Ameen Khan vs Smt. Nilofar and another

This criminal revision is directed against the order dated 23.11.2015 passed by the Court of Sessions Judge, Khandwa in Criminal Appeal No.151/2015; whereby petitioner husband Ameen was directed to pay Rs.3000/- per month to respondent wife Nilofar and Rs.3000/- per month to respondent daughter Afsara by way of maintenance under section 12 of the Protection of Women from Domestic Violence Act (hereinafter referred to in this order as ''''the Act''''). In addition thereto, petitioner husband Ameen was also directed to pay Rs.1000/- per month to respondents by way of rent.

The facts giving rise to this criminal revision may be summarized as hereunder: It is not in dispute that petitioner Ameen and respondent Nilofar married sometime in the year 2009 by Muslim rites. It is also not in dispute that respondent Nilofar has been living at her matrimonial home for past three years. Due to conjugal relations between them, respondent Afsara was born, who is 3 years old. Respondent Nilofar filed an application under section 12 of the Act on behalf of herself and on behalf of her daughter Afsara to the effect that ever since the marriage, the petitioner and his family members subjected her to mental and physical cruelty. They pressurized her for bringing Rs.1,00,000/- from her maternal home for the purpose of starting an illicit business. In order to get their demand fulfilled, they used to physically and mentally pressurize respondent Nilofar by indulging in persistent quarrels and filthy abuse. They also used to beat her. They would not allow he to visit her maternal home and asked her to bring household goods from her maternal home. Subsequently, respondent Nilofar lodged a report with Family Consultation Centre in the police station. Latter, on 26.03.2012, a compromise was reached between them. After the compromise, respondent Nilofar started to live with the petitioner; however, the behaviour of petitioner Ameen and his family members towards her did not change. It rather became more cruel. It has further been submitted that petitioner sells vegetables on a cart and is capable of maintaining respondents Nilofar and Afsara. Therefore, Rs.3000/- per month each to the two respondents and Rs.1000/- per month by way of rent was demanded under section 12 of the Act.

In reply, the petitioner submitted before the trial Court that the petitioner never inflicted any physical or mental cruelty upon respondent Nilofar; yet her behaviour towards the petitioner and his family members was highly improper. She used to pick quarrels with them on trivial excuses. She used to visit her maternal home without even informing the petitioner and her relatives. She used to taunt the petitioner and his relatives that she has been married off into family of beggers and she was better off without marrying. In the compromise between the parties on 26.03.2012, respondent Nilofar had promised that she would not visit her maternal home frequently and without permission from her in-laws. She would not call for household items from her maternal home and would not threaten the petitioner and her in-laws that she would get them implicated in false cases.

The trial Court held that no specific allegations of cruelty have been leveled by respondent Nilofar against petitioner and his family members because she failed to point out the time and date of each incident. Though, she has alleged that the petitioner and his family members resented the fact that she had given birth to a daughter and used to say that they would have kept her well, if she had given birth to a son yet, she has failed to explain as to why aforesaid fact did not find mention in her pleadings. The trial Court also gave a lot of weightage to the effect that in paragraph no.15 of the testimony of respondent Nilofar, she has admitted that she had filed this petition under section 12 of the Act only in order to harass her husband. Therefore, it was held, that she was not subjected to domestic violence and consequently was not found to be entitled to any maintenance allowance.

Aggrieved by order dated 19.06.2015 passed by the trial Court, respondent Nilofar preferred an appeal under section 29 of the Act before the Sessions Judge, Khandwa. After hearing the parties and on due consideration of the record, the appellate Court held that the trial Court had dismissed the application under section 12 of the Act on unsustainable grounds. Therefore, the order passed by the trial Court was set aside and the application for maintenance under section 12 of the Act was allowed and the petitioner husband was directed to pay maintenance allowance plus rent as stated above, by impugned order dated 23.11.2015.

The impugned judgment has been challenged in this criminal revision mainly on the ground that learned Sessions Judge failed to properly appreciate the evidence available in the matter. In the agreement reached between the parties in the Family Consultation Centre (Ex.D/1), it has been clearly stated that respondent Nilofar would not take any action to cause harm to herself. Though, she could visit her maternal home on the occasion of festivals; yet she would not postpone her return with sufficient grounds. She had further agreed that she would not visit her maternal home without informing the petitioner and her in-laws. She would fully honour her commitments towards the welfare of her family and would not implicate her matrimonial relatives in false cases. She would also not accept household items from her maternal relatives without permission from her husband and her in-laws. It has been argued that the inclusion of aforesaid conditions in the agreement amounted to tacit admission on the part of the respondent that indulged in such behaviour before the agreement. It is also clear from aforesaid terms and conditions that the petitioner never asked the respondent to bring anything from her maternal home. It has further been contended that admittedly, the petitioner is a vegetable seller and it is beyond his means to pay Rs.7000/- per month in all, to the respondents. Though, he is ready and willing to pay Rs.3000/- to his daughter Afsara, he has no means to pay Rs.4000/- per month to respondent Nilofar. Therefore, it has been prayed that the maintenance allowance payable to respondent Nilofar as well as the amount of Rs.1000/- per month towards monthly rent directed by the appellate Court be set aside.

