Mr. Ali Abbas Daruwala vs Mrs. Shehnaz Daruwala
2018 Latest Caselaw 1198 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO. 114 OF 2018
                                       WITH 
                         CIVIL APPLICATION NO.518 OF 2018

 Mr.Ali Abbas Daruwala                                           ...Petitioner
             V/s.
 Mrs.Shehnaz Daruwala                                            ...Respondent
                                ----

Mr.Anagha N. Nimbkar for the Petitioner/Applicant.

Mrs.Tanbon F. Irani for the Respondent.

----

CORAM : SMT.BHARATI H. DANGRE, J

RESERVED ON : 21st MARCH 2018

PROUNCENED ON : 04th MAY 2018

JUDGMENT :-

1. The present petition is filed by the petitioner

challenging the order dated 22.06.2017 passed by the Family Court

at Bandra below Exh-7 in petition No.A-1097/2015, thereby

allowing the application and directing the petitioner to pay an

amount of Rs.25,000/- per month to the petitioner and Rs.20,000/-

per month each for both the children towards interim maintenance

from the date of the filing of the application including the house

rent. The petitioner is aggrieved by the said order and prays for

quashing and setting aside the said order on the ground that the

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Family Court has exceeded its jurisdiction in passing the said order.

A brief chronology of facts and events leading to the filing of present

petition is culled out in the subsequent paragraphs.

2. The petitioner and the respondent belong to Islamic

Alvi Bohra Community and were married on 16.10.1997. Out of the

said marriage three children were born and one eldest son expired

on 28.10.2014. The other two children are aged 14 and 13 years

respectively.

The respondent-wife filed petition for divorce under the

Dissolution of Muslim Marriage Act, 1939 seeking dissolution of the

marriage, before the Family Court at Bandra on 15.04.2015 and

invoked provisions of Section 2(viii)(a)(d) of the Dissolution of

Muslim Marriage Act, 1939 and also prayed for custody of the

children, maintenance and accommodation. The said prayer for

divorce was opposed by the petitioner by filing written statement.

On the very same day when the proceedings were

instituted for divorce, the respondent-wife moved an interim

application seeking maintenance and accommodation and in the

said application she reiterated the statements made in the petition

and claimed an amount of maintenance for herself as well as two

minor children, taking into consideration the earning capacity of the

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petitioner-husband and her requirements. The amount of Rs.2 lakhs

was claimed towards maintenance for herself and an amount of

Rs.1,50,000/- was claimed towards the maintenance of the children

along with the cost of litigation. The petitioner filed his response to

the said application on 23.04.2016 opposing the said claim.

The husband raised an objection by filing application

under Order 7 Rule 11(a) of the Civil Procedure Code which came

to be rejected by the Family Court by observing that the petition for

dissolution of marriage cannot be dismissed in such a fashion. On

20th May 2016 the wife again filed an application for monthly

maintenance for herself and her minor children which was marked

as Exh.-34.

3. It is a specific case of the petitioner that he gave Talaq

to the respondent on 29.03.2017 and since the wife herself was

claiming divorce, he was under an impression that she would not

object to the same. The wife objected to the divorce granted by the

petitioner and according to the petitioner she accepted the amount

of Mehar and she returned the said amount only on 08.05.2017.

According to the petitioner since, the wife herself had approached

and filed the proceedings under the Dissolution of Muslim Marriage

Act, she had no justification to oppose the said Talaknama dated

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29.03.2017. The Family Court vide order dated 06.05.2017 passed

a restrain order, restraining the petitioner for performing the second

marriage. The petitioner moved an application for deciding the

maintainability of the petition and also praying for framing

preliminary issue of jurisdiction under Section 9A of the Civil

Procedure Code. The learned Family Court by order dated

17.07.2017 ordered that the issues raised in the application would

be added to other issues to be dealt by the Court.

On 09.06.2017 the respondent filed an application

under Section 12, 18, 19, 20, 22 and 23 of the Domestic Violence

Act, 2005 and prayed for the similar relief which she had prayed in

the earlier application. On 22.06.2017 the Family Court passed an

impugned order which is assailed in the present petition.

