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Karnataka High Court · body

2020 DIGILAW 2105 (KAR)

Mohammad Ayub v. Fouzia D/O Mr. Abbas

2020-10-21

K.S.MUDAGAL

body2020
ORDER : Aggrieved by the order granting maintenance of Rs.3,000/-per month to respondents No.1 to 3 each by way of monetary relief under the Protection of Women from Domestic Violence Act, 2005 (for short ‘the DV Act’) and confirmation of the said order by the IV Addl. District and Sessions, D.K.Mangaluru, the petitioner is before this Court. 2. Respondent No.1 is the wife and respondent Nos.2 and 3 are the sons of the petitioner. The marriage of the petitioner and respondent No.1 was solemnized on 15.01.2004 as per their customs. Out of the said wedlock, respondent Nos.2 and 3 were born on 11.11.2004 and 03.04.2007 respectively. 3. Respondent No.1 filed complaint before the Bantwal Rural Police Station in Crime No.215/2009 alleging that the petitioner subjected her to physical and mental cruelty in connection with his unlawful demands. Respondent Nos.1 to 3 filed M.C.No.106/2010 against the petitioner and his two brothers – Ismail and Lethief under Section 12 of the DV Act claiming the protection order, right of residence, monetary relief, compensation etc. In that petition the petitioner herein was arrayed as respondent No.1 and respondent Nos.1 to 3 were the petitioners. For the purpose of convenience the parties will be referred to henceforth with their ranks before the trial Court. 4. The gist of the complaint in M.C.No.106/2010 was as follows: The respondents subjected petitioner No.1 to physical and mental cruelty in connection with their unlawful demands. Respondent No.1 contracted second marriage and the said second wife intermittently used to visit their house and stay for some days. Respondent No.1 used to assault petitioner No.1 and drove the petitioners from his house, therefore, they have taken shelter in the parental house of the first petitioner. Respondent No.1 has failed and neglected to maintain them. They claimed the reliefs of protection order, right of residence, monetary relief and compensation etc. 5. The defence of the respondents was as follows: The relationship between the parties was admitted. Petitioner No.1 herself was atrocious and most incompatible. She herself divorced respondent No.1 under Ex.R1 on 14.01.2008 and since then she is residing separately with the children. Respondent No.1 got issued notice Ex.R2 calling upon petitioner No.1 to confirm the divorce effected under Ex.R1. For that she issued confirmation by way of reply under Ex.R8. Petitioner No.1 herself was atrocious and most incompatible. She herself divorced respondent No.1 under Ex.R1 on 14.01.2008 and since then she is residing separately with the children. Respondent No.1 got issued notice Ex.R2 calling upon petitioner No.1 to confirm the divorce effected under Ex.R1. For that she issued confirmation by way of reply under Ex.R8. Under Ex.R1 and Ex.R8, petitioner No.1 has given up the right of herself and her children to claim any relief against the petitioner. Petitioner No.1 has contracted second marriage with one Ibrahim under Ex.R13 on 25.05.2007. Therefore, she is not entitled to any relief under the DV Act. 6. The parties adduced evidence. The trial Court after hearing the parties, by the impugned order dated 10.11.2014 rejected the defence of respondents and awarded maintenance of Rs.3,000/-per month to each of the petitioners. Respondent No.1 challenged the said order before the IV Additional District and Sessions Judge, D.K. in Crl.A.No.273/2014. The first appellate Court accepting the reasons and findings of the trial Court dismissed the appeal. 8. Sri Prasanna, learned Counsel representing the husband seeks to assail the impugned order on the following grounds: (i) PW.1 has admitted her signatures on Ex.R1 and Ex.R8 whereunder she has confirmed the fact of she giving divorce; (ii) PW.2 the father of petitioner No.1 admits the service of notice Ex.R2 on petitioner No.1; (iii) On the same allegations, respondents were prosecuted in C.C.No.52/2010 and they were acquitted. The trial Court failed to appreciate such documentary evidence. 