Partly allowed

Sayed Navid Akram S/O. Sayed Jabbar and Others v. Najiya W/O. Sayed Navid Akram

Bombay HC12 Feb 2018WP/1152/2017

Case brief

AI extract

What is this about?

Single Bench dismissed a revision challenging maintenance under Section 125 CrPC but in a coupled writ petition modified a Domestic Violence Act order, restoring compensation to Rs. 2 lakhs and reducing rent to Rs. 1,500 by quashing an unreasoned Sessions Judge order.

What did the court decide?

Compensation restored to Rs. 2,00,000; house rent reduced to Rs. 1,500; Sessions Judge's enhanced order quashed.

Sayed Navid Akram S/O. Sayed Jabbar and Others Vs Najiya… — Domestic Violence | Bombay HC (2018)

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(Judgment) (1) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Criminal Writ Petition No. 01152 of 2017

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District : Aurangabad

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1. Sayed Navid Akram s/o. Sayed Jabbar Hussain, Age : 27 years, Occupation : Private Service, R/o. Mujib Colony, Galli No.2, Roshangate, Aurangabad.

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2.Sayed Jabbar Hussain
s/o. Sayed Kajim Hussain,
Age : 63 years,
Occupation : Retired,
R/o. Mujib Colony,
Galli No.2,
Roshangate, Aurangabad.
3.Jamilabegum w/o. Sayed
Jabbar Hussain,
Age : 55 years,
Occupation : Household,
R/o. Mujib Colony,
Galli No.2, Roshangate,
Aurangabad.

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4.Sayed Tanvir
s/o. Sayed Jabbar Hussain,
Age : 38 years,
Occupation : Service,
R/o. Mujib Colony,
Galli No.2, Roshangate,
Aurangabad.
5.Sayed Javid Akram
s/o. Sayed Jabbar Hussain,
Age : 26 years,
Occupation : Service,
R/o. Mujib Colony,
Galli No.2, Roshangate,
Aurangabad.

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(Judgment) (2) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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6. Saba Begum w/o. Sayed Arshad, Age : 35 years, Occupation : Househld, R/o. Mujib Colony, Galli No.2, Roshangate, Aurangabad. 7. Farah Begum w/o. Mohd. Moinuddin, Age : 33 years, Occupation : Household, R/o. Rashidpura, Aurangabad. .. Petitioners. versus Najiya w/o. Sayed Navid Akram, Age : 26 years, Occupation : Household, R/o. at present Mirza Chand Baig, Bari Colony, Galli No.9, near Anas Masjid, Aurangabad. .. Respondent. ........... Mr. M.A. Khan, Advocate, for the petitioner. Mr. S.S. Panale, Advocate, for the respondent. ...........

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With

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Criminal Revision Application No. 0189 of 2017

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District : Aurangabad

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Sayed Navid Akram
s/o. Sayed Jabbar Hussain,
Age : 27 years,
Occupation : Private Service,
R/o. Mujib Colony,
Galli No.2, Roshangate,
Aurangabad. .. Petitioner.

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(Judgment) (3) Cri. W.P. No. 01152 of 2017 With

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 Cri.Revn.Appln.No. 0189 of 2017

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versus

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Najiya w/o. Sayed Navid Akram,
Age : 26 years,
Occupation : Household,
R/o. at present
Mirza Chand Baig,
Bari Colony, Galli No.9,
near Anas Masjid,
Aurangabad. .. Non-applicant.

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...........

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Mr. M.A. Khan, Advocate, for the applicant.

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Mr. S.S. Panale, Advocate, for the non-applicant.

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...........

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CORAM : PRASANNA B. VARALE, J.

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 DATE : 12TH FEBRUARY 2018

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ORAL JUDGMENT :

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Heard Adv. Mr. M.A. Khan for the petitioners
& the applicant, as well Adv. Mr. S.S. Panale for the
respondent & the non-applicant.