4. In support of the petition I have heard Ms.Angha

Nimbkar appearing for the petitioner she would submit that the

petitioner and respondents are governed by the Muslim Personal

Laws and different enactments govern their personal relationship of

including The Muslim Personal Law (Shariat) Application Act 1937,

The Dissolution of Muslim Marriage Act, 1939 and The Muslim

Women (Protection of Rights on Divorce) Act, 1986. The learned

counsel would invite attention to the provisions contained in the

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Muslim Women (Protection of Rights on Divorce) Act, 1986 and

specifically to the provision contained in Section-3 of the said Act

which contemplate a reasonable and fair provision of maintenance

to be made and paid to a wife during iddat period. She would also

invite attention to Section-3 of the said Act which reads thus :-

"(3) Where an application has been made under sub- section (2) by a divorced woman, the Magistrate may, if he is satisfied that-

(a) her husband having sufficient means, has failed or neglected to make or pay her within the Iddat period a reasonable and fair provision and maintenance for her and the children; or

(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause(d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman: Provided that if the Magistrate finds it impracticable to dispose of the application

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within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period."

5. She would also make reference to Section-2 of The

Dissolution of Muslim Marriage Act, 1939 and would submit that

the said Act permits a women to obtain a decree for dissolution of

marriage on the grounds set out in the said section. The learned

counsel for the petitioner would thus submit that the Family Court

has erred is not considering the fact that divorce sought under the

Act for all practical purposes is by way of "Khula" and that is a

reason there is no provision for any other reliefs for maintenance,

custody of children etc., provided in the Act. She would submit that

"Khula" is a mode of dissolution of marriage by agreement between

husband and wife and the divorce by "Khula" is divorce by consent

at the instance of the wife in which she gives or aggrieves to give a

consideration to the husband for release from marriage. She would

submit that the husband after following the established procedure

under the Muslim Law are has pronounced "Talaq" on 29.03.2017

thereby dissolving the marriage solemnized between the parties and

amount of mehar/dower of Rs.60,000/- was send to the respondent

on 30.03.2017, which came to be returned by her only on

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06.05.2017. The learned counsel would submit that the respondent

is a divorced wife and her rights are enumerated and limited under

the Muslim Women (Protection of Rights on Divorce) Act, 1986.

She would submit that the petition filed before the Court was

exclusively under the Dissolution of Muslim Marriage Act, 1939

where there is no provision for any ancillary reliefs, as are available

under the Domestic Violence Act, 2005. She would also submit that

the learned Family Court did not consider that the complaint under

Section-12 was filed as an after thought, after after filing of the

application for maintenance. She would also emphasis that the

respondent has not mentioned the provision of law under which the

relief was claimed. She would also assail the order of the Family

Court on the ground that the Court did not consider the

qualifications of the wife and her potential to earn a livelihood for

herself.

Per contra learned counsel Ms.Irani would support the

impugned order. She would submit that in no contingency it is a

case of 'Khulla'. She would submit that the provisions of Protection

of Domestic Violence Act do no create any restriction on the wife to

invoke the provisions of the said enactment on the ground that she

is governed by Muslim Personal Law. Mr.Irani would submit that the

wife had instituted proceedings under the Dissolution of Muslim

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Marriage Act 1939 specifically invoking Section-2(viii)(a) and (d).

She would submit that for the married Muslim women there was no

provision available to obtain a decree from the Court seeking

Dissolution of Marriage, in case the husband neglect to maintain her

and make her life miserable by inflicting cruelty on her and in

absence of such a provision being available, Muslim women were

subjected to utmost misery. In order to provide a remedy to such

oppressed women, the Dissolution of Muslim Marriage Act, 1939

came to be enacted enabling a women married under Muslim Law

to obtain a decree for Dissolution of Marriage on the grounds

enumerated under Section-2. According to the learned counsel the

wife had invoked the provisions of the said enactment seeking

divorce on ground of cruel treatment meted out to her.

Ms.Irani would submit that the in the said proceedings

the wife moved an application seeking reliefs available under

Section-12 of the D.V. Act including the monetary relief. She would

submit that there is no legal embargo in her approaching the

competent Court by invoking the said provision. She would pray for

upholding of the impugned order and would submit that the

proclamation of Talaq by the husband cannot nullify the benefits

flowing to her unless the factum of Talaq is proved by sufficient

evidence.

