Delhi High Court
Syed Md. Nadeem @ Mohsin & Ors vs State & Anr on 15 June, 2011
Author: Rajiv Sahai Endlaw
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 887/2011 & Crl. M.A. No.7238/2011 (for stay)
SYED MD. NADEEM @ MOHSIN & ORS ..... Petitioners
Through: Mr. K.K. Manan with Mr. Mustafa
Arif, Mr. Pankaj Mendiratta & Mr.
Pipun Bhardwaj, Advocates
Versus
STATE & ANR ..... Respondents
Through: Mr. Sanjeev Bhandari, Ld. APP for
State.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 15.06.2011
1. The petitioners seek quashing of, a) the complaint preferred by the
respondent No.2 (stated to be ex-wife of the petitioner No.1) under the
Protection of Women from Domestic Violence Act, 2005; b) the order dated
1st March, 2011 under Section 23 of the Act in the said complaint
proceeding, directing the petitioner No.1 to pay interim maintenance of
`8,000/- per month to the respondent No.2; and, c) as well as the order
dated 23rd May, 2011 of dismissal of the first appeal under Section 29 of the
Act against the order dated 1st March, 2011 (supra).
2. The counsel for the petitioners has inter alia contended that the
provisions of the Act and at least of Section 23 qua maintenance would not
be applicable to Mohammedans owing to Sections 3 & 4 of the Muslim
Women (Protection of Rights on Divorce) Act, 1986. It is also contended
that the parties having divorced, cannot be said to be in a domestic
relationship for the Act to be attracted. Reliance is placed on A. Sreenivasa
Rao Vs. The State of Andhra Pradesh MANU/AP/0143/2011.
3. As far as the latter of the aforesaid contentions is concerned, I do not
find any merit therein. The definition of "aggrieved person" in Clause (a)
and (f) respectively of Section 2 of the Domestic Violence Act uses the
expression "is, or has been, in a domestic relationship and "who live or have,
at any point of time, lived together in a shared household". The said words
are wide enough to cover even divorced couples. As far as the judgment of
the Andhra Pradesh High Court is concerned, the same is an ex-parte order
and without considering the aforesaid provisions.
4. However I find certain observations in Adil v. State
MANU/DE/2406/2010 and in Harbans Lal Malik v. Payal Malik
MANU/DE/1842/2010 to be holding to the contrary.
5. Prima facie it also appears that Muslim Women Act would not come
in the way of applicability of the provisions of the Domestic Violence Act
to Mohammedans; if it were to be so held, owing to the Hindu Marriage Act,
1955 also containing provisions qua maintenance, Domestic Violence Act
would not apply to Hindus also, making the same otiose.
6. However, the said aspect also requires further consideration.
7. Issue notice. Notice is accepted by the Ld. APP for the state. The
petitioner to serve the respondent No.2 by all modes including dasti,
returnable on 18th July, 2011.
8. No case for granting interim stay is made out. The counsel for the
petitioners however states that in terms of the orders impugned, a payment
of approximately `1,50,000/- towards arrears is to be made by 20th June,
2011. He states that the petitioners shall pay a sum of `75,000/- on or before
20th June, 2011 and the balance remaining amount before the next date of
hearing.
9. The orders impugned are modified to that extent only. The petitioners
are permitted to make the payment as aforesaid. Crl.M.A. No.7238/2011 is
disposed of.
Cr.M.A. No.7239/2011 (for exemption)
Allowed, subject to just exceptions.
RAJIV SAHAI ENDLAW, J
VACATION JUDGE
JUNE 15, 2011
„gsr‟
