Telangana High Court
Mohd. Nawaz Uddin vs The State Of Telangana on 27 December, 2021
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.3348 of 2017
ORDER:
This Criminal Revision Case is filed by the petitioners - A1 to A4 aggrieved by the order dated 24.11.2017 passed in DVC Appeal No.108 of 2017 by the V Additional Metropolitan Magistrate (Mahila Court), Hyderabad, against the order dated 09.01.2017 passed in DVC No.222 of 2014 by the IV Metropolitan Magistrate at Hyderabad.
2. The 2nd respondent filed a petition under Section 12 of the Protection of Women from Domestic Violence Act (for short 'the Act') against the petitioners herein seeking protection order, residence order, maintenance order, compensation order and return of Jahez articles, gold and dowry. The contention of the 2nd respondent was that she was the wife of the 1st petitioner-A1, the 2nd petitioner was her father-in-law, the 3rd petitioner was her brother-in-law and the 4th petitioner was her sister-in-law. Her marriage was performed on 07.06.2007 with the 1st petitioner as per the Muslim rites and customs. At the time of marriage, her parents gave Rs.5.00 lakhs dowry, 12 tulas of gold and other jahez articles and spent an amount of Rs.19.00 lakhs in total. After marriage, her husband and in-laws started harassing the 2nd respondent both physically and mentally for want of additional dowry of Rs.25.00 lakhs for purchase of a Flat. They never looked after her well. During her pregnancy also they had not taken care of her. They always harassed her demanding dowry. On 19.10.2010, while she was carrying three months pregnancy, the Dr.GRR,J 2 CrlRC.No.3348 of 2017 petitioners necked her out of the matrimonial house. Since then, she was taking shelter at her parents' house and was dependant on them. On 02.06.2011 she gave birth to a female child. Her parents bore the delivery expenses. Her husband did not come to see her and her child. He came to India in the month of May, 2011. He did not provide any maintenance and used to demand for additional dowry. The petitioners were also very upset as she delivered a baby girl. She filed a criminal case against the petitioners and also the DVC.
3. The petitioners filed counter in the DVC contending that the 2nd respondent was wrongly shown as the wife of the 1st petitioner. Infact, she was divorced on 28.02.2012. They never received any dowry, jahez articles, gold or other things from the 2nd respondent as alleged by her in the petition. The father of the 2nd respondent was a retired veterinary doctor. He had no capacity to give jahez articles and dowry. The 2nd respondent herself left the petitioners for the purpose of first delivery. The 1st petitioner worked in Saudi Arabia as a Salesman. Since February 2013, the 2nd respondent and her brother in collusion with the Sub-Inspector of Police, Dabeerpura, were compelling the petitioners to follow their commands for which they did not agree. As such the 2nd respondent filed a false case against the petitioners under Section 498-A IPC with the help of Sub Inspector of Police, Dabeerpura. In the said case, the passport of the 1st petitioner was deposited in the Court. His visa was expired in the year 2013. Therefore, the 1st petitioner became jobless. He was having no money Dr.GRR,J 3 CrlRC.No.3348 of 2017 or job to pay any maintenance. The 2nd respondent was a B.Sc., B.Ed. graduate. She was working in a private school. Therefore, she is capable of earning. Her contention that she was having no source of income was false. The 1st petitioner was not in a position to give maintenance and other reliefs.
4. Before the trial Court, the 2nd respondent examined herself as PW.1 and got marked Exs.P1 to P10. The 2nd petitioner, father-in- law of the 2nd respondent was examined as RW.1 and Ex.R.1, photographs of an open plot were marked on behalf of the petitioners.
5. On considering the evidence of both the parties, the trial Court granted protection order, awarded maintenance of Rs.10,000/- to the 2nd respondent and Rs.5,000/- to the minor daughter towards their monthly maintenance from the 1st petitioner and directed the 1st petitioner to pay Rs.5,000/- per month towards alternative accommodation charges and granted compensation of Rs.4.00 lakhs to be paid by the petitioners herein within three months from the date of the said order. The trial Court also directed the petitioners herein to return the Jahez articles, gold and dowry amount of Rs.5.00 lakhs to the 2nd respondent within two months from the date of the order.
