Smt Kushboo Safi vs State Of U.P. And Another
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Allahabad High Court

Smt Kushboo Safi vs State Of U.P. And Another on 6 March, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:32548
 
Court No. - 80
 

 
Case :- CRIMINAL REVISION No. - 2840 of 2024
 

 
Revisionist :- Smt Kushboo Safi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Girijesh Kumar Gupta,Shiv Shankar Pd Gupta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ram Manohar Narayan Mishra,J.
 

1. Heard learned counsel for the revisionist, learned AGA for the State as well as Mohd. Sabir (in person by virtual mode on his behalf i.e. Respondent no. 2.

2. The present criminal revision has been filed against the impugned Appellate Court's order dated 20.3.2024 passed by Additional District and Sessions Judge/Special Judge (POCSO) Act, Hapur in Criminal Appeal No. 54 of 2023 CNR No. UPHP010075122023, Mohd. Sabir Vs. Smt. Kushboo Safi filed under Section 29 of the Protection of Women from Domestic Voilence Act, 2005 arising out of a proceeding under Section 23(i) of this Act of 2005, granting interim maintenance of Rs. 6000/- per month to the son of the revisionist, police station - Hapur Nagar, District - Hapur.

3. Brief facts of the case is that revisionist Smt. Kushboo Safi has filed a complaint under Sections 12, 17, 18, 19, 20, 21, 22 of the Protection of Women for Domestic Violence Act, 2005 wherein she has prayed for interim relief. She has stated that in the complaint that respondent no. 2 Mohd. Sabir is her husband, respondent no. 2 is her sister-in-law (Nanad), respondent no. 3 - Amaan is son of her Nanad, respondent no. 4 Afsana is her sister-in-law (Nanad), respondent no. 5 Ikram is her Nandoi, respondent no. 6 Javed is son of her Nanad, respondent no. 7 Firdaus is also her Nanad.

4. The complainant is residing at Hapur whereas respondent nos. 1 to 6 are residing in South New Delhi and respondent no. 7 resides in district Ghaziabad. The marriage of the complaint was solemnized with opposite party no. 2 Mohd Sabir on 21.10.2018 according to Muslim customs and rites and her father spent about Rs. 40/- lakhs in marriage.

5. Husband of complaint namely Mohd. Sabir, opposite party no. 2 and her in-laws were not satisfied with the dowry provided to them and they demanded additional dowry i.e. flat, four wheeler and two motorcycles. On non-fulfillment of their demand of dowry, the husband and her in-laws started torturing and harassing the complainant/revisionist in various manners. The husband used to do unnatural intercourse with the complainant and when she would shout in pain, he used to gag her mouth by stuffing it by cloth. Further, respondent nos. 3 to 6 were having evil eye on the revisionist and they tried to molest her and would show her indecent films on mobile phone by forcefully and entering her room. In the meantime, the complainant gave birth to a child on 20.11.2019 even the attitude of respondent no. 2 and her parents did not change and in the evening of 20.1.2020, respondent no. 3 to 6 who were sons of her sister-in-laws tried to molest her and tried to disrob her. She anyhow saved her dignity and she was finally kicked out from her matrimonial home on 21.1.2020 then she made complaint against her in-laws and husband regarding this incident. She is residing at her parental place since 21.1.2020 in compelling circumstances and her parents are looking after her anyhow. The husband of the complainant and her in-laws are well to do persons and their monthly income from many sources comes around Rs. 2,70,000/-.

6. An application under Section 23(i) of the aforesaid Act was filed by the applicant on 10.1.2023 wherein she has sought interim maintenance of Rs. 30,000/- per month for herself and Rs. 20,000'/- for her minor son.

7. Learned Magistrate has vide order dated 8.5.2023 allowed the application of the applicant for interim maintenance whereby Rs. 11.660/- per month was awarded to the applicant prima faice fixing her monthly income to be Rs. 35,000/-.

8. Being aggrieved with the order of the learned Magistrate dated 8.5.2023, opposite party no. 2 filed criminal appeal no. 54 of 2023 on 10.8.2023 under Section 29 of the Protection of Women from Domestic Violence Act, 2005 on various grounds which was allowed by judgment and order dated 20.3.2024 passed by the appellate Court with the observations that the complainant has failed to prove this fact that Domestic Violence was committed against her and she is unable to maintain herself. She has concealed the actual facts in her complaint, therefore, she is not entitled to seek maintenance from her husband. The Court below has not considered this fact and passed impugned order dated 8.5.2023 and has failed to appreciate the evidence adduced by the appellant. However, the Court below has granted Rs. 6000/- per month as maintenance to the minor son of the applicant which is payable to him during pendency of the complaint case.

9. The instant criminal revision has been preferred by the revisionist before this Court feeling aggrieved by the Appellate Court's order dated 20.3.2024 passed in Criminal Appeal No. 54 of 2023 CNR No. UPHP010075122023, Mohd. Sabir Vs. Smt. Kushboo Safi filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 arising out of a proceeding under Section 23(i) of this Act of 2005, granting interim maintenance of Rs. 6000/- per month to the son of the revisionist, police station - Hapur Nagar, District - Hapur.

10. Learned counsel for the revisionist submits that the Court below has dismissed the prayer for maintenance made by the complainant taking hyper technical approach. There was no occasion for the appellate Court to set aside the interim maintenance awarded by the Court of first instance by its order dated 8.5.2023 to the revisionist. The revisionist has levelled serious allegations of Domestic Violence against the respondents in her complaint case. Interim maintenance is awarded during pendency of the case to the applicant to ensure her financial survival on the allegations of Domestic Violence at her during pendency of the case and for that purpose respondent no. 2 was given opportunity of haring by the court of first instance.