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02.With the consent of parties, both the
proceedings, namely, the writ petition and the
revision application are taken up for hearing and
disposal finally.

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03.Theapplicantincriminalrevision
application no. 0189 of 2017 is before this Court
challenging the order passed by the learned Judge of

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(Judgment) (4) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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the Family Court, Aurangabad, in Petition E. No. 120
of 2015, dated 30.05.2017.

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04. Before I proceed to consider the merit of the present revision application, it may be useful for our purposes to state that it is not in dispute, that the respondent in these proceedings initiated two proceedings against the applicant / petitioner, namely, proceedings before the learned Judge of the Family Court under Section 125 of the Code of Criminal Procedure, 1973, for claiming maintenance and another proceedings before the learned Magistrate initiated under the provisions of Protection of Women From Domestic Violence Act, 2005 [For short, "D.V. Act"] and more particularly, under Section 18 of the said Act. It is also not in dispute, that marriage (Nikah) between the applicant and the respondent was solemnized on 23.10.2014. As per the custom prevalent, the applicant - petitioner paid amount of Rs. 11,000/- towards Mehar . It was the case of the respondent, that within a short span of matrimonial life of hardly 02 to 03 weeks, the respondent was treated well and soon thereafter, she was subjected to ill-treatment, physically and mentally, on the demands of the amount for construction of the house. The material placed on record show that though some attempt was made to settle the dispute, ultimately it failed and as stated above, the respondent initiated the proceedings.

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(Judgment) (5) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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05.Now, in so far as the proceedings, namely,
petition before the learned Family Court for
maintenance amount is concerned, it was the claim of
the respondent, that the father of the respondent
gifted valuable articles like some gold ornaments in
the marriage. It was also submitted that the father
of the respondent suffered expenses to the tune of
Rs. 9,00,000/- to 10,00,000/- for various ceremonies
like engagement ceremony and marriage ceremony. It
was submitted that the respondent after span of 15
days, was subjected to ill-treatment i.e. beating,
keeping the respondent starved on account of demand
of money. It is submitted that the father of the
applicant - petitioner was a retired police
personnel. As such, threats were given to the
respondent, that even if she opposes the ill-
treatment, nothing will happen to them. It was
stated that on 12th February 2015, the respondent was
subjected to physical ill-treatment, abuses and
ultimately she was driven out of her matrimonial
home. The matrimonial inlaws demanded amount of Rs.
2,00,000/- and gave threat that if the amount is not
paid to them, they will not accept her and they will
not allow her to enter in the matrimonial home.
Though the respondent made attempts to establish
contact with the applicant - petitioner on telephone,
her attempts failed. There are certain details of
all these allegations of ill-treatment in the
application submitted before the learned Judge of the
Family Court placed on record at Exhibit "B".

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(Judgment) (6) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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06.It was submitted that the applicant is a
MedicalRepresentative,anemployeeofa

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pharmaceutical company, namely, Faijar Pharmaceutical
Company, Mumbai, and is earning salary at the rate of
Rs. 50,000/- per month. It is submitted that apart
from salary, the applicant - petitioner (husband)
also earns some amount out of the agricultural land
owned by the father of the applicant - petitioner.
It is stated that the respondent was residing in a
residential house at Mujib Colony, Aurangabad. The
area is of 1200 square feet and the house consists of
06 rooms. It was submitted that the brothers of the
applicant - petitioner are self-earning. The father
of the petitioner is a retired personnel. As such,
the husband is not burdened with any financial
responsibility of the other family members. Thus, on
these grounds, an amount of Rs. 25,000/- towards
maintenance was claimed.

