Partly allowed

Smt Shazia Tabassum v. Mohammed Ishaq

Karnataka HC28 Aug 2023CRL.RP/439/2017

Case brief

AI extract

What is this about?

Revision petitions challenged maintenance orders under the Domestic Violence Act. The High Court allowed the wife's petition to fix retroactive maintenance from the date of application based on Supreme Court precedent, while dismissing the husband's petitions regarding maintenance quantum and minor child payments.

What did the court decide?

Maintenance awarded by lower courts confirmed but modified to be payable from the date of the petition; children's maintenance denied as no separate petition was filed.

Smt Shazia Tabassum Vs Mohammed Ishaq — Domestic Violence | Karnataka HC (2023)

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1 - NC: 2023:KHC:30619 CRL.RP No. 439 of 2017 C/W CRL.RP No. 1630 of 2016 CRL.RP No. 1631 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 439 OF 2017

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C/W

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CRIMINAL REVISION PETITION NO. 1630 OF 2016 CRIMINAL REVISION PETITION NO. 1631 OF 2016

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IN CRL.RP.NO.439/2017:

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BETWEEN:

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Digitally signed by RENUKAMBA K G Location: High Court of Karnataka

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SMT. SHAZIA TABASSUM, W/O MOHAMMED ISSAQ, D/O IMTIYAZ AHMED SAB, AGE:27 YEARS, RESDIING AT NO.73, I FLOOR PALADIUM RESIDENCY, BENSON TOWN ROAD CROSS, BENSON TOWN, BENGALURU-560 046.

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(BY SRI. A.S. KULKARNI, ADVOCATE) AND:

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MOHAMMED ISHAQ, S/O ABDUL WAJID, AGED ABOUT 36 YEARS,

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…PETITIONER

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ABDUL WAJID S/O V. AHEMED SAB, AGED ABOUT 62 YEARS

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BOTH ARE RESIDING AT NO.412,

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NC: 2023:KHC:30619 CRL.RP No. 439 of 2017 C/W CRL.RP No. 1630 of 2016 CRL.RP No. 1631 of 2016

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III MAIN, BANNIMANTAOP, ‘C’ LAYOUT, MYSORE-570 015.

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…RESPONDENTS

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(BY SRI. PRABHUGOUD .B TUMBIGI, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO ALLOW THIS PETITION AND MODIFY THE ORDERS PASSED BY THE HON'BLE COURTS BELOW IN CRL.MISC.NO.127/2011 AND CRL.A.NO.1261/2014 AND DIRECT THE RESPONDENTS TO PAY THE AMOUNT OF MAINTENANCE OF RS.12,000/- PER MONTH FROM THE DATE OF FILING OF PETITION CRL.MISC.NO.127/2011 AND DIRECT THE RESPONDENTS TO PAY COMPENSATION RS.25 LAKHS.

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IN CRL.RP.NO.1630/2016:

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BETWEEN:

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SRI. MOHAMMED ISSAQ, S/O ABDUL WAJID, AGED ABOUT 40 YEARS, R/AT, NO.510, 10^TH CROSS, RAJIVNAGAR, SHANTHINAGAR, MYSURU-560 019.

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SRI. ABDUL WAJID S/O LATE V. AHEMED SAHEB, AGED ABOUT 64 YEARS R/AT, NO.412, 3^RD MAIN, BANIMANTAP, ‘C’ LAYOUT, MYSORE-570 015.

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…PETITIONERS

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(BY SRI. PRABHUGOUD .B TUMBIGI, ADVOCATE)

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NC: 2023:KHC:30619 CRL.RP No. 439 of 2017 C/W CRL.RP No. 1630 of 2016 CRL.RP No. 1631 of 2016

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AND:

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SMT. SHAZIA TABASSUM, W/O SRI. MOHAMMED ISSAQ, AGED ABOUT 31 YEARS, RESDIING AT NO.73, I FLOOR PALADIUM RESIDENCY, BENSON TOWN ROAD CROSS, BENSON TOWN, BENGALURU-560 046.

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…RESPONDENT

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(BY SRI. A.S. KULKARNI, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 21.11.2016 PASSED BY THE LXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, (CCH-65) BANGALORE IN CRL.A.NO.1261/2014 AND ORDER DATED 16.09.2014 PASSED BY THE M.M.T.C.-IV, BANGALORE IN CRL.MISC.NO.127/2011 AND DISMISS THE DOMESTIC VIOLENCE PETITION FILED BY THE RESPONDENT THEREIN BY ALLOWING THE ABOVE CRL.RP.

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IN CRL.RP.NO.1631/2016:

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BETWEEN:

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SRI. MOHAMMED ISSAQ, S/O ABDUL WAJID, AGED ABOUT 40 YEARS, R/AT, NO.510, 10^TH CROSS, RAJIVNAGAR, SHANTHINAGAR, MYSURU-560 019.

