1. Heard Shri Khaleeq Ahmad Khan, learned counsel for the revisionists, Shri Sharad Dixit, learned AGA for the State respondent and Dr. L.P. Misra, learned counsel for opposite party no.2.
2. This criminal revision has been filed by Mohd. Waqar and others challenging the order dated 5.3.2014 passed by the learned Additional Sessions Judge, Court No.1, Faizabad in Criminal Appeal No.2 of 2014 by which the appeal filed by the revisionist against the judgment and order dated 7.12.2013 passed by the learned Additional Chief Judicial Magistrate - I, Court No.10, Faizabad was dismissed.
3. By the order dated 7.12.2013 the Additional Chief Judicial Magistrate - I, Court No.10, Faizabad has partly allowed the application of Smt. Amna Muzaffar moved under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act') in Complaint Case No.977 of 2013.
4. As per factual matrix of the case, a complaint under Section 12 of the Act was filed by Amna Muzaffar, claiming herself to be the wife of Mohd. Waqar, against Mohd. Waqar, Mahboob, Smt. Shakila, Sahar Sayyed and Rehana alleging that she was married with Mohd. Waqar on 8.6.2004, as per Muslim Law. She went to her matrimonial house same day, and was living as wife. Mohd. Waqar was working at Sharjah before marriage, so she also went to Sharjah. Mohd. Waqar was getting inadequate salary, so she herself started working as teacher, and saved much amount. Later on, salary of Mohd. Waqar was also increased, then she left the job and became involved in family life. In the month of August, 2011, she came to India along with her husband Mohd. Waqar and started living in her matrimonal house where opposite parties started demanding Rs.Twenty Lacs cash and a scorpio. She refused to fulfill the demand, then she was being tortured physically, mentally, emotionally and economically. On 18.11.2011, she was beaten by kicks and fists, and they tried to evict her from the house, but in order to save her future, she tried to make harmony. On 1.2.2012, she was made to sign on blank papers on the point of pistol, and her jewellery and clothes were usurped by the opposite parties, and later on, she was kicked out from the house on 21.2.2012. Then, she went to her maika. Later on, she learnt that Mohd. Waqar had gone to Sharjah. She also went to Sharjah, but Mohd. Waqar was not found there, then she returned back on 27.2.2012, and went to her matrimonial house, but she was not permited to enter in the house, hence she went to her maika. It was submitted that Mohd. Waqar is MBA degree holder, and now, he is earning Rs.50,000/- per month from his employment in metrocity Mumbai. By filing this complaint, she claimed Rs.20,000/- per month for fooding and medical treatment. Rs.10,000/- per month for maintenance, and Rs.Five Lacs as compensation. Opposite party nos.1 and 2 (revisionist nos.1 and 2) appeared before the Court and filed objection admiting the marriage and it was averred that family members of Amna Muzaffar were presurising them to fix Rs.Fifty One Lacs as mahr, then they said that they are not in a capacity to pay such heavy amount. Then Amna Muzaffar said that after marriage she will forgive this mahr. It was submitted that in Sharjah the husband used to give his entire salary to Amna Muzaffar, but she always got it transferred in her account in Syndicate Bank, Faizabad, and used to purchase jewellery. She has purchased 1.5 kilograms gold including jewellery, and has deposited Rs.Forty Lacs from the salary of Mohd. Waqar. When they were at Sharjah, Amna Muzaffar requested that her two brothers also be called there and get them employed some where, which was done by Mohd. Waqar, and after that, there was change in the behaviour of Amna Muzaffar, and she started treating him with cruelty and started demanding divorce. On 30.1.2012, Mohd. Waqar divorced Amna Muzaffar, as per Muslim Law, and he has sent the information to Amna Muzaffar, which she refused to acknowledge. Then, the information was sent through e-mail. It was further submitted in objection that because of Muslim Personal Law (Shariyat) Application Act, 1937, Domestic Violence Act is not applicable to divorced muslim lady.
5. The complainant filed her evidence through affidavit along with affidavit of Rizwan Ahmad, Rukhsana and Parveen. Salary certificate of Mohd. Waqar was also submitted. She also examined herself as PW-1.
