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2016 DIGILAW 566 (RAJ)

Mohd. Rafique v. State of Rajasthan

2016-04-23

SANDEEP MEHTA

body2016
JUDGMENT : Hon'ble MEHTA, J.—These two revisions are directed against the order dated 25.04.2015 passed by the learned Additional Sessions Judge No.2, Jodhpur Metropolitan in two appeals, one filed by Mohd. Rafique and the other filed by Smt. Rahmat Bano and Mohd. Shafeeq. The appellate court rejected both the appeals and affirmed the order dated 21.01.2014 passed by the learned Metropolitan Magistrate, Jodhpur Metro in Criminal Case No.455/2010. 2. The learned Metropolitan Magistrate, by the above order, had accepted the application filed by Smt. Rahmat Bano and Mohd. Shafeeq being the wife and minor son respectively of Shri Mohd. Rafique under the provisions of the Domestic Violence Act and directed that Mohd. Rafique shall make payment of an amount of Rs.1,000/- per month to each of the applicants in addition to the maintenance already being received by them under the orders passed by different courts. Shri Mohd. Rafique was also directed not to commit any domestic violence upon Smt. Rahmat Bano and Mohd. Shafeeq. 3. The wife and the son, challenged the order passed by the learned Metropolitan Magistrate by filing an appeal in the Sessions Court on the ground that the learned Magistrate, did not pass any order on the relief claimed by them under Sections 18, 19, 20, 21 and 22 of the Domestic Violence Act and that, while treating the income of the respondent to be Rs.80,000/- per month, he be directed to pay 1/3rd of the said amount to them by way of monetary relief. Mohd. Rafique challenged the order passed by the Magistrate in appeal claiming that the monetary relief granted to the respondents was unjustified and excessive. His income was only Rs.3,000/- per month and his old aged parents were dependent on him. The claimants had already been awarded a sum of Rs.4,000/- per month by way of maintenance in proceedings under Section 125 of the Cr.P.C. and thus, the impugned order should be set aside. The appellate court, by its order dated 25.04.2015, rejected both the appeals and affirmed the order dated 21.01.2014 passed by the learned Magistrate. Hence these revisions. 4. Shri Vineet Jain, learned counsel for the petitioner Mohd. Rafique submitted that the parties are living separately for a long time and the applicants have already been awarded substantive maintenance in the application filed before the Family Court under Section 125 Cr.P.C. The petitioner Mohd. Hence these revisions. 4. Shri Vineet Jain, learned counsel for the petitioner Mohd. Rafique submitted that the parties are living separately for a long time and the applicants have already been awarded substantive maintenance in the application filed before the Family Court under Section 125 Cr.P.C. The petitioner Mohd. Rafique has divorced the respondent Rahmat Bano and thus, she ceased to be an aggrieved person within the meaning of the definition provided under the Domestic Violence Act and therefore, the very application under Section 12 of the Domestic Violence Act was not maintainable. In support of this contention, he relied upon the following observations made by the Hon'ble Supreme Court in the case of Krishna Bhatacharjee vs. Sarathi Choudhary & Anr., reported in 2016(2) SCC 705 :- “In view of the aforesaid pronouncement, it is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of statute and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. Thus understood, the finding recorded by the courts below which have been concurred by the High Court that the parties having been judicial separated, the appellate wife has ceased to be an “aggrieved person” is wholly unsustainable.” 5. Drawing attention of the Court to the statement of Rahmat Bano recorded before the Family Court, Jodhpur on 26.11.2009, Shri Jain contended that Smt. Rahmat Bano admitted that her husband had sent her a written divorce notice which she received on 21.05.2010. He relied on the document (Ex.NA-11) in support of this contention. He also relied upon the order-sheets (Ex.P/8) drawn up in the proceedings under Section 125 Cr.P.C. going on before the Family Court inter-se between the parties and contented that during those proceedings, the wife accepted the offer of Rs.5,000/- per month made by the petitioner by way of maintenance and therefore, she is not entitled to claim any maintenance under the Domestic Violence Act. 6. Per contra, Ms. Farzana Baoo, learned counsel representing the applicants wife and the minor son, contended that there is no material on the record of the case to show that Mohd. Rafique had divorced Smt. Rahmat Bano. She contended that no such plea was taken in the reply filed by Mohd. 6. Per contra, Ms. Farzana Baoo, learned counsel representing the applicants wife and the minor son, contended that there is no material on the record of the case to show that Mohd. Rafique had divorced Smt. Rahmat Bano. She contended that no such plea was taken in the reply filed by Mohd. Rafique before the trial court that he had divorced Smt. Rahmat Bano. She further urged that during cross-examination of Rahmat Bano, no specific suggestion was given that Shri Mohd. Rafique had divorced her. She further urged that even if, it is assumed that the registered notice of divorce was sent by Mohd. Rafique to Rahmat Bano then too, it did not