Learned counsel for the respondent on the other hand have supported the impugned judgment.

On perusal of the record and due consideration of rival contentions, this Court is of the view that this criminal revision must fail for the reasons hereinafter stated.

The main ground on which the trial Court had dismissed the application under section 12 of the Act was that the respondent wife had not leveled any specific allegations regarding cruelty and harassment against the petitioner and his family members because she had failed to give any time or date of the incidents. It may be noted here that this is not a criminal case under section 498-A or 304-B of the Indian Penal Code . Domestic violence per se is not an offence. It consists of act and conduct, which if proved, has certain civil consequences. As such, much importance cannot be attached to the fact that respondent wife had failed to cite the time and date of the individual incidents of cruelty.

Another ground on which the application for maintenance allowance was dismissed by the trial Court was that respondent Nilofar had categorically admitted in paragraph no.15 of her deposition that she had filed this petition under section 12 of the Act solely in order to harass petitioner husband Ameen; however, the aforesaid admission ran contrary to entire flow of the evidence of the respondent. It is clear as day that she did not understand the meaning of import of word ''''Pratarna'''', as immediately thereafter, in paragraph no.16, presumably because she realized the import of aforesaid word, she denied the suggestion that she had filed an application with a view to harass the petitioner and his family members. In these circumstances, the trial Court erred in picking a solitary sentence with a tong and blowing it out of proportion.

Another argument that seemingly impressed the trial Court was that though, respondent Nilofar contended in her statement that cruelty was inflicted upon her because she had given birth to a daughter but there was no mention of such an allegation in her pleadings. Even if this ground is ignored, it is clear that there are several other grounds which established cruelty on the part of the petitioner husband. In these circumstances, as rightly held by the appellate Court, the trial Court was not justified in dismissing the application for maintenance.

It has to be noted here that petitioner husband Ameen has not examined himself before the trial Court. In his place, his mother Zohara Bi has stepped into the witness box. Thus, the respondent wife was deprived of her valuable right to cross-examine the petitioner.

Learned counsel for the revision petitioner has laid great emphasis upon the terms and conditions of the written compromise arrived at between the parties (Ex.D/1) and has tried to built a case that it was the respondent wife who was at fault and she has admitted those faults in the form of conditions which were binding upon her. However, it may be seen that agreement (Ex.D/1) is not a one sided document. It includes terms and conditions which bind both the parties. For example, in Ex.D/1, the petitioner husband has committed that he and his family members would never quarrel, abuse or beat respondent Nilofar. The petitioner has also committed himself to maintain his wife and daughter and provide for their needs promptly. Thus, it cannot be said that it was a one sided document. Hence, the petitioner does not derive much mileage from the aforesaid document.

So far as the argument of the petitioner that he is only a vegetables seller and it is beyond his means to pay Rs.4000/- to his wife Nilofar is concerned, it is not acceptable at all in view of categorical admission made by his mother Zohara Bi (Ex.PW1). In her cross-examination, she has admitted that petitioner Ameen is working in Muscat. He sends Rs.15000/- per month to his parents. When the petitioner can send Rs.15000/- per month to his parents, he can easily send Rs.4000/- to his wife, who is his first responsibility.

Moreover, Zohara Bi has also admitted that her daughter- in-law and grand daughter are living separately from them for past 3 years and they have not paid any maintenance to them. She has also admitted that they are not bringing their daughter-in-law to her matrimonial home because her son does not wish to keep her. It may also be noted that respondent Nilofar has stated in her evidence that she was kept well by her in-laws for about 4-5 years. Thereafter they started demanding money. They used to threaten that if they did not receive any money, Ameen would divorce Nilofar and remarry a girl who would bring substantial dowry. They used to demand Rs.1,00,000/- in dowry. She has also stated that since there was only one room in her matrimonial home, her mother-in-law used to crib about the situation and used to say that the respondent be expelled from the house otherwise where would she live. The trial Court has noted that aforesaid allegations made by respondent Nilofar have gone unchallenged. Thus, domestic violence stands proved.

In the conclusion, this Court of the view that the appellate Court committed no illegality, irregularity or impropriety in setting aside the order passed by the trial Court. Thus, no interference in the revisionary jurisdiction of the trial Court in the impugned order is warranted.

Consequently, this criminal revision deserves to be and is accordingly dismissed.