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07.The application was vehemently opposed by
filing say. It was the submission in the said say,
that the applicant herself was not ready to cohabit
with her husband. She was time and again visiting to
her parental home. It was stated that the respondent
hardly stayed for a week at her matrimonial home and
thereafter on one or the other excuse, she was
leaving her matrimonial home. Whenever such a desire
was expressed by the respondent - wife, the husband
readily agreed to the desire and permitted the wife

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(Judgment) (7) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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to go to her parental home. It was then stated that
the wife was suffering from an ailment namely, a
gynecological issue and though this fact was known to
the respondent - wife and her family members, same
was not disclosed to the matrimonial relations
including the husband. This fact of the ailment came
to the knowledge subsequent to the marriage and it is
submitted that when it came to the knowledge, an
enquiry was made with the respondent and her parents.
They simply told that now whatever steps they want,
they can take. Thus, it is submitted in the say /
reply, that the parents of the respondent were acting
in a clear disrespect to the family members of the
applicant - petitioner. It was then alleged that the
ailment suffered by the respondent was leading to the
inability of the respondent for begetting any child.

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08.It is submitted that the husband also
initiated proceedings for dissolution of marriage.
It was submitted that the applicant - petitioner
earned salary to the tune of Rs. 17,000/- per month.
He has to bear the expenses for the treatment of his
parents, more particularly, his father. He has to
maintain his brothers and the applicant is required
to go to out stations for his touring job being a
Medical Representative. Thus, in short, it was
submitted that the applicant - petitioner himself
earns inadequate amount even to bear the
responsibilities of his own family members. It was
submitted that, on the contrary, the respondent -

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(Judgment) (8) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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wife is doing some tailoring work. She earns an
amount of Rs. 700/- to Rs. 800/- per day from her
tailoring work. It was submitted that the respondent
- wife herself is earning and her earning is handsome
rather than the applicant - petitioner (husband), her
claim for maintenance be rejected. Perusal of the
record show that the salary certificate was placed
before the court.

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09.Consideringtheclaimandcounter
submissions opposing the claim for maintenance,
learned Judge of the Family Court framed the points
for determination and gave findings thereon as
under :-

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Sr. No.	Points	Findings.
1.	Whether the applicant proves that the non-applicant has willfully neglected and refused to maintain her ?	In the affirmative
2.	Whether the applicant is entitled to get maintenance from non- applicant.	In the affirmative.
3.	If yes, at what rate ?	Rs.6,000/- per month from the date of application i.e. 20.05.2015.
`4.`	What Order	As per final order.

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(Judgment) (9) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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In the detail judgment and order, learned Judge of the Family Court also refers to the parallel proceedings initiated under the D.V. Act and orders passed in that proceedings. Then, the learned Judge on the aspect of claim under Section 125 of the Code of Criminal Procedure, also refers to the judgments namely, Sunita Kachwaha & others Vs. Anil Kachwaha [AIR 2015 SC 554] , Gopal S. Dabharde Vs. Lilita [1984 Mh.L.J. 562] and Chaturbhuj Vs. Sitabai [2008 SAR (Criminal) 14] . Then on the first point framed for consideration, with the assessment of the material placed on record, the learned Judge arrived at a conclusion that the applicant i.e. the respondent - wife established that the non-applicant i.e. the husband refused and neglected her and the first point was replied in affirmative. The second point was also replied in affirmative. On perusal of the material, I find that no error is committed by the learned Judge in replying both these points in affirmative.

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10.Now, the aspect of the amount awarded
towards maintenance is considered, the applicant -
petitioner i.e. the non-applicant before learned
Judge of the Family Court though submitted that the
wife was earning Rs. 700/- to Rs. 800/- per day by
doing tailoring work and as such, she was having
sufficient means, there was no material placed on
record by the non-applicant, either by way of some
documents and even in the oral testimony. Learned

