Delhi District Court
Rahees Ahmed vs Fozia Khanam on 23 October, 2019
IN THE COURT OF SH. VIDYA PRAKASH:
ADDITIONAL SESSIONS JUDGE / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Criminal Appeal No. 51/2019
CNR No. DLNE01-002381-2019
Rahees Ahmed
S/o Sh. Hifzul Raheem Khan
R/o 10B/47, Gali No. 2,
Subhash Mohalla, Maujpur,
Delhi-110053.
....... Appellant
Vs.
Fozia Khanam
D/o Mohd. Ishtiak Khan
R/o C-53/10, Gali No. 6,
Noorani Masjid, Chauhan Banger,
Delhi-110053.
..... Respondent
Date of Institution : 07.06.2019
Judgment Reserved on : 14.10.2019
Date of Judgment : 23.10.2019
9
CC No. : V-246/09/12
PS. : Jafrabad
U/s. : 12 D.V. Act
JUDGMENT :
1. Being dissatisfied with the judgment dated 06.05.2019 (hereinafter called the impugned judgment) passed by Ld. MM (Mahila Court) / NE in proceedings filed by respondent (hereinafter called the wife for the sake of convenience) herein against the appellant (hereinafter called the husband for the sake of convenience) under Domestic Violence Act (hereinafter called the Act), whereby Trial Court while recording the findings that domestic violence took place against the wife and she is an aggrieved person within the definition of Sec. 2 (a) Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 1 of 13 of the Act, passed an order u/s 20 of the Act by directing the husband / appellant to pay maintenance @ Rs. 3750/- p.m. to the wife/respondent from the date of filing of petition subject to adjustment of maintenance, if any, awarded in any other proceedings and subject to adjustment of the amount already paid to her. The appellant has also been directed to pay the monthly maintenance by 10 th of every month by way of money order or by depositing the amount directly in the bank account of respondent/wife. He has also been directed to pay a sum of Rs. 10,000/- as compensation to the respondent/wife towards the incidents of domestic violence committed upon her in terms of Sec. 22 of the Act.
2. Bereft of unnecessary details, the respondent/wife filed the petition u/s 12 of the Act, claiming therein that she got married with appellant/husband on 04.02.2007 as per Muslim rites and customs at Delhi. No child was born out of said wedlock. After few days from date of her marriage, she was subjected to harassment and cruelty at the hands of appellant/husband and his family members in connection with their demand for dowry. There was no facility of electricity and water in the shared household where she used to reside and whenever she requested to provide said facilities, she was beaten mercilessly. She also claimed that appellant/husband pressurized her to bring Rs. 2 lacs cash from her parents for purchasing a Maruti van and acts of domestic violence continued to be committed against her. Based on said averments, she prayed for various reliefs including the monetary relief in terms of Sec. 20 of the Act by asking the appellant/husband to pay monthly maintenance @ Rs. 15,000/- in Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 2 of 13 order to meet household expenses including school fees of minor child and other related expenses.
3. The appellant/husband contested the said petition by filing detailed reply, wherein he denied the aforesaid allegations and claimed that respondent/wife was not entitled to any of the reliefs sought under the Act and the petition is not maintainable under the law as no act of domestic violence was committed by him against the respondent/wife. He also attributed certain allegations against her but same are not being discussed herein as they are not relevant for the purpose of deciding the present appeal.
4. Before proceeding further, it may be noted that the petition was initially filed against seven respondents including appellant/husband but respondents no. 2 to 7 (before Trial Court) were deleted vide order dt. 18.11.2011 passed by Trial Court. It appears that said order was never challenged during pendency of proceedings before Trial Court.
5. The respondent/wife filed her own affidavit in evidence and she was examined as PW-1, whereas the appellant/husband examined himself as RW-1 by filing his own affidavit in evidence.
