Aiyaz Kasmali Hamirani vs The State Of Maharashtra And Anr
2017 Latest Caselaw 3195 Bom

hcs
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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE JURISDICTION
                  CRIMINAL REVISION APPLICATION NO.166 OF 2015


      Aiyaz Kasmali Hamirani                                        .. Applicant.
            Vs.
      The State of Maharashtra & Anr.                               .. Respondents.

      Mr.Abhijit Dilip Sarwate a/w Mr. Yogesh V. Patil for the Applicant.
      Mr. V. N. Solanki, Advocate for Respondent no. 2
      Mr. Vinod Chate, APP for the State.


                                             CORAM : A. K. MENON, J.
                                             RESERVED ON :15TH JUNE, 2017
                                             PRONOUNCED ON : 21ST JUNE, 2017
      JUDGMENT

1. This Revision Application raises two relevant issues : Firstly whether in

case of a contractual marriage under Mohammedan law, Shia Imami Ismaili

Muslims ("Shias") who are subject to the constitution of that sect, are entitled to

seek protection under the Protection of Women from Domestic Violence Act

("the DV Act"). Secondly, whether the provisions of the said DV Act can be

invoked notwithstanding an arbitration agreement between the parties

embodied in the contract of marriage.

2. The applicant and respondent no.2 [Original complainant] were husband

and wife having performed Nikaah on 27 th October, 2002. A Nikaahnama was

also executed which contained an agreement to refer disputes to the

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Reconciliation and Arbitration Board for Western India. The petitioner and

respondent no. 2 started staying separately in December, 2012 and approached

the Reconciliation and Arbitration board in May 2013 for settlement of disputes.

A number of hearings were held but respondent no.2 chose to file an application

under Section 12 of the DV Act.

3. The applicant contended that in view of the arbitration clause, the DV Act

complaint should not be entertained. The JMFC, Pune directed payment of

interim maintenance. An application for stay of the proceedings was rejected

holding that the DV Act is a secular legislation and a Mohammedan wife is

entitled to reliefs under the DV Act as also under the Muslim Women's Act. The

applicant has challenged an order dated 16 th April, 2014 passed by the Ld.

Sessions Judge in Criminal Appeal No.196 of 2014 dismissing an appeal under

Section 29 of the DV Act and upholding the decision of the JMFC, Pune. The

Sessions Court also held that jurisdiction of a Court under the DV Act is not

ousted by virtue of an arbitration agreement between the parties.

4. Mr. Sarwate, learned Counsel appearing for the applicant husband

submitted that the marriage between the parties was contractual and it

contained an arbitration clause requiring parties to refer all disputes to

Reconciliation and Arbitration Board for Western India which was to deal with

the dispute in accordance with the personal law of Shia Imami Ismaili Muslims.

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The Board would have jurisdiction to entertain and try any complaint similar to

that under section 12 of the Act. Vide clause 6 of the Contract of Marriage dated

27th October, 2012, it is contended by Mr. Sarwate, both parties had declared

that disputes and differences arising out of the marriage will be referred to the

Board. For ease of reference clause 6 is reproduced below :

"6. Each of us AIYAZ son of KASAMALI HAMIRANI and SHARMIN daughter of YOUSUF KERAWALLA hereby agrees and declares that any question, difference or dispute between us relating to our marriage or any matter arising therefrom shall be deemed to have been referred to the aforesaid Conciliation and Arbitration Board and this writing shall be deemed to be the submission as required by the law relating to arbitration and the aforesaid Conciliation and Arbitration Board shall act according to the aforesaid personal law and such other laws for the time being in force in India as are applicable."

5. It is the applicant's contention that in view of the said clause 6, the order

of the JMFC dated 16 th April, 2014 is liable to be set aside. Mr. Sarwate drew

my attention to paragraph 9 and 11 of the order of the trial Court dealing with

the question of jurisdiction and which held that merely because there is private

contract it cannot oust the jurisdiction of the Court under the Act. An

arbitration clause cannot prevent the respondent from seeking relief under the

DV Act. The trial court further held that even in contract of marriage there is no

express provision for ousting of jurisdiction of the DV Court.

