Karnataka High Court
Mohammed Azeem vs Mrs.Lubna Arshiya on 17 January, 2020
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION NO.913/2014
C/W
RPFC Nos.108/2016 & 56/2016
IN CRL.R.P.No.913/2014
BETWEEN:
1. MOHAMMED AZEEM
S/O MOHIDEEN SAHEB,
AGED ABOUT 43 YEARS,
OCC:BUSINESS,
R/AT M.P.B. MANZIL,
DEVARAMANE, HARIHARAPURA,
KOPPA TALUK,
CHIKMAGALUR DISTRICT-577 120.
2. MOHIDEEN SAHEB
S/O LATE IMAM SAHEB,
AGED ABOUT 68 YEARS,
R/AT M.P.B. MANZIL,
DEVARAMANE, HARIHARAPURA,
KOPPA TALUK,
CHIKMAGALUR DISTRICT-577 120.
3. SMT. PYAREEBI
W/O MOHIDEEN SAHEB,
AGED ABOUT 61 YEARS,
R/AT M.P.B. MANZIL,
2
DEVARAMANE, HARIHARAPURA,
KOPPA TALUK,
CHIKMAGALUR DISTRICT-577 120.
4. NASEER
S/O MOHIDEEN SAHEB,
AGED ABOUT 41 YEARS,
R/AT M.P.B. MANZIL,
DEVARAMANE, HARIHARAPURA,
KOPPA TALUK,
CHIKMAGALUR DISTRICT-577 120.
5. MRS. RIHANA
W/O VAZEER KHAN,
AGED ABOUT 45 YEARS,
R/AT B.B.MANZIL,
JAYAPURA, KOPPA TALUK,
CHIKMAGALUR DISTRICT-577 123.
6. AMEER AHAMED
S/O ABDUL HAQ,
AGED ABOUT 49 YEARS,
R/AT DEVARAMANE,
KOPPA TALUK,
CHIKMAGALUR DISTRICT-577 126.
7. MANOOR
S/O ABDUL HAMEED,
AGED ABOUT 28 YEARS,
R/AT NARVE VILLAGE,
KOPPA TALUK,
CHIKMAGALUR DISTRICT-577 126.
8. MRS. FARAHNA
W/O MANSOOR,
AGED ABOUT 28 YEARS,
R/AT NARVE VILLAGE,
3
KOPPA TALUK,
CHIKMAGALUR DISTRICT-577 126.
... PETITIONERS
(BY SRI P.B.UMESH, ADV., FOR
SRI R.B.DESHPANDE, ADV.)
AND:
MRS.LUBNA ARSHIYA
W/O MOHAMMED AZEEM,
AGED ABOUT 29 YEARS,
R/AT K.M. (A.H.) COMPOUND,
NEAR ST.MARRY CONVENT,
BEERI KOTEKAR POST,
MANGALORE-575 001.
... RESPONDENT
(BY SRI P.P.HEGDE, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF THE CODE OF CRIMINAL
PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 11.08.2014 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE IN
CRL.A.No.269/2013 AND CONFIRM THE ORDER DATED
17.07.2013 PASSED BY THE JMFC (III COURT) MANGALORE
IN CRL.M.C.No.6/2012.
IN RPFC No.108/2016
BETWEEN
1. SMT. LUBNA ARSHIYA
AGED ABOUT 32 YEARS,
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D/O SAMSHAD BANU,
2. MASTER MOHAMMAD ASHFAG,
AGED ABOUT 12 YEARS,
3. MASTER MOHAMMAD ATHEEQ,
AGED ABOUT 10 YEARS,
PETITIONER NOS.2 AND 3 ARE
REPRESENTED BY THE MOTHER
AND NATURAL GUARDIAN PETITIONER NO.1.
ALL ARE PRESENTLY RESIDING AT
BANDESHA MANZIL,
KATUNGEREGUDDE,
K.C.ROAD, TALAPADY POST,
MANGALURU TALUK-575 023,
R/AT K.M.(A.H) COMPOUND,
NEAR STELLA MARRY CONVENT,
BEERI, KOTEKAR POST,
MANGALORE, D.K.DISTRICT-575 023.