         N.S. Kamble                                                        page 8 of 19




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6. On consideration of the arguments advanced by the

parties in support of their respective claim, the first point which

arise for consideration is whether the Family Court was justified in

entertaining the application filed by the respondent-wife in light of

the fact that the parties belong to Islamic Alvi Bohra Community

and specifically in the backdrop of Muslim Women (Protection of

Rights on Divorce) Act, 1986. The issue is whether proceedings

claiming relief under D.V. Act, can be entertained specifically when

the main petition filed by the wife is under the Dissolution of the

Muslim Marriage Act, 1939.

It is not in dispute that the wife has instituted

proceedings for divorce praying for dissolution of marriage

solemnized on 17.09.1997 under the provisions of Section 2(viii)(a)

and (d) of Dissolution of Muslim Marriage Act. The said provision

permits the woman married under the Muslim Law to obtain a

decree for dissolution of marriage on the ground that the husband

has treated her with cruelty or made her life miserable and that he

has disposed of her property or prevent her from exercising her legal

rights over it.

In the said proceedings the wife had moved an

application at Exh.-7 by way of an interim application on

15.04.2015. The said application is titled as "Application for

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maintenance and residential accommodation", without specifying

the section. Perusal of the application would however reveal that

the wife has alleged that she has filed petition for divorce and

custody of her children and she sought to place reliance on the said

petitions. In the said application the wife has claimed an interim

maintenance from the husband for meeting the expenses of her

children as well as her own expenses. The said application no doubt

do not mention the provision which is sought to be invoked. The

learned counsel for the petitioner had advanced a submission that

the parties being governed by the Muslim Women (Protection of

Rights on Divorce) Act, 1986 which governs the entitlement for

maintenance of Muslim women who have been divorced by and who

have obtained divorce from husband. As per the petitioner-

husband, pursuant to filing of the said proceeding he had given

Talaq to the respondent-wife to 29.03.2017. The contention of the

husband is that the wife was otherwise seeking divorce and he has

granted divorce which would partake a form of "Khula". He would

submit that the wife had accepted the amount of Mehar in pursuant

to the Talaq being pronounced on 30.03.2017. However, she turned

back and returned the Meher on 08.05.2017. It is the specific case

of the petitioner-husband that on 28.04.2017, the husband re-

married since the wife had accepted the Meher thereby leading to a

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conclusion that the Talaq pronounced by the husband was

acceptable to her. However, it is a specific case of the wife that the

said dissolution of marriage cannot be treated as Khula and in fact

Mrs.Irani had invited attention to the pleadings and would submit

that she has not accepted the said Talaknama and rather in light of

the latest pronouncement of the judgment by the Apex Court in the

case of Shayara Bano V/s. Union of India & Ors. (2017-9-SCC-1),

the Talaknama is not valid. Mrs.Irani would submit that under the

Muslim Law, in certain circumstances the power to initiate divorce

proceeding is given to the wife and she had instituted the

proceedings for the said purpose. However, she would submit that

her client has not accepted the Talaknama dated 29.03.2017 and in

any contingency she would take appropriate steps to deal with the

said issue separately.

7. In the present case the pronouncement of the Talaq is

disputed by the wife and the husband will have to be prove the said

factum of Talaq. As till the time the Talaq is not proved, the

respondent continues to be legally weeded wife of the petitioner and

in that contingency the question is whether the wife who is in

domestic relationship with the petitioner is entitled to seek the relief

under the provisions of the Domestic Violence Act. Though the

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learned counsel for the petitioner had vehemently argued that the

parties are governed by Muslim Personal Laws and therefore the

provisions of the Domestic Violence Act cannot be invoked, per

contra Mrs.Irani would submit that there is no intention of the

legislature to restrict the provisions of Protection from Womens of

Domestic Violence Act, 2005 to a particular category of women and

to specifically exclude the women belonging to the Muslim religion.

8. Perusal of the provisions of the Protection of Women

from Domestic Violence Act, 2005 would reveal that it is an

enactment to provide for more effective protection for rights of

women guaranteed under the Indian Constitution who are the

victims of the violence. The enactment no way intends to restrict its

application to any particular category of women but it intends to

protect the women aggrieved, who are victims of Domestic Violence.

