Delhi District Court
Md. Muzibur Rahman vs Husna Begum on 4 May, 2017
1
IN THE COURT OF BHUPESH KUMAR, ADDITIONAL SESSIONS
JUDGE (SOUTH) SAKET COURTS : NEW DELHI
CA No. 03/2016
In the matter of :
Md. Muzibur Rahman,
S/o late Md.Anisur Rahman,
Qr.No.NCH, B12,
District Korba (CG) 495452
...... Appellant
VERSUS
Husna Begum,
W/o Saleem Ahmad,
255, Hauz Rani, Malviya Nagar,
New Delhi 110017.
....... Respondent
Criminal Appeal u/S.29 of Protection of Women from Domestic Violence Act, 2005 against the orders of Ld. MM dated 07.12.2015 Date of Institution : 10.03.2016 Arguments Heard on: 04.05.2017 Date of Decision: 04.05.2017 O R D E R The present appeal has been filed by the appellant Mohd. Muzibar CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 2 Rehman under Section 29 of Protection of Women from Domestic Violence Act, 2005 against impugned order dated 7.12.2015 of learned Trial Court vide which notice of the application under Section 12 of DV Act filed by the applicant Husna Begum was issued to the appellant.
2. Notice of the appeal was issued to the respondent.
Trial Court record was called.
3. I have heard the arguments of Sh.Avi Singh, ld. Counsel for appellant and Sh. Jawahar Raja, ld. Counsel for respondent.
4. The brief facts of the matter as emerged from the trial court record are that the applicant (hereinafter referred as respondent) has filed application under Section 12 of DV Act against the respondent (hereinafter referred as appellant), inter alia, seeking interim maintenance and compensation of Rs.10.0 lac on the ground that the appellant being husband of the respondent has abandoned her, refused to maintain her and two children etc. Further as per application, the marriage between the parties was solemnized according to Muslim Rites on 6.10.2012 at respondents residence at 115, Hauz Rani, Malviya Nagar. Since the appellant was an employee of Coal India and had his working residence at Chhattisgarh, the matrimonial home of the parties was respondents's house at 255, Hauz Rani, Malviya Nagar. Earlier the respondent was married to one Salim and had two children but due to act of Salim and his CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 3 family, she had instituted proceedings under Section 125, DV Act and Section 498 of IPC. In order to maintain her and her two children, she started working at Max Hospital where she became friendly with coworker namely Firoza. In the year 2010 Firoza and her cousin Rabbani told her that they know somebody who could help her in her matrimonial dispute and at their instance the respondent met the appellant for the first time at guest house opposite Max Hospital where the appellant was staying with his nephew Hasmat. Thereafter, the appellant remained in touch with the respondent. In the year 2012 at the instance of the appellant, she met him near Saket Select City Mall where the appellant gave Rs.10,000/ to her telling her that he had heard about her struggles. On 30.08.2012 the appellant took respondent to Madangir Market and purchased certain kitchen equipments and grocery items for applicant by stating that he was only doing his duty according to tenets of 'DiniIslam'. Thereafter the appellant asked the respondent the move to the accommodation with Firoza and Rabbani, for which Rabbani has even found one accommodation at Khanpur but the applicant found it to be not suitable. In the month of September appellant came to Delhi and helped the respondent to shift to another accommodation in Hauzrani. Again the appellant purchased clothes, mixture, fan, fridge etc. for the respondent. On the same day at asking of appellant, the respondent went to the appellant's place to stay for over night, where the appellant proposed to marriage her and has further informed the applicant that he has already spoke to his earlier wife who has also consented for the same. On 19th September the appellant purchased one Nokia phone and certain CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 4 jewelery, almirah etc. and again proposed to marry her. From this time onwards the appellant started transferring certain money in the bank account of respondent to support her qua her litigation with Salim and also insisted the applicant to divorce her husband. At asking of the appellant, the respondent left the job. On 4th October the respondent obtained divorce from Salim in accordance of Muslim rites through the process of 'Talaq'. The copy of Ikrarnama was prepared which was also filed by the respondent in the court for withdrawal of the application of maintenance filed under Section 125 Cr. P.C.. Even thereafter the appellant has given