[Cites 5, Cited by 0]
Bombay High Court
Sadaf Uzair Khan vs State Of Maharashtra And Ors on 9 December, 2025
2025:BHC-AS:53836
42 WP.3297.2024FC.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3297 OF 2024
Sadaf Uzair Khan }
An Adult Indian Inhabitant }
Aged- 35, Occupation-Business }
Residing at-Amtulla Apart- }
th
ment, A. Wing, 10 Floor, Flat }
No.1008, M. T. Ansari Marg, }
Arab Lane, Mumbai 400008 } ...Petitioner
Versus
1. State of Maharashtra }
2. Uzair Ahmed Khan }
Adult Indian inhabitant, }
Aged 30 years, Occ: Business }
3. Sajida Parveen Khan }
Adult Indian Inhabitant }
Aged 32 years, Occ: Business }
4. Munazza Khan }
Adult Indian inhabitant, }
Aged- 40 years, Occ: Business }
All the Respondents residing at}
D/10 Block, Tenament Compo- }
und, B.J. Marg, Bank of Baroda}
Sathrasta, Jacob Circle }
Mumbai 400011 } ...Respondents
Ms Rimpal Trivedi a/w Ms Harshida Bhanushali, for the
Petitioner.
Ms Sharmila Kaushik, APP, for the Respondent-State.
Mr A. A. Ansari, for Respondent Nos. 2 to 4.
Mr. Uzair Ahmed Khan, Respondent No. 2 is present.
CORAM : MANJUSHA DESHPANDE, J.
RESERVED ON : 13th NOVEMBER 2025
PRONOUNCED ON : 09th DECEMBER 2025
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42 WP.3297.2024FC.doc
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and heard finally with the
consent of parties.
2. This Writ Petition is filed by the Petitioner-wife, assailing the
order passed by the Sessions Court for Greater Bombay in Criminal
Appeal No. 281 of 2023 alongwith Criminal Appeal No. 483 of 2021,
decided vide common order dated 17th July 2023.
3. The prism of facts leading to the litigation between the parties in
brief can be stated as under:
The Petitioner-wife and the Respondent No.2-husband got married
as per Muslim rites and rituals on 9th January 2015. A daughter, namely,
Humaira, has been begotten from the said marital ties. The Petitioner-
wife resided in the joint family initially with the Respondents, but due
to the ill-treatment and series of incidents of torture by all the
Respondents, she started residing separately after she was thrown out of
the house on 9th February 2017. After that, she has been living
independently with the financial assistance from her father. Because of
the domestic violence and harassment meted out by the Respondents,
the Petitioner-wife has filed a Domestic Violence Complaint against the
Respondents. The Domestic Violence Complaint, is pending before the
Magistrate Court at Mazgaon, registered as Case No.DV/139/2019.
4. During the pendency of the Domestic Violence Complaint, the
Petitioner-wife has filed an Application for interim maintenance against
the Respondent No. 2. After considering the prima facie case made out
by the Petitioner-wife, the Magistrate has decided Interim Application
by order dated 26th November 2021, granting maintenance of
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Rs.20,000/- to the Petitioner-wife and Rs.15,000/- per month to the
minor daughter Humaria. Dissatisfied with the order granting interim
maintenance by the Magistrate, the Petitioner-wife as well as the
Respondent No. 2 preferred Appeal in the Court of Sessions Greater
Mumbai. The Petitioner filed Criminal Appeal No. 281 of 2023 seeking
enhancement in the Maintenance, while the Respondent No. 2-husband
filed Criminal Appeal No. 483 of 2021, challenging the grant of interim
maintenance in favour of the Petitioner-wife. Both the Appeals were
heard together and decided by a common order dated 17 th July 2023.
The learned Session Judge refused to interfere with the order passed by
the Metropolitan Magistrate, Special Court, Mazgaon, Mumbai, on
Application Exhibit-2 in C.C. No.5400139/DV/2019. Being aggrieved
with the order passed by the Court of Sessions for Greater Bombay in
Criminal Appeal No. 281 of 2023, the Petitioner-wife has filed the
present Writ Petition with various prayers.