11. In asmuch as respondent no. 2 has not filed any written statement against the pleadings made in complaint filed by the revisionist and has only filed objections for interim maintenance. The appellate court has placed reliance on such objection without considering the facts and circumstances of the case put forth by the complainant.

12. Learned trial court has rightly placed reliance on the order of maintenance to the applicant placing reliance on the judgment of the Supreme Court in the case of Rajnesh Vs. Neha, (2021) 2 SCC 324, Bhuwan Mohan Singh Vs. Meena & others; AIR 2014 SC 2875; and Ankit Bhist Vs. State NCT Delhi in Bail Appl No. 3136 of 2021, Crl. M.A. No. 13381 of 2021 decided on 15.3.2022 by Delhi High Court.

13. The revisionist is B.Ed. LLB, but she is not working in General Insurance Company and earns substantially. She is depending on largessee provided by her parents for survival.

14. Per contra, respondent no. 2 who is present in person through virtual mode, stated that revisionist works in General Insurance Company and earns substantially and the Court of first instance has granted maintenance to the revisionist without recording prima facie the finding that she has not been victim of domestic violence hence without recording such finding even interim maintenance can not be awarded and for that reason the appellate court has rightly set aside the order of maintenance passed by learned Magistrate and has awarded maintenance only to minor son of the complainant. There is no illegality or perversity in the order passed the appellate court dated 20.3.2024.

15. The appellate court has observed the impugned judgment passed in the complaint filed under Section 23 of the Domestic Violence Act seeking interim maintenance which has been allowed by the Magistrate. The husband of the applicant has stated that his wife has given false affidavit in respect of her income. She has also concealed the facts regarding her education and remarriage. She left her matrimonial home by her own sweet will.

16. Opposite party no. 2 is prepared to pay for Rs. 5000/- as maintenance to his son. The Court below has placed reliance on the judgment of Delhi High Court in Mamta Jaiswal Vs. Rajesh Jaiswal; (2000) SCC online MP 580 and leading case on maintenance decided by the Supreme Court in Rajnesh VS. Neha (Supra).

17. The appellate court has observed in concluding part of the judgment that the applicant and her family had not demanded any maintenance for her son whereas the appellant has stated that he is ready to pay Rs.. 5000/- per month interim maintenance to her son. According to the applicant, the monthly school fees and personal expenses of her son comes to Rs. 20,000/-, therefore, a sum of Rs. 5000/- is not sufficient for maintenance of her son. Therefore, the appellate court has fixed Rs. 6000/- as maintenance to the son of the applicant.

18. Respondent no. 2 has drawn attention of this Court towards the statement of the applicant wherein she has stated that she got job before marriage but salary was credited in her bank account. She did her job till 2017. She has not given her account details of bank statement alongwith her affidavit by which inference can be drawn that she has not come in the Court with clean hand. The whatsapp chat occurred between parties from 19.1.2020 to 23.1.2020 reveals that in that period relations of the parties were normal. Whats app chat of the parties after 21.1.2020 are also available on record and it cannot be discerned that there from that appellant had turned out her home on 21.1.2020 by committing domestic violence against her. Therefore, the applicant has failed to establish the fact that there is any sort of domestic violence was committed against her and she is not able to maintain herself.

19. On bare perusal of evidence in specific evidence of Domestic Violence committed against her by opposite parties in her application under Section 23 of the Domestic Violence Act she has levelled a number of allegations against respondent no. 2 and his family members which are tantamount to commission of domestic violence against her.

20. This complaint was filed on 7.12.2021 and the pleading made therein are supported by affidavit of complainant Smt Khusboo Safi. In application of maintenance, she has stated that he has been thrown out from her matrimonial home by opposite party no. 2 and his family members on 20.1.2020 and since then she has not been given any money towards her maintenance. Thereafter, she came back to their place she is residing with opposite party no. 2 sustain house hold. Therefore, if one considers the pleadings of the complainant and affidavit filed in support of the complaint and application for interim maintenance, prima facie case of domestic violence may be drawn against respondent no. 2 and his family members that they have committed domestic violence against the revisionist. At the stage of granting interim maintenance, meticulous examination of evidence is not called from the parties to object to lead their evidence in support of the respective version. Interim maintenance is granted to ensure financial sustenance of the applicant observing victim of domestic violence during pendency of the complaint case filed by her. Therefore, reasoning and finding given by the appellate court cannot be countenanced. The court below has committed factual and legal error by setting aside the interim maintenance order passed by the learned court at first instance. The respondent now could not file any document in support of his revision that she is gainfully employed.

21. The finding of the appellate court that the victim has failed to establish her allegation that she is victim of domestic violence is also not tenable.

22. Consequently, the judgment of the appellate court is not sustainable and deserves to be set aside and the judgment of the court at first instance is liable to be restored.

23. The impugned judgments and order passed by he appellate court dated 20.3.2024 is set aside. The order dated 8.5.2023 passed by the Court of first instance under section 23 of Protection of Domestic Violence Act, is restored.

24. It is clarified that any observations made in the present order is only for the purpose of this revision and will have no bearing of filing objection in the case before the Court below.

25. In view of the above, the present revision allowed.

Order Date :- 6.3.2025

S.K.S.