IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 114 OF 2018
WITH
CIVIL APPLICATION NO.518 OF 2018

Mr.Ali Abbas Daruwala
V/s.
Mrs.Shehnaz Daruwala.

CORAM : SMT.BHARATI H. DANGRE, J
PROUNCENED ON : 04th MAY 2018

1. The   present   petition   is   filed   by   the   petitioner challenging the order dated 22.06.2017 passed by the Family Court at   Bandra   below   Exh­7   in   petition   No.A­1097/2015,   thereby allowing   the   application   and   directing   the   petitioner   to   pay   an amount of Rs.25,000/­ per month to the petitioner and Rs.20,000/­ per month each for both the children towards interim maintenance from the date of the filing of the application including the house rent.   The petitioner is aggrieved by the said order and prays for quashing and setting aside the said order on the ground that the Family Court has exceeded its jurisdiction in passing the said order. A brief chronology of facts and events leading to the filing of present petition is culled out in the subsequent paragraphs.

2. The  petitioner  and the   respondent belong  to Islamic Alvi Bohra Community and were married on 16.10.1997.  Out of the said marriage three children were born and one eldest son expired on 28.10.2014.  The other two children are aged 14 and 13 years respectively.

The respondent­wife filed petition for divorce under the Dissolution of Muslim Marriage Act, 1939 seeking dissolution of the marriage, before the Family Court at Bandra on 15.04.2015 and invoked   provisions   of   Section   2(viii)(a)(d)   of   the   Dissolution   of Muslim   Marriage   Act,   1939   and   also   prayed   for   custody   of   the children, maintenance and accommodation.   The said prayer for divorce was opposed by the petitioner by filing written statement. On   the   very   same   day   when   the   proceedings   were instituted   for   divorce,   the   respondent­wife   moved   an   interim application  seeking maintenance  and accommodation  and in  the said application she reiterated the statements made in the petition and claimed an amount of maintenance for herself as well as two minor children, taking into consideration the earning capacity of the petitioner ­husband and her requirements.  The amount of Rs.2 lakhs was claimed towards maintenance for herself and an amount of Rs.1,50,000/­ was claimed towards the maintenance of the children along with the cost of litigation.  The petitioner filed his response to the said application on 23.04.2016 opposing the said claim. The husband raised an objection by filing application under Order 7 Rule 11(a) of the Civil Procedure Code which came to be rejected by the Family Court by observing that the petition for dissolution of marriage cannot be dismissed in such a fashion.  On 20th  May   2016   the   wife   again   filed   an   application   for   monthly maintenance for herself and her minor children which was marked as Exh.­34.

3. It is a specific case of the petitioner that he gave Talaq to the respondent on 29.03.2017 and since the wife herself was claiming divorce, he was under an impression that she would not object to the same.  The wife objected to the divorce granted by the petitioner and according to the petitioner she accepted the amount of Mehar and she returned the said amount only on 08.05.2017. According to the petitioner since, the wife herself had approached and filed the proceedings under the Dissolution of Muslim Marriage Act, she had no justification to oppose the said Talaknama dated 29.03.2017.  The Family Court vide order dated 06.05.2017 passed a restrain order, restraining the petitioner for performing the second marriage.   The petitioner moved an application for deciding the maintainability   of   the   petition   and   also   praying   for   framing preliminary   issue   of   jurisdiction   under   Section   9A   of   the   Civil Procedure   Code.   The   learned   Family   Court   by   order   dated 17.07.2017 ordered that the issues raised in the application would be added to other issues to be dealt by the Court. On   09.06.2017   the   respondent   filed   an   application under Section 12, 18, 19, 20, 22 and 23 of the Domestic Violence Act, 2005 and prayed for the similar relief which she had prayed in the earlier application.  On 22.06.2017 the Family Court passed an impugned order which is assailed in the present petition.