9. Per contra, Sri Lethief, learned Counsel representing wife seeks to justify the impugned order on the following grounds: (i) Though PW.1 admitted her signatures on Ex.R1 and Ex.R8, she denied the contents of the same. Her defence that respondent No.1 obtaining her signature on blank papers has manipulated the documents, was rightly accepted by the trial Court and the first appellate Court. (ii) Ex.R1 and Ex.R13 are highly suspicious documents. The stamp papers of Ex.R.1 and R.13 were purportedly purchased on 17.02.2007. Ex.R.1 was purportedly executed on 14.01.2008 i.e., almost after one year after the purchase. (iii) Ex.R13 is undated. The name of the purchasers of the stamp papers is interpolated later. (iv) The second son was born on 03.04.2007. RW.1 himself states that petitioner No.1 contracted the second marriage after divorce under Ex.R1 dated 14.01.2008. But Ex.R13 states that she contracted second marriage on 25.05.2007. (iii) Ex.R13 is undated. The name of the purchasers of the stamp papers is interpolated later. (iv) The second son was born on 03.04.2007. RW.1 himself states that petitioner No.1 contracted the second marriage after divorce under Ex.R1 dated 14.01.2008. But Ex.R13 states that she contracted second marriage on 25.05.2007. (v) The custody of those two documents was not explained by the respondents. (vi) PW.2 admitting service of notice on PW.1 has no consequences since she herself has disputed the service. 10. This being the revision petition against the concurrent findings of the trial Court, they cannot be interfered unless it is shown that the orders of the trial Court and the first appellate Court suffer perversity, glaring illegality or impropriety. 11. The whole question is whether the claim of the respondents that petitioner No.1 herself deserted respondent No.1, divorced him and contracted the second marriage was acceptable ? 12. According to the respondents themselves, the petitioner No.1 submitted Ex.R1 and Ex.R13 to the Jamat. If that be so, how respondents gained the custody of those documents was not explained. They did not examine any Jamat authorities to prove that those documents were submitted to the Jamat and in turn Jamat passed on those documents to the respondents. 13. Secondly, RW.1 in his chief-examination itself states that after divorcing him, the wife has contracted the second marriage. According to him, the divorce was on 14.01.2008. But as per Ex.R13-the alleged marriage record, the second marriage was contracted on 25.05.2007 that was much prior to the alleged divorce. It was not his case that petitioner No.1 foresaw her second marriage and purchased stamp papers of Ex.R1 and Ex.R13 together. Stamp papers for both the documents were purportedly purchased on 17.02.2007 in Mangaluru. The names of the purchasers of the stamp papers were apparently interpolated. Respondents did not examine anybody from the Jamat to prove the earlier divorce or second marriage of petitioner No.1. 14. Ex.R.2 the notice seeking clarification on Ex.R.1 was purportedly issued by RW.2 an advocate. But that does not bear his signature. But that is signed by respondent No.1 himself. Though RW.2 the advocate in his chief-examination claims that he has issued the notice Ex.R2, in his cross-examination admits that whenever he issues notice to the parties, he himself signs such notices. 15. But that does not bear his signature. But that is signed by respondent No.1 himself. Though RW.2 the advocate in his chief-examination claims that he has issued the notice Ex.R2, in his cross-examination admits that whenever he issues notice to the parties, he himself signs such notices. 15. To the question whether he knows the tenets of the Mohammedan law and for giving such notice, whether he examined Mohammedan law relating to marriage, RW.2 states that he is not aware of the Mohammedan law. That speaks about the quality of evidence of RW.2 and his professional responsibility. Therefore, the Courts below rightly rejected Ex.R1 to R.3, R.8 and Ex.R.13. 16. The respondents though in their statement of objections disputed the second marriage of respondent No.1, he himself in his cross-examination unequivocally admitted that he married a second wife and has two children out of such marriage. Despite that he says that he was ready to lookafter his wife and children, but they were not agreeable. 17. This Court in Yusuf Patel vs. Ramjanbi (MFA No.201154/2018 D.D. on 17.08.2020) has held that contracting second marriage during the subsistence of the first marriage amounts to domestic violence. The evidence on record clearly shows that respondent No.1 has tried to manipulate the documents with an intention to deprive the petitioners of their right of maintenance. Admittedly, respondent No.1 has not claimed the custody of children at any time. Under such circumstance, the trial Court and the first appellate Court rightly held that the acquittal of the accused in the criminal case on the complaint filed by the wife do not bar the Court in the proceedings under the DV Act to grant the maintenance. This Court does not find any impropriety, illegality or incorrectness in the impugned orders passed by the Courts below. Therefore the petition is dismissed.