satisfy the requirements of a valid divorce under the Muslim Law. Thus, she contended that Smt. Rahmat Bano, being an aggrieved person within the meaning of the Divorce Act, is indeed entitled to claim maintenance from Mohd. Rafique. Learned counsel for the respondent further contended that the acceptance, which is reflected in the order-sheets (Ex.P/8), is regarding the amount of arrears of maintenance deposited by Mohd. Rafique before the Family Court in execution proceedings. So far as the final order of maintenance is concerned, the same was not a consent order and therefore, no adverse interference can be drawn by the so-called consent reflected in the order-sheets of the Family Court. She thus urged that the revision filed by Mohd. Rafique is devoid of merit. On the contrary, she pleaded that the amount of monetary relief granted by trial court to the applicants is grossly inadequate and is required to be enhanced. 7. Heard the arguments advanced by the learned counsel representing the parties and perused the material available on the record. Carefully considered the judgment rendered by the Hon'ble Supreme Court in the case of Krishna Bhatacharjee (supra). Suffice it to say that the observations made in the said judgment on which, Shri Jain heavily relied upon, do not give any support to the petitioner's claim that once divorce had been given and status of husband and wife is severed, thereafter, the woman would not be entitled to claim any maintenance under the provisions of Domestic Violence Act. Suffice it to say that the observations made in the said judgment on which, Shri Jain heavily relied upon, do not give any support to the petitioner's claim that once divorce had been given and status of husband and wife is severed, thereafter, the woman would not be entitled to claim any maintenance under the provisions of Domestic Violence Act. The definition of an aggrieved person as provided in Section 2 of the Domestic Violence Act reads as below: “(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.” 8. Thus a woman having lived in a domestic relationship with a male, is entitled to claim monetary relief under the Act irrespective of the fact that the status of the matrimonial relationship survives or not. That apart, the assertion made by Shri Jain that the husband Mohd. Rafique had legally divorced Smt. Rahmat Bano is per se untenable. The revisionist Mohd. Rafique was put a specific question during cross-examination that in order to give divorce to his wife, a Muslim husband is required to pay her the Mehar and the Iddat amount. He agreed to this suggestion. However, he did not state that while forwarding the alleged divorce notice (Ex.NA/11), the wife Rahmat Bano was offered and paid the Mehar and the Iddat amount. All that is mentioned in the divorce notice is that the Mehar amount of Rs.351/- was paid earlier. At what point of time, was the amount paid is not reflected in the document nor did Shri Mohd. Rafique during his evidence state anything about the payment of Mehar and the Iddat money to Rahmat Bano. Thus, the contention advanced by Shri Jain that Smt. Rahmat Bano was legally divorced and the matrimonial relationship stood severed leading to an inference that the lady ceased to be an aggrieved person is not sustainable on facts. Therefore, the judgment rendered by the Hon'ble Supreme Court in the case of Krishna Bhatacharjee (supra) has no application whatsoever to the case at hand. Therefore, the judgment rendered by the Hon'ble Supreme Court in the case of Krishna Bhatacharjee (supra) has no application whatsoever to the case at hand. The provisions of the Domestic Violence Act in themselves provide that the order of monetary relief under the Act can be passed in addition to the maintenance which might have been awarded to the aggrieved person under Section 125 of the Cr.P.C. Therefore, from the mere fact that the Family Court has awarded maintenance to the wife and the minor child under section 125 Cr.P.C. cannot disentitle them from claiming monetary relief under the Domestic Violence Act. The so-called consent given by the wife in the proceedings before the Family Court was apparently in the proceedings for recovery of arrears of maintenance and thus, does not in any manner, cause any prejudice to the entitlement of the lady to claim monetary relief under the provisions of the Domestic Violence Act. 9. Now, coming to the revision filed by the wife and the minor child for claiming relief in addition to what has been granted by learned trial court. Having considered the entirety of facts as available on the record, this Court is of the opinion that the applicant wife and child of Mohd. Rafique are already drawing significant amount of maintenance in proceedings under Section 125 of the Cr.P.C. and thus no enhancement is called for in the monetary relief over and above what already stands granted to them by the learned trial court by the order dated 21.10.2014. Rival claims of the parties have been thoroughly considered and adjudicated upon by two competent courts of concurrent jurisdiction by detailed orders which do not suffer from any infirmity whatsoever. Thus no interference is called for therein in the exercise of the revisional powers of this Court. 10. As a consequence of the above discussion, both the revisions and stay applications being devoid of any merit are hereby dismissed. Record be sent back.