Rahmat Ali Khan Walli Mohd. Ali ... vs Mrs. Shabana Begum Rahmat Ali Khan ...
2022 Latest Caselaw 7625 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                 NAGPUR BENCH : NAGPUR.



            CRIMINAL WRIT PETITION No. 206/2017.


1.Rahmat Ali Khan Walli Mohd.
Ali Khan, Aged about 41 years,
Occupation - business;

2.Walli Mohd. Ali Khan,
Aged about 53 years, Occupation -
Business;

3.Begum Walli Mohd. Khan,
Aged about 53 years, Occupation -
Private;

4.Niyamat Ali Khan Walli Mohd.
Khan, Aged about 33 years, Occupation -
Business;

All resident of School No.7, IDUP,
Plot No.285, Katol, Tahsil Katol,
District Nagpur.                          ...   PETITIONERS.


                              VERSUS


1/Smt. Shabana Begum Rehmatali Khan,
D/o. Mohammad Mehaboob Sheikh,

2.Mohd. Mohinoor Khan s/o Rahmat
Ali Khan, Minor, through mother
guardian / respondent no.1.

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resident of Near M.M. Taj School,
Plot No.134/A, Thakur Plot, Teacher
Colony, Tajbagh, Ayodhya Nagar,
S.O. Nagpur (M.S.). 440024.                 ...     RESPONDENTS.


                         -----------------------
             Mr. S.M. Nafde, Advocate for Petitioners.
            Mr.P.D. Randive, Advocate for Respondents.
                        ------------------------


                                  CORAM : VINAY JOSHI, J.


CLOSED FOR JUDGMENT ON :                      22.06.2022.
JUDGMENT PRONOUNCED ON :                      04.08.2022.



JUDGMENT :

Heard learned counsel for the parties.

2. Being aggrieved and dissatisfied by the judgment and

order dated 17.02.2017 passed by the Sessions Judge, Nagpur in

Criminal Appeal No.203/2016, petitioners have invoked the inherent

jurisdiction of this Court seeking quashing of the said judgment and

order, stating it to be unreasonable, illegal and unsustainable in law.

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3. Petitioners have been arrayed as respondents in Criminal

Application No.2598/2014 filed by respondent - wife in the capacity

of aggrieved person. Wife has filed this application before the

Magistrate in terms of Protection of Women from Domestic Violence

Act, 2005 (D.V.Act), seeking multiple reliefs, as available under the

D.V.Act. Petitioners/respondents have resisted said application

denying the act of domestic violence, as alleged. The learned

Magistrate held that applicant - wife failed to establish that she

suffered domestic violence at the hands of respondents and

accordingly dismissed the application vide order dated 01.10.2016.

4. Aggrieved by the said order, wife has filed Criminal

Appeal No.203/2016 in terms of Section 29 of the D.V. Act, claiming

reliefs as sought in her application before the Magistrate. The

Appellate Court upheld that the wife failed to establish physical

abuse, however, by holding that she has established economic abuse,

passed an order of maintenance @ Rs.2000/- per month for her and

an equal amount for her male minor child.

5. The learned Counsel for petitioners would submit that

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when both the Courts below have held that the wife failed to

establish domestic violence, the Appellate Court fell in error in

granting maintenance. It is submitted that unless wife proves her

case of domestic violence as an aggrieved person, she is not entitled

to any relief as provided under the provisions of D.V. Act. In support

of said contention, petitioners have relied on decisions of this Court

in cases of - (1) Prakash Kumar Singhee .vrs. Amrapali Singhee -

2018 [5] Mh.L.J. 665; (2) Gugudas Sanvalo Naik and others .vrs.

Saanvi Gurudas Naik and others - 2018 All M.R. (Cri) 2375; (3)

Koushik .vrs. Sangeeta Koushik Gharami - 2018 All MR (Cri) 2398;

and (4) Vijayanand Dattaram Naik and others .vrs. Smt. Vishranti

Vijayanand Naik and others - 2019 All MR (Cri) 3519. There is no

dispute that the act of domestic violence is prerequisite for a

Magistrate to exercise powers under the D.V. Act for grant of any

relief as provided under the Act.

