection of Women from Domestic Violence
Act, 2005.
2. The brief facts of the petitioner's case are as under;
The marriage between the petitioner and respondent was
solemnized on 10.05.1990 at Guruppanpalya, Bangalore
- 76 and from the wed lock 2 children born to them and
both have attained majority. Further she submitted that,
the respondent is earning Rs.1 lakh per month and he is
failed to maintain the petitioner and her daughter.
Further she submitted that, at present she and her
children's are living in the rental house by paying rent of
Rs.17,000/- per month. Further she submitted that, she
being housewife, she is facing difficulties to maintain
herself and her daughter. Further she submitted that,
the respondent is threatening her that she and her
children will not get any properties and they will alienate
all the properties at Bangalore and if they succeed in
their attempts the loss and hardship caused to the
petitioners cannot be compensated in terms and money.
On all these grounds she prays to allow her petition.
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3. After the registration of the petition this Court
has issued notice to the respondent and he appeared
through his counsel and filed statement of objection to
the main petition. In the objection statement, he admits
the marriage with the petitioner and from the wed lock
two children born to them. Further he contended that,
the petition itself is not maintainable since there is no
domestic relationship between the parties since
11.06.2002 when the petitioner and the respondent have
entered into a deed of Khula. Hence, he has contended
that, the petitioner is not an aggrieved women under the
PWDV Act. He has submitted that, the petitioner has
intentionally suppressed this fact and she has not come
to Court with clean hand. He has submitted that, the
petitioner has managed by herself for all these years
hence, he is not required to pay maintenance. On all
these grounds he has prayed to reject the petition of the
petitioner.
4. The petitioner to substantiate her case has
examined herself as PW.1 and got marked Ex.P.1 to 7.
The respondent has not led his evidence in spite of
sufficient opportunities.
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5. Heard arguments petitioner's side. In spite of
granting sufficient opportunities respondent has not
addressed arguments. Hence, his arguments taken as nil.
6. The following points that arises for my
consideration are as under;
1. Whether the Petitioner proves that
she was subjected to Domestic
Violence by the respondent?
2. Whether the petitioner is entitled
for the reliefs as sought in the
petition?
3. What order?
7. On perusal of materials before this court, my
findings on the above points are as follows;
Point No.1 : In the affirmative;
Point No.2 : Partly in the affirmative;
Point No.3 : As per final order for the
following;
R EAS O N S
8. Point No.1 : In a domestic violence case the
petitioner has to prove the domestic relationship
between herself and respondent, she was residing with
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the respondent in a shared household, the domestic
violence was caused by the respondent upon her. The
respondent has neglected the petitioner without any
reasonable cause and the respondent is capable to
provide maintenance to the petitioner.
9. In this case, there is no dispute regarding the
relationship between parties. Hence, it is proved that, the
petitioner and the respondent are in domestic
relationship. It is also an admitted fact that, the
petitioner and respondent were residing together till the
date of separation. Hence, they have resided together in a
shared household. Only the aspect of domestic violence
needs to be proved by the petitioner.
10. It is the allegation of the petitioner that, the
respondent is her former husband and he has not
maintained her in spite of earning Rs.1 lakh per month.
She has submitted that, she is finding difficult to
maintain herself especially because she is suffering from
various health problems. The respondent is threatening
that he will ensure that the petitioner and her children
will not get any property and he will alienate all his
properties at Bengaluru. If he succeeds in alienating his
properties loss and hardship will caused to the petitioner
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and it cannot be compensated in terms of money. She
has submitted that, she is residing in a rented
accommodation hence, the respondent is liable to pay
Rs.17,000/- per month towards her accommodation. She
has submitted that, she requires Rs.5,000/- towards
medical treatment. She has also sought for
compensation of Rs.10 lakhs.
