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2014 DIGILAW 552 (BOM)

Mohammad Ghouse v. Asiya Ismat

2014-02-27

M.L.TAHALIYANI

body2014
Judgment : 1. Heard learned Counsel Shri A.H. Jamal for the applicant and learned Counsel Shri P.N. Mehta for the non-applicant. 2. Admit. Heard finally by consent of the learned Counsel appearing for the parties. 3. This revision application impugns the judgment and order passed by the learned Additional Sessions Judge, Nagpur in Criminal Appeal No.6/2012. The appeal before the learned Additional Sessions Judge had arisen out of the order passed by the learned Judicial Magistrate First Class, Nagpur in Miscellaneous Criminal Application No.305/2010 under the Protection of Women from Domestic Violence Act, 2005. The applicant and his mother non-applicant No.2 were the non-applicants before the learned Magistrate in the complaint filed by the complainant Asiya Ismat w/o Mohammad Ghouse. The learned Magistrate came to the conclusion that non-applicant No.2 Sultana Begum was guilty of domestic violence and no orders were passed against her. However, non-applicant No.1 i.e. the applicant herein was found guilty of domestic violence and the learned trial Magistrate passed the following order. "1) The application is partly allowed. 2) The non-applicant No.1 is prohibited from repeating any act of Domestic Violence mentioned in the application. 3) The applicant is allowed to continue access to her personal effects. 4) The non-applicant No.1 is prohibited from alienating or damaging the Stridhan of applicant and directed to return the same to the applicant as mentioned in the list. 5) The non-applicant No.1 is directed to pay the maintenance of Rs.3,000/- per month to the applicant from the date of filing of application. 6) The non-applicant No.1 is directed to pay the compensation of Rs.50,000/- to the applicant. 7) Copy of judgment be supplied to the parties free of cost." 4. The applicant moved the Sessions Court by way of filing an appeal. The appeal was partly allowed and the following order was passed by the appellate Court. "i) The appeal is allowed partly. ii) The impugned judgment and order in Misc. Criminal Application No.305 of 2010, dated 17-11-2011, so far as Clause No.4 in the operative order is concerned, is set aside and modified as below : "The non-applicant is prohibited from alienating and damaging the Stridhan of the applicant and is directed to return the same to the applicant as admitted by him in his written statement." iii) Parties to bear their own costs." 5. The main grievance of the applicant is that he is not liable to pay Rs.3,000/- per month to the non-applicant as the non-applicant herself had deserted the applicant. The applicant is still willing to accept her as his wife. The non-applicant is staying with her father. 6. In this regard, it may be noted here that the non-applicant had examined herself as P.W.1 before the learned trial Magistrate and the applicant had also examined himself. There were no additional witnesses from either side. I have gone through the evidence of the applicant and the non-applicant recorded by the learned trial Magistrate. The learned trial Magistrate had accepted the evidence of the non-applicant without any corroboration. However, the learned trial Magistrate has rejected the evidence of the applicant and has expressed the view that the applicant was telling lies. 7. After carefully examination of the evidence of the non-applicant, I have come to the conclusion that her father was a material witness who could have thrown light on differences between the applicant and the non-applicant and causes thereof. In the given circumstances, though father of the non-applicant was not examined as witness by the non-applicant, it was incumbent on the part of the learned trial Magistrate to call father of the non-applicant as a court witness to satisfy himself about the correctness and genuineness of evidence of the non-applicant. Since the material witness who could have assisted the Court in arriving at a correct decision is available, it is just and proper that instead of deciding the revision application on the basis of evidence of the applicant and non-applicant, this Court remands the matter back to the learned trial Magistrate for calling father of the non-applicant as a court witness. In this regard, it may be submitted here that learned Counsel Shri P.N. Mehta submits that the non-applicant is ready and willing to examine her father as P.W.2 before the learned trial Magistrate. 8. In the meantime, issue of interim maintenance of the non-applicant also will have to be resolved. Since the earlier order was passed by the learned trial Magistrate and modified by the learned Sessions Court, is being set aside by this order, it is necessary for this Court to pass some orders by way of interim measure in favour of the non-applicant. Hence, I pass the following order. Since the earlier order was passed by the learned trial Magistrate and modified by the learned Sessions Court, is being set aside by this order, it is necessary for this Court to pass some orders by way of interim measure in favour of the non-applicant. Hence, I pass the following order. The judgment and order dated 03-12-2012 passed by the learned Additional Sessions Judge, Nagpur in Criminal Appeal No.6/2012 and the judgment and order dated 17-11-2011 passed by the Judicial Magistrate First Class, Nagpur in Misc. Criminal Application No.305/2010 are set aside. The non-applicant is at liberty to examine her father as P.W.2. In case the non-applicant fails to examine her father as a witness, the learned trial Magistrate shall call her father as a witness and examine. This does not prevent the learned trial Magistrate to examine any other witness either on behalf of the applicant or on behalf of the non-applicant. The learned Magistrate shall pass fresh order after recording evidence of father of the non-applicant. The applicant shall pay Rs.1,500/- per month by way of interim maintenance to the non-applicant with effect from the date of filing of the application. The amount already deposited by the applicant shall be adjusted towards the amount of maintenance, which is ordered to be given by way of interim relief. This interim order shall cease to operate immediately after final decision of the Magistrate. The parties to appear before the learned trial Magistrate on 19-3-2014. The revisions application stands disposed of. Ordered accordingly.