Allahabad High Court
Ezaz Ahmed And 5 Others vs State Of U.P. And Another on 14 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:239509
Reserved On: 19.10.2023
Delivered On: 14.12.2023
In Chamber
Case :- CRIMINAL REVISION No. - 1842 of 2022
Revisionist :- Ezaz Ahmed And 5 Others
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Shailendra,Rahul Singh
Counsel for Opposite Party :- G.A.,Abhishek Tiwari
With
Case :- CRIMINAL REVISION No. - 1848 of 2022
Revisionist :- Ezaz Ahmed And 5 Others
Opposite Party :- Nazish Parveen
Counsel for Revisionist :- Shailendra,Rahul Singh
Counsel for Opposite Party :- G.A.,Abhishek Tiwari
Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard learned counsel for the revisionists as well as learned counsel for the respondent No.2 and learned A.G.A. for the State and perused the material available on record.
2. Criminal Revision No.1842 of 2022 has been filed by the revisionist against judgment and order dated 05.01.2022, passed by Additional Sessions Judge/Fast Track Court, Court Room No.02, Bulandshahar in Criminal Appeal No.130 of 2021 (Nazish Vs. Ezaz Ahmed and others) whereby the judgment and order dated 18.09.2021 passed by Civil Judge (Junior Division)/ Fast Track Court, Room No.04, Bulandshahar has been modified to the extent that appellant will pay Rs.10,000/- towards rent to the respondent No.2. He further submitted that learned appellate Court has modified the order to the extent that respondent No.1-Ezaz Ahmed will pay Rs.10,000/- per month to the appellant/complainant towards house rent and Rs.10,000/- per months towards maintenance which is payable from the date of impugned judgment and order passed by learned Magistrate. Respondent No.1 will also pay Rs.50,000/- as lump-sum to the appellant/complainant as compensation to mental, emotional and physical harassment and partly allowed the criminal appeal preferred by respondent No.2, accordingly.
3. By means of Criminal Revision No.1848 of 2022, the revisionists have assailed the judgment and order dated 18.09.2021 passed by Civil Judge (Junior Division)/ Fast Track Court, Room No.04, Bulandshahar as well as order dated 05.1.2022 passed by Additional Session Judge/FTC, Court No.2 in Criminal Appeal No. 132 of 2021 (Ezaz Ahmed and others Vs. Nazish) filed by revisionist (husband of opposite party in complaint) has been dismissed vide impugned order dated 18.09.2021. Learned Magistrate allowed the complaint filed by respondent No.2 Nazish against the revisionist, exparte. The learned Magistrate had directed the opposite parties in the complaint to refrain from committing domestic violence against the complainant and provide a suitable residence which should consist of one room, one latrine and kitchen near new bus stop Guljar Colony, Ghaziabad to the complainant. The opposite party No.1 is also directed to pay Rs.1,000/- as one time payment to the complainant towards maintenance, medical expenses and other house hold expenses and Rs.20,000/- as lump-sum payment for causing mental, emotional and physical harassment to the complainant.
4. It is also directed therein that, if any amount is received or obtained by the complainant in any proceedings towards maintenance will be liable to be adjusted. The appellate court vide order dated 05.01.2022 dismissed the Criminal Appeal No.132 of 2021 filed by the opposite parties against the exparte judgment and order dated 18.09.2021.
5. As both the revisions have emanated from the orders passed by the court below dated 5.1.2022, in Criminal Appeal No.132 of 2021(Ezaz Ahmed and others Vs. Nazish) under Section 29 of Protection of Women from Domestic Violence Act, 2005 and Criminal Appeal No.130 of 2021 (Nazis vs. Ezaz Ahmad and others), hence, both the revisions are being disposed of by a common order.