11. It is the contention of the respondent that the
petition itself is not maintainable since there is no
domestic relationship between the parties since
11.06.2002 when the petitioner and the respondent have
entered into a deed of Khula. Hence, he has contended
that the petitioner is not an aggrieved women under the
PWDV Act. He has submitted that, the petitioner had
intentionally suppressed this fact and she has not come
to Court with clean hand. He has submitted that, the
petitioner has managed by herself by all these years
hence, he is not required to pay maintenance.
12. In order to prove her case the petitioner has
examined herself as PW.1 and filed her affidavit in lieu of
examination in chief, wherein, she has reiterated the
contents of the petition. In support of her contentions to
prove her marriage she has submitted Ex.P.5 i.e.,
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Nikhanama and Ex.P.6 translation copy of the
Nikhanama. To prove that she is suffering from various
health problems, she has submitted Ex.P.2 which is her
ECG report, Ex.P.3 which are her lab reports, Ex.P.4 is
the medical documents related to her. Ex.P.2 and 3
shows that the petitioner is suffering from high
cholesterol and she has undergone hysterectiomy,
wheezing.
13. The counsel for the respondent has cross
examined P.W.1 and elicited from her that she has led
marital life of 2 years with the respondent. She has
admitted that, the respondent is remarried. She has
admitted that, she had filed a petition seeking
maintenance U/Sec.125 of Cr.PC before the Hon'ble
Family Court, before filing this petition. She has admitted
that the marriage between the herself and respondent
ended by way of Khula on 15.03.2012. However, she has
stated that, she has given Khula only to enable the
respondent to change the name of his spouse in his
passport. She has admitted Khulanama and settlement
deed entered between herself and the respondent No.1
and got it marked as Ex.R.1 and 2. She has submitted
that, she is currently residing at BTM Layout at her
mother's house. The respondent has not led his
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evidence in spite of sufficient opportunities. It is the
main contention of the respondent that the petition itself
is not maintainable since the marriage between the
petitioner and the respondent has ended by way of
Khula. Moreover, the Hon'ble Family Court by its order
dated 08.07.2011 has directed the respondent to pay
maintenance of Rs.3,000/- per month to the petitioner.
Hence, the petitioner is not entitled for any relief under
this Act. The counsel for the respondent has also
contended that, as per Clause-IV of the Khulanama dated
15.03.2012 it is agreed between the parties that they will
not complain or file petitions against each other in the
future before any police authorities, NGOs or before
Court. Hence, it is the contention of the respondent
counsel that the present petition is not maintainable. He
has further contended that, as per memorandum of
settlement between the petitioner and respondent on
15.03.2012 it is stated that the children will be in
custody of the petitioner and she has taken all her
belonging including cash, jewels, furniture, clothes,
utensils, and other household articles etc., and she has
no claim against the respondent. He has submitted that,
the petitioner has preferred this application 7 years after
divorce between the parties by way of Khula. Hence, the
petition is not maintainable.
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14. Before examining whether there has been
domestic violence it is necessary to examine if the
petition is maintainable. In this regard the counsel for
the petitioner is relying on the judgment of Hon'ble
Supreme Court in Shome Nikhil Danani V/s Tanya
Banon Danani wherein, it is held that monetary relief
U/Sec.20 of D.V Act is in addition to maintenance
U/Sec.125 of Cr.PC. Further the Hon'ble Supreme Court
in Rajanesh V/s Neha reported in (2021) 2 SCC 324
has held that the proceedings U/Sec.125 of Cr.PC and
PWDV Act are maintainable however if successive claims
for maintenance are made by a party under different
statute the Court would consider an adjustment or set off
of the amount awarded in the previous proceedings.
