Musthtaq Noormaohammad Shaikh vs Ayesha @ Nagama Mushtaq Shaikh & ...
2016 Latest Caselaw 6126 Bom

                                         1                   Cri. W.P. 490/2015



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                           
                   CRIMINAL WRIT PETITION NO. 490 OF 2015




                                                  
    Musthtaq Noormaohammad Shaikh, 
    Age : 30 years, Occu.: Labour,
    R/o Nawale Galli, Belapur,
    Tq. Shrirampur, Dist. Ahmednagar                .. Petitioner




                                                 
         Vs.

    1] Ayesha @ Nagama Mushtaq Shaikh
       Age : 24 years, Occu. : Service




                                            
    2] Lucky Mushtaq Shaikh,
       Age : 3 years, Occu. : Nil

    3] Ali Mushtaq Shaikh,
                                 
       Age : 2 years, Occu.: Nil,
                                
       Resp. No. 2 and 3 are minors 
       U/g of mother i.e. applicant no.1

       All R/o Navala Galli, Belapur,
       


       Tq. Shrirampur, Dist. Ahmednagar              .. Respondents
    



                                 ----
    Mr. R.A. Tambe, Advocate for petitioner
    Mr. S.N. Rodge, Advocate for respondent nos. 1 to 3
                                 ----





                                          CORAM : V.K. JADHAV, J.

DATE : 18/10/2016

ORAL JUDGMENT :

Rule. Rule made returnable forthwith.

Heard finally with consent of the parties at the

admission stage.

2 Cri. W.P. 490/2015

2. Being aggrieved by the judgment and order

passed by the learned Judicial Magistrate First Class,

Rahata dated 25/3/2014 in Criminal Misc. Application No.

17 of 2012 and the judgment and order passed by the

learned Additional Sessions Judge, Kopargaon dated

22/1/2015 in Criminal Appeal No. 1 of 2014, confirming

thereby the order passed by the learned Magistrate, the

original non-applicant no.1/husband has preferred this

Criminal Writ Petition.

3. Brief facts giving rise to the present Writ

Petition, are as follows :-

. Respondent no.1-wife got married with the

petitioner on 25/10/2009. Respondent nos. 2 and 3 are

the children born to them out of the marital relations.

However, respondent no.1 was subjected to cruelty on

account of non-fulfillment of the unlawful demand of

Rs.1,50,000/- for purchasing a car by the petitioner and

others.

. On 6/11/2011, she was driven from the house by

the petitioner for non-fulfillment of the said demand of

Rs.1.50 Lakh for purchase of car. She was subjected to

various forms of cruelty, as detailed in the application

3 Cri. W.P. 490/2015

filed before the Magistrate under the provisions of the

Protection of Woman From Domestic Violence Act, 2005

(for short "Domestic Violence Act"). It has also

alleged in the application filed before the Magistrate

that on 13/11/2011, the petitioner had been to her

parent's house and took the respondent no.1 wife and the

children on his motorcycle for returning to his house.

On way, he found that the respondent no.1-wife has not

fulfilled his demand of Rs.1.50 Lakh for purchasing the

car. Thus, he pushed the respondent no.1-wife from the

running motorcycle and she was in-fact dragged behind

the motorcycle for certain distance because of the

clothes on her person entangled in the motorcycle. Even

the respondent no.1-wife has filed complaint against the

petitioner for the said incident and accordingly the

crime came to be registered for the offence punishable

under section 307 of the Indian Penal Code. After due

investigation, chargesheet came to be submitted and the

said case is pending before the Sessions Court.

. Respondent no.1-wife alongwith her children

filed an application before the Magistrate seeking

various reliefs under the provisions of Domestic

Violence Act. It has stated in the application that the

4 Cri. W.P. 490/2015

petitioner is a driver by occupation having 4-5 cars at

his disposal and he earns Rs.4,000/- to Rs.5,000/- per

day. It has also alleged that the other non-applicants

earns from different occupation and earns Rs.2000/- per

day. It has also alleged that respondent no.1-wife was

subjected to cruelty by the non-applicants for various

reasons including the non-fulfillment of the said

unlawful demand.

