Andhra Pradesh High Court - Amravati
Mohammed Syfuddinshareef vs Mohd Kauser Jaha on 20 August, 2019
HONOURABLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CRIMINAL REVISION CASE No.1101 of 2018
ORDER:
This Criminal Revision Case is filed against the order dated 29.12.2017, passed in Criminal Appeal No.96 of 2017 passed by the learned Sessions Judge, Mahila Court, Vijayawada, by which learned Judge confirmed the order, dated 08.02.2017 in D.V.C.No.28 of 2014, passed by the I Additional Chief Metropolitan Magistrate, Vijayawada.
This Court has heard Sri S.A.Razzaak, learned counsel for the revision petitioner and Sri K.B. Ramanna Dora, learned counsel for the 1st respondent.
Learned counsel for the petitioner submits that D.V.C.No.28 of 2014 is filed by the wife / 1st respondent against the revision petitioner and his parents seeking various reliefs under the Domestic Violence Act, 2005. The matter went to trial. Two witnesses each were examined for the petitioner and respondents therein Exs.P.1 to P6 and Exs.R1 to R13 were marked on behalf of the 1st respondent and revision petitioner herein respectively. After trial the application was partly allowed. Refund of dowry amount of Rs.10,00,000/- was ordered and compensation of Rs.10,000/- was directed to be paid. All the other reliefs were negatived. Questioning the same, Criminal Appeal No.96 of 2017 was filed. The Judge, Mahila Court, Vijayawada, 2 confirmed the finding of the lower Court. Against the concurrent findings the present revision has been filed.
Sri S.A.Razzaak, learned counsel for the petitioner argued the following points essentially:
a) No dowry was taken by the revision petitioner in this case. He contends that Ex.R.1 document, which is filed as a material paper, clearly shows that the dowry was not taken. He also points out that there is no claim made for the return of the dowry and that as per the provisions of the Protection of Women from Domestic Violence Act, 2005 (in short "DVC Act"), the order to return the dowry cannot be given.
b) He submits that the divorce was given / pronounced by the husband of the 1st respondent. Therefore, it is the contention of the learned counsel for the revision petitioner that as there is no marital relationship, shared household etc., the application is not maintainable.
According to the learned counsel a customary divorce was give on 25.07.2011 and that once the talaq was pronounced (Since the parties belong to Muslim), there is no domestic relationship and that therefore the application filed in 2014 under the DVC Act is not maintainable.
c) Lastly, he also argues that the wife has actually harassed the husband. The revision petitioner's wife according to the learned counsel suffers from number of 3 physical infirmities and that she is not fit for marriage. Therefore, it is the contention of the learned counsel for the revision petitioner that this is a case of the husband being subjected to cruelty and not vice versa.
Learned counsel for the revision petitioner relies upon the following judgments:
1) Inderjit Singh Grewal v State of Punjab and another1;
2) Markapuram Siva Rao and others v State of Andhra Pradesh and another2;
3) Davinder Singh& Ors., v State of Punjab &
another3; and
4) Vijay Verma v State N.C.T. of Delhi & Another4 Basing on these case law, learned counsel argues that as the marriage was dissolved by a customary divorce, all further proceedings should be quashed and that consequently he states that the revision should be allowed.