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6. Mr. Sarwate submitted that the Order of the trial Court was incorrect

since it ignores the contractual provision, the provisions of the Arbitration and

Conciliation Act and the constitution of Shias. Mr. Sarwate further pointed out

that there is no reason for the respondent to be aggrieved since the applicant

had already divorced the respondent by a Talaqnama. He submitted that the

contract of marriage has been suppressed by the respondent in her application

before the JMFC. He submitted that the parties had approached the Board which

held hearings and therefore the respondent-wife had submitted to the

jurisdiction of the Board. There is no question of now approaching the Court to

seek relief.

7. Mr. Sarwate submitted that the terms of contract of marriage are valid

and not being opposed to public policy, the same are binding. Arbitration

proceedings are still pending and the application under the Act is premature

and therefore liable to be dismissed. Mr. Sarwate submitted that the terms of

contract should be binding on the parties who are already before the Board. The

respondent having agreed to arbitration and having submitted to the

jurisdiction of the Board it is imperative the respondent no. 2 should not be

permitted to proceed with the DV complaint.

8. Mr. Sarwate further submitted that the impugned orders are perverse

since even the Sessions Court had proceeded on the basis that jurisdiction under

the Act is not ousted. The petitioner has challenged the aforesaid orders on the

ground that proceedings under the DV Act were quasi-civil in nature. Actually

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the enactment is governed by Code of Criminal procedure and is not an Act

which provides for consequences of Criminal offences except for Section 31

which provides for imprisonment.

9. According to the petitioner Section 36 of the DV Act provides that it is in

addition to and not in derogation / violation of other laws and therefore as

provided in the Arbitration and Conciliation Act, the contractual bargain in the

Nikaahnama requiring parties to refer dispute to arbitration of the Board should

be upheld and the DV Act proceedings were not maintainable. Mr. Sarwate,

learned Counsel appearing on behalf of the petitioner relies upon the following

decisions in support of this contention.

(i) Kunapareddy alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari and Anr. [AIR 2015 SC 2757].

(ii) M/s.Agri Gold Exims Ltd. v. M/s. Sri Lakshmi Knits and Wovens and Ors.

[2006 AIR SCW 3966].

(iii) Faqir Mohammad vs. Amina [AIR 1964 ALLAHABAD 246]

(iv) S.N. Palanitkar and Ors. vs. State of Bihar and Anr. [AIR 2001 SC 2960] .

10. Mr. Solanki on behalf of Respondent no.2 has opposed the application. He

supported the impugned orders and submitted that the applicants are not

entitled to any relief.

11. I have heard both the learned Counsel for the parties at length. In

paragraphs 9 and 11 of the impugned Order the Sessions Court came to a

finding that although there is an arbitration clause in the contract of marriage,

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the arbitration agreement does not oust the jurisdiction of the Court. The

general rule is that the parties cannot by agreement oust the jurisdiction of a

Court that has jurisdiction and merely because there was an arbitration clause

in the agreement cannot prevent respondent no.1 from seeking relief from the

DV Act.

12. The orders proceed on the basis that even though there is no valid express

provision ousting of the jurisdiction of the Court, Section 21 of the DV Act

contains a non-obstante provision. This clause has an over riding effect. The

impugned order further records that the respondent no.1 is a victim, a person

aggrieved and the DV Act provides relief to those subjected to domestic

violence. The learned Magistrate had correctly concluded that jurisdiction JMFC

Court is not ousted.

13. This leads us to peruse the application on behalf of respondent no. 2 copy

of which appears at Annexure B. The application is made under Sections 12,

18, 19, 20, 21 and 22 of the DV Act and contains averments pertaining to the

date of marriage, allegations against respondent no. 1 - her husband and the

mother in law. Some instances suggests acts which could amount to domestic

violence.

14. On 13th December, 2012 applicant packed up his belongings and

informed respondent no. 1 that he was leaving her. It is further appears that in

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or around April, 2013 the petitioner filed an application for divorce and for

custody of the child before the regional Reconciliation and Arbitration Board for

Western India. It is contended that the petitioner would earlier remit about

Rs.25000/- per month for running the house and Rs.5000/- per month for

petrol expenses which had since been reduced. After filing of the divorce

petition, the petitioner stopped paying even the said amounts.

