Dismissed

Anwar Mohammed v. Ayesha Begum

Karnataka HC14 Feb 2023CRL.RP/756/2014

Case brief

AI extract

What is this about?

The court dismissed a criminal revision petition challenging an interim order directing the petitioner to provide alternative accommodation and pay rent. The petitioner argued the marriage was unregistered and the trial court lacked jurisdiction. The court held that non-registration does not bar adjudication of domestic violence disputes.

What did the court decide?

Revision petition dismissed; main petition under Section 12 of the Act directed to be disposed of at the earliest.

Anwar Mohammed Vs Ayesha Begum — Maintenance and Alimony | Karnataka HC (2023)

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CRL.RP No. 756 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

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CRL.R.P. NO. 756 OF 2014

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BETWEEN:

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ANWAR MOHAMMED S/O MOHAMMED BYARI AGED ABOUT 53 YEARS R/AT BODA VILLAGE PANIYOOR CROSS ROAD UCHILA, UDUPI TALUK - 576 101.

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…PETITIONER

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(BY SRI H. PAVANA CHANDRA SHETTY., ADV.)

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AND:

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Digitally signed by B A KRISHNA KUMAR Location: High Court of Karnataka

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AYESHA BEGUM AGED ABOUT 53 YEARS R/AT. ROORM NO.5, CHEETAH CAMP, MUMBAI MAHARASHTRA - 400 088.

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…RESPONDENT

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(BY SRI Y.M. VIJAY KUMAR., ADV.)

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THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE IMTERIM ORDER DATED:12.12.13 PASSED BY THE II ADDL.C.J. AND JMFC, UDUPI IN M.C.NO.340/13 DIRECTING THE PETR. TO SECURE THE SAME LEVEL OF ALTERNATIVE ACCOMMODATION TO THE RESPONDENT AS ENJOYED BY HER AND PAY RENT FOR THE SAME WITHIN 15 DAYS FROM THE DATE OF ORDER THEREAFTER CONFIRMED BY THE PRL.S.J. UDUPI IN CRL.A.NO.113/13 DATED:25.8.14 AND REJECT APPLICATION FILED BY THE RESPONDENT HEREIN.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Criminal Revision Petition under Section 397 of Code

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of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed

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CRL.RP No. 756 of 2014

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by the petitioner challenging the interim order dated 12.12.2013 passed by the II Addl. Civil Judge and JMFC, Udupi (for short the 'Trial Court') in M.C.No.340/2013 and the judgment and order dated 25.08.2014 passed by the Principal Sessions Judge, Udupi (for short the 'Appellate Court') in Crl.A.No.113/2013.

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Heard the learned counsel appearing for the parties and also perused the material available on record.

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Brief facts of the case as revealed from the records

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that would be necessary for the purpose disposal of this petition are that, the respondent had filed M.C.No.340/2013 before the Court of II Addl. Civil Judge and JMFC, Udupi (hereinafter referred to as 'Trial Court' for short) under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'Act of 2005') alleging domestic violence by the petitioner and had sought several reliefs in the said petition. The petitioner herein had entered appearance in the said proceedings and filed his detailed statement of objections in the said proceedings. The respondent had also filed application

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seeking for residential order with a prayer to provide her a alternative accommodation. The said application was opposed

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CRL.RP No. 756 of 2014

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by the petitioner by filing objection. The Trial Court by its order dated 12.12.2003 had allowed the said application and directed the petitioner to secure the same level of alternative accommodation to the respondent as enjoyed by her and pay rent for the same. Being aggrieved by the said order, the petitioner had filed a statutory appeal before the Court of Principal Sessions Judge, Udupi and the same was dismissed by judgment and order dated 25.08.2014. It is in this factual background, the petitioner has preferred this revision petition before this Court.

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Learned counsel for the petitioner submits that the respondent is not the wife of the petitioner and there is no relationship between them and therefore the Courts below were not justified in passing the impugned order. He submits that there is no material to show that marriage of the petitioner with the respondent has registered and therefore, in view of law laid down by the Hon'ble Supreme Court in the case of SEEMA V.

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ASHWANI KUMAR - (2206) 2 SCC 578 , any dispute arising from the marriage which is not registered cannot be entertained by the Court. He submits that the respondent is the resident of Mumbai and therefore, the Trial Court at Udupi had

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CRL.RP No. 756 of 2014

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no jurisdiction to entertain the petition under Section 12 of the Act of 2005. He submits that unless the respondent establishes that she is the wife of the petitioner, the Courts below could not have directed the petitioner to secure her alternative accommodation and to pay rent for the same. He accordingly, prays to allow the petition.

