Delhi District Court
Farha Tabassum vs Mohd. Abid @ Mudassir on 12 November, 2018
1
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Appeal No. 153/18
Farha Tabassum
W/o Mohd. Abid @ Mudassir
R/o H44/3, First Floor,
Near Shahab Masjid,
Batla House, Jamia Nagar,
Okhla, New Delhi110025 . . . . Appellant
Versus
1 Mohd. Abid @ Mudassir
S/o Sh. Ali Qamar,
R/o H. No. 124, Anees House,
Chopdari Mohalla Chowk, Lucknow, UP. .... Respondent no. 1
2 The State .... Respondent no. 2
Date of Institution : 26.03.2018
Date of Arguments : 31.10.2018
Date of Judgment : 12.11.2018
J U D G M E N T
1 Vide this Judgment, I shall decide the present appeal filed
against the impugned order dated 14.12.2017 passed by Learned MM03 (Mahila Court) South East District in CC No. 8201/17 wherein Ld. MM has CA No. 153/18 Page 1 of 12 2 dismissed the application of the appellant u/sec.23 of Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as DV Act).
2 The brief facts of the case as submitted by the appellant before the learned trial court and in this appeal are that:
a) The appellant got married with respondent on 08.02.2015 according to Muslim rites and pursuant thereto were residing at shared household at Lucknow, UP. At the time of her marriage, dowry articles were given by her family members and valuable gifts were given by her relatives to Respondent No. 1 and his family members.
b) After marriage appellant joined her matrimonial home at house no. 124, Anees House, Chopdari Mohalla Chowk, Lucknow, UP. The respondent no. 1 and his family were not happy with the marriage arrangements as well as by the dowry brought by appellant.
c) The marriage was duly consummated and appellant became pregnant, however respondent number 1 and his family members tried to convince her that they do not want any child but appellant objected for the same. When she was at the stage of 6 weeks pregnancy, she was feeling pain in her abdomen and respondent number 1 in order to avoid pregnancy deliberately and intentionally with deceptive intention gave a contraceptive medicine without her consent CA No. 153/18 Page 2 of 12 3 and knowledge by stating that the said medicine was a painkiller and when appellant took that medicine, miscarriage happened.
d) From the next day of the marriage the respondent number 1 and his family members started demanding more dowry i.e. ₹ 10 lakh cash and one car. When appellant expressed inability of her parents to the respondent no. 1 and his family, they humiliated and insulted her and kept her under oppression and victimised her.
e) Because of the cruelty, harassment, torture, physical harassment and humiliation the appellant filed FIR no. 48/17 at PS Jyotibaphullai, Nagar, U.P. u/s 498A/323/376/511/313/506 IPC and 3/ 4, Dowry Prohibition Act.
f) Due to the harassment meted out to the appellant by the Respondent No. 1 and his family members, the appellant went through great mental stress and therefore suffering from severe depression and undergoing treatment since around 2 years and is unable to lead her life normally.
g) The appellant a religious Muslim lady and a follower of 'Shia Shayat' and thus she remains under veil and is thus unable to get employment.CA No. 153/18 Page 3 of 12 4
h) The respondent number 1 has deserted her without any just reason and appellant is residing in a tenanted premises at H 44/3, 1st floor near Shahab Masjid, Batla Jouse, Jamia Nagar, Okhla, New Delhi and is paying ₹ 7000 towards rent.
i) Respondent number 1 is having multiple movable and immovable properties and is a businessman and earning more than ₹ 2 lakh per month from his business of IT solution.
j) Appellant prayed for interim maintenance of ₹ 50,000 per month from the date of filing of the petition as well as prayed for same level of alternate accommodation for the appellant as enjoyed by her at the matrimonial home or to pay ₹ 15,000 per month towards rent and other expenses.
k) Respondent number 1/husband denied all the allegations levelled in the application under section 23 of the DV Act and submitted that he is doing private service and his monthly salary ₹ 10,000 per month and apart from that he has no other source of income. Along with his affidavit of assets, income and expenditure, respondent number 1 filed a false, fabricated, big salary certificate by M/s A.H. Enterprises dated 25.10.2017 whereby it provides that respondent no. 1 is working as computer repairing mechanic from November 2015 and respondent number 1 has also filed 2 consecutive cheques issued by M/s A.H. Enterprises bearing number CA No. 153/18 Page 4 of 12 5 587719 and 587722 dated 10 January 2018 and 10 February 2018 respectively.
l) Respondent no. 1 has concealed his income and he is earning ₹ 2 lakhs per month.