15. The respondent contended that she required Rs.95,000/- per month to

manage her expenses which includes school fees of the child. Reference is made

to several properties owned by the petitioner and his mother. In Clause 29 of

the application it is contended that the cause of action for filing the application

arose when the petitioner assaulted and treated her with cruelty and once again

when the petitioner refused to extend the leave and licence agreement of the

residential flat where respondent no.1 was residing. It is in this background that

the JMFC passed the aforesaid order directing the payment of amount of Rs.

95,000/- per month towards maintenance.

16. The Respondent no.1 contended that a deed of divorce / Talaqnama had

been executed on 15th September, 2014 at Pune which records that the

petitioner had pronounced "Talaq" three times thereby dissolving the marriage

in the presence of two Aadil witnesses. Mr. Sarwate relied upon the decision of

the Supreme Court in the case of Kunapareddy alias Nookala Shanka Balaji

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v. Kunapareddy Swarna Kumari and Anr . [AIR 2015 SC 2757]. In

Kunapareddy [supra] in a complaint filed under provisions of the DV Act the

petitioner sought to amend the complaint. This was opposed by the respondent

appellant. The trial Court allowed the amendment. This order was challenged

on the ground that the Court had no power to amend the complaint since the Cr

P.C. did not contain such an option. The Supreme Court upheld the power of

court to amend in appropriate cases. It was therefore submitted that the DV Act

is also amenable to the provisions of the Arbitration and Conciliation Act.

17. In M/s. Agri Gold Exims Ltd. (supra) the MOU between the parties in

relation to an export business contained an arbitration clause to cover any

dispute. Disputes arose between the parties which came to be the settled,

pursuant to which five cheques were issued. Out of five cheques, two cheques

came to be dishonoured and the appellant filed a Civil suit for recovery of

outstanding dues. The arbitration clause in that case provided that disputes of

any nature could be referred. There was no apparent conflict, implied or

otherwise between the provisions of Arbitration & Conciliation Act and the

Negotiable Instruments Act. The High Court directed the parties to adopt

arbitration proceedings since the terms "dispute" is to be given the widest

amplitude. In the instant case it was contended that the contract of marriage

having contemplated arbitration as the appropriate dispute resolution method

the claim for maintenance would also be subjected to arbitration.

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18. Yet another decision relied upon by the applicant is that of Faqir

Mohammad (supra) which held that the Arbitration Act does not stand

excluded by the Dissolution of Muslim Marriage Act and therefore the

Criminal Procedure Code, the Arbitration and Conciliation Act and other

procedural laws would, therefore, be applicable to suits under the Dissolution of

Muslim Marriages Act. It is further pointed out that under Section 21 of the Act

any party to the suit may apply for an order of reference to arbitration and

therefore the Arbitration Act could be been legitimately invoked by parties.

Muslim marriage being a civil contract and not a sacrament, in absence of any

provision to the contrary in the Act, a suit for dissolution of marriage would be

a suit to which the provisions of the Arbitration Act would apply. In that view of

the matter the Allahabad High Court held that the Arbitration Act stands

excluded by virtue of the provisions of Dissolution of Muslim Marriage Act VIII

1938 and the arbitration Act was applicable to suit relating to rights arising out

of matrimonial cases.

19. In S.N. Palanitkar (Supra) the Supreme Court clearly held that in the

case of cheating under Section 420 of the IPC, an arbitration clause cannot

prevent criminal prosecution against the accused if the act constituting Criminal

offence is made out even prima facie. In paragraph 22 the Court held that

merely because there is an arbitration clause in the agreement criminal

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prosecution against the accused cannot be prevented.

20. Having considered the judgments cited above, I am not persuaded to take

the view that no complaint could be filed under the DV Act. Mr. Sarwate had

submitted that despite the provisions of Arbitration and Conciliation Act, the

exercise of jurisdiction by the JMFC and the Sessions Court was not justifiable.