Therefore, it is clear that petition under PWDV Act is
maintainable even if the petitioner had filed an
application U/Sec.125 of Cr.PC. The respondent has
contended that, there is no relationship between the
parties because their marriage was dissolved way back
on 15.03.2012 by way of Khulanama which is admitted
by the petitioner as per Ex.R.1. The Hon'ble Supreme
Court in the case of Shabana Banu V/s Imran Khan
reported in 2009 (1) SCC 666 has held that a divorced
muslim women is entitled to maintenance as long as she
does not remarry as Sec.125 of Cr.PC is a beneficial
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legislative whose benefit must accrue to divorced muslim
women. Although, it is true that there is no definition of
the term wife under PWDV Act unlike explanation to
Sec.125(1)(b) of Cr.PC which defines the term 'wife'. The
benefit given under Sec.125 of Cr.PC should also be given
to an aggrieved person under PWDV Act. The PWDV Act
provides for an additional rights and remedies to the
aggrieved person and the Indian Law recognizes the right
of divorced wife to get maintenance till remarriage. If the
petitioner is denied relief under this Act she will be
forced to approach the Court U/Sec.125 of Cr.PC again.
Under PWDV Act what is needed is the existence of
domestic relationship as defined in the Act to get relief
under the said Act. The definition of domestic
relationship includes a person who has shared a
domestic relationship with the respondent even in the
past. Hence, petition U/Sec.12 of PWDV Act by divorced
wife is also maintainable. This position of law has been
up held by the Hon'ble High Court of Bombay in Crl.R.
No.131/2022 between Ashanullah @ Javed Khan V/s
Shahana Parvin @ Brijis in judgment dated
09.06.2023.
15. Further, the respondent has contended that,
the petitioner had preferred an application U/Sec.125 of
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Cr.PC before the Hon'ble Family Court which was
compromised between the petitioner and respondent and
as per the terms of the compromise he has agreed to pay
Rs.3,000/- per month to the petitioner. The petitioner
has admitted the said fact. However, it is her contention
that she is entitled for maintenance even under PWDV
Act. As already stated maintenance under Sec.125 of
Cr.PC and under PWDV Act are simultaneously
maintainable. Although, the petitioner has agreed to
receive Rs.3,000/- per month maintenance as per
compromise petition filed in the proceedings under
Sec.125 of Cr.PC the same will not dis entitle her to claim
relief under this Act because the respondent has not
submitted any to proof or evidence to show that he has
paid the said amount of Rs.3,000/- regularly to the
petitioner. Economic abuse as defined under Sec.3 of
PWDV Act includes deprivation of all or any financial
resources to which the aggrieved person is entitled to
under any law or customs whether payable under an
order of a Court or otherwise. Hence, non payment of the
maintenance agreed under the compromise petition filed
in the proceedings U/Sec.125 of Cr.PC would definitely
cause economic abuse to the petitioner within the
meaning of Sec.3 of PWDV Act. Further, in Vennangot
Anuradha Samir V/s Vennangot Mohandas Samir,
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2015 Online SC 1266, decided on 02.12.2015, the
Hon'ble Apex Court said that "it cannot be ruled out that
in order to save her life by getting money, the petitioner-
wife agreed for a settlement of dissolution of marriage.
The court further said that, it is a pre-existing duty of the
husband to look after her comforts and not only to
provide clothes but to protect her from all calamities and
to take care of her health and safety..". Hence, the
petitioner is entitled to relief under this Act.
16. The respondent has further contended that,
the petitioner has approached this Court 7 years after
dissolution of marriage, hence the petition is not
maintainable. In this regard the counsel for the
petitioner has relied on Kamatchi V/s Lakshmi
Narayanan reported in 2022 Live Law (SC) 370 CRA
627 of 2022 dated 13.04.2022 the Court held that, the
provisions of the Act contemplate filing of an application
U/Sec.12 to initiate the proceedings before the concerned
Magistrate. After hearing both sides and after taking into
account the material on record, the Magistrate may pass
an appropriate order U/Sec.12 of the Act. It is only the
breach of such order which constitutes an offence as is
clear from Sec.31 of the Act. Thus, if there be any
offence committed in terms of the provisions of the Act,
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the limitation prescribed U/Sec.468 of the Code will
apply from the date of commission of such offence.