In reply to this, learned counsel for the 1st respondent argues that there are two concurrent findings of fact. According to him an aggrieved person under Section 2(a) of the DVC Act includes a woman "who is or has been" in a domestic relationship. He relies upon Section 2 (s) of the DVC Act to argue that a 'shared household' means any household, wherein the aggrieved person and respondent 1 2012 (1) ALD (Crl.) 496 (SC) 2 2013 (2) ALD (Crl.) 341 (AP) 3 1 (2012) DMC 621 4 Crl.M.C.No.3878 of 2009, dt.13.08.2010 of High Court of Delhi. 4 have lived together. Lastly, he submits that after appreciation of the evidence the lower Court came to a conclusion that the 1st respondent (petitioner therein) was only entitled to some of the reliefs and did not grant all the reliefs. The said finding was confirmed by the Appellate Court also. He points out that Section 19 (8) of the DVC Act permits the Court to return to the aggrieved person the stridhana or any other property or valuable security to which she is entitled to. He also relies upon the judgment of the Chhattisgarh High Court, reported in Ajay Kumar Reddy and Ors., v State of Chattisgarh and Another5, wherein Chhattisgarh High Court held that even a divorced wife also entitled to maintain and continue the proceedings under the DVC Act. Hence, it is his contention that the application is maintainable and that no grounds are made out for interference by this Court.
The essential contents of the learned counsel for the revision petitioner rests on the fact that a customary divorce is supposedly given by the present revision petitioner to the 1st respondent. Learned counsel relies upon Ex.R.8- certificate of divorce, dt. 26.07.2011. According to the learned counsel this document records the customary divorce, that is pronounced by stating triple talaq, and it clearly goes to show that the marriage between the revision petitioner and the 1st respondent was dissolved. He points out that even in the counter that is filed to the DVC, the 5 2018 Crl.L.J.1155 5 present revision petitioner took a clear stand that the marriage was divorced by pronouncing triple talaq. This is the sheet anchor of the revision petitioner's case. The counsel relies on Inderjit Singh Grewal case (1 supra), wherein as per him it is held by the Hon'ble Supreme Court of India that a divorced wife cannot maintain the application under the DVC Act. Learned counsel for the revision petitioner also relies upon the para-25 of the said judgment, which reads as under, to buttress his case.
"25. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act, 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the Court. Undoubtedly, for quashing a complaint, the Court has to take its contents on its face value and in case the same discloses an offence, the Court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the Court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same."
However, a closer analysis of this case shows that the facts are totally different. This was a case where the decree of divorce was obtained by the husband and the wife. While the said decree was subsisting an application was filed under the DVC Act by stating that the decree of divorce was obtained by playing fraud. In those circumstances, the Hon'ble Supreme 6 Court of India held that unless and until the said decree is set aside by a competent Court, the application under the DVC Act was not maintainable. In the case on hand, there is no decree of divorce to which the wife is a party. The revision petitioner has unilaterally stated that he has pronounced triple talaq as it is customarily permissible for him. He relies upon the Ex.R.8 certificate which shows that divorce was granted. However, a reading of the Ex.R.8-certificate shows that the Qazi at Baramahal, Hyderabad has given a divorce to the parties, who are residing in other districts. Apart from this in Shamim Ara v State of U.P. and Anr.,6 the Hon'ble Supreme Court of India held that the husband cannot instantly grant divorce by pronouncing triple talaq. The same should be based on a reasonable cause and should be preceded by a reconciliation in which there should be two members present, one from the family of the wife and one from the family of the husband. It is only thereafter, as per the Hon'ble Supreme Court of India, that a valid talaq could be pronounced. Therefore, this is a matter of evidence. If the documents available are examined against the backdrop of these cases, it is clear that there is no evidence filed to show that the divorce was validly and correctly pronounced and that it is as per the personal law. In the counter that is filed, it is stated that the divorce was given in the presence of two people, who are mentioned therein, but neither of these two 6 AIR 2002 SC 3551 7 people are examined as a witness for the revision petitioner. Even the certificate on which learned counsel relies upon so passionately is based upon some record produced. The Qazi by himself did not state in the document that the divorce was granted by him. The Qazi relies upon some record produced, which isnot before the Court. Both the courts did not place much reliance on this evidence. The trial Court in para-22 to 24 in D.V.C.No.28 of 2014 clearly held that the said unilateral talaq is not valid.