5. The Petitioner has prayed for grant of protection order under
Section 18 of the Protection of Women from Domestic Violence Act,
2005 (for short "the PWDVA, 2005") by prohibiting the Respondents
from committing any act of domestic violence; alienating any assets and
operating bank locker or bank accounts held or enjoyed by both the
parties alongwith other prayers under Section 19 of the PWDVA, 2005
restraining the Respondents from disturbing the possession of the
Petitioner-wife, alongwith a direction to secure the same level of
alternate accommodation for the Petitioner-wife as enjoyed by her in
the shared household or to pay rent of Rs.40,000/- per month, if the
circumstances so required. She has also claimed Monetary reliefs under
Section 20 of the PWDVA, 2005, for grant of Rs.60,000/- towards
monthly expenses for herself and for grant of Rs.40,000/- towards
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minor daughter's expenses for food, clothing, etc; a direction to the
Respondent-husband to pay educational fees of daughter; direction to
repay Rs.35,00,000/- to the father of the Petitioner, given by him for
starting business to Respondent No. 2; to reimburse amount of
Rs.20,00,000/- towards marriage expenses; to return the Stridhan of
the Petitioner-wife and cost of litigation expenses to the extent of
Rs.1,50,000/-.
6. Ms Rimpal Trivedi, learned counsel appearing for the Petitioner
submits that though the Metropolitan Magistrate has granted
maintenance of Rs.20,000/- and Rs.15,000/- per month to the
Petitioner and her daughter, the rest of reliefs, such as rent and/or
alternate accommodation as provided under Section 19 of the PWDVA,
2005, should have been granted by the learned Judge of the trial Court
as well as by the Appellate Court. According to her, an aggrieved person
is entitled for alternate accommodation of the same level as shared by
her while jointly residing with the Respondent or in the alternative, is
entitled to an amount of Rs.40,000/- towards rent. Once the Court has
arrived at a conclusion that a prima facie case of Domestic Violence has
been made out and the applicant was subjected to physical, mental and
economic harassment by the Respondent-husband and his family
members, the incidental reliefs should follow. It is clearly demonstrated
by the Petitioner from her affidavit of assets and liabilities that, she does
not have any source of income since she is not employed anywhere. She
has also stated that an amount of Rs.35,00,000/- (Thirty Five Lakhs
only) were borrowed by the Respondent-husband, from her father to set
up a business, which has not been repaid by him. The loan was given by
her father taking into consideration, the welfare of the Petitioner and
the Respondent being her husband would be maintaining the Petitioner
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and their daughter, therefore, under a bonafide belief that the
Respondent would be maintaining his daughter and grand child, he has
extended the loan to the Respondent. With the aid of the loan obtained
from her father, the Respondent No. 2 has set up two shops of garments
and one ice-cream parlour. She has also given the name and address of
the shop, which is being run by the Respondent. It is also claimed by
the Petitioner that, the Respondent No. 2 owns one house at Byculla,
which was purchased by his father, and presently he is staying in a
rented 2 BHK apartment for which he is paying a hefty rent of
Rs.40,000/- per month. Based on the aforementioned assertions, the
Petitioner had claimed various reliefs in her Interim Application before
the Metropolitan Magistrate, Mazgaon, Mumbai.
7. It is contended by the Petitioner that, Respondent No. 2 has
suppressed the material facts from this Court by not disclosing his real
income and sources of income in his Affidavit of Assets and Liabilities.
Though he is owner of a shop "Shopaholic" at Clare Road, and possess
banks accounts in ICICI Bank and Axis Bank, he has not provided
information about these assets in his Affidavit of Assets and Liabilities.
He has falsely claimed that he is a Sales Supervisor in Iconic Kids
Showroom drawing a salary of Rs.10,000/- per month. He has placed
the Bank Statement of his account in Bombay Mercantile Co-operative
Bank, for a period between 28 th September 2018 to 28th September
2021, he has failed to give details of his account in ICICI Bank and the
Axis Bank. The perusal of Bank Statement of Bombay Mercantile Co-
operative Bank shows very few entries during the aforementioned
period of three years. It shows very few transactions, which itself
indicate that the said account is not in regular use.
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8. Relying on the rejoinder affidavit to the additional reply of
Respondent No. 2, the learned counsel for the Petitioner would submit
that Respondent No. 2 has claimed that he was required to close down
his business due to COVID-19, but he has not produced any bank
statements even after the directions were issued by the JMFC to
produce his bank statement, current and savings account statement
along with the Income Tax Returns (ITRs) with the other documents.