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(Judgment) (10) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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Judge clearly observed that the non-applicant has
failed to establish sources of income of the
applicant and further observed that, in fact, no
suggestions have been put to the applicant in the
cross with regard to the sources of income as alleged
by the non-applicant. Learned Judge then observed
that the salary slip was placed on record, for the
month of January 2018 as a document Exhibit 26. The
said document revealed that the applicant -
petitioner i.e. the non-applicant before learned
Judge of the Family Court was receiving monthly
salary of Rs. 20,724/- and his home take salary
amount was Rs. 19,222/-. Learned Judge also found
that the other brothers were earning of their own and
the parents and the brothers of the non-applicant -
husband were not dependent on him. Learned Judge
then in view of normal application of maintenance
amount of 1/3rd of the salary, applied the very
principle and arrived at a conclusion that
considering the salary home taken by the non-
applicant - husband, the 1/3rd amount would be Rs.
6,408/-. By rounding up the amount, the learned
Judge awarded maintenance at the rate of Rs. 6,000/-
per month from the date of application. Learned
Judge of the Family Court also took note of the fact
that in the proceedings under the D.V. Act, the
applicant has been awarded Rs. 6,000/- per month
towards her maintenance and thus, replying the third
point for consideration also in affirmative, the
learned Judge of the Family Court allowed the

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(Judgment) (11) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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application and directed the non-applicant - husband
i.e. applicant - petitioner before this Court, to pay
maintenance at the rate of Rs. 6,000/- per month from
the date of application i.e. 20.05.2015 after
adjusting the amounts paid under the provisions of
D.V. Act as the quantum is identical. Learned Judge
also made it clear by observing that this amount is
inclusive of the maintenance granted under the D.V.
Act and also gave an option to the applicant - wife
namely, that the applicant can either claim an amount
in the proceedings under Section 125 of the Cr.P.C.
or in the proceedings under the D.V. Act. Then the
learned Judge directed the non-applicant to pay costs
of Rs. 1,000/-.

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11.Considering the above referred factual
aspects and considering the material placed on
record, duly and properly assessed by the learned
Judge of the Family Court, I am of the opinion that
no error is committed by the learned Judge of the
Family Court. The revision application being wholly
merit-less, deserves to be dismissed.

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12.Now, coming to criminal writ petition no.
1152 of 2017, as the facts, namely, the solemnization
of marriage between the parties, span of the
matrimonial life, the allegations, the submissions
and the counter submissions on the aspect of the
dispute between the parties, namely, the ill-
treatment and the counter allegation that the husband

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(Judgment) (12) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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and his family members were not made known about the
ailment suffered by the wife, are referred to by this
Court while dealing with criminal revision
application no. 0189 of 2017 and, as such, same are
not reproduced here. Suffice to say that the
respondent - wife initiated proceedings before the
learned Magistrate raising her grievance under the
provisions of the D.V. Act and more particularly,
seeking an action under Sections 12, 18, 19, 20 and
22.

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13.It was submitted before the learned
Magistrate, that the husband and other family members
were indulging in the act of ill-treatment and mental
and physical harassment to the applicant - wife. It
was submitted further that on the basis of her
medical reports, the husband and the inlaws were
alleging that they were subjected to an act of
deceit. It was submitted that on the ground of the
ailment suffered by the wife, the husband and other
inlaws were continuously ill-treating the wife. It
is submitted that the father of the wife also made an
attempt to remove the misconception carried out by
the husband and the other inlaws by subjecting his
daughter i.e. the applicant to medical examination.
Inspite of the medical reports issued by one Dr.
Dushala Dumir, husband and the other inlaws were ill-
treating and were insisting that the applicant is
carrying a serious gynecological ailment. Then it
was submitted that on 12th February 2015, the

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(Judgment) (13) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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applicant - wife was driven out of her matrimonial
home and since then she was residing with her parents
at her parental home situated at Bari Colony,
Aurangabad.

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14.It was submitted in the proceedings
initiated under the provisions of the D.V. Act, that
the applicant requires an amount of Rs. 25,000/- per
month for her own maintenance, for medicines, for
clothings and for her routine basic needs. Then it
was submitted that as the applicant is residing with
her parents and there is no proper accommodation for
her, either the respondent - husband to provide a
better accommodation or to pay rent or to pay an
amount of Rs. 5,000/- towards rent. Then it was
submitted that as the respondent - husband and other
inlaws subjected to the acts of domestic violence
which are covered under the provisions of the D.V.
Act, an amount of compensation to the tune of Rs.
50,00,000/- be paid to the applicant. This
proceedings is also opposed by filing the say.