The definition and connotation of "Domestic Violence" under

Section-3 of the enactment do not indicate any intention either

express or implied to exclude Muslim women. Section-36 of the

said enactment provides that the provisions of the Act shall be in

addition to and not in derogation of the provisions of any other law

for the time any force. Thus, the scheme of the enactment do not

restrict the applicability of the provisions of the Act to a particular

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category of women, nevertheless to a woman belonging to a

particular religion. No doubt the Muslim women are also governed

by several other enactments in the form of Muslim Women

(Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim

Marriage Act, 1939 etc., however, the rights conferred under the

said enactments can in no way curtail the operation or Protection

granted under The Protection of Women from Domestic Violence

Act. In these circumstances the contention advanced by the learned

counsel for the petitioner that the respondent-wife could not avail

the provisions of the Domestic Violence Act is not sustainable.

Further, the submission of the learned counsel for the petitioner that

the wife had moved an application namely Exh.-7 in a proceeding

which she had instituted under the Dissolution of Muslim Marriage

Act, 1939 and therefore they are not tenable, needs to be cursorily

dealt with. The Section-26 of the Act of 2005 permits the relief to

be availed under Sections-18, 19, 20, 21 and 22 to be sought in any

legal proceedings before a Civil Court, Family Court or Criminal

Court affecting the aggrieved person whether, such proceedings

were initiated before or after the commencement of this Act. Sub-

Section 2 of Section-26 makes it amply clear that in such relief may

be sought for in addition to and alongwith any other relief that the

aggrieved person may seek in such suit or legal proceeding before

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Civil or Criminal Court.

9. In the present case wife had instituted the proceedings

by taking aid of Section-2(viii) and has specifically filed the

proceedings on the ground of the cruel treatment meted out to her

and her children by making her life miserable by subjecting her to

cruelty and by preventing her to exercise her legal right over the

property. On perusal of the proceedings filed by the wife it revealed

that she had taken out proceedings for dissolution of the marriage

on the ground of cruelty, which is a form of Domestic Violence. The

term Domestic Violence is assigned a specific meaning in the Act of

2005 which include an act of harming, injuring, and endangering

the health, safety, life or well being, whether physical or mental of

the aggrieved person including the physical, sexual, verbal and

emotional abuse and also economical abuse. Thus, the ground on

which the wife has sought dissolution of marriage is cruelty and the

proceedings initiated though under the provisions of Dissolution of

Muslim Marriage Act, 1939 stand on the same platform as

proceeding instituted by wife under the provisions of Domestic

Violence seeking relief under Section-12 of the Act, she being an

aggrieved women.

In any contingency by taking recourse to Section-26 of

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the Domestic Violence, it is permissible for the respondent-wife to

file proceedings seeking the relief under Sections-18, 19, 20, 21 and

22 of the Domestic Violence Act, in addition to and along with the

relief that she has otherwise sought in the pending proceedings.

Thus, the claim for interim maintenance filed by the wife cannot be

said to be completely alien to the provisions under which she has

approached the Court by way of main petition seeking Dissolution of

Marriage on the ground of cruelty. By way of an interim relief she

has sought maintenance from the husband and since there is no bar

for her to invoke the provisions of The Protection of Domestic

Violence Act, 2005, such an application is duly entertained by the

Judge Family Court, such an application cannot be thrown away

only on the ground that it is not mentioned as to under what

provision of law, the said application has been preferred. The Court

has entertained the said application considering the factum of

destitution being put forth by the wife and has treated her as an

aggrieved person and has entertained the said application for

interim maintenance and directed payment of amount of

Rs.25,000/- to the wife and Rs.20,000/- for the children along with

rent of the house at rate of Rs.40,000/-. The Court has considered

that the wife has been subjected to vagrancy and is unable to

maintain herself and her children whereas the husband owed a

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moral responsibility to maintain his wife and the children

specifically in case of subsisting marriage and therefore has passed

the impugned order dated 22.06.2017.