His failure to produce these documents raises a presumption that he is
suppressing and concealing his real income from the court. In fact, his
shop known as "Shopaholic" is still run through his partner. The shop
has been handed over to the partner in order to shun the responsibility
of maintaining and taking care of the Petitioner and her daughter. This
conduct of the Respondent needs to be deprecated. The Petitioner has
been denied of her rightful claim only due to concealment and
suppression of real income by the Respondent, therefore he cannot be
allowed to take advantage of his own wrong. As such, the Writ Petition
deserves to be allowed by allowing all the prayers made by the
Petitioner in the present Writ Petition.
9. Mr. A. A. Ansari, learned counsel appearing for the Respondents
has contested and opposed submissions of the Petitioner. According to
him, the Respondents belong to lower middle class as compared to the
Petitioner. Upon being convinced by the brother and father of the
Petitioner. Respondent No. 2 has performed marriage with the
Petitioner. Within few months of marriage, the Petitioner started
complaining about the size of the matrimonial house, and the
unhygienic conditions which existed according to her. As a result of
failure to adjust in her matrimonial house, the Petitioner left the
company of the Respondent in February 2017 and started residing in
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her parents house. It is submitted that while leaving the company of
Respondent No 2, the Petitioner has taken away the articles of Stridhan
with her in the year 2017 itself.
10. In the D.V proceedings filed by the Petitioner before the
Metropolitan Magistrate Court, Mazgaon, Mumbai, the Petitioner has
filed interim application seeking maintenance from Respondent No 2.
After hearing the parties, the Magistrate has passed an order directing
Respondent No. 2 to pay Rs. 20,000/- per month to the Petitioner-wife
and Rs.15,000/- to their daughter Humaira. It is his submission that
due to COVID-19 Pandemic, Respondent No. 2 suffered huge loss in his
business and is under huge debts. In view of his financial condition, he
preferred an appeal against the said order before the Sessions Court,
Greater Mumbai challenging the amount of maintenance awarded to
the Petitioner, which came to be decided by the Sessions Court along
with the appeal for enhancement filed by the Petitioner vide common
order dated 17th July 2023, which is under challenge in the present Writ
Petition.
11. It is submitted that, it needs to be appreciated that Respondent
No.2 is facing serious financial crisis to such an extent, that he could not
even pay the arrears of maintenance for which he was arrested by the
Nagpada Police station on 13th August 2022 and kept behind bars till
20th August 2022. Only when Respondent No.3 after selling of her gold
ornaments and obtaining hand loan from the relatives, the arrears of
maintenance could be cleared by Respondent No. 2 and was released
from the MCR thereafter. He has categorically denied to have taken any
loan of Rs. 35,00,000/- (Thirty Five Lakhs only) from the father of the
Petitioner for his business. It is further submitted that, Respondent No.2
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has deposited a sum of Rs.18,22,500/- before the Trial court from 18 th
February 2022 till 14th October 2024. Which is withdrawn by the
Petitioner.
12. The learned counsel for the Respondents submits that, the
Petitioner has left the company of Respondent No. 2 as per her own
wish. Hence, she cannot hold Respondent No. 2 accountable for her
maintenance and separate accommodation. Though he was running a
business on partnership basis, during COVID-19 his business suffered
heavy losses and was shut down later. He strongly opposed the claim of
the Petitioner that Respondent No. 2 is earning an amount of around
Rs.4,00,000/- per month from his business.
13. According to him, post COVID-19, Respondent No. 2 is doing a
private job. In the year 2023, he was employed in a company named
Studio Novus Pvt. Ltd., and drawing salary of Rs. 40,000/- per month.
But now he is working as Admin in a private LLP, namely, Zeqon Luxury
Manor with a monthly salary of Rs 30,000/-. Therefore, considering his
present salary, he is not at all in a financial position to pay total
maintenance of Rs.35,000/- granted by the trial Court. He had
accordingly filed an application under Section 25(3) of the PWDVA,
2005, which eventually came to be rejected.
14. It is his contention that the Petitioner is only interested in
harassing him and extorting money. She is not appearing to conduct
the cross-examination before the trial Court and is resorting to delaying
tactics. The Petitioner has also suffered a no cross order due to her
failure to appear before the trial Court.
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15. While opposing the prayer for enhancement of maintenance
amount made by the Petitioner, it is submitted that in no way he has the
capacity to pay even the interim maintenance awarded by the trial
Court let alone the enhancement claimed by the Petitioner. Considering
that his present salary is Rs.30,000/- per month, it is beyond his
financial capacity to pay maintenance of Rs.35,000/- per month. Both
the Courts have committed an error by relying on the averment of the
Petitioner to come to the conclusion that the Respondent is doing
business and earning roughly an amount of Rs.4,00,000/- per month.
