Sarah Asif Kadawala Vs Asif Faruk Kadawla and Anr.

6-REVN-131-2022.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO. 131 OF 2022

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Sarah Asif Kadawala …Applicant

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Versus

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1. Asif Faruk Kadawala

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2. State Of Maharashtra ...Respondents

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Mr. Ali Kaashif Khan Deshmukh a/w Ms. Riya Jain, Mr. Shubham
Shingade and Ms. S. A. Sayed, Advocate for the Applicant.

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Mr. Jatin Sehgal a/w Ms. Devna Soni with Mr. Pradhuman Chauhan
i/by Mr. Ashish Singh, Advocate for Respondent No.1.

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Mr. Arfan Sait, APP for the Respondent No.2 – State.

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CORAM : PRAKASH D. NAIK, J.
DATE: 28th JUNE, 2022.

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PER COURT:

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1. Heard both sides for final disposal.

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2. The applicant is aggrieved by order dated 24^th December,

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2021 passed by Sessions Court in Criminal Appeal No. 115 of 2021
setting aside order dated 18th August, 2021 passed by Metropolitan
Magistrate, 66th Court Andheri, Mumbai In C. C. No. 28/DV/2020
below interim application Exh-3 directing Respondent No.1 to pay
amount of Rs. 75,000/- per month to the aggrieved person
(applicant) as interim maintenance from date of filing application

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Digitally signed by SAJAKALI SAJAKALI LIYAKAT LIYAKAT JAMADAR JAMADAR Date:2022.08.10 Sajakali Jamadar 20:09:51 +0530

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i.e. 18th January, 2020 till disposal of main petition and Rs.
35,000/- per months as rent to aggrieved person from date of filing
application till disposal of main petition.

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3.The applicant filed application under Section 12 of
Protection of Women from Domestic Violence Act (herein after
referred to as D.V. Act) against respondent No.1 and others. The
applicant had prayed for reliefs under sections 17, 18, 19, 19(1)
(a) (b) (c) (d) (e) (f), 19 (2), 19(8), 20, 21, 22 and 23 of the Act.
In the said application the applicant has stated that, respondent No.
1 is her husband. Nikah was solemnized on 18th January 2007.
They have four daughters. They are in custody of respondent No.1.
The applicant has referred to harassment and violence caused to
her by respondents therein. The application was filed on 18th
January 2020. The applicant also filed affidavit in support of
application under Section 12 of D.V. Act. Interim application under
Section 23(1) for reliefs under Section 18, 19, 19(1) (a) (b) (c) (d)
(e) (f), 19 (2), 19(8), 20, 21 and 22 of the Act. She filed affidavit
under Section 23(2) of D.V. Act. The respondent No.1 resisted the
application by filing say and denied the allegation. The learned
Magistrate partly allowed the interim application under order
dated 18th August 2021. The respondent No.1 was directed to pay

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Sajakali Jamadar

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amount of Rs.75,000/- p.m. to the applicant as interim
maintenance from filing application i.e. 18th January 2020, till
disposal of main petition. He was also directed to pay Rs.35,000/-
p.m. as rent to applicant from the date of application i.e. 18th
January 2020 till disposal of main petition. The said order was
challenged by respondent No.1 by preferring appeal. Vide order
dated 24th December 2021, the appeal was allowed and order dated
18th August 2021 passed by Magistrate was set aside.

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4.Learned Advocate for the applicant submitted that the
learned Sessions Judge has committed an error in allowing the
appeal preferred by Respondent No.1. The appellate Court has
failed to consider the fact that there is prima facie evidence against
the Respondent. The proceedings under the D.V. Act are pending
before the trial Court. The learned Magistrate had granted interim
maintenance. The discharge application preferred by Respondent
No.1 was rejected on the ground that there is prima facie evidence
against him. The appeal preferred by Respondent No.1 was
dismissed by the Sessions Court wherein he challenged the order
refusing discharge. The Sessions Court has relied upon disputed
question of fact refusing maintenance. The applicant had lodged
FIR No. 386 of 2020 under Section 498-A, 406 read with 34 of the