certain jewelery purchased by him from Chhattisgarh, Samsung TV and Dish TV HD card etc. Thereafter, the respondent has signed 'Nikahnama' brought by the appellant. It was also signed by Reshma. The appellant also paid Rs.10,000/ as 'Mehar' and this fact was also recorded in 'Nikahnama'. When the respondent raised query, that how there can be 'Nikah' without Molvi to which the respondent stated that there was no requirement of 'Molvi' in case of consent of both the parties and payment of 'Mehar'. However, the appellant stated that he would get the Nikahnama stamped at Masjid and would have another ceremony involving 'Molvi' after Iddat period of the respondent i.e. three months and 13 days after the divorce from her first husband. Soon thereafter the marriage was consummated. Thereafter the appellant started visiting at respondent accommodation on monthly basis and lived with her as husband and has provided grocery for months apart from giving Rs.6000 to Rs.10,000/ either in cash or by depositing in her bank account. The appellant visited respondent and stayed with her as her CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 5 husband in the month of October, November, January and April and during this period he used to buy clothes and household items for respondent. In the month of January, 2013 the respondent received phone call from appellant's wife who has enquired about the relationship between appellant and respondent to which the respondent stated that they have married and were living as husband and wife. At this stage, the respondent came to know that first wife of appellant had no knowledge about the marriage of respondent with appellant. Thereafter, the appellant visited the respondent between 20 to 23.1.2013. During this period the respondent asked for 'Nikahnama' but the appellant has put off the same with excuse that the respondent need not to worry for the same. Then the appellant went back to Chhattisgarh and from this time onwards his phone calls started decreasing. After April, 2013 appellant stopped visiting the respondent with one excuse or another. The appellant has sent money to the respondent on 17.4.2014 last time. In the month of May 2014 the respondent showed her willingness to visit Chhattisgarh to which appellant threatened the respondent not to visit Chhattisgarh. On 31.5.2014 the appellant called the respondent and accused her of maligning his name among his relatives. The respondent got shocked to hear it and on query the appellant has denied that he had married the respondent and the existence of 'Nikahnama'. On the basis of these submissions the applicant has filed the application under Section 12 of DV Act.
5. Ld. Counsel for appellant has submitted that from the contents of application itself filed by the respondent u/Sec 12 of DV Act, it reflects that no CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 6 marriage took place between appellant and respondent. Further no documentary proof has been filed by the respondent in support of her claim of her marriage with appellant. As per Islamic law, after divorce, a female cannot remarry another person during Iddat period which is counted as three menstrual period. But in this matter, as contended by the respondent, she obtained divorce from Mohd.Salim Ahmed on 4.10.2012 and her 'Nikah' took place on 6.10.2012 with the appellant. Therefore, as per own contentions of the applicant, the marriage cannot be termed as valid marriage because it was performed during 'Iddat' period. Ld. Trial court has not considered this fact before issuing notice to appellant.
It has been further submitted that the provisions of DV Act are not attracted in this matter because there are no allegations of physical, sexual or verbal abuse in the application.
It has been further submitted that the wife of the appellant with whom the appellant is residing at Chhattisgarh has not been arrayed as one of the party to the application, hence, without impleading her as necessary party the application under Section 12 of DV Act is not maintainable. The reliance in this regard has been made in case D.Velusamy vs D.Patchaiammal 2010 (10) SCC
469. On account of payment of some money etc., it has been vehemently submitted that the money was given by the appellant to the respondent as 'Din iIslam' and simply for the payment in view of 'DiniIslam', it cannot be presumed that any marriage took place between the parties because there is no CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 7 material on record which suggest that any domestic relationship existed between the parties or the respondent is aggrieved person.