16. In his additional affidavit it is contended that his second wife is a
school teacher in Sir J. J Fort boys High School, Mumbai, with a basic
salary of Rs.31,000/- per month. He is residing with his second wife
and child in rental premises. His second wife is taking care of the
household expense due to his unemployment. It is therefore prayed
that the Writ Petition filed by the Petitioner does not deserve any
consideration and deserves to be dismissed at the threshold.
17. Having considered the pleadings, the rival submissions and the
material placed on record, it is not in dispute that both parties have
filed Affidavits of Assets and Liabilities which are incomplete and
materially deficient. The affidavits, therefore, do not depict an accurate
financial picture of either side. In such circumstances, the Court is
required to assess the interim maintenance based on the material that is
prima facie available.
18. The Metropolitan Magistrate as well as the learned Sessions Court
have concurrently held that the Petitioner-wife has been able to
establish a prima facie case of Domestic Violence resulting in her
separation from the Respondent. The Petitioner is residing with her
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daughter in a separate house. The Respondent-husband bears a
statutory obligation to maintain them. Taking into account the standard
of living of the parties, their social background and the needs of the
minor child, the Courts below granted Rs.20,000/- per month to the
Petitioner and Rs.15,000/- per month to the minor daughter. In that
backdrop, it becomes necessary to examine the interim reliefs now
pressed before this Court. By way of the present Writ Petition, the
Petitioner has pressed for four interim reliefs, namely: (i) Enhancement
of maintenance, (ii) Residence order, (iii) Protection order, and (iv)
Return of Stridhan. Each relief is accordingly examined independently
hereinafter.
19. With respect to the prayer for enhancement of maintenance, upon
examining the prayers, it is evident that the Petitioner now seeks reliefs
exceeding those originally claimed in her interim application. In her
original application filed before the learned Metropolitan Magistrate,
Mazgaon, she has prayed for maintenance of Rs. 50,000/- per month
for herself and Rs.30,000/- per month for her minor daughter, Humaira.
In the present Petition before this Court, she now seeks Rs.60,000/- per
month for herself and Rs.40,000/- per month for her minor daughter.
Such an enhancement of maintenance cannot be sought for the first
time before this Court in the writ jurisdiction. The Petitioner cannot be
permitted to enlarge the scope of her interim prayer at this stage.
Further in her Affidavit of Assets and Liabilities, the Petitioner has
claimed personal expenses of approximately Rs.60,000/- per month and
expenses of Rs.40,000/- per month for the minor daughter, yet no bills,
vouchers, or even a basic breakup of these figures has been furnished.
At the interim stage, such unverified and inflated claims cannot form
the basis for enhancement.
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20. With respect to the prayer for a residence order under Section 19
of the PWDVA, 2005, the Petitioner has argued that the Courts below
erred in declining rent of Rs.40,000/- per month. Before the learned
Sessions Court, the Petitioner had relied on a rental agreement of the
year 2017; however, the address mentioned therein did not correspond
with the address disclosed by her in her application filed before the
Sessions Court. In the absence of any explanation for this inconsistency,
the Sessions Court concluded that the rental agreement could not form
the basis for granting rent or alternate accommodation at the interim
stage. Before this Court, the Petitioner has now produced a rental
agreement dated 16th June 2022, and the application filed in these
proceedings reflects the same address as appearing in both the rental
agreements of the years 2017 and 2022. This alignment of addresses,
however, did not exist before the Magistrate or the Sessions Court,
where the Petitioner had consistently disclosed a different address. The
impugned order therefore cannot be faulted, since the relief was
refused, due to the inconsistent material. The Sessions Court therefore
rightly proceeded on the record available with it; hence no perversity or
jurisdictional error is demonstrated.
21. Nevertheless, considering that the Petitioner has filed the rental
agreement of the year 2022, for the first time before this Court it would
be appropriate to grant liberty to the Petitioner to file fresh application
before the metropolitan magistrate, 54 th Court, Mazgaon, Mumbai, with
the prayer for rent/separate accommodation.
22. With respect to the prayer for protection orders under Section 18
of the PWDVA, 2005, a bare reading of the Petition makes it evident
that the Petitioner has mechanically reproduced the entire provision
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verbatim without disclosing any specific act, threat, or circumstance
that necessitates protection in the form contemplated under Section 18
of the PWDVA, 2005. None of the pleadings disclose any continuing
threats or violence or any conduct of the Respondent capable of
attracting the ingredients of Section 18 at this stage. The prayer is
therefore devoid of any merits as it is not supported by even prima facie
material. The Courts below cannot be faulted for having declined a
relief which is neither pleaded with particulars nor supported by any
record. As such, this Court does not find any ground to interfere with
the findings recorded by the Courts below.