Such a starting point for limitation would arise only and
only after there is a breach of an order passed under
Sec.12 of the Act. From this judgment of the Hon'ble
Supreme Court it is apparent that the limitation
prescribed U/Sec.468 of Cr.PC will apply only when there
is a breach an order passed under Sec.12 of PWDV Act
and not otherwise. Hence, this petition is not barred by
limitation. As already stated the respondent has not
paid any maintenance to the petitioner till date and he is
bound to maintain the petitioner. The petitioner by
producing Ex.P.2 to 4 is able to prove that she requires
medical assistance. Hence, the respondent is bound to
maintain her. The very fact that the respondent has not
paid the maintenance as per the compromise between the
parties U/Sec.125 of Cr.PC or otherwise proves
economic abuse committed by the respondent. The
petitioner in her petition has averred that herself and
her daughter required maintenance but she has not
arraigned the daughter as as party to the petition.
Moreover, the daughter is aged 32 years. Hence, she is
not entitled for any relief under the Act. However, as
already discussed the petitioner is able to prove that the
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respondent has committed domestic violence against
her. Hence, point No.1 answered in the affirmative .
17. Point No.2 :- The petitioner has sought for
monthly maintenance of Rs.30,000/- for herself. The
respondent has filed his assets and liability affidavit. He
has submitted that, he does not have any fixed income.
He has not filed his bank statement or IT returns. He
has submitted that, he has remarried and he has 2
children from the 2nd marriage, one child is married and
another is unmarried. He has submitted that, he
requires Rs.8,000/- towards his expenses. He has
submitted that, his present wife takes care of all the
expenses. He has submitted that, his wife has rental
income. He has submitted that, he has availed gold loan
from Kosamattam Finance Ltd., and he is paying EMI of
Rs.1,650/- per month, he has availed loan from IIFI
Finance Ltd., and he is paying EMI of Rs.3,300/- per
month and he has availed loan from Bajaj Finance Ltd.,
and he is paying EMI of Rs.5,876/- per month. He has
submitted that, he has pledged all his jewelry with the
bank. He has submitted that, he has gifted his father's
property in favour of his present wife in the year 2016.
He has submitted that, he also borrowed amount of
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Rs.5,50,000/- and he has only cleared 30% of the said
loan.
18. On the other hand the petitioner has filed her
assets and liabilities affidavit wherein, she has stated
that, she is unemployed and she has studied only till 7 th
standard, she has monthly expenditure of Rs.30,000/-,
she has submitted that, the Hon'ble Family Court has
awarded maintenance of Rs.3,000/- per month which the
respondent is not paying regularly. She has submitted
all her jewelry is in the custody of the respondent. She
has submitted that, the respondent is engaged in Real
Estate business and has income more than Rs.2 lakhs
per month. She has also submitted Ex.P.1 which is the
partition deed executed between family of the respondent
wherein, the respondent has received B-schedule
property as per the partition deed which is property
bearing No.33 situated at Bommanahalli, Begur hobli,
Bangalore south taluk measuring east to west 40 feet
and north to sought 47+43/2 feet. She has submitted
that, she is suffering from various medical ailments and
she has submitted Ex.P.2 to 4 in this regard. The
petitioner is aged about 52 years and respondent is
aged about 54 years. Even though the petitioner was
awarded monthly maintenance of Rs.3,000/- per month
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the respondent has not paid the same regularly. Hence,
it appears that the petitioner has not received any
maintenance after Khula.
19. As per the law laid down by the Hon'ble
Supreme Court in Rajanesh V/s Neha reported in
(2021) 2 SCC 324, the Court has to consider the status
of the parties, earning capacity of the parties, needs and
expenses of the petitioner, number of dependents on the
respondent, expenses of the respondent, educational
qualification of the parties, whether the petitioner has
independent source and whether the same is sufficient to
enable her to maintain herself, standard of living as she
was accustomed to in the matrimonial home, whether
she was working before marriage, cost of litigation for a
non working wife etc., while ordering for maintenance.