... PETITIONERS
(BY SRI P.P.HEGDE, ADV.)
AND:
MR.MOHAMMAD AZEEM,
AGED ABOUT 44 YEARS,
S/O MOIDEEN SAHEB,
R/AT DEVARAMANE,
HARIHARAPURA POST,
KOPPA TALUK,
CHICKMAGALURU DISTRICT-570 313.
... RESPONDENT
(BY SRI P.B.UMESH, ADV., FOR
SRI R.B.DESHPANDE, ADV.)
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THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURTS ACT, 1984, AGAINST THE JUDGMENT AND
DECREE DATED 20.02.2016 PASSED IN CRIMINAL
M.C.No.57/2014 ON THE FILE OF THE PRINCIPAL JUDGE,
DAKSHINA KANNADA, MANGALURU, PARTLY ALLOWING THE
PETITION FILED UNDER SECTION 125 OF CRIMINAL
PROCEDURE CODE FOR MONTHLY MAINTENANCE.
IN RPFC No.56/2016
BETWEEN:
MR.MOHAMMED AZEEM,
S/O MOIDEEN SAHEB,
AGED ABOUT 43 YEARS,
R/AT DEVARAMANE,
HARIHARAPURA POST,
KOPPA TALUK,
CHICKMAGALURU DISTRICT-577 126.
... PETITIONER
(BY SRI P.B.UMESH, ADV., FOR
SRI R.B.DESHPANDE, ADV.)
AND:
1. SMT. LUBNA ARSHIYA
D/O SHAMSHAD BANU,
AGED ABOUT 33 YEARS,
R/AT K.M.(A.H) COMPOUND,
NEAR STELLA MARRY CONVENT,
BEERI, KOTEKAR POST,
MANGALORE-575 001.
2. MASTER MOHAMMAD ASHFAG
S/O MOHAMMED AZEEM,
AGED ABOUT 14 YEARS,
R/AT K.M.(A.H) COMPOUND,
6
NEAR STELLA MARRY CONVENT,
BEERI, KOTEKAR POST,
MANGALORE-575 001.
SINCE MINOR
REPRESENTED BY THE MOTHER AND
NATURAL GUARDIAN R-1.
3. MASTER MOHAMMAD ATHEEQ,
S/O MOHAMMED AZEEM,
AGED ABOUT 12 YEARS,
R/AT K.M.(A.H) COMPOUND,
NEAR STELLA MARRY CONVENT,
BEERI, KOTEKAR POST,
MANGALORE-575 001.
SINCE MINOR
REPRESENTED BY THE MOTHER AND
NATURAL GUARDIAN R-1.
... RESPONDENTS
(BY SRI P.P.HEGDE, ADV.)
THIS RPFC IS FILED UNDER SECTION 19(4) OF THE
FAMILY COURTS ACT, 1984, AGAINST THE JUDGMENT AND
DECREE DATED 20.02.2016 PASSED IN CRIMINAL
M.C.No.57/2014 ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, D.K., MANGALURU, PARTLY ALLOWING THE
PETITION FILED UNDER SECTION 125 OF CRIMINAL
PROCEDURE CODE.
THIS CRIMINAL REVISION PETITION ALONG WITH
RPFCs COMING ON FOR HEARING, THIS DAY, THE COURT
MADE THE FOLLOWING:
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ORDER
Crl.RP.No.913/2014 is filed by the petitioners/husband and his family members being aggrieved by the order passed by III Additional District
and Sessions Judge, D.K., Mangalore (hereinafter referred to as 'first Appellate Court' for short) in Crl.A.No.269/2013 dated 11.08.2014 for having allowed the appeal and setting aside the order of dismissal dated 17.07.2013 passed by JMFC (III Court), Mangalore, (hereinafter referred to as 'trial Court' for short) in Crl.M.C.No.6/2012 for having dismissed the application filed by the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act' for short).
RPFC No.56/2016 is filed by the petitioner/husband challenging the order of maintenance dated 20.02.2016 passed by the Family Court, D.K., Mangalore, in 8 Crl.MC.No.57/2014 for having granted maintenance to the respondents.