6. The learned Magistrate has held that the applicant has

failed to establish the act of domestic violence, however, the said

order is reversed by the Appellate Court to the extent that though the

wife has failed to establish physical abuse, however, economical

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abuse has been proved.

7. From perusal of the provisions of the D.V. Act it emerges

that it has been enacted for effective protection of rights for women,

who are victim of violence of any kind occurred in the family. The

enactment is a sort of redressal provided to the aggrieved person,

who is or has been in domestic relationship with the spouse. The

term 'domestic violence' has been widely defined in Section 3 of the

D.V. Act. It includes economic abuse also. Any kind of deprivation

of aggrieved person of any economic or financial resources would

encompass within the term 'economic abuse' as defined under

Section 3[d][iv][a] of the D.V. Act.

8. The learned Counsel appearing for wife would submit

that any kind of economical abuse has been covered within the term

'domestic violence'. To support said contention, he has relied on the

decisions of this Court in cases of (1) Jayashri Shamshuddin

Talapdar .vrs. Samshuddin Karim Talapdar and another - 2018 All

MR (Cri) 2305 and (2) Prakash Kumar Singhee .vrs. Amrapali

Singhee - 2018 [5] Mh.L.J. 665 (which is also relied upon by

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petitioners). There can be no dispute about the said proposition,

since the statute itself has included the term 'economic abuse' as one

of the kind of domestic violence.

9. Coming to the facts, the respondent-wife has stated in her

evidence about several acts of domestic violence, however, the

learned Magistrate has held that the wife has failed to establish the

act of domestic violence, as well as the same was upheld to the

extent of physical abuse by the Appellate Court. Pertinent to note

that wife has not challenged the said finding of the Appellate Court,

and thus, it can be said that it is not a case of physical abuse.

However, on the point of economical abuse, it is her evidence that

due to matrimonial harassment, she was compelled to reside with

her parents. Wife has stated that she does not have any source of

income, and is unable to carry her responsibility, as financial position

of her parents is weak. She also deposed that the petitioner -

husband is having ample source of income. He is running sports and

garments shop, from which he earns Rs.50,000/- per month.

Though husband has denied the source of income, however, he

contends that his brother owns the sports shop where he is serving as

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an assistant. However, husband has not specified as to how much

income he derives from the said business. The burden lies on the

husband to establish his income, since it is within his special

knowledge.

10. There is no denial to the fact that since long the wife is

residing with her parents. There is no statement or material on

record to indicate that husband has provided any financial aid to the

wife during said period. The responsibility of husband is not limited

to the household necessity of the aggrieved person, but, towards

child also. Husband has merely stated that since the wife is residing

at her parents house without any valid reason, she is not entitled for

maintenance. As a matter of fact, wife is residing separately since

she suffered with matrimonial hassle. The wife has approached to

the Family Court in terms of Section 125 of the Code of Criminal

Procedure, wherein her claim was upheld, as regards to the claim of

maintenance. It is apparent that the husband has not made any

provision regarding maintenance of wife. Admittedly for a long

period, she has been residing with her child at the mercy of her

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parents, and no financial resources have been provided by the

husband. Therefore, the finding of the Appellate Court that it is a

case of economical abuse amounting to domestic violence is well

sustainable. The Family Court in its order dated 09.04.2021, has

considered the quantum of maintenance granted under the D.V.

proceeding, and thus, the said cannot be disturbed. Moreover, the

amount of maintenance as awarded by the Appellate Court to the

extent of Rs.2000/- per month for a lady and Rs.2000/- to a child, is

quite reasonable, rather the same is bare minimum requirement for

survival. In view of above discussion, the impugned judgment and

order does not call for interference. Criminal Writ Petition is liable

to be dismissed, and is dismissed accordingly. No costs.

JUDGE

Rgd.

Signed By:RAKESH GANESHLAL DHURIYA Private Secretary High Court of Bombay, at Nagpur Signing Date:04.08.2022 15:54