4. In   support   of   the   petition   I   have   heard   Ms.Angha Nimbkar appearing for the petitioner she would submit that the petitioner and respondents are governed by the Muslim Personal Laws and different enactments govern their personal relationship of including The Muslim Personal Law (Shariat) Application Act 1937, The  Dissolution  of   Muslim   Marriage   Act,  1939 and  The  Muslim Women (Protection of Rights on Divorce) Act, 1986.   The learned counsel would invite attention to the provisions contained in the Muslim Women (Protection of Rights on Divorce) Act, 1986 and specifically to the provision contained in Section­3 of the said Act which contemplate a reasonable and fair provision of maintenance to be made and paid to a wife during iddat period.    She would also invite attention to Section­3 of the said Act which reads thus :­

“(3) Where an application has been made under subsection
(2) by a divorced woman, the Magistrate may,
if he is satisfied that­
(a) her husband having sufficient means, has failed
or neglected to make or pay her within the Iddat period
a reasonable and fair provision and maintenance for
her and the children; or
(b) the amount equal to the sum of mahr or dower
has not been paid or that the properties referred to in
clause(d) of sub­section (1) have not been delivered to
her, make an order, within one month of the date of the
filing of the application, directing her former husband
to   pay   such   reasonable   and   fair   provision   and
maintenance   to   the   divorced   woman   as   he   may
determine as fit and proper having regard to the needs
of the divorced woman, the standard of life enjoyed by
her during her marriage and the means of her former
husband or, as the case may be, for the payment of
such mahr or dower or the delivery of such properties
referred   to   in   clause   (d)   of   sub­section   (1)   to   the
divorced   woman:  Provided  that   if   the  Magistrate
finds it impracticable to dispose of the application
within the said period, he may, for reasons to be
recorded by him, dispose of the application after
the said period.”

5. She   would   also   make   reference   to   Section­2   of   The Dissolution of Muslim Marriage Act, 1939 and would submit that the said Act permits a women to obtain a decree for dissolution of marriage on the grounds set out in the said section.   The learned counsel for the petitioner would thus submit that the Family Court has erred is not considering the fact that divorce sought under the Act for all practical purposes is by way of “Khula” and that is a reason there is no provision for any other reliefs for maintenance, custody of children etc., provided in the Act.  She would submit that “Khula” is a mode of dissolution of marriage by agreement between husband and wife and the divorce by “Khula” is divorce by consent at the instance of the wife in which she gives or aggrieves to give a consideration to the husband for release from marriage.  She would submit that the husband after following the established procedure under the Muslim Law are has pronounced “Talaq” on 29.03.2017 thereby dissolving the marriage solemnized between the parties and amount of mehar/dower of Rs.60,000/­ was send to the respondent on   30.03.2017,   which   came   to   be   returned   by   her   only   on 06.05.2017.  The learned counsel would submit that the respondent is a divorced wife and her rights are enumerated and limited under the Muslim Women (Protection of Rights on Divorce) Act, 1986.

She   would   submit   that   the   petition   filed   before   the   Court   was exclusively  under   the   Dissolution   of  Muslim  Marriage   Act,  1939 where there is no provision for any ancillary reliefs, as are available under the Domestic Violence Act, 2005.  She would also submit that the learned Family Court did not consider that the complaint under Section­12 was filed as an after thought, after after filing of the application for maintenance.   She would also emphasis that the respondent has not mentioned the provision  of law under which the relief was claimed.   She would also assail the order of the Family Court   on   the   ground   that   the   Court   did   not   consider   the qualifications of the wife and her potential to earn a livelihood for herself.

Per contra learned counsel Ms.Irani would support the impugned order.   She would submit that in no contingency it is a case of ‘Khulla’.  She would submit that the provisions of Protection of Domestic Violence Act do no create any restriction on the wife to invoke the provisions of the said enactment on the ground that she is governed by Muslim Personal Law.  Mr.Irani would submit that the wife had instituted proceedings under the Dissolution of Muslim Marriage Act 1939 specifically invoking Section­2(viii)(a) and (d). She would submit that for the married Muslim women there was no provision   available   to   obtain   a   decree   from   the   Court   seeking Dissolution of Marriage, in case the husband neglect to maintain her and make  her  life miserable  by inflicting cruelty on  her  and in absence of such a provision being available, Muslim women were subjected to utmost misery.   In order to provide a remedy to such oppressed women, the Dissolution of Muslim Marriage Act, 1939 came to be enacted enabling a women married under Muslim Law to   obtain   a   decree   for   Dissolution   of   Marriage   on   the   grounds enumerated under Section­2.  According to the learned counsel the wife   had   invoked   the   provisions   of   the   said   enactment   seeking divorce on ground of cruel treatment meted out to her.

Ms.Irani would submit that the in the said proceedings the   wife   moved   an   application   seeking   reliefs   available   under Section­12 of the D.V. Act including the monetary relief.  She would submit   that   there   is   no   legal   embargo   in   her   approaching   the competent Court by invoking the said provision.  She would pray for upholding   of   the   impugned   order   and   would   submit   that   the proclamation of Talaq by the husband cannot nullify the benefits flowing to her unless the factum of Talaq is proved by sufficient evidence.