6. After hearing final arguments, the impugned judgment came to be passed by Trial Court, whereby reliefs claimed u/s 18 and 19 of the Act were declined but reliefs claimed u/s 20 and 22 of the Act were granted, as already noted above, thereby giving rise to the present appeal from the side of husband. Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 3 of 13
7. The impugned judgment has been assailed mainly on the grounds that Trial Court failed to consider the fact that marriage between the parties already stood dissolved vide order dt. 12.09.2015 passed by Ld. Principal Judge, Family Court, Delhi; Trial Court has wrongly held that domestic violence was committed against respondent/wife despite the fact that she herself stated in her statement made before Family Court that there were temperamental differences between the parties and Trial Court failed to consider the fact that as per admitted case, the income of appellant/husband is Rs. 10,000/- p.m. and the respondent/wife failed to prove that there was no facility of electricity and water in the portion where she was residing and also the fact that she has already received the Mehar amount of Rs. 75,000/- but said amount is not directed to be adjusted while issuing direction to make the payment towards her maintenance.
8. While opening the arguments, counsel for appellant/husband vehemently argued that there was no justification for directing the appellant to pay maintenance to the respondent once marriage between the parties was dissolved by Family Court on 12.09.2015. He further argued that the respondent/wife herself stated before Family Court that there were temperamental differences between the parties, due to which appellant pronounced Talak to her on 23.02.2014 as per Muslim law and same was duly accepted by her. Based on said part of her statement, counsel for appellant argued that there is no evidence showing that any act of domestic violence was committed against respondent and therefore, the petition ought to have been Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 4 of 13 dismissed by the Trial Court. He further argued that as per Sec. 125 (2) CrPC, the maintenance is payable from the date of order but Trial Court while ignoring the said provision, issued direction to pay the monthly maintenance from the date of filing the petition i.e. 26.11.2009, which is illegal and unjust. He further argued that there is no reliable evidence led by respondent herein to show that appellant was earning more than Rs. 10,000/- p.m. He further submitted that appellant is studied upto 9th class and he is a professional driver having family responsibility to maintain his second wife. Thus, the relevant part of impugned judgment thereby directing him to pay monthly maintenance @ Rs. 3750/-, is not tenable under the law. He also argued that Trial Court failed to give any reason for awarding maintenance from the date of filing the petition. In support of said submission, he heavily relied upon the decision of Hon'ble Allahabad High Court reported at 2001 Cri.L.J. 2064.
9. Per contra, counsel for respondent/wife supported the impugned judgment by arguing that Trial Court has duly considered all the relevant facts and circumstances of the case and the evidence led by the parties while passing the said judgment and it does not require any interference by this Court in exercise of its appellate jurisdiction. He pointed out that FIR No. 30/10 u/s 498- A/406/506 IPC was also registered against appellant at PS Jafrabad on the complaint of respondent/wife, wherein chargesheet has already been filed and even charge has already been framed against him by the Court of Magistrate, which clearly shows that respondent herein was subjected to harassment and Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 5 of 13 cruelty by him in connection with demand for dowry and acts of domestic violence were committed against her. He also argued that PW-1 has duly deposed about the acts of domestic violence committed against her by the appellant. He also referred to the relevant portion of cross-examination of RW-1 available in Trial Court Record. He pointed out that interim maintenance @ Rs. 2,000/- p.m. was awarded by Trial Court in favour of respondent/wife, which was never challenged by appellant. He further argued that under Muslim law, Muslim divorcee woman is entitled to maintenance from her husband till she re-marry with any other person. In support of said contention, he heavily relied upon decision in the matter titled as "Shabana Bano Vs. Imran Khan" passed in Crl. Appeal No. 2309 of 2009 decided on 04.12.2009. He, therefore, urged that the present appeal is liable to be dismissed.
10. I have already heard Sh. Satyapal, Advocate on behalf of appellant and Sh. Fakhruddin, Advocate on behalf of respondent. I have also perused the material available on record including the Trial Court Record as has been received in the Court.
11. Before dealing with the rival submissions made on behalf of both the sides, it would be relevant to refer to the object and purpose for which D.V. Act was brought into force by the legislature. There is no gainsaying the fact that said Act was promulgated by legislature to provide for more effective protection of the rights of women who are victims of violence of any kind occurring within the family and/or for the matters connected therewith or incidental thereto. It is a Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 6 of 13 matter of common knowledge that domestic violence was widely prevalent but used to remain invisible in public domain as very few women gathered enough courage to raise the issue or to seek redressal of her grievance by taking recourse to the legal remedy available under the law.