3 Vide the impugned order dated 23.02.2018, the learned trial court dismissed the application under section 23 of the DV Act filed by the appellant wherein she had claimed interim maintenance and rent for alternative accommodation to her. Feeling aggrieved, the present appeal has been filed by the appellant on the following grounds: 1 Learned Trial court failed to consider that appellant is a patient of severe depression and unable to work and has no source of income and that she is a religious Muslim lady and according to her religion and customs and surrounding circumstances and atmosphere, she remains under veil due to which she is unable to maintain herself.
2 Learned Trial court has failed to consider that respondent no. 1 concealed material facts from the learned trial court that he is not earning ₹ 2 lakh per month from the business of IT solution and from partnership in business of locks and sanitary hardware shop under the name of M/s. National Sanitary and from rental income from immovable and movable properties.
3 Learned trial court failed to consider that the respondent no. 1 has submitted the false and fabricated proof regarding his employment as to his private service.
4 Learned Trial court has failed to consider that the appellant has not produced any concrete documents CA No. 153/18 Page 5 of 12 6 supporting his alleged income, assets and expenditure on which learned trial court could have relied upon. Respondent number 1 has neither filed any statement of accounts of his salary income nor has he filed his bank statement on record.
5 Learned Trial court failed to consider that the respondent number 1 in his affidavit of assets, income and expenditure has admitted that he is residing in the joint property and that appellant has no house in her name or any other accommodation for the residence.
6 Learned MM ought to have considered that appellant had clearly stated in her application that she is not able to maintain herself and should have awarded interim maintenance to her.
7 Learned trial court failed to consider that a woman is entitled to lead a life in a similar manner as she would have lived in the house of her husband and cannot be compelled to become a destitute or a beggar.
4 Respondent no. 2 is State and is neither a necessary nor a proper party. No formal reply has been filed by the respondent no. 1. Arguments have been advanced directly on behalf of respondent no. 1 by his learned counsel.
5 Arguments heard. Record perused carefully.
6 The appellant has contended that learned trial court failed to consider that the respondent no. 1 has not filed/concealed his true income by not filing the statements of accounts or his bank statements. She has also CA No. 153/18 Page 6 of 12 7 contended that the employment certificate filed by respondent no. 1 is false and fabricated and therefore learned trial court should not have taken that into consideration while deciding the application deciding which the impugned order been passed. However it is settled law that at the stage of deciding the interim application, the court has to decide the same by taking prima facie view on the basis of material available before it. The veracity of allegations and counter allegations as well of the documents filed by the parties cannot be ascertained at this stage and are a matter of trial.
7 The appellant as well as the respondent no. 1 had filed income affidavit before learned trial court. The appellant has herself stated that she is a postgraduate and has also done a beautician course. She has claimed that she has no monthly income and is residing in a rented accommodation. The respondent no. 1 has stated that he is a graduate and having professional qualification and computer course and working as a computer mechanic and claims his monthly income to be ₹ 10,000. As regards the appellant he disclosed that she is holding a professional degree of a beautician and earning ₹ 15,000 per month. He has also placed on record his salary certificate which is alleged by appellant to be a false and fabricated document. As observed earlier the veracity of the document can only be tested during trial and therefore consideration of the same by learned trial court cannot be faulted with.
8 Learned trial court has observed that neither party submitted the income and expenditure of their respective spouses. The said submission is CA No. 153/18 Page 7 of 12 8 also found to be correct. Therefore the learned trial court had to draw a reasonable assumption regarding their income and expenditures.
9 Learned trial court posed a question that is whether the appellant/ complainant herself is entitled to any relief for herself. Learned trial court observed that admittedly she is a postgraduate and a trained beautician. She further observed that no explanation is coming forth as to why she has chosen not to work despite being capable. Learned trial court has placed reliance upon the matter titled Mamta Jaiswal versus Rajesh Jaiswal, 2000 (3) MPLJ 100 and relied on the same where it was held that a qualified wife cannot sit idle and claim maintenance from her husband. Therefore learned trial court declined to grant relief of interim maintenance and rent for alternative accommodation to the appellant.
10 The appellant has relied upon the law laid down in Shailja and Anr. Vs. Khobanna, Crl Appeal no. 125 - 126 of 2017 {Special Leave Petition (Crl.) no(s) 6025 - 6026/2013 where it was observed that:
"Whether the appellant no. 1 is capable of earning or whether she is actually earning are two different requirements. Merely because appellant no. 1 is capable of earning is not in our opinion sufficient reason to reduce the maintenance awarded by the Family Court."
