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Judgments of Supreme Court of India and High Courts

Mohd. Ashraf Khan vs Najma Bano 2 Mcrc/7841/2019 … on 21 January, 2020

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No. 696 of 2017
Order Reserved on 27.11.2019
Order Delivered on 21.01.2020

Mohd. Ashraf Khan S/o Nawab Khan Aged About 56 Years R/o B-05 Urja
Nagar, Deepika, Police Station Deepika, District Korba Chhattisgarh.
—- Applicant
Versus
Najma Bano D/o Late Shayasuddin Aged About 47 Years Wrongly Shown As
Wife Of Mod. Ashraf Khan R/o House Of Tapas Ghosh, Behind House Of Dr.
Madhuliaka Mishra, Talapara Road, Vinoba Nagar, Ward No. 13, Police
Station Tarbahar, District Bilaspur Chhattisgarh.
—- Respondent

For the Applicant : Shri K.A. Ansari, Senior Advocate with
Shri Vipin Singh, Advocate.

For the Respondent : Shri Rajesh Kumar Kesharwani,
Advocate.

Hon’ble Shri Justice Rajendra Chandra Singh Samant
CAV ORDER

1. This revision has been brought challenging the legality, propriety and

correctness of the order passed by the Learned Fourth Additional

Sessions Judge, Bilaspur in Criminal Appeal No.49 of 2017 by which the

order passed by the Judicial Magistrate First Class, Bilaspur dated

29.9.2015 was set aside and reliefs were granted to the respondent

under the provisions of Protection of Women from Domestic Violence Act,

2005 (for short ‘DV Act, 2005).

2. It is submitted by counsel for the applicant that the applicant got

divorced with the respondent on 13.1.2009. The application under

Section 12 of the DV Act, 2005 was filed by the respondent on
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18.12.2012 and the learned JMFC passed the order dated 29.9.2015

rejecting the said application. The appeal filed by the respondent under

Section 29 of the DV Act, 2005 has been erroneously allowed by the

Appellate Court. It is further submitted by the applicant that the

respondent being a divorcee did not have any locus standi to file the

application under Section 12 of the DV Act, 2005. As the relationship

between them has come to an end on 13.1.2009 and the respondent had

started living separately; the respondent is no longer a member of the

family and that being so she cannot claim the reliefs and protection under

the provisions of DV Act, 2005. The applicant was also prosecuted by

the respondent for the commission of offence under Section 498A of the

IPC and in the said case bearing No. 274 of 2008 decided on 17.10.2012,

the applicant was acquitted of the charge. The applicant has deposited

the amount in Sunni Muslim Jamat, Korba area. The receipt of the same

is filed as Annexure-P/3 and the decision of the Jamat is filed as

Annexure-P/4.

3. Relying on the judgment of Nagpur High Court in the case of

Smt. Sadhana vs. Hemant in Criminal Revision Application (REVN)

No.121 of 2018 decided on 18.4.2019 by a Single Bench, it is also

submitted that after the severance of matrimonial relationship between

the parties, the complaint under the DV Act, 2005 would not be

maintainable. There has to be a domestic relationship between the

parties covered under the definition in DV Act, 2005. The respondent is

already receiving maintenance under Section 125 of Cr.P.C. Therefore, it

is a case in which there is no incidence of domestic violence with the

respondent on the date she has filed the application under Section 12 of
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the DV Act, 2005. Reliance has also been placed on the judgment of

Delhi High Court in the case of Harbans Lal Malik vs. Payal Malik in

Criminal Revision Petition No.253 of 2010 dated 29.7.2010 and also

on the judgment of Punjab Haryana High Court in the case of Amit

Agarwal and others vs. Sanjay Aggarwal and others in Criminal

Misc. No. M-36736 of 2014 decided on 31.5.2016 wherein, it has been

held that after the domestic relationship has come to an end, the

application under Section 12 of the DV Act, 2005 shall not be

maintainable.

4. Learned counsel for the respondent submits that all the facts and

circumstances of this case are in favour of the respondent. The definition

of aggrieved person under Section 2(A) of the DV Act, 2005 and this act

very clearly mentions that the relationship between two persons can

either be continuing or could have existed at one point of time; therefore,

the divorce between the parties makes no difference. The applicant has

not challenged the order of maintenance passed against him by the

Family Court.

5. Relying on the judgments of the Supreme Court in the cases of

Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and another

reported in 2014 (1) SCC 736 and Shamim Ara vs. State of U.P.

reported in 2002(7) SCC 518, it is submitted that the revision filed is

without any substance. It is also submitted that the present revision filed

against the order of the Appellate Court is not maintainable as there is no

provision to file any revision against the appellate order under the

Protection of Women from Domestic Violence Act, 2005, as such, the
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revision be dismissed.

6. In reply, it is submitted by counsel for the applicant that the revision

against the order of the Appellate Court is maintainable. It has been

clearly held in Amit Agarwal’s case (supra) and Harbans Lal Malik’s

case (supra). This point has been elaborately decided by the Full Bench

of Allahabad High Court in the case of Dinesh Kumar Yadav vs. State

of U.P. and Anr. in Criminal Revision No.582 of 2016 decided on

2.8.2016. Therefore, this revision is maintainable and the applicant is

entitled for relief.

7. Heard both counsel for the parties and perused the material available

on record.