Whereas, RPFC No.108/2016 is filed by the petitioners/wife and children for enhancement of maintenance awarded by the Family Court, D.K., Mangalore, in Crl.MC.No.57/2014 dated 20.02.2016.
2. The parties in all these petitions are one and the same. Therefore, they are taken up together for common disposal in order to avoid repetition of facts and laws.
3. Heard the arguments of learned counsel for the petitioners and the learned counsel for the respondents.
4. The ranks of the parties before the trial Court is retained for the sake of convenience.
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5. The facts of the case in Crl.RP.No.913/2014 are that the petitioners are the husband and his family members of the respondent-Lubna Arshiya. The complainant-Lubna Arshiya filed a petition under Section 12 of the DV Act claiming maintenance, compensation and protection order to them apart from the educational expenses of the children before the trial Court in Crl.MC.No.6/2012. The trial Court dismissed the said petition on the ground that the Court has no jurisdiction to entertain the matter as the parties are residing at Koppa Taluk, Chikmagalur District and the petitioner already filed another petition in Crl.MC.No.62/2010 before the JMFC Court, Koppa and the same came to be dismissed as not pressed. Therefore, one more petition is not maintainable before the JMFC (III Court), Mangalore.
6. Assailing the order of dismissal of the petition by the trial Court, the petitioner filed Crl.A.No.269/2013 10 under Section 29 of the DV Act before the first Appellate Court. The first Appellate Court allowed the appeal and remitted the matter back to the trial Court for fresh consideration holding that the JMFC Court, Mangalore, has jurisdiction to entertain the petition under the DV Act. Assailing the same, the respondents/husband and his family members filed this revision petition before this Court.
7. Sri P.B.Umesh, learned counsel for the petitioners has supported the order of the trial Court and contended that the petitioners and respondent were residing at Koppa Taluk, Chikmagalur District and the respondent/wife already filed Crl.MC.No.62/2010 before the JMFC Court, Koppa, which came to be dismissed as not pressed without seeking liberty. Thereafter, she shifted her residence to Mangalore and again she filed Crl.MC.No.6/2012 before the trial Court, even though, the 11 parties were not at all residing at Mangalore and both of them are residing at Koppa Taluk. Such being the case, the trial Court dismissed the said petition as the Court has no jurisdiction to entertain the matter. Even the parents of the petitioner also not residing at Mangalore. The first Appellate Court has committed error in reversing the same. Therefore, prayed for allowing the petition and set aside the order of the first Appellate Court.
8. Per contra, Sri P.P.Hegde, learned counsel for the respondent/wife has contended that though the respondent filed a petition before the JMFC Court, Koppa, the same was not ended in finality or disposed of on merits, but the same was dismissed as not pressed. The respondent shifted her residence to Mangalore. As per Section 2(i) of the DV Act, the petition is maintainable. Admittedly, when the respondent resides in the said address, the trial Court committed error in dismissing the 12 petition. The respondent due to fear of her husband's family shifted her residence to Mangalore. She is residing at Mangalore and she has produced the rental agreement, ration card and other documents, which clearly show that she is residing at Mangalore. Such being the case, the JMFC (III Court), Mangalore, is having jurisdiction to entertain the petition and the first Appellate Court has rightly allowed the appeal filed by the respondent. Therefore, the order under revision does not call for interference. Hence, prayed for dismissal of the revision petition.
9. The petitioner's case in RPFC.No.56/2016 is that the petitioner is the husband of respondent No.1. Respondent No.1 who is the wife of petitioner herein filed a petition under Section 125 of Cr.P.C., read with Sections 3 and 4 of Muslim Women (Protection of Rights on Divorce) Act, 1986 claiming maintenance. The trial Court 13 vide order dated 20.02.2016 awarded Rs.4,000/- to the petitioner/wife and Rs.4,000/- each to the minor children. The same is challenged by the respondent in this revision petition.