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SRI. ABDUL WAJID S/O LATE V. AHEMED SAHEB, AGED ABOUT 64 YEARS R/AT, NO.412, 3^RD MAIN,

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NC: 2023:KHC:30619 CRL.RP No. 439 of 2017 C/W CRL.RP No. 1630 of 2016 CRL.RP No. 1631 of 2016

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BANIMANTAP, ‘C’ LAYOUT, MYSORE-570 015.

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…PETITIONERS

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(BY SRI. PRABHUGOUD .B TUMBIGI, ADVOCATE) AND:

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SMT. SHAZIA TABASSUM, W/O SRI. MOHAMMED ISSAQ, AGED ABOUT 31 YEARS, RESDIING AT NO.73, I FLOOR PALADIUM RESIDENCY, BENSON TOWN ROAD CROSS, BENSON TOWN, BENGALURU-560 046.

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…RESPONDENT

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(BY SRI. A.S. KULKARNI, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 21.11.2016 PASSED BY THE LXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, (CCH-65) BANGALORE IN CRL.A.NO.1083/2014 AND ORDER DATED 16.09.2014 PASSED BY THE M.M.T.C.-IV, BANGALORE IN CRL.MISC.NO.127/2011 AND DISMISS THE DOMESTIC VIOLENCE PETITION FILED BY THE RESPONDENT THEREIN BY ALLOWING THE ABOVE CRL.RP.

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THESE PETITIONS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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These revision petitions are filed challenging the

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order passed by Metropolitan Magistrate Traffic Court – IV, Bangalore in Crl.Misc.No.227/2011, wherein the

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petition filed under Section 12 of the Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act’ for short) by wife was partly allowed by restraining the respondent / husband from committing any act of domestic violence and ordered to pay maintenance of Rs.8,000/- per month to petitioner / wife with a direction to pay Rs.50,000/- compensation. This order is being challenged by the wife in Crl.A.No.1261/2014 and by the respondents in Crl.A.No.1083/2014 on the file of LXIV Additional City Civil and Sessions Judge, Bangalore and the learned Sessions Judge vide judgment dated 21.11.2016 has allowed the petition filed by the wife in Crl.A.No.1261/2014 in part by enhancing the maintenance from Rs.8,000/to Rs.12,000/-, while the petition filed by the respondents i.e., the husband and father-in-law came to be dismissed.

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Being aggrieved by these findings, the wife

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has filed a case in Crl.R.P.No.439/2017 and she has challenged the award passed by both the courts only to

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the extent that the maintenance was awarded from the date of the order but it ought to have been passed from the date of application. However, the husband and his father have challenged the order in Crl.R.P.No.1630/2016 and Crl.R.P.No.1631/2016 regarding enhancement of maintenance and granting maintenance to the minor child also.

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For the sake of convenience, the parties

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herein are referred with the original ranks occupied by them before the learned Magistrate.

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The brief factual matrix leading to the case

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are that the petitioner has filed a petition under Section 12 of the Act alleging that her marriage was solemnized on 09.08.2008 in Firdose Mosque, Mysore and the Valima function was held in Lalit Mahal Palace Hotel,

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Mysore and her father spent more than Rs.3,50,000/for reception. It is further alleged that sufficient dowry was paid in the form of cash and gold and subsequently, the respondent harassed the petitioner, as a result, she was compelled to take shelter in her parental house. It is further asserted that she has filed Crl.Misc.49/2010 under Section 12 of the Act initially and subsequently, the matter was settled.

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In view of the settlement before the mediation

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centre, subsequently, the petitioner has joined the husband but the ill treatment was continued and terms and conditions entered before the mediation centre were also not complied with. It is further asserted that thereafter, she became pregnant and she delivered a baby child who has got some health issues. It is also alleged that due to ill treatment, she was also aborted regarding the second child and hence, she has also lodged a complaint against the respondent for the

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offences punishable under Sections 498A, 313 read with Section 34 of Indian Penal Code, 1860 and Section 3 and 4 of Dowry Prohibition Act, 1961, wherein the complaint was registered in Crime No.66/2011 and the respondent was in custody for nearly one month. It is asserted by the petitioner that since, domestic violence was committed on her and she has no means, hence, the petition came to be filed.

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The said petition was objected by respondent No.1 by filing objections wherein he has disputed the claim of the petitioner but admitted filing of Crl.Misc.49/2010 and settlement. According to him, the petitioner has voluntarily deserted him and she is having sufficient income and she does not require any maintenance. The respondent No.2 has adopted the objection statement of respondent No.1.

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The learned Magistrate has recorded the evidence of the parties and then allowed the petition in part by granting protection order under Section 18 of the Act and also awarded maintenance of Rs.8,000/per month with Rs.50,000/- as compensation.

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In the appeal filed by both the parties, the maintenance was enhanced by learned Sessions Judge from Rs.8,000/- to Rs.12,000/-, but he confirmed the order of granting maintenance from the date of the order. This order is being challenged before this court.

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Heard the arguments advanced by the learned counsel for the petitioner / wife and learned counsel for the respondent / husband. Perused the records.