6. On   consideration   of   the   arguments   advanced   by   the parties in support of their respective claim, the first point which arise for consideration is whether the Family Court was justified in entertaining the application filed by the respondent­wife in light of the fact that the parties belong to Islamic Alvi Bohra Community and specifically in the backdrop of Muslim Women (Protection of Rights on Divorce) Act, 1986.   The issue is whether proceedings claiming relief under D.V. Act, can be entertained specifically when the main petition filed by the wife is under the Dissolution of the Muslim Marriage Act, 1939.

It   is   not   in   dispute   that   the   wife   has   instituted proceedings   for   divorce   praying   for   dissolution   of   marriage solemnized on 17.09.1997 under the provisions of Section 2(viii)(a) and (d) of Dissolution of Muslim Marriage Act.  The said provision permits the  woman  married under  the  Muslim  Law to obtain  a decree for dissolution of  marriage on the ground that the husband has treated her with cruelty  or made her life miserable and that he has disposed of her property or prevent her from exercising her legal rights over it.

In   the   said   proceedings   the   wife   had   moved   an application   at   Exh.­7   by   way   of   an   interim   application   on 15.04.2015.     The   said   application   is   titled   as   “Application   for maintenance   and   residential   accommodation”,   without   specifying the section.   Perusal of the application would however reveal that the  wife  has  alleged  that she  has  filed petition  for  divorce   and custody of her children and she sought to place reliance on the said petitions.   In the said application the wife has claimed an interim maintenance  from the husband for meeting the expenses of her children as well as her own expenses.  The said application no doubt do not mention the provision which is sought to be invoked.  The learned counsel for the petitioner had advanced a submission that the parties being governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986 which governs the  entitlement for maintenance of Muslim women who have been divorced by and who have   obtained   divorce   from   husband.     As   per   the   petitioner husband, pursuant to filing of the said proceeding he had given Talaq to the respondent­wife to 29.03.2017.  The contention of the husband is that the wife was otherwise seeking divorce and he has granted divorce which would partake a form of “Khula”.  He would submit that the wife had accepted the amount of Mehar in pursuant to the Talaq being pronounced on 30.03.2017.  However, she turned back and returned the Meher on 08.05.2017.  It is the specific case of   the   petitioner­husband   that   on   28.04.2017,   the   husband   remarried since the wife had accepted the Meher thereby leading to a conclusion   that   the   Talaq   pronounced   by   the   husband   was acceptable to her.  However, it is a specific case of the wife that the said dissolution of marriage cannot be treated as Khula and in fact Mrs.Irani had invited attention to the pleadings and would submit that she has not accepted the said Talaknama and rather in light of the latest pronouncement of the judgment by the Apex Court in the case of Shayara Bano V/s. Union of India Ors. (2017­9­SCC­1), the Talaknama is not valid.  Mrs.Irani would submit that under the Muslim Law, in certain circumstances the power to initiate divorce proceeding   is   given   to   the   wife   and   she   had   instituted   the proceedings for the said purpose.  However, she would submit that her client has not accepted the Talaknama dated 29.03.2017 and in any contingency she would take appropriate steps to deal with the said issue separately.

7. In the present case the pronouncement of the Talaq is disputed by the wife and the husband will have to be prove the said factum   of   Talaq.     As   till   the   time   the   Talaq   is   not   proved,   the respondent continues to be legally weeded wife of the petitioner and in   that  contingency   the   question   is  whether  the   wife   who  is  in domestic relationship with the petitioner is entitled to seek the relief under the provisions of the Domestic Violence Act.   Though the learned counsel for the petitioner had vehemently argued that the parties are governed by Muslim Personal Laws and therefore the provisions  of   the   Domestic   Violence  Act   cannot   be  invoked,  per contra  Mrs.Irani  would   submit  that  there   is  no  intention  of   the legislature to restrict the provisions of Protection from Womens of Domestic Violence Act, 2005 to a particular category of women and to specifically exclude the women belonging to the Muslim religion.