He submitted that the petitioner had already filed for divorce and this

proceeding continued for a year and the Board was competent to pass an order

of divorce. Jurisdiction of the DV Court was ousted because of the contract of

marriage. In the circumstances, respondent no. 2 cannot proceed under the DV

Act. The Court found that the very purpose of the DV Act was to provide a

remedy which is in amalgamation of Civil rights and the intention was to protect

women against violence of any kind. In this behalf section 36 of the Act declares

that the provisions of the DV Act shall be in addition to, and not in derogation of

the provisions of any other law for the time being in force. We must also bear

in mind the non-obstante provision of the Act. The Act when read as a whole, it

becomes obvious that the provisions of the DV Act is in addition to other laws.

Thus it could come into play in tandem with other enactments.

21. In the circumstances, even assuming that the Arbitration Act comes into

play, it does not in my view exclude applicability under the DV Act. The

consequence of holding otherwise would lead to absurd results inasmuch as the

statement of objections and reasons of the DV Act records that domestic violence

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is a human rights issue and a serious deterrent to development, a fact that has

been recognised and reiterated in the Vienna Accord of 1994 and the Beijing

Declaration and the Platform for Action 1995. The United Nations Committee

on Convention on Elimination of All Forms of Discrimination against Women

(CEDAW) recommended enactment of a Law to protect Women against

violence of any kind especially those that occurring in the family. The Act

intends to protect women who where subjected to threat or abuse i.e. physical,

sexual, verbal, emotional or economic as also to protect the right to reside in

secure house. These rights are protected by the Act.

22. Women who were victims of domestic violence arising / occurring

within the family were intended to be protected by the Protection of Women

from Domestic Violence Act, 2005. To contend that such a benevolent legislation

will not apply in cases of where there existed contractual relation between the

parties, would entail denying women the protection that they deserve and are

entitled to by virtue of constitutional guarantees. Women have thus been

provided with a platform to seek redressal and protection against domestic

violence. It also appears from the record that the complainant of respondent no.

2 has been staying separately since about 2011 and after directions passed by

the Court the petitioner in Criminal Application no. 15 of 2015 she had

confirmed she was not in a position to finance the minor child of the second

respondent and that the second respondent, her husband had taken her

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belongings. The applicants contentions cannot therefore be accepted since

accepting such an interpretation would entitle parties to circumvent the laws

enacted for protection of women. Read with the non-obstante provision, it leaves

no manner of doubt that existence of arbitration agreement or arbitration

clause in an agreement including a contract of marriage or Nikaahnama will not

entail exclusion of applicability of the DV Act.

23. The issue of maintainability can be decided notwithstanding the

petitioners contention that the relationship of marriage was contractual and the

fact that the parties had approached the Reconciliation and Arbitration Board or

that he had already divorced the respondent - wife. The fact that the Board had

convened meetings attended by both the parties does not take away the right of

respondent no.2 complainant [original complainant] to pursue the complaint. It

is well settled that in order to ascertain the true intent of legislation recourse can

be had to the Statement of Objects and reasons and the preamble and the whole

Act.

24. Thus wide ranging reliefs that may be sought under the DV Act may also

be sought in other civil, family or criminal courts affecting the aggrieved person

and the respondent. The respondent(s) may be more than one given the fact that

the definition under Section 2(q) is now bereft of the words "adult male". The

respondent under the DV Act could thus be any member of a family, member of

a shared household against whom a cause of action may arise. In this

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background and considering the facts at hand the complainant as the

aggrieved person will certainly not be bound by the contractual limitation

under the Nikaahnama and may ex hypothesi be entitled to seek relief against

some other family member who is not bound by the arbitration agreement. In

the result the the contention that the arbitration agreement will obviate access to

the provisions of the DV Act is one that cannot be accepted. In fact such a

contention would probably be utterly erroneous. In the facts of the case, I am not

persuaded to hold that since the arbitration board was seized the matter and

both parties have appeared before the board respondent wife is ineligible to

apply under the DV Act.

25. As a result of this analysis there is no merit in this application and in the

circumstances, I pass the following order :

(i) Criminal Revision application No. 166 of 2015 is dismissed.

(ii) The Court of the JMFC, Pune shall proceed to consider the

application in accordance with law uninfluenced by the observations on

the merits of the matter in this Order.

(iii) No costs.

(A.K.MENON, J)