12. Now coming back to the facts of the present case. In her affidavit in evidence (Ex.PW1/A), the respondent/wife herein is found to have deposed about her ordeal at the hands of appellant and his family members. She is shown to have narrated various acts of domestic violence committed against her from time to time after her marriage with appellant, in as much as she categorically testified that after few days of her marriage, she was harassed and tortured on the pretext of bringing less dowry and there was no facility of electricity and water in the portion where she was residing and whenever she requested to provide said facilities, she was beaten mercilessly and was asked to tell her parents to purchase a separate flat. She also deposed that appellant had pressurized her to bring Rs. 2 Lacs cash from her parents for purchasing Maruti van. She has also narrated specific incidents dt. 04.03.2007, 16.10.2009, 17.10.2009 and 28.10.2009 when acts of beating and other kinds of atrocities were committed against her by appellant/husband and his family members. All those acts/incidents of domestic violence narrated by PW-1, remained unchallenged from the side of appellant/husband as not much questions are found to have been put to her from his side on those aspects and mere suggestions having given on his behalf of certain points, which were denied. There is no substance in the argument raised on behalf of appellant that since PW-1 admitted during cross Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 7 of 13 that she did not make any police complaint with regard to the alleged incidents dt. 16.10.2009 and 17.10.2009 and there is no MLC or any other medical treatment record filed by PW-1 on record, said allegations remain unsubstantiated. It is a matter of common knowledge that many a times, wives who receive torture and/or ill-treatment at the hands of their husbands and other in-laws, do not gather enough courage to come forward for lodging written complaints with police authority in our society and continued to suffer those acts of domestic violence. Precisely for this reason only, the present statute has been enacted by our legislature.
13. It goes without saying that a skillful cross examiner must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignores then they may be taken as an acceptance of the truth of that part of witness evidence.
14. In the matter titled as "Babu Lal Vs. Caltax (India) Ltd.", AIR 1967 SC 2005, it was ruled as under:-
"xxxxxx generally speaking, when cross examining, a party's counsel should put to each of his opponents witness in turn, so much of his case as concerns the particular witness or in which he had a share............if asks no questions, he will be taken to accept the witness account.
xxxxxx"
15. In the matter titled as "Carapite Vs. Derderiem", A 1961 C 359, while relying the observation of Lord Herschell, Lord Halsbury observed as under:-
Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 8 of 13
"Wherever an opponent declines to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believes in the testimony and is not disputing it at all . It is written to them that this is not merely a technical rule of evidence. It is a rule of essential justice. This is important test of checking the veracity and impeach the creditworthiness of a witness.
16. The aforesaid view has been followed by Hon'ble Supreme Court in "Ravinder Kumar Sharma Vs. State of Assam", AIR 1999 SC 3571 and also in "State of Uttar Pardesh Vs. Nahar Singh", AIR 1998 SC 1328.
17. Apart from above, it is an undisputed fact that FIR No. 30/10 u/s 498/406/506/34 IPC was registered against appellant on the complaint of respondent/wife at PS Jafrabad, wherein chargesheet has already been filed against him and even charges have already been framed and appellant is facing trial as an accused in that case.
18. In view of the aforesaid discussion and the evidence in the form of testimony of PW-1 led before Trial Court, this Court agrees with the opinion formed by Ld. Trial Court that respondent/wife was able to prove that she was subjected to domestic violence and she is an aggrieved person within the meaning of Sec. 2(a) of the Act.
19. This brings me down to the other contentions raised on behalf of appellant regarding grant of relief u/s 20 of the Act. There is no merit in the argument that Trial Court could not have passed order to pay monthly maintenance from the date of filing of the petition in view of Sec. 125 (2) of CrPC. Rather, the said argument is considered to be misconceived in as much as bare Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 9 of 13 perusal of said provision would show that order awarding maintenance or interim maintenance and expenses of proceedings can be made from the date of order or from the date of application for maintenance. The decision of Hon'ble Allahabad High Court as relied on behalf of appellant/husband, is entirely distinguishable from facts and circumstances of this case as said decision was passed in proceeding filed u/s 125 CrPC and not under Domestic Violence Act.