6. Aggrieved by the said order, the petitioners preferred the appeal. The said appeal was heard by the VIII Additional Metropolitan Sessions Judge, FAC V Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad and the appellate Court Dr.GRR,J 4 CrlRC.No.3348 of 2017 confirmed the orders of the trial Court passed in the DVC and dismissed the appeal.
7. Aggrieved further, the petitioners preferred this revision contending that the trial Court erred in passing a protection order without hearing the petitioners and failed to appreciate that there was no urgency to pass such orders. Due to illiteracy, the petitioners had not appeared or contested the matter before the trial Court. The 1st petitioner was the ex-husband of the 2nd respondent and due to severe disputes and misunderstandings between the 1st petitioner and the 2nd respondent, the 2nd respondent left the matrimonial house and started living with her parents. Thereafter, she filed a private complaint before the XIII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad with all false and baseless allegations. The same was referred to the Dabeerpura Police. From the date of marriage, the 2nd respondent had not lived with the 1st petitioner in her matrimonial house. Her behaviour was adamant towards the 1st petitioner and his family members. Inspite of several counsellings made by the relatives and friends, she did not agree to lead happy married life with the 1st petitioner. With no option, the 1st petitioner pronounced Talaq to the 2nd respondent on 28.02.2012 and the concerned Qazat Office of Qila Mohammed Nagar, Hyderabad issued divorce certificate vide issue No.1148, dated 30.09.2015. The same was also published in Siasat Daily Newspaper. As the passport of the 1st petitioner was seized, the 1st petitioner lost his job and was residing Dr.GRR,J 5 CrlRC.No.3348 of 2017 in India. At present, the 1st petitioner was jobless. The 2nd petitioner was a senior citizen and was suffering with old age ailments. The 3rd petitioner was working in abroad for the past 10 years. The 4th petitioner was a married lady and living with her husband and in-laws at Adilabad. She was having minor children. Even she did not visit the matrimonial house of the 1st petitioner and the 2nd respondent. There was no iota of truth in the complaint of the 2nd respondent. The Court did not consider the counter filed by the petitioners and that no documentary evidence was adduced by the 2nd respondent to show that the petitioners caused domestic violence against her. As divorce was already pronounced, the 2nd respondent was not entitled to claim any maintenance etc. The order passed by the trial Court was only on sentimental ground without considering the plea of the petitioners. The trial Court had mentioned in the order that the 1st petitioner was a Graduate in B.E. computers. But, in fact, he had completed his B.Com., degree and was working as an ordinary salesman. He used to get a meagre salary and at present he was jobless and was having the responsibility of his old aged father. On the other hand, the 2nd respondent had completed her B.Sc., B.Ed. She was a skilled lady, capable to maintain herself. The said facts were not considered by the Courts below and prayed to set aside the order in DVC Appeal No.108 of 2017 dated 24.11.2017 on the file of the V Additional Metropolitan Sessions Judge, Hyderabad.
Dr.GRR,J 6 CrlRC.No.3348 of 2017
8. Heard the learned counsel for the petitioners and the learned counsel for the 2nd respondent-complainant.
9. Perused the record. The petitioners contended that the petitioners had not appeared and contested the matter before the trial Court. The record would disclose that they filed counter in DVC No.222 of 2014 and also adduced evidence by examining the 2nd respondent as RW.1 and also got marked Ex.R.1 on their behalf. Thus, their contention that they had not contested the matter before the trial Court was not true.
10. Another contention raised by the petitioners in this revision was that the 1st petitioner had given divorce to the 2nd respondent on 28.02.2012 and as such, the award of maintenance to her was not proper. The said contention was also taken by the petitioners before the trial Court in the DVC. But, the trial Court observed that no proof was filed before the Court with regard to the divorce given by the 1st petitioner to the 2nd respondent. RW.1 categorically admitted in his cross-examination about not filing any documentary proof as such, the said contention was not believed and the Court further observed that even the divorced woman was entitled to file DVC and seek monetary relief until she is remarried and therefore, she was entitled to file the said case seeking the said reliefs. The appellate Court also agreed with the observations of the trial Court in the said regard. The divorce certificate was filed by the petitioners before this Court though not filed before the trial Court and the appellate Court. The reasons for Dr.GRR,J 7 CrlRC.No.3348 of 2017 not filing the same before the said Courts were not explained by the petitioners.
