Dismissed

Sayyad Akil S/O. Rauf and Others v. Vaseem Fatema Hashmi W/O. Sayyad Akil and Anr.

Bombay HC6 Mar 2018REVN/288/2017

Case brief

AI extract

What is this about?

High Court dismissed criminal writ petition and revision against Additional Sessions Judge order in domestic violence matter. Court upheld maintenance and compensation awarded to wife and minor son, but affirmed setting aside of order granting interim rent.

What did the court decide?

Criminal Writ Petition and Criminal Revision Application dismissed with no order as to costs.

Sayyad Akil S/O. Rauf and Others Vs Vaseem Fatema Hashmi… — Domestic Violence | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.1661 OF 2017

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

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

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VERSUS

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1. Sayyad Akil s/o Rauf Age 39 years, Occu: Business in M/s ASCS, B115, Prerna Arcade,Near Tarakpur S.T.Stand, Ahmednagar

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

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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

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4. State of Maharashtra .. Respondent No.4

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Mrs. Ranjana D.Reddy, Advocate for the petitioners
Mr. Shaikh Mazhar A. Jahagirdar, Advocate for
respondent Nos. 1 to 3

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Mr. A. P. Basarkar, APP for respondent No.4 State

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WITH

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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, 30A, Mukundnagar,Ahmednagar

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

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

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VERSUS

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

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

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Mr. Shaikh Mazhar A. Jahagirdar, Advocate for
Applicants

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Mrs. Ranjana D.Reddy, Advocate for the respondents

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CORAM:K. L. WADANE, J.
RESERVED ON:28th February, 2018
PRONOUNCED ON :6th March, 2018

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JUDGMENT:

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1. Heard learned counsel for the respective

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parties.

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2. Rule. Rule made returnable forthwith. With
consent of parties, both the matters are taken up for
final disposal.

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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.

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4. Brief facts of the case may be stated as
follows:

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(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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wp1661&revn288-17.odt and applicant No.2 is minor son of applicant No.1 and respondent No.1/husband. Respondent Nos.2 and 3 appears to be inlaws of applicant No.1.

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(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 applicantwife by abusing her physically,

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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

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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.

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(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

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reside separately from respondent No.1. Therefore, in
view of the provisions of the D. V. Act, as referred

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wp1661&revn288-17.odt above, the applicants have claimed maintenance, rent as well as compensation.

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(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 fatherrespondent 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.

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

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scrutiny of documentary as well as oral evidence on
record, came to the conclusion that the applicants are

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entitled to maintenance of Rs. 3000/ each per

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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

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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

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respondents have preferredCriminal Revision Application
No. 288/2017.

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5. I have heard Mrs. Ranjana D.Reddy, Advocate for
the petitioners/applicants and Mr. Shaikh Mazhar A.
Jahagirdar, Advocate for the respondents.

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6. With the help of learned counsel for the

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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

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by way of filing affidavit. Father of the applicant
No.1 also supported the case of the applicants. On

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wp1661&revn288-17.odt perusal of oral evidence of applicant No.1, it appears that she deposed about the instances took place between

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her and respondent No.1 husband since the date of
marriage and how she was subjected to illtreatment by
respondent No.1. Therefore the fact of illtreatment
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

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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

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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

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are compelling circumstances for her to reside
separately. In the present case, the circumstances

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wp1661&revn288-17.odt brought on record and the oral evidence indicate that due to domestic violence, applicant No.1 started residing with her parents.

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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.

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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

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learned Magistrate has been rightly cancelled in the

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appeal by the learned Additional Sessions Judge.

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9. Learned counsel appearing for the respondents

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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

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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

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was verbal and emotional abuse as defined under
section 3(iii) of the D.V. Act.

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

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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,

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it appears that respondent No.1 had tried to give
customary divorce i.e. Talaq by sending notice

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wp1661&revn288-17.odt 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.

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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:

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"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. "

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 Observations of the above cited authority are

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inapplicable to the facts of the present case, because,
in the present case, the respondents have not
established that there was independent earning of

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applicant no.1. No doubt, somewhere it is brought on
record that applicant No.1 is a Doctor and somewhere

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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

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physiotherapist or earning salary. In the absence of
concrete proof, it is not desirable to say that
applicant no.1 is earning money.

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12. Learned counsel for the respondents also relied

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on the observations in the case of Sanjay Bhardwaj &

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

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

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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.

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Again,theaforesaidobservationsare

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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.

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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

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appreciation of evidence on record, the learned

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Additional Sessions Judge has confirmed the order of
maintenance and compensation and has rightly set aside

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the order of granting rent. Therefore, it is not

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necessary to interfere with the order passed by the

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learned Additional Sessions Judge more so, when the
learned AdditionalSessionsJudge, after reappreciation

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of evidence on record, arrived at correct conclusion.

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14. Learned counsel for the respondents has failed

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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

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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.

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15. Rule is accordingly discharged.

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16. Pending criminal applications also stand disposed
of.

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(K. L. WADANE, J.)

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JPC

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Sayyad Akil S/O. Rauf and Others v. Vaseem Fatema Hashmi W/O. Sayyad Akil and Anr.

Case brief

What is this about?

What did the court decide?

Sayyad Akil S/O. Rauf and Others v. Vaseem Fatema Hashmi W/O. Sayyad Akil and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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