23. As regards prayer for return of Stridhan is concerned, except
averment containing list of ornaments there is nothing on record to
show that the same is in possession of Respondent Nos. 3 and 4.
Respondent No. 2 has, categorically stated that while leaving his house
in 2017, the Petitioner has taken away the Stridhan with her. Both the
parties are making conflicting claims against each other, which is not
supported by any other evidence. Hence, both the Courts below have
not passed any order for the relief claimed. Since the relief claimed is
not supported by any documents, it is not capable of being granted.
24. However, after hearing the parties and going through the
documents it can be discerned that, Respondent No. 2 has totally failed
to disclose his actual income in his Affidavit of Assets and Liabilities and
also from the documents filed along with that affidavit. He has filed
this Affidavit of Assets and Liabilities on 13 th October 2021. Pertinently,
the parties are required to file all documents as listed in Enclosure-II
with their Affidavit of Assets and Liabilities, as mandated by Rajnesh V.
Neha and Another1. Therefore, Respondent No. 2 was bound to disclose
1 (2021) 2 SCC 324
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all the statement of account of his bank accounts standing in his name.
The Respondent No. 2 has enclosed only one page statement of his
saving account in the Bombay Mercantile Co-operative Bank for a
period commencing from 28th September 2018 to 28th September 2021,
which shows very few entries. It is sufficient to draw a conclusion that
the Respondent is suppressing his real income from this Court.
25. In the order before the Sessions Court, Greater Mumbai, in the
Criminal Appeal, while opposing the claim of the Petitioner, about the
two clothes shops and one ice-cream parlour owned by the Respondent,
the learned counsel for the Respondents in his arguments has admitted
that before COVID-19, the Respondent No. 2 was running the shop as
well as the ice-cream parlour, but due to change in circumstances, he
was constrained to shut down the business. In view of the
submission/admission of the learned counsel for Respondent No. 2
compared to the one page statement of account of Bombay Mercantile
Co-operative Bank submitted by Respondent No. 2, gives rise to the
obvious conclusion that Respondent No. 2 has suppressed his actual
income. Resultantly, on the basis of available record, and by drawing
inference about the income of Respondent No.2, both the Courts have
passed the orders, which cannot be faulted with. Both the Courts have
passed orders taking into account the documents, available record and
Affidavit of Assets and Liabilities. There is no error as such in both the
orders passed by the Courts below. There is no jurisdictional error and
arbitrariness in the orders under challenge.
26. However, upon hearing the parties as well as upon perusal of the
documents on record, I find that the Affidavits of Assets and Liabilities
filed by both the parties are inherently defective. Therefore, in my view,
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it would be appropriate to direct the parties to file fresh Affidavit of
Assets and Liabilities containing necessary details as mandated by the
Hon'ble Supreme Court in Rajnesh Vs. Neha (supra), with a further
direction to the Metropolitan Magistrate to decide the quantum of
Maintenance admissible to the Petitioner on the basis of the fresh
affidavit within a period of three months from the date of this order.
27. As a result, the orders impugned are set aside. The Writ Petition is
partly allowed by issuing following directions:
(i) The matter is remanded back to the learned Metropolitan
Magistrate, 54th Court, Mazgaon, Mumbai.
(ii) The Petitioner as well as the Respondent No. 2 shall file
their fresh Affidavit of Assets and Liabilities, disclosing their
income and expenditure strictly by adhering to the guidelines
issued by the Hon'ble Supreme Court in the case of Rajnesh Vs.
Neha (supra), within a period of 15 days from the date of this
order.
(iii) The Metropolitan Magistrate, 54th Court, Mazgaon, Mumbai
shall decide the Interim application of the Petitioner afresh on the
basis of Affidavit of Assets and Liabilities filed by the parties, as
early as possible, preferably within a period of three months from
the date of this order.
28. The Writ Petition is disposed in above terms.
29. Rule is made absolute in the above terms.
Digitally
signed by
[MANJUSHA DESHPANDE, J.]
RUSHIKESH
RUSHIKESH VISHNU
VISHNU PATIL
PATIL Date:
2025.12.09
17:59:08
+0530
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