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15.An application was submitted during pendency
of the proceedings before the Magistrate, with a
prayer of grant of interim maintenance amount to the
tune of Rs. 15,000/- per month and with the other
prayer seeking directions to the respondent - husband
to make available two rooms with all basic amenities
for the residence of the applicant in house of the
non-applicant - husband at Mujib Colony, Roshangate,

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(Judgment) (14) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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Aurangabad. The application for seeking interim
maintenance was partly allowed and the learned
Judicial Magistrate (F.C.), Court No.14, Aurangabad,
by order dated 25.08.2015, granted interim
maintenance at the rate of Rs. 5,000/- per month from
the date of application till the decision of the
application finally.

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16.In the said proceedings, it reveals from the
material placed on record, that the respondent was
subjected to medical examination. Learned Counsel
for the petitioner - applicant admits that the
petitioner - applicant was not subjected to the
exercise of medical examination before the court.
Learned Magistrate by order dated 19.05.2016, allowed
the application partly. Learned Magistrate passed
the order of grant of protection to the applicant
under Section 18 of the D.V. Act. Learned Magistrate
then awarded amount of Rs. 6,000/- per month for her
maintenance and Rs. 1,000/- per month towards rent,
as well, Rs. 2,00,000/- towards compensation.
Learned Magistrate also directed the petitioner i.e.
non-applicant no.01 before the learned Magistrate, to
return the furniture articles and household articles
purchased from one Kohinoor Shoppe, within one month.

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17.Being aggrieved by the order passed by the
Magistrate, the petitioner preferred an appeal before
the Additional Sessions Judge, Aurangabad, being
Criminal Appeal No. 102 of 2016. The order of the

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(Judgment) (15) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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Magistrate was also challenged by the wife by
preferring Criminal Appeal No. 97 of 2016. Both the
appeals were decided by common judgment dated
27.06.2017. Learned Sessions Judge allowed the
appeal filed by the wife and dismissed the appeal
preferred by the husband. The order of the learned
Magistrate was modified by maintaining the order in
respect of protection granted under Section 18 of the
D.V. Act and maintaining the order of maintenance to
the tune of Rs. 6,000/-. Learned Sessions Judge
directed the petitioner - husband to pay Rs. 3,000/-
per month from the date of the order i.e. 19.05.2016
to the appellant - wife towards house rent. It was
further directed that the rent of Rs. 1,000/- per
month paid by the respondent - husband shall be
adjusted towards recovery of arrears. Then the order
of compensation was also modified. The respondent -
husband was directed to pay compensation of Rs.
5,00,000/- within the stipulated period of three
months from the date of the order. It was further
directed that the amount of Rs. 50,000/- deposited in
the court by the respondent - husband shall be
adjusted towards recovery of arrears of compensation
of Rs. 5,00,000/-. Clause 08 of the order of the
learned Sessions Judge is about identification of the
articles and the same reads as under :-

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" The respondent no.01 husband shall call the appellant wife and her father in the presence of the PSI of Jinsi police station to play the video shooting of the

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(Judgment) (16) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

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marriage for identification of the articles presented in the marriage as jointure (stridhan) to the appellant wife and deliver the said jointure (stridhan) in the presence of PSI, Jinsi police station on identification by her subject to the acknowledgment from the appellant wife and her father. "