.

The petitioner denied all the allegations made

in the said application. According to the petitioner

and the other non-applicants, the respondent no.1-wife

was never subjected to any mental or physical cruelty

and she has suo-motu started to reside in her parent's

house. It has also contended that on way to the house

of the petitioner, the motorcycle being driven by the

petitioner met with an accident and, therefore, the

respondent no.1-wife sustained the injuries. Even the

petitioner, after the said accident, took respondent

no.1 to the hospital and he incurred the entire medical

expenses. He was taking care of respondent no.1-wife

and his children, however, the respondent no.1-wife,

without any just cause, started residing with her

parents alongwith the children. It has also contended

5 Cri. W.P. 490/2015

that the mother of the petitioner was suffering from

cancer and the petitioner had to incur huge expenses for

her treatment. He has no independent source of income

and thus he is unable to pay the maintenance as well as

the compensation claimed by the respondent no.1-wife.

. The respondent no.1-wife and the petitioner

adduced oral and documentary evidence in support of

their rival contentions. Respondent no.1-wife has

examined herself and also examined one Vijaykumar Aware

as witness no.2, one Dr. Kashinath Tingare as witness

no.3 and her own mother Sayara Khalil Shaikh as witness

no.4. The petitioner has also examined himself. The

learned Judicial Magistrate First Class, Rahata by its

impugned judgment and order dated 25/3/2014 partly

allowed the application and thereby directed the

petitioner to pay Rs.2,000/- per month as maintenance to

the respondent no.1-wife and Rs.1,000/- per month, each

to respondent nos.2 and 3 i.e. the children from the

date of the application. The learned Magistrate further

directed the petitioner and other non-applicants to pay

jointly and severally an amount of Rs.2,50,000/- to the

respondent no.1-wife as compensation as provided under

section 22 of the Domestic Violence Act for mental and

6 Cri. W.P. 490/2015

physical cruelty and in default of payment of

compensation, to suffer simple imprisonment for six (6)

months.

. Being aggrieved by the same, the present

petitioner and other non-applicants preferred Criminal

Appeal No. 1 of 2014 before the Sessions Court,

Kopargaon and the learned Additional Sessions Judge,

Kopargaon by impugned judgment and order dated 22/1/2015

dismissed the said appeal. Hence, this Writ Petition.

4. Learned counsel for the petitioner submits that

during the pendency of this writ petition, his mother

i.e. the original non-applicant no.2 has died. Learned

counsel submits that the respondent no.1-wife has made

wild allegations against the petitioner and his brother

and the distant relatives. After the marriage, the

respondent no.1-wife gave birth to respondent nos.2 and

3 and she was never subjected to ill-treatment as

alleged. Learned counsel submits that even though while

riding the motorcycle, he met with an accident and the

respondent no.1-wife sustained the injuries in the said

accident, the respondent no.1-wife has filed a false

complaint against him for having committed offence

punishable under section 307 of the Indian Penal Code.

7 Cri. W.P. 490/2015

Learned counsel submits that the said case is still

pending before the Sessions Court, however, both the

Courts below, considering the pendency of the said case,

awarded huge amount of compensation to the respondent

no.1-wife.

5. Learned counsel for the petitioner submits that

respondent no.1 was not subjected to any domestic

violence, as defined in the Domestic Violence Act. The

respondent no.1-wife without any just cause, started

residing with her parents and thus she is not entitled

for any relief under the provisions of Domestic Violence

Act. Learned counsel submits that there is no income

proof of the petitioner and without there being any

proof of his income, both the Courts below, directed the

petitioner to pay the maintenance amount of Rs.4,000/-

per month, in all, to the respondents. Learned counsel

submits that the petitioner is unable to pay the said

huge amount of compensation and further the maintenance

amount, as directed by the Courts below.