11 Relying on these observations learned counsel for appellant argued that the appellant, being a pardanashin lady, remaining under veil and is thus unable to maintain herself and thus learned trial court should have CA No. 153/18 Page 8 of 12 9 awarded maintenance to her as well as the rent. Learned counsel for respondent no. 1 argued that the aforesaid judgment is not applicable to the facts of the case as the said judgment deals with reducing the maintenance and not of grant of maintenance.
12 It was also argued on behalf of appellant that the appellant was not in a position to work as she had been suffering from depression because of being subjected to miscarriage in the manner explained above. Learned counsel for appellant argued that the appellant has also placed documents in support of the same.
13 Learned counsel for the respondent no. 1 has argued that there is no merit in the present appeal and the same deserves to be dismissed. He also argued that the submissions made by the appellant are not supported by any document and that the medical documents placed on the record only show the purchase invoices of the medicines and not the medical prescription.
14 The submissions made by learned counsel for respondent no. 1 are found to be correct. In sub para (iv) of paragraph 2 of the complaint, the appellant/complainant stated that she has filed copy of medical reports of her having suffered a miscarriage as annexure P2. A perusal of those documents reveals that those are retail invoices of purchase of medicine. The said Bill even does not show the name of the purchaser to be the name of her husband as she has stated that her husband had purchased these medicines and she suffered a miscarriage because of consuming the same. Similarly CA No. 153/18 Page 9 of 12 10 she has also filed cash receipt of Holy Family Hospital and the department is referred to as Psychiatry followed by again, invoice of having purchased medicine from Sujan Mohinder Hospital which is described to be Eye to Eye Centre. The appellant has also filed some invoices of purchase of medicines from 2 chemist shops. Thus these documents are prima facie insufficient/irrelevant to the claim of alleged miscarriage having been caused to appellant by a medicine bought by her husband and consumed by her. Similarly in absence of the medical prescription of the concerned doctorof psychiatry, the appellant has been unable to substantiate that she is/was suffering from depression.
15 As regards her claim that she is a pardanashin lady and thus incapable of work is also not acceptable in view of her having achieved qualification of MA as well as her completing the course of beautician. It is further noticed that in her income affidavit she has told her address to be of U.P. Her matrimonial home as well as shared household is also in U.P. and she has nowhere explained as to why she shifted to Delhi. She has given her permanent address even in the lease agreement placed on record to be of U.P. Rather the perusal of copy of the FIR which has been filed by the appellant reveals that the same is registered on 29.05.2017 but the permanent as well as the temporary address of the appellant is stated to be of U.P. whereas as per the rent agreement which is dated 27 January 2017, her temporary address on the said date was of Delhi. Further, the appellant has stated in her complaint that when she shifted to Delhi, the respondent no. 1 and his family had come to the tenanted premises in April 2017 and had CA No. 153/18 Page 10 of 12 11 subjected her to domestic violence but in the said FIR which is of May 2017 she has stated that after she suffered a miscarriage, she went to stay with her mother and thereafter her husband had never come to take her back nor were they making any effort to take her back. Further in the whole complaint of the appellant reproduced in the said FIR, the appellant has not stated anything about her shifting to Delhi or having taken the premises on lease as mentioned in the lease deed.
16 All these contradictions and omissions cannot be explained or sought clarification at the stage of deciding the application for interim relief and are a matter of trial. However the aforestated contradictions prima facie raise doubt about the authenticity of the lease agreement placed on record by the appellant. Statement of the appellant that she cannot work as she is a pardanashin lady cannot be expected and accepted to be correct in view of the fact that she is a lady who chooses to stay in Delhi while her parents as well as her inlaws stay in U.P. without any reason for the same.
17 In view of these observations I concur with the observations of learned trial court and find no reason to differ from the observation of learned trial court that a qualified wife cannot sit idle and claim maintenance from her husband.
18 In view of these observations, learned trial court rightly dismissed the application under section 23 DV Act filed by the appellant against the respondent no. 1 vide the impugned order and accordingly the same is upheld.
CA No. 153/18 Page 11 of 12 1219 Thus the present appeal filed by the appellant against respondent no. 1 is dismissed.
20 Parties are directed to appear before Ld. Trial court on date fixed.
21 A true copy of the Judgment be sent alongwith the trial court record.
22 Appeal file be consigned to record room.
Announced in the open court on (Dr. Neera Bharihoke) 12.11.2018 ASJ06/SouthEast/Saket/ND Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2018.11.13 15:33:11 +0530 CA No. 153/18 Page 12 of 12