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18.Learned Counsel appearing for the petitioner
- husband vehemently submitted that the learned
Sessions Judge while allowing the appeal filed by the
wife and modifying the order of the Magistrate,
thereby rising the amount of rent from Rs. 1,000/- to
Rs. 3,000/- per month and rising the amount of
compensation from Rs. 2,00,000/- to Rs. 5,00,000/-,
assigned no reasons for arriving at that conclusion.
Learned Counsel then submitted that the learned
Sessions Judge only on assumptions and presumptions
arrived at a conclusion that the learned Magistrate
awarded meager and inadequate amount towards rent and
compensation. It was also submission of the learned
Counsel, that the learned Magistrate himself erred in
granting amount of Rs. 6,000/- per month towards
maintenance, Rs. 1,000/- per month towards rent and
Rs. 2,00,000/- towards compensation. Learned Counsel
then submitted that there is no denial from the
respondent - wife, that she was suffering from an
ailment, namely, PCOS. He then submitted that the
petitioner was successful in bringing before the
court, that though the respondent - wife was
suffering the ailment and was under treatment by the

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(Judgment) (17) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

¶71

medical experts, this fact was not made known either
to the husband or other inlaws. Thus, the submission
is, the learned Magistrate as well as the learned
Sessions Judge failed to consider this aspect and
arrived at a conclusion that the respondent - wife
was subjected to domestic violence. Learned Counsel
for the petitioners, thus, prays for quashing and
setting aside the orders impugned in the petition.

¶72

19.Mr. S.S. Panale, learned Counsel appearing
for the respondent, supports the order impugned in
the present petition. He made an attempt to submit
that the rise in compensation to the tune of Rs.
5,00,000/- is just in view of the fact that father of
the respondent - wife had to incur expenses for
engagement ceremony and for marriage ceremony.

¶73

20. The petitioner has placed on record, copies of the list of articles and a panchanama to the effect that these articles i.e. household articles and gold articles are handed over to the wife on 14.07.2017 in view of the order passed by the learned Sessions Judge. Learned Counsel also invited my attention to the medical certificates placed on record, issued by either private medical officers or by private hospitals.

¶74

21.It may not be necessary to refer to the
facts as the same are only repetition. Now,
considering the proceedings of the D.V. Act, the

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(Judgment) (18) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

¶76

learned Magistrate was pleased to observe that the non-applicant i.e. the husband only submitted his written submissions / say. A pursis was filed on record to the effect that the non-applicants are not tendering any oral evidence. The applicant was subjected to her examination. Learned Magistrate in view of the documents placed on record, as well, in view of the cross examination of the applicant - wife, was pleased to observe that the applicant - wife was subjected to medical examination carried out by Dr. Hemant Phatale on 20.10.2014. There was material to show that the applicant - wife was carrying an ailment known as Polytheistic Ovarian Syndrome. Learned Magistrate then found that though the material placed on record reveal that the applicant was carrying said ailment of PCOS and though this fact was not made known either to the husband or his family members, there was no material placed on record in support of the submission at the instance of husband, that merely because the wife was carrying PCOS, she was unable to begot a child. It was only an allegation that the ailment resulted in incapacity of the wife. But the allegation was mere an allegation and there was nothing on record in the form of any medical evidence either to accept the submission or to say that the allegation is fortified.

¶77

22.Learned Magistrate on assessment of the
material answered the points framed for consideration

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(Judgment) (19) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

¶79

in partly affirmative. Learned Magistrate on
assessment of the material then arrived at a
conclusion that the respondent - wife was subjected
to domestic violence and was driven out of her
matrimonial home and was left with no choice but to
take shelter at her parental home. Resultantly, the
point framed for consideration namely, whether the
applicant - wife was entitled for the protection
under Section 18 of the D.V. Act was replied in
affirmative.