It has been further submitted that the respondent has relied upon Ikrarnama dated 04.10.2012 to show that she has obtained divorce from Mohd.Salim. But the Ikrarnama was conditional because vide said Ikrarnama, the respondent agreed to withdraw the court cases filed by her Mohd. Salim. But the said condition was not fulfilled as one of the matter under Section 498A IPC was disposed of by the Court on merit in the month of November, 2016 only. The reliance in this regard can be made in case Bacchu lal vs Bismillah and ors., 1935 SCC Online All 339. On the basis of these submissions prayer has been made to allow the appeal.
6. Per Contra, ld. Counsel for respondent has submitted that in case the marriage took place during Iddat period, the marriage does not become void and at the most it can be termed as irregular marriage and the wife is entitled for all the benefits. Reliance has been made in case Chand Patel vs Bismillah Begum and anr, 2008 SC 1915.
It has been further submitted that the case of the respondent certainly covers under Section 2(s) 'shared household' of DV Act apart from the domestic relationship under Section 2(f). It has been further contended that since the respondent is legally wedded wife of the appellant, hence, she is aggrieved person in this matter.
Ld. Counsel for respondent further argued that disputes qua marriage etc. CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 8 raised by the appellant involves mix question of law and fact which can be decided only after the parties are allowed to lead evidence in support of their contentions. The reliance has been made in case Mrs.Arti Singh vs Lt.Col.Kanwal Pal Singh, 1976 SCC Online Delhi 31.
In respect to Ikrarnama dated 4.10.2012, ld. Counsel for respondent submitted that as per this Ikrarnama, the respondent has immediately withdrawn her petition filed u/Sec 125 Cr.P.. on the same day. The FIR which was registered against Mohd. Salim under Section 498A IPC was a State case and for the withdrawal of same, the respondent had no power. Even though the respondent and Mohd.Salim approached Hon'ble High Court of Delhi for quashing the FIR, but Hon'ble High Court had declined to quash it. On the basis of these submissions it has been submitted that the respondent has not violated the terms of Ikrarnama.
7. I have heard the arguments of ld. Counsel for both parties besides going through the material on record carefully.
8. Ld. Counsel for appellant has submitted that the notice of the application was necessary to wife of the appellant residing at Chhattisgarh, in view of judgment in case D Vellusamy (Supra). I have carefully gone through the said judgment which reflects that while disposing of applicatoin under Section 125 Cr.P.C., learned family court has held that the appellant was married to the respondent and not to Ms.Laxmi. The findings of learned family court were CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 9 upheld by the Hon'ble High Court. But Hon'ble Supreme Court has set aside the orders of learned Family Court and of Hon'ble High Court on the ground that learned family court Judge and Hon'ble High Court has hold that the appellant was not married to Ms.Laxmi without issuing notice to Ms.Laxmi. However, in the said judgment all the parties were Hindu.
Reverting to the present matter, litigating parties are Muslim. As per Mohammeden Law, a muslim male can legally marry four wives. The material came on record so far reflects that apart from his one wife at Chhattisgarh and the respondent (claimed to be legal wife of the appellant), there is no other female in picture which shows that the appellant has married to somebody else also. Since entering into second marriage by male Muslim is not barred and the second wife being legal wife of Muslim male is entitled to all similar benefits to that of first wife, hence, the notice of application, if moved by the second wife under DV Act to first wife is not necessary. Hence, the judgment D Vellusamy (Supra) can be distinguished in the light of facts of the instant case.
9. The next contention of ld. Counsel for appellant is that as per Islamic law, the female cannot remarry during 'Iddat' period and any marriage took place during 'Iddat' period cannot be termed as valid marriage. On this aspect admittedly as contended by ld. Counsel for appellant, the respondent claimed to have obtained divorce from Mohd. Salim on 4.10.2012 and performed Nikah on 06.10.2012 i.e. during 'Iddat' period. On this aspect in case Chand Patel CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 10 (Supra) Hon'ble Supreme Court has, inter alia, held as under :
An irregular marriage is one which is not unlawful in itself, but unlawful "for something else," as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses. Thus the following marriage are irregular, namely,
(a) & (b) ........
c) marriage with a woman undergoing Iddat;
d) & e) ...........