8. Perusal of the provisions of the Protection of Women from   Domestic   Violence   Act,   2005   would   reveal   that   it   is   an enactment   to   provide   for   more  effective  protection   for   rights   of women   guaranteed   under   the   Indian   Constitution   who   are   the victims of the violence.  The enactment no way intends to restrict its application to any particular category of women but it intends to protect the women aggrieved, who are victims of Domestic Violence. The   definition   and   connotation   of   “Domestic   Violence”   under Section­3  of   the  enactment   do  not  indicate   any  intention   either express or implied to exclude Muslim women.   Section­36 of the said enactment provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time any force.  Thus, the scheme of the enactment do not restrict the applicability of the provisions of the Act to a particular category   of   women,   nevertheless   to   a     woman   belonging   to   a particular religion.  No doubt the Muslim women are also governed by   several   other   enactments   in   the   form   of   Muslim   Women (Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim Marriage Act, 1939 etc., however, the rights conferred under the said enactments can in no way curtail the operation or Protection granted under The Protection of Women from Domestic Violence Act.  In these circumstances the contention advanced by the learned counsel for the petitioner that the respondent­wife could not avail the   provisions   of   the   Domestic   Violence   Act   is   not   sustainable. Further, the submission of the learned counsel for the petitioner that the wife had moved an application namely Exh.­7 in a proceeding which she had instituted under the Dissolution of Muslim Marriage Act, 1939 and therefore they are not tenable, needs to be cursorily dealt with.  The Section­ 26 of the Act of 2005 permits the relief to be availed under Sections­18, 19, 20, 21 and 22 to be sought in any legal proceedings before a Civil Court, Family Court or Criminal Court   affecting   the   aggrieved   person   whether,   such   proceedings were initiated before or after the commencement of this Act.  SubSection 2 of Section­26 makes it amply clear that in such relief may be sought for in addition to and alongwith any other relief that the aggrieved person may seek in such suit or legal proceeding before Civil or Criminal Court.

9. In the present case wife had instituted the proceedings by   taking   aid   of   Section­2(viii)   and   has   specifically   filed   the proceedings on the ground of the cruel treatment meted out to her and her children by making her life miserable by subjecting her to cruelty and by preventing her to exercise her legal right over the property.  On perusal of the proceedings filed by the wife it revealed that she had taken out proceedings for dissolution of the marriage on the ground of cruelty, which is a form of Domestic Violence.  The term Domestic Violence is assigned a specific meaning in the Act of 2005 which include an act of harming, injuring, and  endangering the health, safety, life or well being, whether physical or mental of the   aggrieved   person   including   the   physical,   sexual,   verbal   and emotional abuse and also economical abuse.  Thus, the ground on which the wife has sought dissolution of marriage is cruelty and the proceedings initiated though under the provisions of Dissolution of Muslim   Marriage   Act,   1939   stand   on   the   same   platform   as proceeding   instituted   by   wife   under   the   provisions   of   Domestic Violence seeking relief under Section­12 of the Act, she being an aggrieved women.

In any contingency by taking recourse to Section­26 of the Domestic Violence, it is permissible for the respondent­wife to file proceedings seeking the relief under Sections­18, 19, 20, 21 and 22 of the Domestic Violence Act, in addition to and along with the relief that she has otherwise sought in the pending proceedings. Thus, the claim for interim maintenance filed by the wife cannot be said to be completely alien to the provisions under which she has approached the Court by way of main petition seeking Dissolution of Marriage on the ground of cruelty.  By way of an interim relief she has sought maintenance from the husband and since there is no bar for   her   to   invoke   the   provisions   of   The   Protection   of   Domestic Violence Act, 2005, such an application is duly entertained by the Judge Family Court, such an application cannot be thrown away only   on   the   ground   that   it   is   not   mentioned   as  to   under   what provision of law, the said application has been preferred.  The Court has   entertained   the   said   application   considering   the   factum   of destitution being put forth by the wife and has treated her as an aggrieved   person   and   has   entertained   the   said   application   for interim   maintenance   and   directed   payment   of   amount   of Rs.25,000/­ to the wife and Rs.20,000/­ for the children along with rent of the house at rate of Rs.40,000/­.  The Court has considered that   the   wife   has   been   subjected   to   vagrancy   and   is   unable   to maintain  herself  and her  children  whereas the  husband owed a moral   responsibility   to   maintain   his   wife   and   the   children specifically in case of subsisting marriage and therefore has passed the impugned order dated 22.06.2017.