¶80

23. Now, so far as entitlement for grant of maintenance amount, grant of rent and grant of compensation is concerned, the learned Magistrate on the basis of the salary certificate placed on record, found that the husband was receiving home taken salary of Rs. 19,222/-. Though the claim was opposed by submitting that the respondent - wife was earning Rs. 700/- to Rs. 800/- per day from her tailoring activity and Rs. 2,500/- to Rs. 3,000/- by carrying out the activity of drawing Mehandi , there was absolutely no material to support this claim. The husband nowhere placed on record, that for an accommodation with some basic amenities in the area wherein the respondent - wife was residing was available on rental basis and for the rent less than Rs. 1,000/-. The submission of the wife was, while she was leading her matrimonial life, she was residing in the house of the husband and his parents comprising of six rooms and the couple was occupying

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(Judgment) (20) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

¶82

two rooms. Learned Magistrate, thus, considering the
income earned by the husband and need of an
accommodation with some basic amenities, awarded an
amount of Rs. 1,000/- towards rent. Learned
Magistrate then considering the material namely,
ailment being caused by respondent - wife and
considering the fact that the respondent - wife was
ready and willing to maintain the matrimonial tie
with husband, even on the day of the consideration by
the learned Magistrate and then considering that
there was sufficient evidence to show that the wife
was subjected to domestic violence, arrived at a
conclusion that amount of Rs. 2,00,000/- would be
just and proper amount of compensation.

¶83

24. Now, the learned Sessions Judge while considering the appeal, by referring to the factual aspects, observed that the appellant - wife has not received inadequate relief. Learned Sessions Judge observed that very meager amount of Rs. 1,000/offered towards the rent and then observed that on account of grave mental and physical torture and loss of married life of the respondent - wife, amount of Rs. 2,00,000/- is not adequate compensation. Learned Sessions Judge then observed that the articles offered in the marriage were of worth Rs. 8,00,000/and the said jointure is deprived by the respondent - wife. Learned Sessions Judge then observed that the respondent - husband failed to examine any witness and filed evidence closing pursis at Exhibit 71.

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(Judgment) (21) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

¶85

Learned Sessions Judge then referred to the
proceedings before the learned Judge of the Family
Court namely, an application seeking maintenance
under Section 125 of the Cr.P.C.. Learned Sessions
Judge observed that though the Magistrate granted the
application on the ground of sympathy, awarded the
meager amount. The only reason assigned for rise in
the compensation amount finds place in para 14 of the
judgment and it reads thus :

¶86

"The respondent - husband admittedly performed second marriage with his cousin sister Sadiya Begum and now he is not in need to call the appellant wife to resume the married life. It also reveals from the submissions and facts that the respondent husband paid Mehar amount Rs.11,000/immediately after the marriage but he has not given divorce. So long the marriage tie subsists, the appellant wife cannot perform next marriage as per the Muslim Law. If the wife filed the petition for Khula or petition for divorce, certainly there shall be delay for disposal in following the strict compliance of the procedural law. Therefore, the compensation amount would have been at least Rs. 5 lacs to safeguard the life of the appellant wife and to get rid from the domestic violence."

¶87

25.Now, the reason assigned by the learned
Sessions Judge, that the wife will have to follow the
settled procedure so as to break the matrimonial tie
with the petitioner and, therefore, the amount of
compensation of Rs. 2,00,000/- awarded by the
Magistrate needs to be modified, cannot be said to be
just and proper reason for the rise. Learned

¶88

(Judgment) (22) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

¶89

Sessions Judge ought to have assigned independent
reasons if the learned Sessions Judge was of the
opinion that the amount awarded by the Magistrate, of
Rs. 2,00,000/-, is too meager and is too inadequate.
Learned Magistrate on considering the aspect of
financial capacity of the husband, awarded the amount
of Rs. 2,00,000/- towards compensation. Thus, the
observation of the learned Sessions Judge, that the
Magistrate awarded the amount of compensation only on
sympathy, is not in consonance with the record.
Learned Sessions Judge also failed to assign any
reason for rise in the amount of rent from Rs.
1,000/- to Rs. 3,000/- per month. The respondent -
wife submitted before the Magistrate that she was
residing in her matrimonial home comprising of six
rooms and her prayer was for making provision of two
rooms with basic amenities in the house of the
husband or to bear the burden of rent of two rooms
with basic amenities. Considering this aspect and
considering the prevalent rents in any area of the
city like Aurangabad having a municipal corporation,
the amount of rent for two rooms would be at least
Rs. 1,500/-. If the learned Sessions Judge was of
the opinion to rise the amount from Rs. 1,000/- to
Rs. 3,000/-, then there ought to have been some
material for such rise. It is true, that the amount
of Rs. 1,000/- towards rental accommodation
consisting of two rooms would not be sufficient and
adequate. But then to give rise at the rate of Rs.
3,000/-, there ought to have been some material.