8. Firstly, the maintainability of the revision petition is considered. This

point has been elaborately discussed in the judgment of Full Bench of

Allahabad High Court in Dinesh Kumar Yadav’s case (supra) in which it

has been held after elaborate discussion that as the remedy of an appeal

has been provided under Section 29 of the DV Act, 2005 before a Court

of Sessions which means a Court of Sessions referred under Section 6

read with Sections 7 and 9 of the Cr.P.C. without saying anything more

regarding the procedure to be followed in such an appeal, there being

nothing contrary to the DV Act, 2005 which may be indicative of the

application of the provision of Cr.P.C. to such an appeal. The normal

remedies available against the judgment and order passed by a Court of

Sessions by way of appeal and revision is prescribed under the Cr.P.C.

before the High Court which is also available against the order passed in
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appeal under Section 29 of the DV Act, 2005, therefore, this case law

holds ground and the revision against the appellate order is found to be

maintainable.

9. The only question raised by the applicant in this case is regarding the

maintainability of the proceeding against him under the provisions of the

DV Act, 2005 on the ground that on the date of filing an application there

existed no relationship between the parties. In the application filed by the

applicant under Section 12 of the DV Act, 2005 there is no mention of

divorce between the parties. The respondent has pleaded that she has

driven out of her matrimonial home on 11.5.2008 and since then she is

living separately. The applicant had submitted his reply and made a

statement that he had divorced the respondent on 13.1.2019 in

accordance with Muslim law.

10. Respondent – Najma Bano (AW-1) has not made any statement in

her examination-in-chief regarding the dissolution of marriage and has

denied the question put to her in cross-examination that the applicant has

divorced her. There is similar statement of denial by the other witnesses

from the applicant’s side. The applicant in this case i.e. Mohd. Ashraf

Khan as (NAW-1) has stated in his examination-in-chief that he has

divorced the respondent on 13.1.2009 and produced the photocopy of

Talaknama and also the photocopy of decision of Muslim Jamat dated

20.1.2009. In cross-examination, he has admitted that the respondent

after leaving him in 2008 has not come back. He has denied adverse

suggestions given in cross-examination. Arif Khan (NAW-2) is son of the

applicant who has given statement that his father has divorced the
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respondent in the year 2009. In cross-examination, he has admitted that

he had hearsay knowledge regarding the divorce. Similar is the

statement of another witness from applicant’s side Shakeel Ahmed.

According to him, he has heard about the divorce of the applicant with his

wife/ the respondent.

11. The respondent has claimed that no divorce has taken place

whereas, the applicant had pleaded regarding the divorce between him

and the respondent. Therefore, the burden was upon to the applicant to

prove the factum of divorce as it was required for the purpose of coming

to a conclusion in this case. According to the statements given in the

non-applicant’s evidence by the witnesses, it is found that on 13.1.2009

when the said divorce took place, the respondent was not present before

the applicant. The applicant himself has made only an oral statement

and filed photocopies of the documents regarding divorce and the

decision of the Muslim Jamat. No effort has been made by him to

produce the original divorce paper or to produce the witness of said

divorce since according to the muslim law, it is essential that divorce

should took place in presence of witnesses. There is also no statement

or evidence that the divorce has taken place in presence of witnesses.

There is also no statement or evidence that the said divorce/ talak was

communicated to the respondent, because under Muslim Law the

communication of Talak is also essential. In Shamim Ara’s case (supra),

the Supreme Court has held in paragraph 16 is as under:

‘We are also of the opinion that the talaq to be effective
has to be pronounced. The term ‘pronounce’ means to
proclaim, to utter formally, to utter rhetorically, to declare,
to utter, to articulate (See Chambers 20th Century
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Dictionary, New Edition, p.1030). There is no proof of talaq
having taken place on 11.7.1987. What the High Court has
upheld as talaq is the plea taken in the written statement
and its communication to the wife by delivering a copy of
the written statement on 5.12.1990. We are very clear in
our mind that a mere plea taken in the written statement of
a divorce having been pronounced sometime in the past
cannot by itself be treated as effectuating talaq on the date
of delivery of the copy of the written statement to the wife.
Respondent No.2 ought to have adduced evidence and
proved the pronouncement of talaq on 11.7.1987 and if he
failed in proving the plea raised in the written statement,
the plea ought to have been treated as failed. We do not
agree with the view propounded in the decided cases
referred to by Mulla and Dr.Tahir Mahmood in their
respective commentaries, wherein a mere plea of previous
talaq taken in the written statement, though
unsubstantiated, has been accepted as proof of talaq
bringing to an end the marital relationship with effect from
the date of filing of the written statement. A plea of
previous divorce taken in the written statement cannot at
all be treated as pronouncement of talaq by the husband
on wife on the date of filing of the written statement in the
Court followed by delivery of a copy thereof to the wife. So
also the affidavit dated 31.8.1988, filed in some previous
judicial proceedings not inter partes, containing a self-
serving statement of respondent no.2, could not have been
read in evidence as relevant and of any value.’

12. There is no evidence from the applicant’s side that talak was

pronounced or formally proclaimed and the same was communicated to

the respondent. Therefore, it cannot be said that the divorce under

muslim law has effectively taken place between the applicant and the

respondent. Hence, on the basis of this finding, I am of this view that the
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learned Appellate Court has not committed any error and the impugned

order needs no interference.

13. Accordingly, this revision petition is dismissed.

Sd/-

(Rajendra Chandra Singh Samant)
Judge
Nimmi

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