Delhi District Court
Rizwana Khan vs ..........Appellant on 19 May, 2022
IN THE COURT OF SHRI ARUL VARMA
ADDL SESSIONS JUDGE-04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CA No.223/2019
1 Rizwana Khan
W/o Mohd Abbas,
R/o House no. 2/7A, Ground Floor,
Jangpura-A, New Delhi
Vs ..........Appellant
1 Mohd. Abbas
S/o Late Shahid,
R/o Zakaria Shahid Industries
Shahidabad Near Ganga Bridge,
Sambhal Road Moradabad,
Uttar Pradesh
..........Respondent
Instituted on : 22.04.2019
Argued on : 19.05.2022
Decided on : 19.05.2022.
JUDGMENT
1 Vide this order, this court shall adjudicate the present criminal appeal filed under Section 29 of the Protection of Women from the Domestic Violence Act, 2005, assailing order dated 15.03.2019 passed by the Ld. MM/Mahila Court, South East District.
IMPUGNED ORDER FACTS 2 The facts of the case are hereby succinctly recapitulated: in the present matter the complainant/wife Rizwana Khan was married to respondent Rizwana Khan Vs. Mohd Abbas. CA No 223 of 2019 1/6 Mohd. Abbas on 14.07.2011 as per Muslim rites and rituals and after their separation since December 2013, the appellant Rizwana Khan filed her complaint under the Domestic Violence Act on 03.02.2014. The respondent filed his reply alongwith written statement, stating before the Ld. Trial Court that the appellant had already been divorced by him. Thus, the respondent has objected to the interim maintenance application filed by the complainant/wife. .
FINDINGS OF THE LD. TRIAL COURT.
3 After weighing the evidence, the Ld Trial Court firstly, opined that the objection qua filing of talaqnama after 6 years could not be raised by the complainant/wife. Ld. Trial Court further held that the complainant/wife should have filed the objections before any other appropriate forum and held that objections have been filed only with intention of delaying the proceedings. Further as far as interim maintenance was concerned, Ld. Trial Court held that the contentions raised by the complainant/wife before the Ld. Trial Court had also been raised before the Ld. Judge, Family Court and thus the same need not be decided on the same facts by the Ld. Trial Court. Thus, the Ld. Trial Court dismissed the application for seeking interim maintenance by opining that judicial mind has already been applied on the same facts with respect to the application of the interim maintenance.
Rizwana Khan Vs. Mohd Abbas. CA No 223 of 2019 2/6 CONTENTIONS OF LD. COUNSELS FOR THE APPELLANT & THE RESPONDENT 4 Ld Counsel for the appellant/complainant submitted that the talaq has not been proven as per law. It was further submitted that onus was on the husband /respondent to prove its existence and the burden was not upon the appellant/wife to disprove it. Further Ld. Counsel for appellant/wife submitted that the Ld. Trial Court did not apply Judicial mind, and solely relied on the observations of the Ld. Family Court while disposing of the interim maintenance application. Thus Ld. Counsel requested to this Court to remand the matter back to the Ld. Trial Court for proper adjudication of the interim maintenance application.
5 Per Contra, Ld. Counsel for respondent/husband submitted that the Ld. Trial Court has apparently observed that the appellant/wife objected to talaq belatedly after 6 years. It was also submitted that the respondent/husband paid the Mehar amount, and filed POD (Proof of Delivery) regarding the same.
6 Submissions heard.
7 As far as the first contention qua talaqnama is concerned, this court concurs with the submissions of the Ld. Counsel for appellant/wife that as of now the talaq has not been proved as per law, especially in light of the fact that the same has been objected to by the appellant/wife. As per Shamim Ara Vs. State of U.P. & Ors,(2002)7 SCC 518, pronouncement of Triple Rizwana Khan Vs. Mohd Abbas. CA No 223 of 2019 3/6 talaq has to be proved and it is not sufficient to merely state the same through a written statement. The law of land is that in a case of triple talaq reasonable cause has to be shown for pronouncing Talaq, preceded by an attempt at re- conciliation and talaq has to be pronounced in front of two witnesses. Thus, the factum of talaq has to be proved as per law, in a Court of law. Merely sending Meher without a valid talaq, amounts to fait accompli. 8 Further, in light of such objection, it is essential that talaqnama has to be proved by the respondent/husband. It is not incumbent upon the appellant/wife to disprove it. Thus, this Court concurs with the submissions of the Ld. Counsel for appellant/wife qua the observations made by the Ld. Trial Court in this regard. Resultantly, the following observations of the Ld. Trial Court in order dated 15.03.2019 are hereby expunged:
"In the present facts and circumstances, where the talaqnama was filed by the respondent alongwith his WS in the year 2014, that is after the present complaint of Domestic Violence Act was filed by the complainant and for all these years the complainant did not raise her any objection before any forum regarding the validity of the talaqnama, the same cannot be raised after a lapse of six years. Further, the complainant should have filed the same before any appropriate forum as per law and the same have been raised now before the Court only with the intention to delay the proceedings"
9 Further, as far as the second aspect of grant of interim maintenance is concerned, the Ld. Trial Court has, as rightly contended by the Ld. Counsel for appellant, not applied judicial mind. In Rajnesh Vs. Neha, 2021, 2 SCC, 324, inter alia, issue of overlapping jurisdiction was discussed by the Hon'ble Supreme Court. It held as thus:
Rizwana Khan Vs. Mohd Abbas. CA No 223 of 2019 4/6 "60 It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the DV Act and Section 125 Cr.PC, or under HMA. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the Civil Court/Family Court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant"
"61 To overcome the issue of overlapping jurisdiction and avoid conflicting orders bing passed in different proceedings, we direct that in a subsequent maintenance proceedings the applicant shall disclose the previous maintenance proceedings and the order passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceedings, and grant an adjustment or set-off the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the court concerned in the previous proceeding".
10 Thus, the import of the above verdict is that an order passed in a maintenance proceedings would not debar re-adjudication of the issue of maintenance in any other proceedings. Thus, in the present matter, the reliance of the Ld. Trial Court on the order of Ld. Judge, Family Court is totally misplaced, as each interim bail application has to be adjudicated on its own merits especially, if the same has been moved in a different forum. The Ld. Trial Court ought to have disposed of the application on its own merits, after considering the contentions of both sides and income affidavits, if any,.
Thus on this score, also this Court concurs with the submissions Rizwana Khan Vs. Mohd Abbas. CA No 223 of 2019 5/6 of the Ld. Counsel for appellant. Merely because the Ld. Judge, Family Court, disallowed maintenance, that ought not to be a ground for the Ld. Trial Court to also disallow the maintenance.
11 Under these circumstances, the Criminal Appeal is disposed of with directions to remand the matter back to the Ld. Trial Court to re-hear the parties on the aspect of interim maintenance, on merits. 12 Put up before the Ld. Trial Court on 30.05.2022. 13 TCR, if any, alongwith copy of this order be sent to Ld. Trial Court for necessary compliance.
14 Appeal file be consigned to record room after due compliance.
(ARUL VARMA ) ASJ-04 + Spl. Judge (NDPS) South East District, Saket Court, New Delhi:
Rizwana Khan Vs. Mohd Abbas. CA No 223 of 2019 6/6