6. Factual matrix of the case in brief are that the respondent No.2 had instituted a case under Section 12 of Protection of Woman from Domestic Violence Act (hereinafter referred to as 'Act') before the Court of Judicial Magistrate against her husband and in-laws with averment that her marriage with opposite party No.1 Ezaz Ahmad was solemnized on 25.4.2019. The complainant is resident of District Bulandshahr whereas opposite party and his family resides in Patel Nagar, District Ghaziabad. Her father spent around Rs.30 lacs in the marriage even then her husband and in-laws were not satisfied on that and would demand additional dowry and on account of non-fulfilment of their demand, they would harass and subjected the complainant to matrimonial cruelty. She stated this fact to her father, who made her understand that things will get right in the course of time. She suffered all mis-deeds of respondents silently and in the meanwhile she delivered a male child in named as Izian prior to 6 years of filing of complaint. However, even after birth of the child, the attitude of her husband and in-laws did not change and she was continued to be harassed mentally and physically by respondents/opposite parties. On 15.12.2018, her brother-in-law (devar) Sadab tried to commit rape on her and when she offered resistance to this, she tried to kill her by pressing her neck, whereupon she got unconscious in the process and then the respondents took her in a vehicle at Bulandshahr considering her dead and telephoned her father that his daughter was seriously ill and take her alongwith him. Hearing this telephone call, her father arrived and took her to hospital where she gained consciousness and told her father regarding the things which happened to her. On 17.12.2018, a Panchayat was confined by her family members, in which the respondents participated but they refused to take her back at their place without fulfilment of demand of dowry. Her husband is having relationship with some other woman. She is compelled to reside at her parental place being deserted by respondents. Her husband is operating a Transport Company at Ghaziabad, which consists 15 trucks. He is having a number of landed property as well as house in Ghaziabad. He is also having 20 bighas of agricultural land to his credit but he failed to provide any maintenance to the complainant and her son. Learned Magistrate issued notice to the respondents, who includes her husband, parents-in-law, sisters-in-law and brother-in-law (devar). However, they failed to appear after receiving a notice and proceedings were taken exparte against them. Learned Magistrate vide impugned judgment dated 18.9.2021 passed certain orders under provisions of Sections 18, 19, 20 and 22 of the Act placing reliance on affidavit and documentary evidence adduced by the complainant.
7. Learned Civil Judge (Junior Division)/ Fast Track Court, Room No.04, Bulandshahar in impugned ex-parte judgment dated 18.9.2021 directed the opposite party No.1 Ezaz Ahmad to refrain from indulging in any sort of commission of domestic violence against the complainant and directed opposite party No.1 to provide her a separate accommodation near Gulzar Colony, 2526-A, Patel Nagar, New Bus Station, Ghaziabad consisting of one room, one toilet, one bathroom and one kitchen. He is also directed that he will not create any obstruction in residence of the complainant in that case. Learned Magistrate has also directed that opposite party No.1 to pay Rs.1,000 as lump-sum towards medical and other household expenses to the complainant and also directed him to pay Rs.20,000/- as lump-sum payment within one month for causing domestic violence to her in the nature of mental, emotional and physical harassment. It is clarified in the judgment that any amount received by the complainant towards maintenance in any other case (suit) will be liable to be adjusted.
8. Learned counsel for the revisionists submitted that apart from present complaint filed under Section 12 of the Act, the respondent No.2 herein filed a petition under Section 125 Cr.P.C. also seeking maintenance from revisionist No.1 and in said maintenance Case No.215 of 2019, Additional Principal Judge, Family Court No.2, Bulandshahr vide impugned order dated 27.10.2021 as awarded interim maintenance to the tune of Rs.9,000/- per month to the respondent No.2. Therefore, the revisionist No.1 is saddled with heavy monthly burden of paying Rs.19,000/- per month as maintenance to respondent No.2, which is not physically possible for him to pay her, keeping in view his meagre monthly income. Apart from that the lower appellate court in Appeal under Section 29 of the Act has enhanced various amounts directed to be paid by court of first instance to the complainant/respondent No.2. On the other hand, learned appellate court in separate judgement dated 5.1.2022 passed in Criminal Appeal No.132 of 2021 dismissed the appeal preferred by the revisionist against judgement and order dated 18.9.2021 passed by court of first instance. In fact, there was no personal service of any summon or notice n revisionists