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Vaseem Fatema Hashmi Sayyad Akil … vs Sayyad Akil Rauf And Ors on 6 March, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.1661 OF 2017

1. Vaseem Fatema Hashmi w/o
Sayyad Akil, Age 37 years,
Occu: Physiotherapist,
R/o MHADA Colony,
Champa Chowk, Aurangabad

2. Sayyad Ibrahim s/o Sayyad Akil, .. Petitioners
Age 07 years, (Original
Minor (Through Guardian mother, Applicants)
Petitioner No.1)

VERSUS

1. Sayyad Akil s/o Rauf
Age 39 years, Occu: Business
in M/s ASCS, B-115, Prerna
Arcade,Near Tarakpur S.T.Stand,
Ahmednagar

2. Sayyad Abdul Rauf s/o Zainuddin
Age 76 years, Occu: Retired
R/o 30-A, Mukundnagar,
Ahmednagar

3. Sayyad Shakil s/o Abdul Rauf, .. Respondents 1
Age 42 years, Occu: Service, to 3(Original
R/o Ritz Apartment, respondents)
Near Bitco High Shool, Nashik

4. State of Maharashtra .. Respondent No.4

Mrs. Ranjana D.Reddy, Advocate for the petitioners
Mr. Shaikh Mazhar A. Jahagirdar, Advocate for
respondent Nos. 1 to 3
Mr. A. P. Basarkar, APP for respondent No.4 State
WITH
CRIMINAL REVISION APPLICATION NO. 288 OF 2017

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1. Sayyad Akil s/o Rauf
Age 40 years, Occu: Service
in M/s ASCS, 30-A,
Mukundnagar,Ahmednagar

2. Sayyad Abdul Rauf s/o Zainuddin
Age 75 years, Occu: Retired
R/o 30-A, Mukundnagar,
Ahmednagar

3. Sayyad Shakil s/o Abdul Rauf, .. Applicants
Age 50 years, Occu: Retired, (Original
R/o 30-A, Mukundnagar, respondents )
Ahmednagar

VERSUS

1. Vaseem Fatema Hashmi w/o .. Respondents
Sayyad Akil, Age 35 years, (Original
Occu: Medical Practitioner, applicants )
R/o MHADA Colony,
Champa Chowk, Aurangabad

2. Sayyad Ibrahim s/o Sayyad Akil,
Age 07 years, Occu: Education
Minor (Through Guardian mother,
Respondent No.2)

Mr. Shaikh Mazhar A. Jahagirdar, Advocate for
Applicants
Mrs. Ranjana D.Reddy, Advocate for the respondents

CORAM : K. L. WADANE, J.

RESERVED ON : 28th February, 2018
PRONOUNCED ON : 6th March, 2018

JUDGMENT:

1. Heard learned counsel for the respective

parties.

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2. Rule. Rule made returnable forthwith. With

consent of parties, both the matters are taken up for

final disposal.

3. The aforesaid criminal writ petition and

criminal revision are filed against the common judgment

and order dated 13.10.2017 passed by the learned

Additional Sessions Judge, Aurangabad in PWDVA Cri.

Appeal No.95/2013 and PWDVA Cri. Appeal No.102/2013

which were filed by the respective parties

challenging the order passed by the learned Judicial

Magistrate, First Class, Aurangabad in Cri. M.A.

No.1640/2011.

4. Brief facts of the case may be stated as

follows:

(1) The petitioners/original applicants had filed

Cri. M.A.No.1640/2011 under the provisions of section

12 of Protection of Women from Domestic Violence Act,

2015 (for short, ‘D.V. Act’) seeking reliefs under

sections 18, 19, 20 and 22 of the D.V. Act against the

respondent Nos. 1 to 3/ original respondents. The

parties herein are referred to by their original status

in Cri. M.A. No. 1640/2011. Applicant No.1 is wife

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and applicant No.2 is minor son of applicant No.1 and

respondent No.1/husband. Respondent Nos.2 and 3 appears

to be in-laws of applicant No.1.

(2) On 27th April, 2008, applicant No.1 married

with respondent No.1 as per Muslim religious customs

and ceremonies. After the marriage, applicant No.1 and

respondent No.1 resided at Ahmednagar, Pune and

Aurangabad during the period from 2008 to 2011.

Meanwhile, respondent No.1 husband started giving ill-

treatment to applicant-wife by abusing her physically,

mentally and economically. Respondent No.1 caused

mental harassment to applicant no.1 by sending messages

on her mobile. Ultimately, the parties issued notices

to each other and in one of the notices, respondent

No.1 husband said that he has given “Talaq” by issuing

legal notice through advocate. Applicant No.1 did not

admit the same nor she accepted the amount of amount

towards Mehar or Iddat.

