Uttarakhand High Court
Naushad Ali vs Smt. Mariyam on 21 February, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 271 of 2016
Naushad Ali ........... Petitioner
Vs.
Smt. Mariyam ........ Respondent
Present :
Mr. Tapan Singh, Advocate for the petitioner.
None is present for the respondent.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
Challenge in this petition is made to the
proceeding of Misc. Case No.296 of 2015, Smt. Mariyam
vs. Naushad Ali, under Section 125 of the Code of
Criminal Procedure, 1973 (for short, "the Code"), pending
before the Judge, Family Court, Camp Haldwani, District
Nainital (for short, "the case").
2. The respondent filed an application under
Section 125 of the Code, which is basis of the case. A
notice was issued to the petitioner. At this stage,
challenge is made to the proceedings. Respondent had
filed counter affidavit, but at the time of hearing, none
represents the respondent. Petitioner has also filed a
supplementary affidavit.
3. Heard learned counsel for the petitioner and
perused the record.
4. Learned counsel for the petitioner would
submit that the respondent had earlier filed FIR No.164 of
2015 at Police Station Seohara, District Bijnor, Uttar
Pradesh against the petitioner and others. In that FIR,
trial proceeded and the petitioner and others have already
been acquitted in Sessions Trial No.502 of 2015, State vs.
Naushad and others, by the court of Additional Sessions
Judge/FTC 2nd Bijnor, Uttar Pradesh.
5. Learned counsel for the petitioner would
submit that on the one hand, the respondent had filed
FIR within the jurisdiction of District Bijnor, Uttar
Pradesh, on the other hand, she filed application under
Section 125 of the Code in the court in District Nainital,
Uttarakhand. It is argued that it is nothing, but
harassment of the petitioner.
6. Learned counsel would also argued that, in
fact, after filing of the application under Section 125 of
the Code, the parties have entered into a settlement. Now,
the parties are divorced and the respondent had married
again, therefore also nothing survives in the application
under Section 125 of the Code. Petitioner has filed copy of
talaknama dated 27.05.2016. In the case, notice was
issued to the petitioner on 12.10.2015. It means, it is a
subsequent event. Petitioner is free to bring this fact to
the notice of the court concerned. In so far as the second
marriage is concerned, there is no material before this
Court. If any subsequent event disentitles the respondent
to proceed from seeking maintenance from the petitioner,
petitioner is definitely free to move the court concerned.
In case if it is done, the court may decide the matter
accordingly. But in this proceeding based on alleged
divorce, the proceedings of the case may not be quashed.
7. In so far as the jurisdiction is concerned, in
para 6 of the counter affidavit, the respondent has stated
that in order to save her life, she left her father's house
and she is staying with her brother in Haldwani. It
means, she has taken shelter in Haldwani.
8. In the case of Rupali Devi vs. State of Uttar
Pradesh and others, (2019)5 SCC 384, the Hon'ble
Supreme Court discussed the jurisdiction of criminal
courts particularly, in the cases of matrimonial offences.
In para 15 of the judgment, Hon'ble Court has observed
as hereunder:-
"15. The Protection of Women from Domestic Violence
Act, as the object behind its enactment would indicate, is to
provide a civil remedy to victims of domestic violence as
against the remedy in criminal law which is what is provided
under Section 498-A of the Penal Code. The definition of
"domestic violence" in the Protection of Women from
Domestic Violence Act, 2005 contemplates harm or injuries
that endanger the health, safety, life, limb or well-being,
whether mental or physical, as well as emotional abuse. The
said definition would certainly, for reasons stated above, have
a close connection with Explanations (a) & (b) to Section 498-
A of the Penal Code which define "cruelty". The provisions
contained in Section 498-A of the Penal Code, undoubtedly,
encompass both mental as well as the physical well-being of
the wife. Even the silence of the wife may have an underlying
element of an emotional distress and mental agony. Her
sufferings at the parental home though may be directly
attributable to commission of acts of cruelty by the husband
at the matrimonial home would, undoubtedly, be the
consequences of the acts committed at the matrimonial
home. Such consequences, by itself, would amount to
distinct offences committed at the parental home where she
has taken shelter. The adverse effects on the mental health in
the parental home though on account of the acts committed
in the matrimonial home would, in our considered view,
amount to commission of cruelty within the meaning of
Section 498-A at the parental home. The consequences of the
cruelty committed at the matrimonial home results in
repeated offences being committed at the parental home. This
is the kind of offences contemplated under Section 179 CrPC
which would squarely be applicable to the present case as an
answer to the question raised."
9. The respondent, according to her application
under Section 125 of the Code has taken shelter with her
brother in Haldwani. It is alleged that the respondent is
staying with her brother in order to save her life from the
petitioner. It cannot be said that the court in Haldwani,
District Nainital has no jurisdiction to entertain an
application under Section 125 of the Code.
10. In view of what is stated hereinbefore, this
Court is of the view that there is no merit in this petition.
Hence, the petition deserves to be dismissed.
11. The petition is dismissed.
(Ravindra Maithani, J.)
21.02.2022
Sanjay