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Per contra , learned counsel for the respondent has argued in support of the impugned order passed by the Courts below and submits that the respondent has produced sufficient material before the Trial Court to prima-facie show that she is the wife of the petitioner. He submits that the Trial Court had jurisdiction to pass interim order and accordingly, it has exercised its jurisdiction which cannot be found fault with. He submits that the main petition under Section 12 of the Act of 2005 is still pending consideration before the Trial Court and therefore the question of jurisdiction etc., can always be urged before the trial Court. Accordingly, he prays for dismiss the petition.

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The respondent had approached the Trial Court invoking Section 12 of the Act of 2005 and in the said petition, she had made prayer for several reliefs including the relief to

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CRL.RP No. 756 of 2014

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provide her alternative accommodation. She had also filed interim application with a prayer to direct the petitioner to provide her alternative accommodation pending disposal of the main petition. Section 23 of the Act of 2005 authorizes the Trial Court to pass an interim order as it deems just and proper depending upon the facts and circumstances of the case. The said section empowers the Court to pass an interim order providing accommodation to the aggrieved person. The domestic relationship for the purpose of Act of 2005 does not mean relationship between two persons arising from the marriage but it also includes relationship between two persons who live or who have lived together in a shared household.

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It is the specific case of the respondent that the

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petitioner had married her and they were residing under a same roof as husband and wife. In order to substantiate this case, she has produced certain documents such as marriage certificate, passport, health card, identity card, photo of herself with the petitioner etc. The Trial Court as well as the Appellate Court having perused the said documents have expressed that there are prima-facie material available on record to show that the respondent is wife of the petitioner. Section 23 of the Act of

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CRL.RP No. 756 of 2014

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2005 empowers the Magistrate to pass necessary interim order to safeguard the interest of the aggrieved persons and since the material available on record at this stage would prima-facie establish that the respondent was married to the petitioner, no fault can be found with the order passed by the Trial Court which has been confirmed by the Appellate Court.

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Learned counsel for the petitioner has contended that the Trial Court at Udupi has no jurisdiction to entertain the petition since the respondent is admittedly a resident of Mumbai. The material on record would go to show that prior to filing of the petition under Section 12 of the Act of 2005, a criminal case has been registered on the basis of the complaint lodged by the respondent at Udupi wherein it is alleged that when the respondent had gone to the house of the petitioner, he along with his present wife had assaulted her and also had outraged her modesty. This would clearly establish that there was domestic violence at Udupi against the respondent. In addition to the same, the petitioner is a resident of Udupi and therefore it cannot be said the Trial Court at Udupi had no jurisdiction to entertain the petition under Section 12 of the Act of 2005 filed by the respondent.

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CRL.RP No. 756 of 2014

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Learned counsel for the petitioner also placed reliance on SEEMA' s case (supra) and has submitted that since the alleged marriage between the petitioner and the respondent is not registered, the Trial Court could not have entertained the petition. The Hon'ble Supreme Court in the case of SEEMA (supra) has held that marriage of all persons who are citizens of India belonging to various religion should be made compulsorily registered in their respective states where the marriage is solemnized. The said order is passed by the Hon'ble Supreme Court as observed in the orders, keeping in view the interest of society, as the same would have evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of the parties to the marriage. In the said case, it has been held that the registration itself cannot be a proof of valid marriage and it would not be the determinative factor regarding the validity of a marriage. Non-registration of the marriage would only deny the person the presumption which would be available in his favour in case the marriage was registered. However, the said judgment does not preclude the Courts below from adjudicating the dispute between the parties merely for the reason that their

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CRL.RP No. 756 of 2014

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marriage is not registered. Therefore, the contention urged on behalf of the petitioner that the Trial Court could not have entertained the petition since there is nothing on record to show that the marriage of the petitioner with the respondent is registered does not merit consideration and is accordingly rejected.

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For the aforementioned reasons, I do not find merit in this revision petition and accordingly, the same is dismissed. Since the petition under Section 12 of the Act of 2005 has been filed in the year 2013, the Trial Court shall make endeavour to dispose of the said petition at the earliest.

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SD/JUDGE

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NMS

Anwar Mohammed v. Ayesha Begum

Case brief

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Anwar Mohammed v. Ayesha Begum

Case brief

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