The other two cases that are relied upon by the learned counsel for the petitioner are in applications under Section 482 of Cr.P.C. to quash the proceedings. In Markapuram Siva Rao case (2 supra) the other respondents, who are living away from the marriage, the father-in-law, married brothers etc., moved an application to quash the proceedings as they were added as parties. In those circumstances, it was held that the application has to be quashed. The same is the case reported in Davinder Singh case (3 supra), wherein the FIR was quashed.
Lastly, in Vijay Verma case (4 supra) the issue involved was peculiar to the facts and circumstances of the case. The learned single Judge noticed that the petitioner lived in America. She is doing job in America and held that once she lives in America after leaving her parents here in India she cannot claim a right in the property of the parents. These 8 cases, therefore, are very clearly distinguishable. The case law relied upon by the learned counsel for the 1st respondent in Ajay Kumar Reddy case (5 supra), which is a judgment of the Division Bench of the Chhattisgarh High Court, referring the earlier judgments of the Hon'ble Supreme Court of India, wherein it is clearly held that even the divorced wife can maintain the application under the DVC Act. In the case on hand the trial Court came to the conclusion that there is no valid divorce. The same is confirmed by the Appellate Court. The examination of the evidence and the case law on the subject shows that there is no evidence to show that a valid divorce decree was in fact given. The power of the Qazi to give a certificate is also not established. In that view of the matter, this Court is of the opinion that the essential contest of the learned counsel for the petitioner viz., the marriage being dissolved has to fail. This Court agrees that the concurrent findings of the fact on this issue by the trial Court and the appellate Court.
As rightly pointed out by the learned counsel for the respondent that number of reliefs were claimed but only the refund of the sum of Rs.10,00,000/- was ultimately directed to be paid. This fining of refund of Rs.10,00,000/- is questioned by the learned counsel for the revision petitioner on two grounds, which are mentioned earlier. However, this Court finds that Section 19(8) of the DVC Act permits the 9 Court to return the possession of her stridhana or "other property or valuable security" to which the petitioner is entitled. Hence, this Court holds that the lower Courts did not commit any error in directing refund of this amount. Coming to the evidence on the subject, the learned counsel relies upon the agreement styled as Ex.R.1, in which it is written that no dowry was granted. He points out that this is a document signed by all the parties and therefore in the light of this evidence the trial Court could not have granted the refund.
Both the trial Court and the Appellate Court considered the entire documentary evidence that was available before coming to a conclusion that Ex.R.1 cannot be sole ground to deny this relation. The lower Court considered the police report lodged by the petitioner, the application before the MLSA, the pleadings in M.C.No.12 of 2012 before coming to a conclusion that Rs.10,00,000/- was actually paid. Even otherwise lower Court also noticed that the respondent did not introduce any categorical evidence to show that the dowry was not at all granted. The lower Court commented that an important witness was not examined to disprove the assertion that dowry was passed or paid. These, findings are clear in paragraphs 27 to 29 of the trial Court's order. The trial Court and the 1st Appellate Court assessed the entire evidence available instead of merely relying on the Ex.R.1 before 10 coming to a conclusion that the dowry was in fact paid. Learned counsel for the revision petitioner could not point out why lower Court erred in relying upon these documents in contra distinction to Ex.R.1. In that view of the matter, this Court is of the opinion that this Court has to held that the learned counsel failed to prove that Rs.10,00,000/- was not paid at all. The earlier proceedings, which are filed for maintenance under Section 125 of Cr.P.C., clearly shows that at the time of marriage Rs.10,00,000/- was presented. This was read with all the other documents and it prevailed upon the trial Court. Nothing to the contrary is pointed out before this Court to ignore the overall consideration. Thus, in view of all that is stated above, this Court is of the opinion that no valid grounds are made out to set aside the order that is impugned in the revision.
Therefore, the Criminal Revision Case is dismissed. Consequently, the Miscellaneous Petitions, if any, shall also stand dismissed.
__________________________ D.V.S.S. SOMAYAJULU, J Date:20.08.2019 Ssv