(3) Looking to the averments of the applicant in the

application, it appears that due to mental and physical

harassment, applicant Nos. 1 and 2 were constrained to

reside separately from respondent No.1. Therefore, in

view of the provisions of the D. V. Act, as referred

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above, the applicants have claimed maintenance, rent

as well as compensation.

(4) To establish her claim, applicant No.1 relied

upon her oral evidence filed by way affidavit at Exh.

19, oral evidence of her father Sayyad Shamsham at Exh.

36 in the form of affidavit and also examined one

Sayyed Afak Ahmed Hashmi at Exh.41 to prove that rented

house was arranged for residence of the applicants,

however, the respondent husband did not pay the rent

amount. As against this, respondent No.1 husband

had filed affidavit of oral evidence at Exh.52 and

affidavit of his father-respondent No.2 at Exh.63.

Besides the oral evidence, the parties have relied upon

the copies of notices and replies at Exh. 55 to 58.

(5) The learned Judicial Magistrate, F.C., after

scrutiny of documentary as well as oral evidence on

record, came to the conclusion that the applicants are

entitled to maintenance of Rs. 3000/- each per

month and in addition to that, applicant No.1 is

entitled to rent amount to the extent of Rs.3000/-

per month and compensation of Rs.2,00,000/- from

respondent No.1 and accordingly disposed of Criminal

M.A. No.1640/2011.

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(6) The order passed by the learned Magistrate was

challenged before the learned Additional Sessions

Judge, Aurangabad by both the parties in appeals.

PWDVA Cri. Appeal No.95/2013 was presented by the

respondents whereas, PWDVA Cri. Appeal No.102/2013 was

presented by the applicants. Learned Additional

Sessions Judge partly allowed the appeal filed by the

respondents and the order of rent awarded to the

applicants was set aside, whereas, the appeal presented

by the applicants was dismissed in toto. Being

aggrieved by the same, the applicants have preferred

present criminal writ petition No.1661/2017 and the

respondents have preferred Criminal Revision Application

No. 288/2017.

5. I have heard Mrs. Ranjana D.Reddy, Advocate for

the petitioners/applicants and Mr. Shaikh Mazhar A.

Jahagirdar, Advocate for the respondents.

6. With the help of learned counsel for the

parties, I have gone through the evidence on record. On

perusal of the same, it appears that applicant No.1

reiterated almost all the contents in the application

by way of filing affidavit. Father of the applicant

No.1 also supported the case of the applicants. On

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perusal of oral evidence of applicant No.1, it appears

that she deposed about the instances took place between

her and respondent No.1 husband since the date of

marriage and how she was subjected to ill-treatment by

respondent No.1. Therefore the fact of ill-treatment

given by respondent no.1 to the applicant wife is very

much clear. It appears that respondent No.1 has

harassed the applicant wife mentally as well as

physically. Even considering certain admissions given

by applicant no.1 during her cross examination, it is

does not mean that that respondent No.1 did not ill-

treat applicant no.1. Furthermore, the oral evidence

of father of applicant no.1 also supported the case of

the applicant. As against this, respondent No.1 has

filed affidavit and reiterated the contents of his say

so also the father of respondent No1. i.e. respondent

no.2 herein has also supported the case of

respondents. So, looking to the oral evidence of

parties, it appears that there are words against words

on oath. However, one cannot ignore the basic concept

that a married woman cannot willingly live separately

from his husband in normal circumstance, unless there

are compelling circumstances for her to reside

separately. In the present case, the circumstances

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brought on record and the oral evidence indicate that

due to domestic violence, applicant No.1 started

residing with her parents.

7. Learned counsel appearing for the respondents

argued that initially, respondent No.1 was serving at

Pune, but he left the job and it is alleged that due

to circumstances created by applicant no.1, respondent

no.1 was constrained to leave the said job. However,

from the cross examination of respondent no.1, it

appears that presently he in service and earning

Rs.25,000/- per month by way of salary. Therefore,

looking to the amount of maintenance awarded by the

learned Magistrate i.e. Rs.3,000/- each per month to

the applicants, I do not think that it is inadequate

or disproportionate to the earning of respondent No.1.

8. The learned Magistrate has granted Rs.3000/- per

month to the applicants towards rent. However, it is

brought on record by the respondents that the

applicants have not taken house on rent, they are

residing in the house of parents of applicant No.1

and therefore they are not required to pay rent.

Therefore, the order of rent amount granted by the

learned Magistrate has been rightly cancelled in the

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appeal by the learned Additional Sessions Judge.