6. Learned counsel for the respondents submits

that the respondent no.1-wife was subjected to cruelty

on account of the non-fulfillment of various demands

including the dowry. She was subjected to starvation,

8 Cri. W.P. 490/2015

beating, abusing. On certain occasions, even the

petitioner has tried to kill her. Even the petitioner

used to beat her on her head with an intention that she

should suffer from some mental problem. Furthermore,

the petitioner was also suspecting about the character

of respondent no.1-wife. Even the petitioner started

giving ill-treatment to her by demanding an amount of

Rs.1.50 Lakh for purchasing a Indica car. She was

subjected to severe beating and various forms of ill-

treatments on account of the non-fulfillment of the said

demand. On 13/11/2011, while returning to the

matrimonial home alongwith the petitioner on a

motorcycle, the petitioner pushed her from the running

motorcycle by giving a threat that he would kill her.

However, posing the said incident as accident, the

petitioner has lodged a false complaint. Respondent

wife has sustained severe injuries on her head and left

ear. She was admitted in Saint Look Hospital (German

Hospital), Shrirampur and, thereafter, shifted to Super

Speciality Hospital, Shirdi. For some time, her

condition was critical. On 18/11/2011, she lodged a

complaint in the Police Station against the petitioner

for having committed offence punishable under section

307 of the Indian Penal Code. Respondent no.1 now has

9 Cri. W.P. 490/2015

lodged a compliant in the Police Station that the

petitioner, by pushing her from a running motorcycle,

attempted to commit her murder and accordingly, the

crime for the offence punishable under section 307 of

the Indian Penal Code came to be registered and now the

case is pending before the Sessions Court. Respondent

no.1-wife has incurred expenses for her physical as well

as mental treatment. Learned counsel submits that the

Magistrate has therefore rightly recorded a finding that

the respondent no.1-wife was subjected to domestic

violence as defined under the Domestic Violence Act and

accordingly granted maintenance to her. The learned

Magistrate has also awarded reasonable amount of

compensation of Rs.2,50,000/- by considering the

physical and mental suffering of the respondent no.1-

wife. The learned Additional Sessions Judge has

considered the entire evidence and thus rightly

confirmed the order passed by the learned Magistrate.

No interference is required. There is no substance in

the writ petition. Writ Petition is thus liable to be

dismissed.

7. On perusal of the evidence adduced by the

respondent no.1-wife, it appears that she was subjected

10 Cri. W.P. 490/2015

to various forms of ill-treatment and mental harassment

on account of non-fulfillment of the various demands by

the petitioner. She was subjected to cruelty on account

of the non-fulfillment of the demands and also by

suspecting about her character. The respondent no.1-wife

has given all the details of the said ill-treatments.

The incident dated 13/11/2011, as narrated by the

respondent no.1-wife is quite severe. According to the

respondent no.1-wife, the petitioner-husband pushed her

from the running motorcycle and thus she had sustained

the injuries on her head and the ear. She was taken to

the hospital, where nearabout 108 stitches were given.

She had incurred the medical expenses to the tune of

Rs.2,50,000/-. According to her, at present, she is

suffering from memory loss. The respondent no.1-wife

has examined her mother as witness no.4 and her mother

also has duly corroborated her evidence before the

Court. Her mother Sayara deposed that the petitioner

was demanding an amount of Rs.1,50,000/- for purchasing

a Indica car and the respondent no.1-wife was subjected

to ill-treatment on account of non-fulfillment of the

said demand. She has also corroborated the incident of

13/11/2011 and expressed her apprehension that there is

danger of life to her daughter at the hands of the

11 Cri. W.P. 490/2015

petitioner. Respondent no.1-wife has also examined one

Dr. Kashinath Tingare as witness no.3. He is a

Consulting Neuro Surgeon at Saibaba Hospital, Shirdi and

he had an occasion of examining the respondent no.1-wife

after the said incident dated 13/11/2011. He found CLW

about 20 X ½ cms. Bone deep 'L' shaped left side of the

head, abrasion 5 X 6 cm. over left side of forehead and

cutting of pinna of left ear 0.5 cm. The said witness

was not subjected to any cross-examination by the

petitioner.