9. The case of the husband is that he has pronounced

Talaq on 29.03.2017 and in light of this development such an order

is not justified, is also liable to be ignored since the factum of Talaq

has not been proved by the husband and merely because Talaknama

is tendered in the Court, the marriage cannot be said to have been

dissolved. Even assuming for the sake of it the marriage stands

dissolved by Khula taking it to be divorce by consent at the instance

of the wife, the husband cannot be completely absolved of his

liablity to maintain his wife and children, in the specific background,

that he has remarried and he is maintaining two children of the wife

whom he had re-married. The learned counsel for the petitioner has

also invited attention of the Court on a subsequent application filed

by the wife under Sections-12, 18, 19, 20, 22 and 23 of the

Protection of Women from Domestic Violence Act, 2005 on

09.06.2017 and she would submit that if this application is filed

under the provisions of the Domestic Violence Act, under what

provision of law did the Family Court entertained the earlier

application and passed an order below Exh-7. As this Court has

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already observed that the said application was filed in Petition No.A-

1097/2015 instituted by the wife for Dissolution of Marriage under

the Dissolution of Muslim Marriage Act, 1939 and she would submit

that this Act contains no provision for any interim maintenance or

provision for custody of children. However, perusal of the

provisions of the Muslim Women (Protection of Rights on Divorce)

Act, 1986 would reveal that certain rights are conferred even on a

woman who has been divorced by who have obtained divorced from

her husband and make such a woman entitled to a reasonable and

fair provision and maintenance to be paid to her within the period

of Iddat. Not only this such a woman is also entitled to an amount

equal to some of Mehar or dower agreed to be paid to her at the

time of the marriage according to the Muslim Law and also entitled

for all the properties given to her before and at the time of the

marriage and after the marriage by her relative, friends or her

husband.

10. The purpose of any provision of law which is beneficial

to a woman is to provide some solace to a woman during the

subsistence of the marriage or even after she is divorced out of the

said marriage and since the Domestic Violence Act is an enactment

to provide effective protection of rights of woman, who are victims

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of violence, the respondent-wife cannot be denied the umbrella of the said

legislation. The respondent-wife has staked her claim by filing

proceedings under the Domestic Violence Act 2005 claiming monthly

maintenance for herself and her children vide Exh-34. On the said

application, the respondent-husband has been directed to produce all or

any of the documents which are in existence or his possession and which

are not produced by him so as to reflect his earnings. Though it is a

specific case of the petitioner-husband that he has divorced to his wife, it

cannot be expressed as a gospel truth specifically in light of the latest

pronouncement of the Hon'ble Apex Court in case of Shayara Bano V/s.

Union of India & Others as to what would be the effect of such

Talaknama. In any contingency this Court is not concerned with the

validity of the said Talaknama at this stage and in this proceedings. This

Court will have to restrict itself to the impugned order dated 22.06.2017

passed by the Family Court at Bandra directing the husband to pay

monthly amount for maintenance of the wife and the children and also to

pay for the rent of the house where the wife is residing.

The objection raised by the learned counsel for the

petitioner Ms.Anagha Nimbkar to the maintainability of the

application on which the impugned order came to be passed is not

sustainable for the reasons stated above and since this Court at

arrived at a conclusion that the parties being governed by the

Muslim Personal Law is not an impediment in the wife invoking the

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jurisdiction of the Court under the provisions of the Domestic

Violence Act and there is no embargo of the said Court to confer the

relief on the women who is an "aggrieved person" within the scope

and meaning of the Act merely because she belongs to Muslim

religion. The contention of the learned counsel for the petitioner

therefore deserves to be rejected.

The impugned order has taken into consideration the

earning capacity of the husband and the needs of the wife. In the

application filed by the wife a statement was made that the husband

was depositing an amount of Rs.10,000/- to Rs.15,000/- per month

in her account, which was not found to be sufficient to maintain

herself. The Court taken in to consideration the said aspect of the

matter and also the statement that the husband is regularly paying

certain amount to the wife from which she is withdrawing some

regular amount. The Court has also noted that the wife has no

shelter and in such circumstances the impugned order cannot be

faulted with and their appears to be no illegality or perversity in the

said order which would warrant and inference at the instance of this

order. In the result the impugned order is upheld. The present

petition being devoid of any merit and substance, is liable to be

dismissed.

                                        (SMT.BHARATI H. DANGRE, J.)

        N.S. Kamble                                                       page 19 of 19