9. The  case  of the  husband is that he  has pronounced Talaq on 29.03.2017 and in light of this development such an order is not justified, is also liable to be ignored since the factum of Talaq has not been proved by the husband and merely because Talaknama is  tendered in the Court, the marriage cannot be said to have been dissolved.   Even assuming for the sake of it the marriage stands dissolved by Khula taking it to be divorce by consent at the instance of   the   wife,   the   husband   cannot   be   completely   absolved   of   his liablity to maintain his wife and children, in the specific background, that he has remarried and he is maintaining two children of the wife whom he had re­married.  The learned counsel for the petitioner has also invited attention of the Court on a subsequent application filed by   the   wife   under   Sections­12,   18,   19,   20,   22   and   23   of   the Protection   of   Women   from   Domestic   Violence   Act,   2005   on 09.06.2017 and she would submit that if this application is filed under   the   provisions   of   the   Domestic   Violence   Act,   under   what provision   of   law   did   the   Family   Court   entertained   the   earlier application and passed an order below Exh­7.   As this Court has already observed that the said application was filed in Petition No.A­ 1097/2015 instituted by the wife for Dissolution of Marriage under the Dissolution of Muslim Marriage Act, 1939 and she would submit that this Act contains no provision for any interim maintenance or provision   for   custody   of   children.     However,   perusal   of   the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 would reveal that certain rights are conferred even on a woman who has been divorced by who have obtained divorced from her husband and make such a woman entitled to a reasonable and fair provision and maintenance to be paid to her within the period of Iddat.  Not only this such a woman is also entitled to an amount equal to some of Mehar or dower agreed to be paid to her at the time of the marriage according to the Muslim Law and also entitled for all the properties given to her before and at the time of the marriage   and   after   the   marriage   by   her   relative,   friends   or   her husband.

10. The purpose of any provision of law which is beneficial to   a  woman   is  to   provide  some  solace   to  a   woman   during  the subsistence of the marriage or even after she is divorced out of the said marriage and since the Domestic Violence Act is an enactment to provide effective protection of rights of woman, who are victims of violence, the respondent ­wife cannot be denied the umbrella of the said legislation.   The   respondent­wife   has   staked   her   claim   by   filing proceedings   under   the   Domestic   Violence   Act   2005   claiming   monthly maintenance   for   herself   and   her   children   vide   Exh­34.     On   the   said application, the respondent ­husband has been directed to produce all or any of the documents which are in existence or his possession and which are not produced by him so as to reflect his earnings.   Though it is a specific case of the petitioner­husband that he has divorced to his wife, it cannot be expressed as a gospel truth specifically in light of the latest pronouncement of the Hon’ble Apex Court in case of Shayara Bano V/s. Union   of   India     Others  as   to   what   would   be   the   effect   of   such Talaknama.   In any contingency this Court is not concerned with the validity of the said Talaknama at this stage and in this proceedings.  This Court will have to restrict itself to the impugned order dated 22.06.2017 passed   by   the   Family   Court   at   Bandra   directing   the   husband   to   pay monthly amount for maintenance of the wife and the children and also to pay for the rent of the house where the wife is residing. The     objection   raised   by   the   learned   counsel   for   the petitioner   Ms.Anagha     Nimbkar     to     the     maintainability     of     the application   on which the impugned order came to be   passed is not sustainable  for  the  reasons  stated  above  and  since  this Court  at arrived   at   a   conclusion   that   the   parties   being   governed   by the Muslim  Personal  Law  is  not  an  impediment in  the  wife  invoking  the jurisdiction   of   the   Court   under   the   provisions   of   the   Domestic Violence Act and there is no embargo of the said Court to confer the relief on the women who is an “aggrieved person” within the scope and  meaning  of   the  Act  merely  because   she   belongs  to  Muslim religion. The contention of the learned counsel for the petitioner therefore deserves to be rejected.

The impugned order has taken into consideration the earning capacity of the husband and the needs of the wife.  In the application filed by the wife a statement was made that the husband was depositing an amount of Rs.10,000/­ to Rs.15,000/­ per month in her account, which was not found to be sufficient to maintain herself.  The Court taken in to consideration the said aspect of the matter and also the statement that the husband is regularly paying certain amount to the wife from which she is withdrawing some regular amount.   The Court has also noted that the wife has no shelter and in such circumstances the impugned order cannot be faulted with and their appears to be no illegality or perversity in the said order which would warrant and inference at the instance of this order.   In the result the impugned order is upheld.   The present petition being devoid of any merit and substance, is liable to be dismissed.

(SMT.BHARATI H. DANGRE, J.)