¶90

(Judgment)

¶91

(23)Cri. W.P. No. 01152 of 2017With
 Cri.Revn.Appln.No. 0189 of 2017

¶92

Considering this aspect, I am of the opinion that the
learned Sessions Judge committed an error in grant of
rent at the rate of Rs. 3,000/- per month.

¶93

26.I am unable to accept the submission of Mr.
Panale, learned Counsel appearing for the respondent
herein - wife, that the rise in compensation to the
tune of Rs. 5,00,000/- is just in view of the fact
that the father of the respondent - wife had to incur
expenses for engagement ceremony and marriage
ceremony. Except bare words, nothing is placed on
record to support the submission that the father had
to incur expenses to the tune of Rs. 8,00,000/- to
Rs. 10,00,000/- for the engagement ceremony and
marriage ceremony.

¶94

27.Considering all these aspects, in my

¶95

opinion, the order passed by the learned Sessions
Judge requires an indulgence at the hands of this
Court.

¶96

28.Hence, the following order :-

¶97

(a)For the foregoing reasons, criminal revision
application no. 0189 of 2017 is dismissed.

¶98

(b)Criminal writ petition no. 01152 of 2017 is
partly allowed. Clause 5 of the operative order
passed by the learned Additional Sessions Judge,
Aurangabad, dated 27.06.2017, in Criminal Appeal No.

¶99

(Judgment) (24) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

¶100

097 of 2016 and Criminal Appeal No. 102 of 2016, is
quashed and set aside and the same is substituted as
under :-

¶101

(b-1) The respondent - husband is directed
to pay Rs. 1,500/- from 19.05.2016 to the
appellant - wife towards house rent. If
the rent of Rs. 1,000/- per month is paid
by the respondent - husband, same shall be
adjusted towards recovery of arrears. So
also, the amount of Rs. 25,000/-, which
were deposited by the respondent - husband
in this Court and which amount was
permitted to be withdrawn by the appellant
- wife, shall be adjusted towards recovery
of arrears of rent.

¶102

(c)Similarly, Clause 6 of the operative order passed
by the learned Additional Sessions Judge is quashed
and set aside and same is substituted as under :-

¶103

(C-1) The respondent - husband shall pay
compensation of Rs. 2,00,000/- [Rupees two
lacs] to the appellant - wife within a
period of three months from the date of
this order. The amount of Rs. 50,000/-,
which were deposited by the respondent -
husband in this Court and which amount was
permitted to be withdrawn by the appellant
- wife, shall be adjusted towards

¶104

(Judgment) (25) Cri. W.P. No. 01152 of 2017 With Cri.Revn.Appln.No. 0189 of 2017

¶105

compensation amount. So also, if any
amount was deposited by the respondent -
husband in the court below, towards
compensation, same shall be adjusted.

¶106

(d)Save and except above modification, the order
dated 27.06.2017 passed by the learned Additional
Sessions Judge shall remain intact and undisturbed.

¶107

 ( Prasanna B. Varale )
 JUDGE

¶108

...........

¶109

puranik / CRIWP1152.17etc

Sayed Navid Akram S/O. Sayed Jabbar and Others v. Najiya W/O. Sayed Navid Akram

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Sayed Navid Akram S/O. Sayed Jabbar and Others v. Najiya W/O. Sayed Navid Akram

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