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The learned counsel for the petitioner / wife would contend that the maintenance awarded was from the date of order, which is illegal and it ought to have been from the date of petition and hence, to this extent

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NC: 2023:KHC:30619 CRL.RP No. 439 of 2017 C/W CRL.RP No. 1630 of 2016 CRL.RP No. 1631 of 2016

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10 -

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only, the learned counsel for the petitioner seeks interference by this court.

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Per contra, the learned counsel for the respondents / husband and father-in-law would contend that the respondent is uneducated person having no means and he is working in the tile shop belonging to his father and he was being paid Rs.100 per day as daily wages. Hence, he would contend that he has no sufficient means and that both the courts below have failed to appreciate this aspect.

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Having heard the arguments and perusing the

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records, there is no dispute of the fact that the petitioner and respondent No.1 are legally wedded wife and husband. The learned counsel for the revision petitioner has placed reliance on a decision in ‘RAJNESH VS. NEHA’, (2021) 2 SCC 324 and invited the attention of the court to para 113 of the judgment, wherein the Hon’ble Apex Court has observed that to

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bring about uniformity and consistency in the orders passed by all the courts by directing that the maintenance be awarded from the date on which the application was made before the court concerned. It is further observed that the right to claim maintenance must date back to the date of filing the applications, since, the period during which maintenance proceedings remained pending is not within the control of the applicant. Hence, in view of these directions issued by the Apex Court in the above referred decision, it is mandatory for all the courts to grant maintenance from the date of petition, but not from the date of the order. Hence, to this extent, the revision petition filed by the wife needs to be allowed.

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The husband has raised a contention that he has no sufficient means and he is uneducated person working as labour in the shop of his father. But, it is required to be noted here that the reception was held in

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Lalit Mahal Palace, Mysore, which itself disclose the status of the parties. The respondent disputes that the reception expenses were borne by his father- in-law and in that event, it is evident that he is financially sound. All along, it is asserted that he was uneducated, but in the cross-examination, the respondent himself admits that he studied up to SSLC and he further claims that the petitioner has studied upto VII^th Standard. According to the petitioner, the respondent is a Graduate. The paternity of the child is also undisputed and admittedly, the respondent / husband has not made any provision for the maintenance of the child. He is under legal obligation to provide maintenance to his minor child, but that was not being done. Admittedly, the child was suffering from certain health issues, which is an admitted fact. The child regularly requires treatment in Bangalore and that has been admitted by the respondent / husband. In view of this aspect, when he has failed to provide any proper maintenance, it is to

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be presumed that he has committed domestic violence as it is not the duty of the wife alone to maintain the child.

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The respondent, all along contends that he is working under his father on daily wages, but his father himself is respondent No.2 in this case and he did not step into the box to state this aspect. It is specifically asserted that the tiles business is being run by the respondents but to show that the licence or the ownership of the shop is in the name of respondent No.2 alone, no documents have been produced. It is admitted that respondent No.2 owns a vehicle and ‘B’ Extract is marked when it is confronted. It is the contention of the petitioner that it is owned by respondent No.1, but ‘B’ extract admittedly, stands in the name of respondent No.2. But however, respondent No.2 did not enter into the witness box to claim that he is not residing with respondent No.1 and respondent No.1 is employed by

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him on daily wages. When respondent No.2 did not assert this aspect by entering into witness box, the contention of respondent No.1 that he is working on daily wages cannot be accepted. The records and photographs disclose that respondents possessed sufficient means and they are doing tiles business. Though it is argued that it is only Manglaore tiles, but that itself is not sufficient considering the fact that they are possessing the vehicle and having a lavish life. Under such circumstances, the respondents are capable of paying maintenance of Rs.12,000/- per month. Further the trial court has committed an error in not awarding any maintenance to the minor child.

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The appellate court has considered all these aspects and has rightly enhanced the maintenance from Rs.8,000/to Rs.12,000/-, which is reasonable considering the status of the respondents and the health needs of the petitioner and her daughter. Under

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these circumstances, question of interfering with the order so far as quantum of maintenance and

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compensation does not arise at all.

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However, as observed above, the maintenance ought to have been awarded from the date of petition but, both the courts committed an error by awarding the maintenance from the date of the order. Hence, said finding requires to be interfered. Hence, the petition filed by the wife in Crl.R.P.No.439/2017 needs to be allowed in part, while the petitions filed by the respondents in Crl.R.P.No.1630/2016 and Crl.R.P.No.1631/2016 need to be dismissed.

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Accordingly, I proceed to pass the following:

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(i) The Crl.R.P.No.439/2017 stands allowed .

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(ii) The order of the learned LXIV Additional City Civil and Sessions Judge,

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Bengaluru passed in Crl.A.No.1083/2014 stands confirmed with modification that maintenance shall be paid from the date of petition.

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(iii) The Crl.R.P.No.1630/2016 and Crl.R.P.No.1631/2016 stands dismissed .

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Sd/JUDGE

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SS List No.: 1 Sl No.: 9

Smt Shazia Tabassum v. Mohammed Ishaq

Case brief

What is this about?

What did the court decide?

Smt Shazia Tabassum v. Mohammed Ishaq

Case brief

What is this about?

What did the court decide?

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