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Sajakali Jamadar

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Indian Penal Code on 28th July 2020 against respondent and his
family. The respondent No.1 sent his friend Abrar Yusuf
Pandrowala to destroy applicant’s life. He acted on instructions of
respondent No.1. He started getting close to applicant. The said
person blackmailed her. He committed grave offence of rape. The
applicant filed FIR No. 44 of 2020 under Sections 376, 354-B, 506,
354-D, 447, 354 of Indian Penal Code against Abrar on 21st
February 2020. The applicant has not admitted that she is in live in
relationship with Abrar. The learned Sessions Judge has
erroneously considered the said fact for refusing maintenance. The
alleged evidence relied upon by respondent No.1 is yet to be
proved. The Restaurant “Tavaa” at Bandra, Mumbai is managed by
respondent No.1 and his father. The affidavit of assets and
liabilities filed by respondent shows his luxurious lifestyle. The
learned Magistrate has taken into consideration the claim of
interim maintenance. There was no reason to interfere in the said
order. Bare reading of section 125 (4) makes it clear that, ‘express
if she is living in adultery’ conveys present continuous tense. Even
if wife had lived in five adultery in the past, the husband cannot
refuse maintenance.

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5. Reliance is placed on following decisions:-

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(i) Md. Abdul Sattar Vs. State of Assam and other1;

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(ii) Anupam Gupta Vs. Sumeet Gupta decided by Delhi High Court on 30.05.2011² ;

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(iii)Pradeep Kumar Sharma Vs. Ratna Sharma decided by Delhi
High Court on 03.07.20093.

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6.The learned Advocate for respondent No.1 submitted that the
learned Sessions Judge has rightly allowed the appeal preferred by
the Respondent No.1. The applicant was not entitled for
maintenance. Applicant was living with one Abrar Pandrowala in
live-in-relationship. She was indulging in adultery. On this count
she was not entitled for maintenance. The respondent no.1 is
looking after his four daughters. The learned Magistrate had
granted maintenance more than what was claimed. The respondent
No.1 has placed on record list of documents viz. copy of reply filed
to applicant under Section 12 of D.V. Act, Identity proof, Marriage
Certificate, Birth Certificate of daughters, Discharge application,
reply to discharge application, statement under Section 164 of
Cr.P.C. in FIR No. 44 of 2020, Adulterous Photographs in sealed
cover, Adulterous videos in a sealed cover and CDR details. It is
submitted that the applicant had admitted that she was in

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1 MANU/GH/0694 of 2008

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2 CM (M) 1718/2014

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3 MANU/DE/0921/2009

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relationship with Abrar. There is no infirmity in the order passed
by the Sessions Court. Applicant had filed a false First Information
Report of rape against Abrar. In these circumstances, Respondent
No.1 cannot be compelled to pay maintenance. There are no
documents to establish the income of Respondent No.1. The
calculation of the assets of Respondent No.1 is imaginary. The
applicant is earning and she has suppressed her income.

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7.The Advocate for respondent No.1 has relied upon several
decisions on the issue of wife living in adultery is not entitled for
maintenance; wife having in dependent income or capable of
earning cannot claim maintenance; Assets of family members of
husband cannot be taken into consideration for maintenance;
Admissibility of Electronic Evidence and Adverse Inference.
Reference can be made to some of the decisions:-

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(i) Rohtash Singh Vs. Ramendri and others4;

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(ii) Kusum Bhatia Vs. Sagar Sethi5;

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(iii) Amit Khanna and Anr. Vs. Priyanka Khanna and Ors. decided by Delhi High Court6;

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(iv)R. M. Malkani Vs. State of Maharashtra7;

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4 AIR 2000 SC 952

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5 MANU//1675/2019

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6 2010 (119) DRJ 182

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7 AIR 1973 SC 157

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(v) Chaturbhuj Vs. Sita Bai8.