10. Learned counsel for the petitioner has contended that the order under revision suffers from illegality. The respondent is not able to prove the income of the petitioner and the petitioner is not at all earning money and doing any business. Though, he was doing some grocery business, but the same was closed down. He had a vehicle that was also sold. Except having share in the agricultural property, he do not have any income. Therefore, awarding Rs.12,000/- per month by the family Court to the wife and children is exorbitant. Therefore, prayed for reduction of maintenance amount. 14
11. Per contra, learned counsel for the respondents submits that respondent No.1 filed I.A.No.1/2016 for enhancement of maintenance awarded by the family Court, Mangalore and contended that the petitioner is owning mini lorry, 6 acres of land and also running grocery business and earning income of Rs.2,00,000/- per week. Therefore, awarding of Rs.4,000/- is very meager. That apart, the respondent produced the documents showing miscellaneous expenditure of the children, wherein the children are studying in private school at Mangalore. Therefore, the respondents need more amount to meet the expenses i.e., heavy school fee and rent apart from education expenses, food and cloth. Therefore, the family Court ought to have granted Rs.25,000/- per month to the respondents. Hence, prayed for dismissal of the petition.
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12. Upon hearing the arguments of learned counsel for both the parties and on perusal of the record, the points that arise for consideration before this Court are:
1. Whether the JMFC (III Court), Mangalore, is having jurisdiction to entertain the petition filed by the wife under the DV Act, though she was said to be residing at Koppa Taluk, Chikmagalur District?
2. Whether the maintenance of Rs.4,000/- per month to the wife and Rs.4,000/- each to the children awarded by the family Court, Mangalore, is sufficient or required to be enhanced as prayed for by the petitioners?
13. On perusal of the record, it is an admitted fact that the petitioner and respondent are the wife and husband who lived together at Koppa Taluk, and out of their wedlock, petitioner Nos.2 and 3 were born. Thereafter, the respondent divorced the petitioner by 16 giving talaq. The petitioner filed a petition under Section 12 of the DV Act before the JMFC, Koppa, in Crl.MC.No.62/2010. In the said petition, the petitioner shown to be residing at Koppa. Thereafter, the said petition came to be dismissed as not pressed. Later, she shifted to Mangalore along with her children and staying at Mangalore in a rented house and she has filed another petition in Crl.MC.No.6/2012 under Section 12 of DV Act, which came to be dismissed by the trial Court on the ground that it has no jurisdiction to entertain the petition. However, the same has been set aside by the first Appellate Court and remitted the matter back for fresh consideration. It is worth to mention the provision of Section 2(i) of the DV Act, which read as under:
"2(i) "Magistrate" means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent 17 resides or the domestic violence is alleged to have taken place;"
14. On bare reading of provision of Section 2(i) of the DV Act, the Magistrate has jurisdiction to entertain the petition where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place, which means, if the petitioner resides with the respondent at Koppa, the Court at Koppa also gets jurisdiction or if she resides temporarily in any other place or otherwise, the Magistrate has jurisdiction to entertain the petition. Admittedly, the petitioner in Crl.MC.No.6/2012 has stated that due to fear of her husband and family members, she shifted her house to Mangalore and accommodation was taken in a rental premises. She also produced the documents in respect of rental agreement and educational expenses of her children, which goes to show that she is residing at Mangalore after alleging that domestic violence 18 has occurred to her. Such being the case, the JMFC Court at Mangalore has jurisdiction to entertain the petition under Section 2(i) of the DV Act. Therefore, rejection of application on the ground of jurisdiction cannot be acceptable. That apart, the trial Court has held that the petitioner filed a petition which was withdrawn by her and even though, her criminal compliant is pending on the file of JMFC Court, Mangalore and the same was transferred by this Court to JMFC Court, Koppa, as she filed a petition under the DV Act at Koppa and filing another petition before the JMFC Court at Mangalore, thereby she is playing game before the court of law, the very observation made by the trial Court cannot be sustainable as it is stated that the petition filed by the petitioner was dismissed as withdrawn due to shifting of her house. Therefore, the very observation made by the trial Court that the petitioner is playing game cannot be acceptable. 19
15. On the other hand, the DV Act is framed to protect women from the domestic violence. Such being the case, due to fear to her life and children, she shifted her residence to Mangalore and residing there. If she files an application after withdrawal, the very application before the Court at Koppa is permissible under the law. Therefore, the order passed by the first Appellate Court by setting aside the order of the trial Court and remanding the matter back to the trial Court do not call for interference. Hence, answered point No.1 in favour of wife and against the respondent.