in regard to complaint case No.332 of 2020, under Section 12 of the Act. The impugned judgement is ex-parte and admittedly no opportunity of hearing is given to the revisionist therein. The respondent No.2 has shown his income Rs.15 lacs per annum, as received from his Employer India Prime News Channel where he works as reporter. She has also stated that therein that a child aged around 8 years is lying in custody of the opposite party (revisionist) and a case has been filed by her for custody of the child, which is pending before Hon'ble Court. She has concealed this fact in said affidavit of income and liabilities dated 2.4.2021 regarding judgement and order dated 17.3.2020, passed by Additional Principal Judge, Family Court, Bulandshahr whereby Rs.35,000/- was awarded as monthly maintenance to her against her husband, present revisionist No.1. In said affidavit, she has stated that no any order with regard to maintenance has been passed in any previous case. She is living separately from her husband since 15.12.2018. This is admitted fact that respondent No.2 is an educated lady and is able to maintain herself and take care of her necessary economic needs. The respondent No.2 left her matrimonial home on 29.12.2017 out of her free will and without any reason. She also took the minor son born out of her wedlock with the revisionist, however, on 10.1.2018, she herself returned the minor son to the revisionist and she has been in consistent desertion of not only the revisionist but also of her minor son. The revisionist had instituted a suit for restitution of conjugal rights to save his marriage with respondent No.2 before Family Court, Gautam Budh Nagar but immediately after issuance of notice in said matrimonial Suit No.215 of 2015, the respondent No.2 filed a petition under Section 125 Cr.P.C. claiming maintenance and in which interim maintenance order has been passed and interim maintenance has been awarded to the tune of Rs.9,000/- per month to respondent No.2. She even lodged an FIR vide Crime No.341 of 2019, under Sections 498-A, 323, 506 IPC and Section 3/4 of DP Act, Police Station Kotwali Shahar, District Bulandshahr against the revisionist and his family members, in which indiscriminate, baseless and unfounded defamatory allegations are made against the revisionist. The investigation thereof is however, transferred to District Bulandshahr. Present petition has been filed before the Court of first instance under Section 12 of the Act with a view to harass the revisionist on the basis of false averments. A mediation was also carried out between the spouse by order of this Court dated 16.5.2019 passed in Criminal Misc. Writ Petition No.13166 of 2019, in which the revisionist No.1 paid Rs.50,000/- to respondent No.2. He also paid Rs.20,000/- with Mediation and Conciliation Centre of this Court vide order dated 21.9.2021, passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.13567 of 2021. The revisionist submitted that while his gross annual income is Rs.15 lacs, his net monthly income is Rs.87,000/- per month, out of which he spend around Rs.21,000/- for expenses of his son. He further submitted that Criminal Revision No.1848 of 2022, wherein judgment and order dated 18.09.2021 passed by Civil Judge (Junior Division)/ Fast Track Court, Room No.04, Bulandshahar as well as order dated 05.1.2022 passed by Additional Session Judge/FTC, Court No.2 in Criminal Appeal No. 132 of 2021 (Ezaz Ahmed and others Vs. Nazish) is under challenge, is liable to be allowed and the impugned orders are liable to set aside. He also submitted that Criminal Revision No.1842 of 2022 is also liable to be allowed and the judgement and order dated 5.1.2022, passed by learned Additional Sessions Judge/Fast Track Court, Court Room No.02, Bulandshahar in Criminal Appeal No.132 of 2021 (Ezaz Ahmed and others vs. Nazish), under Section 29 of the Act is liable to be set aside.
9. Per contra, learned AGA as well as learned counsel for the respondent No.2 submitted that there is no illegality, irregularity or perversity in the impugned orders passed by the courts below. The revision has been filed by the revisionists, who are opposite parties before the court of first instance on insufficient grounds. They have failed to show any good case for setting aside the impugned judgement in instant revisions. The orders passed by learned appellate court in both the criminal appeals is well reasoned and based on evidence on record and needs no interference in present criminal revisions.
10. So far as Criminal Appeal No.132 of 2021 is concerned, the main ground taken by the revisionist is that appellant No.1 resides in Noida whereas appellant No.4 Mohd. Shadab, who is his brother, resides in Delhi. Therefore, the correct address has not been recorded in the complaint filed by the respondent NO.2. She has filed the complaint concealing true address of the opposite parties and thus, she has not come with clean hands and in fact, no summon or notice was served upon the appellants and service of summon was wrongly held to be sufficient on appellants by court of first instance.