20. The other argument raised on behalf of appellant that he is not liable to pay any maintenance after the marriage between the parties, was dissolved by the order of Family Court, does not hold any ground. This Court is of the opinion that the definition of term "wife" as available under Section 125 Cr.P.C. could not be imported into Domestic Violence Act. The legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined "wife" as in Section 125 Cr.P.C. in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as u/s 125 Cr.P.C. even to a divorced wife. While saying so, I am also fortified by the decision of Hon'ble Apex Court in case of 'Shabana Bano' (supra), as also relied by counsel for respondent/wife.
21. There is absolutely no merit in the submission raised on behalf of Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 10 of 13 appellant that Mehar amount of Rs. 75,000/- paid by him, is liable to be adjusted in the awarded maintenance amount. It is trite law that marriage under Muslim law is a kind of contract entered into between the parties to the marriage. The dower money (Mehar amount) is akin to the consideration amount agreed between the parties at the time of entering into contract. Thus, the dower amount is paid under contractual liability at the time when contractual marriage comes to an end. However, it is the statutory liability created by law, which enjoins every husband to maintain his wife and children and to pay monthly maintenance to his wife in case parties are residing separately and wife is not in a position to maintain herself. The appellant cannot claim adjustment of dower amount against the awarded maintenance.
22. Counsel for appellant vehemently argued that the monthly maintenance @ 3750/- awarded in favour of respondent/wife, is on higher side as he is merely a driver by profession and his monthly income is Rs. 10,000/- and he is also required to meet his household expenses and to maintain his second wife. On the other hand, counsel for respondent/wife argued that apart from earning as driver, the appellant is also doing part time business as property dealer and is earning more than Rs. 10,000/- p.m. from that business and is also having rental income of Rs. 5,000/- p.m. However, the respondent/wife failed to establish during her evidence or even during cross-examination of RW-1 that appellant is having any income from any other such source. At the same time, RW-1 has admitted that he is duty bound to maintain respondent/wife during his cross-examination.
Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 11 of 13
23. Even if it be considered that appellant is driver by profession, which is his only source of income, still, his monthly income would have to be determined as per the parameters provided under the law and not as per his whims and caprices. It may be noted that appellant has not come out with his actual monthly income and has not filed any documentary proof on record showing that his monthly income is Rs. 10,000/- as claimed by him. In such a situation, one has to take recourse to the minimum wages notified by Competent Authority under Minimum Wages Act. Considering the educational qualification of appellant and the fact that he is a professional driver and there is no documentary proof regarding his actual monthly income, the social status enjoyed by the parties and minimum wages prevalent during the relevant period in respect of skilled worker, Trial Court is found to have rightly assessed the monthly income of appellant as Rs. 15,000/-. After deducting two portions of his income for his own subsistence as well as for meeting his household expenses including his liability to maintain second wife, one third portion would still come out to Rs. 5,000/- p.m. In this backdrop, the award of monthly maintenance @ Rs. 3750/- by Ld. Trial Court in favour of respondent/wife, is considered to be justified under the law. Hence, I do not find any justifiable or good ground to interfere with the impugned judgment to the extent of grant of monthly maintenance at the aforesaid rate in favour of respondent/wife. Consequently, the present appeal sans merit and is accordingly dismissed with no order as to costs. However, appellant is granted two months time from the date of this judgment to clear the amount of arrears of maintenance so awarded by the Trial Court, failing Crl. Appeal No. 51/19 Rahees Ahmed Vs. Fozia Khanam Page 12 of 13 which respondent/wife shall be well within her right to take recourse to the appropriate remedy available to her under the law.
24. TCR be sent back alongwith copy of this judgment.
25. Appeal file be consigned to Record Room after completing the necessary formalities, as per rules.
26. Appeal file be consigned to Record Room.
Digitally signed by VIDYA
Announced in the open court VIDYA PRAKASH
Location: Karkardooma
Court
on 23rd day of October, 2019. PRAKASH Date: 2019.10.23 16:02:25
+0530
(VIDYA PRAKASH)
Additional Sessions Judge /
NE / KKD Courts / Delhi.
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