...... the impediment ceases on the expiration of the period Iddat;. ...... "267. Effect of an irregular (fasid) marriage - (1) An irregular marriage may be terminated by either party, either before or after consummation, by words showing an intention to separate, as where either party says to the other "I have relinquished you".
In the light of this judgment, any marriage performed by a Muslim woman during iddat period, is an irregular marriage and not a void (batil) marriage. Hence, the contention of ld. Counsel for appellant on this aspect are found to be without any merits.
10. It has been further contended by ld. Counsel for appellant that the provisions of DV Act are not attracted as there are no allegations of physical, sexual or verbal abuse in the application. On the other hand, ld. Counsel for respondent has submitted that to attract the provisions of domestic violence, apart from physical abuse etc., depriving aggrieved person economically or financially also amounts to domestic violence. The attention of the Court drawn CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 11 towards Section 3 iv(a) of DV Act, which is as under :
3. Definition of Domestic Violence.
(iv) "economic abuse" includes
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children. If any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
Bare perusal of aforesaid provisions of DV Act, even depriving aggrieved person economically or financially also amounts to domestic violence. I find substance in the contention of ld. Counsel for respondent on this score.
11. The next contention of ld. Counsel for appellant is that Ikrarnama dated 4.10.2012 is non asset as the respondent has not fulfilled the terms of Ikrarnama. In this respect as per respondent she has withdrawn the petition filed by her under Section 125 of Cr.P.C. against Mohd. Salim on same day. The another State matter under Section 498A IPC was not withdrawn as she was not empowered to withdraw the same being State case. Without touching the merits of the matter, it is found that withdrawing the State case under Section 498A IPC was beyond the powers of respondent as it is noncompoundable offence. I have carefully gone through the judgment in case Bachhu Lal (Supra) and it is found that the findings of the said case are not applicable to the facts of the CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 12 instant case.
12. Now coming to the question of domestic relationship, share household, aggrieved person and payment of certain money by the appellant to the respondent. In this respect, it is found that as per record both parties are not strangers to each other. The fact of transfer of money by the appellant in the account of respondent has not been disputed. The fact of giving cash amount by the appellant to respondent, the fact of purchase of certain household goods and jewelery by appellant for respondent has also not been specifically denied in the appeal. There is one true copy of settlement agreement dated 13.10.2014 executed between both parties. Both parties without going into any admission of liability signed the same vide which appellant has agreed to pay a sum of Rs.3.75 lac as exgratia financial assistance to the respondent. Here the question arises that what compelled the appellant to pay such huge amount to the respondent when he has denied the existence of husband and wife relationship between him and respondent.
Whether the respondent is legally wedded wife of appellant; whether the household items/jewelery/money given by the respondent was in the form of DiniIslam or was given in the form of maintenance to the respondent being her husband; whether parties shared household or whether any domestic relationship existed between them or not are all the matters which can be considered only after the parties are given opportunity to lead evidence in support of their claim. At this stage, the Court is only required to see if there is CA No. 03/16 Bhupesh Kumar, Spl.Judge (PC Act) CBI-1, South, Saket,New Delhi/04.05.2017 13 sufficient material on record to issue notice under Section 12 of DV Act or not, to appellant.
13. Considering the entire material on record especially invoices/receipts of purchase of household articles and jewelery, statement of bank account of the respondent vide which certain amount has been transferred by the appellant in the account of respondent and the contents of the application moved under Section 12 of DV Act, it is found that there is sufficient material on record to issue notice to the appellant on the application moved by the respondent under Section 12 of DV Act. No reasonable ground has been found to interfere with the impugned order. The appeal stands dismissed accordingly. The findings of this order shall have no effect on the merits of the case.
14. A copy of this order alongwith TCR be sent back to the Ld. Trial Court.
15. Appeal file be consigned to Record Room.
Announced in the Open Court (Bhupesh Kumar)
Today on 04.05.2017 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi.
CA No. 03/16 Bhupesh Kumar, Spl.Judge
(PC Act) CBI-1, South, Saket,New Delhi/04.05.2017