11. Learned court below has addressed this point in impugned order and has held that from perusal of record of lower court, it appears that the learned court below has held service of notice on opposite party as sufficient on the basis of reprot of District Protection Officer, Bulandshahr dated 25.7.2019 and thereafter many dates were fixed for final objection by opposite parties. On 19.9.2020, the case was transferred to Special Judge (Junior Division)/FTC, Court No.6, Bulandshahr and in transferee court also as many as 10 dates were fixed for filing written statement by opposite party but none of them appeared and ultimately the opportunity of filing of written objection of opposite parties was closed vide order dated 12.3.2021 passed by concerned magistrate and the case was decided ex-parte on 18.9.2021.
12. In Provisions of Protection of Women from Domestic Violence Act under Section 13, mode of service of notice has been provided, which is reproduced as under:-
13. Service of notice.-- (1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.
13. In view of aforesaid provisions, it appears that the learned courts below have rightly held that service of notice on opposite parties was sufficient in view of the report of District Protection Officer, Bulandshahr dated 25.7.2019 and even after declaration of service of notice sufficient on opposite parties vide order dated 19.9.2020, the case was decided ex-parte on 18.9.2021 i.e. after laps of one year and throughout this period, the opposite parties never appeared to file their written statement/objection. Therefore, I find no illegality or perversity in the impugned judgement and order passed by appellate Court whereby the Criminal Appeal No.132 of 2021 preferred by present revisionist against ex-parte judgement and order dated 18.9.2021 has been dismissed. Hence, Criminal Revision No.1848 of 2022 is devoid of force and deserves to be dismissed.
14. Accordingly, Criminal Revision No.1848 of 2022 stands dismissed.
15. As regards, Criminal Revision No.1842 of 2022, it is found that the appellate court has enhanced certain amounts awarded by court of first instance in ex-parte judgement and order dated 18.9.2021, no regular maintenance was awarded in ex-parte judgement to the complainant whereas lower appellate court in Criminal Appeal No.130 of 2021 (Nazis vs. Ezaz Ahmad and others) has awarded Rs.10,000/- in aggregate as maintenance on monthly basis, which is over and above interim maintenance Rs.9,000/- awarded by Family Court in Maintenance Case under Section 125 Cr.P.C. The appellate Court has admitted that his gross annual income is Rs.15 lacs, out of which Rs.87,000/- per month is his net income. He has stated that out of his net monthly income, he spend Rs.21,000/- per month towards maintenance of his son born out of his wedlock with respondent No.2 and he has to pay certain amount towards EMI of certain loans and advances apart from meeting out his own expenses.
16. On the one hand the revisionist states that he spends Rs.21,000/- monthly towards maintenance and other expenses of his son and on the other hand, he states that he may not be saddled with any other amount of maintenance as awarded by family court as interim maintenance to respondent No.2, who is his wife.
17. Keeping in view the facts and circumstances of the case, I find no substantial, factual or legal error in impugned judgement passed by lower appellate court in Criminal Appeal No.130 of 2021. However, considering the fact that the revisionist is bearing the responsibilities of the maintenance of minor son of the parties single handedly, the various beneficial orders passed by lower appellate court under Sections 18, 20, 22 of the Act as modified by appellate court deserves some modification in present criminal appeal, which is as under:-
"It is directed that in place of monthly maintenance to the tune of Rs.6,000/- towards maintenance and fooding expenses and Rs.4,000/- as medical and other expenses, awarded in impugned judgement, the amount is reduced to the tune of Rs.8,000/- per month. The compensation for causing mental, emotional and physical violence, which is fixed as Rs.50,000/- in appellate judgement is reduced to Rs.20,000/- as lump-sum payment to be paid by the revisionist to respondent No.2" The other directions and order passed by appellate court shall remain intact and without any further change. It is also directed that the arrears of maintenance shall be deposited before the Court or paid to respondent No.2 by the revisionist No.1 in 5 equal monthly instalments for the period 5.1.2022 to December, 2023 and first instalment will be payable on 10th January, 2024 and subsequent instalments will be payable in succeeding months in the same manner. Apart from that, the revisionist shall pay the amount of maintenance on monthly basis at the rate of Rs.8,000/- per month from January, 2024 onward.
18. In view of aforesaid, Criminal Revision No.1842 of 2022 stands partly allowed.
Order Date :- 14.12.2023
Kamarjahan