Considering all the above factors petitioner is entitled for
monthly maintenance of Rs.10,000/- per month.
20. The petitioner has sought relief U/Sec.19 of
the PWDV Act seeking direction to the respondent to
arrange for her shelter. As per assets and liabilities
affidavit she has stated that, she is residing in separate
residence. She has not submitted any rent agreement to
show that she is residing in a rented accommodation. In
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her Cross Examination she has stated that, she is
residing in her mother's house. Since, the petitioner is in
her parents house it is not necessary to direct the
respondent to provide an alternate accommodation or
rent.
21. The petitioner has sought for direction to the
respondent to pay compensation and damages of
Rs.10,00,000/- for the physical and mental torture
suffered at the hands of the respondent. Sec.22 of PWDV
Act states, Magistrate may grant compensation in
addition to the other reliefs that may be granted under
this Act and direct the respondent to pay compensation
and damages for injuries including mental torture and
emotional distress caused by the acts of domestic
violence committed by the respondent. As discussed in
point No.1 it is proved that the respondent has subjected
the petitioner to domestic violence and she has incurred
litigation expenses as well. The respondent has not
maintained her after the separation. The petitioner after
separation has been compelled to restart her life. Hence,
U/Sec.22 of PWDV Act, she is entitled for compensation.
Hence, respondent is directed to pay an amount of
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Rs.3,00,000/- (Rupees three lakhs only) to the petitioner
towards compensation.
22. The petitioner has sought for protection order
U/Sec.18 of PWDV Act. However, the petitioner and
respondent are not residing together. The respondent
has not attempted to even contact the petitioner after
their separation except through the Court. Hence, it is
not necessary to grant protection order in favour of the
petitioner.
23. The petitioner has sought for direction to
restrain the respondent from alienating or creating
charge over any of the properties mentioned. However,
the petitioner has not mentioned any property of the
respondent. Hence, this prayer of the petitioner is
rejected. Hence, point No.2 answered partly in the
affirmative .
24. Point No.3 :- In view of the materials placed
before this court, pleadings, deposition and documentary
evidence this court proceeds to pass the following;
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ORDER
The petition filed by the petitioner under Sec.12 of The Protection of Women from Domestic Violence Act, 2005 as against respondent is allowed in part.
Respondent is hereby directed to pay an amount of Rs.10,000/- (Rupees ten thousand only) per month towards maintenance from the date of petition till her life time or till she gets re- married whichever is earlier.
Further, respondent is directed to pay an amount of Rs.3,00,000/- (Rupees three lakhs only) to the petitioner towards compensation within 3 months from this order.
Amount if any already paid by the respondent towards monthly maintenance of the petitioner till today is set off from the above said monthly maintenance amount awarded to her.
20Crl.Misc.85/2019 Office is directed to furnish a copy of this order free of cost to the petitioner.
(Dictated to the stenographer directly on computer, typed by her, corrected and then pronounced by me in open court on this the 20th day of March 2024).
(AKHILA H.K.) MMTC-VI BENGALURU.
ANNEXURE WITNESSES EXAMINED FOR THE PETITIONER :
PW.1 : Asifa DOCUMENTS EXHIBITED FOR THE PETITIONER :
Ex.P.1 : Partition deed dated 07.04.2016 Ex.P.2 : 2 ECG reports Ex.P.3 : Lab reports Ex.P.4 : Medical prescription Ex.P.5 & 6 : Nikhanama & its translation Ex.P.7 : Pen drive WITNESSES EXAMINED FOR THE RESPONDENT :
-Nil-21
Crl.Misc.85/2019 DOCUMENTS EXHIBITED FOR THE RESPONDENT :
-Nil-
(AKHILA H.K.) MMTC-VI, BENGALURU.