11. The Hon'ble Apex Court in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori1 held that subsequent decree of divorce will not absolve the liability of the husband under the Domestic Violence Act for an act of domestic violence committed earlier. In the said case also the husband asserted a divorce in accordance with the Muslim personal law for which no evidence was placed before the Court. It was authoritatively declared that even if it is presumed that there was a divorce, the claim of the wife in respect to the obligations arising under the past relationship will not stand effaced: to enforce which the provisions of the DV Act could be invoked. The contention that the divorced wife cannot seek relief under the Act was repelled by the Hon'ble Apex Court in Priya v. Shibu2 and in Juveria Abdul Majid Patni case (1 supra). The learned Judge observed that though it is a paradox to permit the divorced woman to invoke the provisions of the Act, instances where need arise would not be rare, especially relating to obligations arising from the past matrimonial relationship like maintenance, custody of children, liability to return amounts or assets received from the wife, operation of bank accounts and personal safety of wife and children born in the wedlock.
12. Thus, in the above case, it was held that the divorced wife is also entitled to seek remedies under the Act. As the obligation of 1 2014 (10) SCC 736 2 2008 (3) KHC 125 Dr.GRR,J 8 CrlRC.No.3348 of 2017 the petitioners arising under the past relationship to look after the maintenance of the children and to provide protection to the aggrieved woman and return of amounts or articles received would continue even after divorce, I do not find any merits in the contention of the petitioners that divorce puts an end to the relationship between the 1st petitioner and the 2nd respondent and the obligation to maintain his wife and children.
13. The next contention raised by the petitioners was that the 1st petitioner was not a graduate in B.E. Computers, but only a B.Com graduate and worked as an ordinary sales man and he became jobless, he lost his job due to deposit of passport before the Court and the 2nd respondent was earning. No evidence was adduced by the petitioners before the trial Court or the appellate Court to show that the 2nd respondent was earning. Likewise, the petitioners also failed to adduce any evidence before the trial Court that the 1st petitioner became jobless. They filed a notice of termination issued to the 1st petitioner by Ocean Aid International Trading Company, L.L.C., Dubai, before this Court that his job was terminated with effect from 30.03.2017. Thus, the 1st petitioner was working by the date of the order in DVC No.222 of 2014 dated 09.01.2017. His contention that he was not a graduate in B.E. Computers was also examined by the Magistrate court. The trial Court observed that in the wedding card his qualification was printed as B.E. Computers. The 2nd respondent filed documents before this Court to show that he was only a B.Com Dr.GRR,J 9 CrlRC.No.3348 of 2017 graduate. He need to file all the documents relied on by him like his educational qualifications and divorce certificate before the trial Court but not before this Court in revision. The changed circumstances that he became jobless were not brought to the notice of the appellate Court even. However, he worked as a Salesman in Dubai as per his own admission till March, 2017 and was having capacity to maintain himself and his family but failed in his duty even to provide maintenance to his wife and daughter. Hence, I do not find any merits in the contentions raised by the petitioners herein.
14. Section 25 (2) of the DV Act provides a remedy to the petitioners to apply to the Magistrate Court for alteration of orders on the grounds of changed circumstances. The jurisdiction of this Court is limited while exercising its power under Section 397 and 401 Cr.P.C. This Court would not interfere with findings of fact since jurisdiction is confined to error of law, unless the findings recorded by the Courts below are manifestly or apparently erroneous.
15. The petitioners failed to show that the findings of the Courts below are erroneous on any facts or law. Hence, it is considered fit to dismiss the revision confirming the orders of the IV Metropolitan Magistrate, Hyderabad and of the V Additional Metropolitan Sessions Judge, Hyderabad in DVC No.222 of 2014 and in DVC Appeal No.108 of 2017, respectively. The petitioners are permitted to bring any changed circumstances to the notice of the Dr.GRR,J 10 CrlRC.No.3348 of 2017 learned Magistrate and to seek modification of the orders, if necessary.
16. Accordingly, the Criminal Revision Case is dismissed. Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J December 27, 2021 KTL