9. Learned counsel appearing for the respondents

has submitted that applicant No.1 herself abandoned

the society of respondent no.1 and willingly started

residing with her parents. Therefore, she is not

entitled for maintenance. However, such submissions of

the learned counsel for the respondents are not

acceptable because, there is sufficient evidence on

record to prove that the applicant was subjected to

domestic violence i.e. physically as well mentally.

From the evidence on record, it appears that respondent

no.1 was sending messages to applicant no.1 wife

through his mobile and on perusal of the texts of those

messages, they are sufficient to establish that there

was verbal and emotional abuse as defined under

section 3(iii) of the D.V. Act.

10. Further, it is material to note that the learned

counsel for the respondents has argued that respondent

No.1 was ever ready to cohabit with the applicant

No.1. However, such argument of the learned counsel for

respondents is not acceptable because, from the record,

it appears that respondent No.1 had tried to give

customary divorce i.e. Talaq by sending notice

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alongwith cheque of Mehar or Iddat, however, the same

was not accepted by applicant no.1. Further, it appears

from the record that respondent no.1 had filed petition

for divorce, which indicates that say of respondent

no.1 that he is willing tor to reside with applicants

appears to be false, otherwise there was no necessity

for respondent no.1 to file such divorce petition.

11. Learned counsel appearing for the respondents

has relied upon the decision in the case of E. Shanthi

Vs. Vasudeo H.K. reported in AIR 2005 Karnataka 417, in

which, it is observed that:

“3. Admittedly, petitioner is residing with her
parents at Chennai and whose brother is also a
Doctor. When the petitioner was practicing
prior to marriage, when her her name continues
on the board of the clinic, the trial court is
justified in rejecting the application of the
petitioner. There is no difficulty for the
petitioner to work as a Doctor. Even if the
petitioner is not working as a Doctor in the
clinic of her brother, since there are no
impediments for her to work alongwith her
brother as a Doctor and when she is capable of
earning, this Court is of the opinion that the
trial Court is justified in rejecting the
application of the petitioner. When the

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petitioner is capable of earning and having
required qualification and that when she was
working as a Doctor prior to marriage, there
cannot be any difficulty for her to continue the
same profession. Therefore, Section 24 of the
Hindu Marriage Act cannot come to the aid of
such persons. Accordingly, this petition has to
be rejected. “

Observations of the above cited authority are

inapplicable to the facts of the present case, because,

in the present case, the respondents have not

established that there was independent earning of

applicant no.1. No doubt, somewhere it is brought on

record that applicant No.1 is a Doctor and somewhere

it is stated that she is physiotherapist, even then

there is no material/evidence on record to show that

presently the applicant is a practicing doctor or

physiotherapist or earning salary. In the absence of

concrete proof, it is not desirable to say that

applicant no.1 is earning money.

12. Learned counsel for the respondents also relied

on the observations in the case of Sanjay Bhardwaj

ors. Vs. State and Anr, reported in 2010(5) CRJ 446

(Del), in which it is observed that the Court cannot

tell the husband that he should beg, borrow or steal

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but give maintenance to the wife, more so when the

husband and wife are almost equally qualified and

almost equally capable of earning and both of them

claimed to be gainfully employed before the marriage.

Again, the aforesaid observations are

inapplicable to the facts of the present case, because,

in the present case, respondent No.1 himself has

admitted in his cross examination that he is earning

salary of Rs.25,000/- per month, however, as discussed

above, there is no evidence on record to show the

earning of applicant no.1.

13. Looking to the nature of the present case, it

is not desirable to enter into the disputed facts of

the case between the parties. On perusal of the order

passed by the learned Additional Sessions Judge in the

the appeals before him, it appears that after re-

appreciation of evidence on record, the learned

Additional Sessions Judge has confirmed the order of

maintenance and compensation and has rightly set aside

the order of granting rent. Therefore, it is not

necessary to interfere with the order passed by the

learned Additional Sessions Judge more so, when the

learned Additional Sessions Judge, after re-appreciation

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of evidence on record, arrived at correct conclusion.

14. Learned counsel for the respondents has failed

to point out perversity or illegality in the order

passed by the learned Additional Sessions Judge.

Furthermore, the learned counsel for the respondents

also failed to show how the amount of maintenance

awarded to the applicants is disproportionate compared

to the earning of respondent no.1. Consequently, there

is no substance in both the matters and therefore they

are liable to be dismissed. Accordingly the criminal

writ petition and criminal revision application are

dismissed with no order as to costs.

15. Rule is accordingly discharged.

16. Pending criminal applications also stand disposed

of.

(K. L. WADANE, J.)

JPC

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