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8.I have perused the application under Section 12 of the
Domestic Violence Act, interim application, documents on record,
order passed by learned Magistrate and the order passed by
Sessions Court. The main application under section 12 of D. V. Act
is pending before Court of Learned Magistrate. The applicant had
filed application for interim maintenance. The learned Magistrate
heard both sides and passed order dated 18th August 2021. The
learned Magistrate had analysed the facts, submissions of both
sides, documents on record and passed the order. The learned
Magistrate also referred to precedents of law relied upon by the
respective advocates. In paragraph 43 of the order, it is observed
that, the aggrieved person contended that, she has no fixed running
source of income. According to respondent Restaurant “Tavaa” is
owned by his father. It is not the case of respondent No.1 that he is
residing separately from his parents. Therefore, Restaurant “Tavaa”
appears to be family business of respondent Nos.1 to 3. The
income from Restaurant is not available on record. Prima facie, the
family of respondent Nos. 1 to 3 appears to be earning sufficiently
from Restaurant “Tavaa”. The respondent No.1 admitted that he is
receiving rent from Agsa Residency. Considering overall family

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8 (2008) 2 SCC 316

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income, status of parties, the amount earned by aggrieved person is
not sufficient to maintain her. Respondent No.1 is taking care of
daughters. Hence interim maintenance of Rs. 75,000/- per month
is necessary. To grant interim compensation, the right to reside in a
shared household and protection order is necessary. She is residing
separately. She has right to claim alternate accommodation or rent.
The learned Magistrate considered the decisions relied by
respondents relating to electronic evidence and held that the
decisions are not applicable in this Case. The learned Sessions
Judge while allowing appeal observed that, the aggrieved person
has admitted in her application that she is earning Rs.38,000/- per
month by working as hairstylist at Bengalore. There is no
document to show that wife needs Rs.1,50,000/- as claimed by her.
The aggrieved person atleast earns Rs.25,000/- per month. The
appellant (respondent No.1) in his affidavit of income and assets
stated that he is earning Rs. 85,000/- per month (Rs. 65,000/- from
rent and 10% share in partnership of Mini Mill). He is spending
money for electricity bills of Acqua Residency and school fees of
daughters. The Restaurant stands in name of father of appellant.
The applicant has admitted in FIR registered at Bengalore that she
was in live-in-relationship with accused in that First Information
Report. In her statement recorded under Section 164 of Cr.P.C., it is

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recorded that she was in relationship with Abrar Pandrowala, the
accused in her complaint. The Sessions Court in paragraph 21 and
22 gave finding that aggrieved person was admittedly in a live in
relationship. She loses her right to claim maintenance in the light
of Section 125(4) of Cr.P.C. Prima facie wife is subjected to
Domestic Violence at the hands of appellant. She was in live in
relationship with Abrar.

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9.The learned Sessions Judge ought to have considered that
the main application was pending before the Court. The Sessions
Judge gave premature findings that there is no domestic violence,
aggrieved person was in live in relationship and wife has earning.
The question which would also fall for consideration, whether
interpretation of Section 125(4) referred by learned Sessions Judge
would debar aggrieved person from maintenance, assuming that
she was in adulterating in past. The respondent has placed sealed
envelops allegedly containing adulterous video and photographs. It
is not necessary to see the same by the envelops be handed over to
concerned advocate who produced it. The learned Sessions Judge
has also apparently considered electronic evidence wife is entitled
to live in similar status. The learned Sessions Judge has not
considered the income from Restaurant “Tavaa” since it is in name

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of respondent’s father. The learned Magistrate had observed that
the respondent had not denied that he is living with family. The
Court should take note of the fact that it should not be a case that
one spouse lives in a life of comfort and luxury while the other
spouse lives in deprivation. The order of Sessions Court is
unreasonable and required to be set aside. It is pertinent to note
that the learned Magistrate has rejected the application of
respondent No.1 for dropping the proceedings against him. The
Sessions Court by order dated 24th December 2021 confirmed the
said order.

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10.Considering the aforesaid circumstances, the case is made
out for setting aside the order passed by the Sessions Court.
Hence, I pass the following order.

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ORDER

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i)Criminal Revision Application No.131 of 2022, is
allowed, and disposed of accordingly;

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ii)The impugned order dated 24th December, 2021,
passed by the Sessions Court Dindoshi in Criminal Appeal
No.115 of 2021 is set aside.

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(PRAKASH D. NAIK, J.)

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Sajakali Jamadar

Sarah Asif Kadawala v. Asif Faruk Kadawla and Anr.

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Sarah Asif Kadawala v. Asif Faruk Kadawla and Anr.

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