16. Insofar as awarding compensation is concerned, the petitioner claimed Rs.25,000/- per month before the family Court. She was examined herself as P.W.1 and examined her mother as P.W.2 and got marked 14 documents. On behalf of the respondent, respondent was examined himself as R.W.1 and examined two more 20 witnesses as R.Ws.2 and 3 and got marked four documents. The rental agreement-Ex.P.8 is also produced by the petitioner which shows that she is paying Rs.2,500/- per month as rent and Rs.10,000/- towards the security deposit. It is also seen from the record that the respondent given divorce to the petitioner long back. However, as per Sections 3 and 4 of the protection Muslim Women (Protection of Rights on Divorce) Act, 1986. they have right to claim maintenance and permanent alimony is also permissible. Ex.P.9-school fee paid receipts also shows the educational expenses incurred by the petitioner towards her children. Ex.P6-study certificate and Ex.P.4 transfer certificate of the children shows that they are residing at Mangalore. Ex.P.10 is the report submitted by the protection officer which shows that the petitioner is required atleast Rs.15,000/- towards the house hold expenses including food, cloth and Rs.10,000/- towards 21 education for their children. Ex.P.13 is the RTCs which goes to show that the respondent and his family is having 6 acres of land. However, it is the joint family property. As per the submission, he will get only 1 ½ acres of share. Ex.P.14 is the register extract of mini lorry which is standing in the name of R.W.1. In the cross-examination, the respondent admits that the lorry has already been sold and grocery business is also closed down. The family Court by considering the evidence and cross-examination has held that though the respondent taken the contention that he has already sold the lorry, but he has not produced any document to show that to whom the lorry is sold and for what reason, it was sold. Ex.P.14 is still in the name of the respondent. Such being the case, the family Court rightly rejected the contention of the respondent that a lorry has already been sold to third person. That apart, with regard to grocery business stated 22 to be run by the respondent, he stated that he closed down the same, but nothing has been produced to show that the business is closed down by him and he is not earning any income. Therefore, considering the evidence on record, the family Court has upheld that the respondent is having capacity to maintain and neglected the minor children apart from the petitioner even though the divorce took place long back. Admittedly, Section 125 of Cr.P.C provides right to claim maintenance and also as per Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the family Court after considering the evidence on record, awarded Rs.4,000/- to the 1st petitioner/wife and Rs.4,000/- each to both children. Admittedly, there is no evidence to show as to what is the income from the agricultural land, similarly the respondent is holding some land for their family, but in the absence of any source of income from the said land 23 and without any positive evidence, the Court cannot jump into conclusion and holding that he is earning Rs.2,00,000/- per week or Rs.2,00,000/- per month, is required to consider the paying capacity of the respondent while passing the order of maintenance to the wife and children. It is not in dispute that it is the duty of the husband to maintain his wife and children and even after divorce, they are entitled for maintenance and also for permanent alimony.
17. By looking into the facts and circumstances of the case, Rs.4,000/- awarded by the family court, in my considered opinion, is sufficient and it cannot be said to be either meager or exorbitant for the petitioner to live at Mangalore city. Therefore, I find no illegality or error committed by the family Court in awarding Rs.4,000/- per month to petitioner Nos.1 to 3 and does not call for 24 interference. Therefore, revision petitions filed by both the parties are liable to be dismissed.
18. However, in respect of the DV Act, the trial Court is required to consider the compensation as well as protection, if any available under the DV Act. Further the trial Court after considering the evidence on record shall proceed to pass the order in accordance with law, except the maintenance granted, by taking into consideration the maintenance granted by the family Court, Mangalore. Accordingly, all three revision petitions are dismissed.
SD/-
JUDGE PB