8. The petitioner has examined himself. According

to him, without any just cause, the respondent no.1-wife

started residing with her parents. He has deposed that

he has never subjected her to cruelty and never made any

unlawful demand as such. He further deposed that the

said incident dated 13/11/2011, was purely an accident

and he has incurred the medical expenses of respondent

no.1-wife. He has also deposed that he has no

independent source of income and he is doing the labour

work and earning his livelihood and also maintaining the

other members of the family. His mother was suffering

from cancer and he had incurred huge expenses for her

medical treatment.

12 Cri. W.P. 490/2015

9. I do find any substance in the evidence of the

petitioner. There was no reason for the respondent

no.1-wife to stay in the parent's house alongwith the

children without any just cause. On the basis of the

complaint lodged by the respondent no.1-wife, the crime

is registered against the petitioner for having

committed the offence punishable under section 307 of

the Indian Penal Code and now the case is pending before

the Sessions Court. Further, it appears that the

respondent no.1-wife has sustained severe injuries on

her head and left ear. Thus, both the Courts below

rightly came to the conclusion that the respondent no.1-

wife was subjected to domestic violence as defined in

the Domestic Violence Act.

10. So far as the grant of maintenance by the

learned Magistrate to the respondent no.1-wife at the

rate of Rs.2,000/- per month and Rs.1,000/- per month

each to the children, is concerned, it appears from the

cross-examination of the petitioner-husband that he is

driver by occupation and he is having permanent driving

license to drive the four-wheeler. The petitioner has

also admitted in his cross-examination that he is

serving with one Dinesh Lakhote and his brother is

13 Cri. W.P. 490/2015

serving in one mill there. He has further admitted that

the respondent no.1-wife has no independent source of

income and she is not able to maintain herself and her

children. Respondent no.1-wife has also deposed that

the petitioner had purchased two cars in the name of his

friends and is getting income of Rs.4,000/- to

Rs.5,000/- per day from the said vehicle. It is further

stated that the petitioner-husband had independent

bungalow at Belapur. Thus, considering the evidence of

the respondent no.1-wife and the petitioner, the learned

Magistrate has rightly decided the quantum of

maintenance. I do not find any fault in the said order

of maintenance, directing the petitioner to pay

Rs.2,000/- per month to the respondent no.1-wife and

Rs.1,000/- per month each to the children.

11. So far as the compensation of Rs.2,50,000/-, as

awarded by the learned Magistrate and confirmed by the

learned Additional Sessions Judge is concerned, it

appears from the evidence led by the parties that after

the said incident dated 13/11/2011, the respondent no.1-

wife was treated in a charitable hospital and as per the

discharge card, she was admitted in the hospital only

for four days. Even though, the respondent no.1-wife

14 Cri. W.P. 490/2015

has examined the concerned Neuro Surgeon of the said

hospital, she has failed to produce on record the

expenses incurred by her for medical treatment in the

hospital. Thus, considering the mental and physical

harassment, the compensation to the tune of

Rs.1,50,000/- would be just and proper. The petitioner

and other non-applicants, except the mother, who is no

more, are liable to pay the same. In view of this,

except this modification, no interference is required in

the impugned judgment and order passed by the Courts

below. Hence, I proceed to pass the following order : -

ORDER

I) Criminal Writ Petition is hereby partly

allowed.

II) The judgment and order passed by the learned

Judicial Magistrate First Class, Rahata dated 25/3/2014

in Criminal M.A. No. 17 of 2012 and confirmed by the

learned Additional Sessions Judge, Kopargaon vide

judgment and order dated 22/1/2015 in Criminal Appeal

No. 1 of 2014 is hereby modified to the extent that the

non-applicant nos.1 and 3 to jointly and severally pay

15 Cri. W.P. 490/2015

the amount of Rs.1,50,000/-, as compensation under sect

ion 22 of the Domestic Violence Act. Rest of the

judgment and order stands confirmed.

III) Needless to state that during the penendey of

this Writ Petition, if the petitioner-husband and other

non-applicants have deposited certain amount, the same

is required to be considered.

12. Writ Petition is accordingly disposed of. Rule

is accordingly made absolute.

[V.K. JADHAV]

JUDGE arp/