6. Mohd. Waqar has filed his affidavit along with affidavit of Maulana Jalal, Ashraf and Mohd. Mehfooz. Some documentary evidence was also filed. Mohd, Waqar also examined himself as DW-1. Learned Magistrate, after going through the evidence on record and hearing the parties, partially allowed the application under Section 12 of the Domestic Violence Act, and directed Mohd. Waqar to provide one room in his house for Amna Muzaffar, also directed to provide food from his kitchen and was also directed to pay Rs.10,000/- per month as maintenance, and Rs.Four Lacs as compensation. He was further directed not to assault or use violence over her. Feeling aggrieved, criminal appeal was filed that too was dismissed. Feeling aggrieved, this criminal revision has been filed.
7. It was submitted by the learned counsel for the revisionist that as an irrovocable divorce has been given to Amna Muzaffar by Mohd. Waqar, then there was no occasion for application of the 'Act'. There is no evidence of violence being committed either by revisionist no.1 or his relatives. After divorce, wife is not entitled for protection under the 'Act'. The Muslim Women (Protection of Rights on Divorce) Act, 1986 (later on, referred to as 'Act of 1986') prohibited divorced women from claiming any maintenance allowance or compensation or damage beyond iddat period, which ended much earlier from her husband, and no order of maintenance allowance and compensation could have been passed either by the Magistrate or by the appellate court. There is no FIR, injury report, or any complaint to justify the allegations made by Amna Muzaffar for cruelty. Respondent no.2 has chosen three courses simultaneously (1) An application was moved before the Magistrate under Section 156 (3) Cr.P.C. for registering the case under Dowry Prohibition Act and allied laws; (2) The instant complaint; and (3) Application under Section 3 (2) of 'Act of 1986'.
8. It was further submitted that after divorce there was no occasion for respondent no.2 to live in the house of Mohd. Waqar and the order providing of accommodation and food is illegal, arbitrary and in violation of the provisions of Muslim Law.
9. It was further submitted that Amna Muzaffar is an educated lady, able to maintain herself, hence she is not entitled to maintenance.
10. It was also submitted that about Rs.Forty Lacs was sent in the account of Mrs. Amna Muzaffar, and she has transferred Rs.37,00,000/- to one Mr. Akbar, and Rs.11,50,000/- to one Mrs. Rukhsana in the month of February, 2012, so she is not in need of compensation and maintenance.
11. Learned counsel for opposite party no.2 argued that the act applies even to the divorced muslim woman and as divorce has not been proved, she is entitled for residence and food in her husband's house. It was further submitted that the amount, in her account, is her earning, from her job in Dubai. It was further submitted that in the 'Act' for granting maintenance and compensation, the wife is not required to prove that she is not able to maintain herself.
12. Before entering into the merit of rival contention of the parties, it is essential to have a look at Sections 2 (a) & (f), 3 and 12 of the 'Act'. It is reproduced below: -
2. In this Act, unless the context otherwise requires.-
(a) "aggrieved person" mean, 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;
(f) "domestic relationship" means a relationship hetween two persons who live or have, at any pomt of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are famnily members living together as a joint family;
3. For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it -
(a) harms or injures or endangers the health, safety, life, limb or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harssses, harms, Injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.- For the purpose of this section, -
(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm. or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault criminal intimidation and criminal force;
(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) "verbal and emotional abuse" includes -
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) "economic abuse" includes-
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation Il. - For the purpose of determining whether any act, omission, commission or conduct of the respondeot constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.
12. Application to Magistrate. --
(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act :
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent :
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
13. The rival submission of the parties is to be considered in the light of above provisions. In the case of Danial Latifi and another v. Union of India, (2001) 7 SCC 740 while considering the constutionality of the Act of 1986 the Apex Court has held as under: -
"Section 3 (1) of the Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under Section 3 (2) the Muslim divorcee can file an application before a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. The judicial enforceability of the Muslim divorced womans right to provision and maintenance under Section (3) (1) (a) of the Act has been subjected to the condition of husband having sufficient means which, strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during the iddat period is unconditional and cannot be circumscribed by the financial means of the husband. The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat. (para 27) A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word provision indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her cloths, and other articles. The expression within should be read as during or for and this cannot be done because words cannot be construed contrary to their meaning as the word within would mean on or before, not beyond and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3 (3) but no where the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. (para 28) The important section in the Act is Section 3 which provides that divorced woman is entitled to obtain from her former husband maintenance, provision and mahr, and to recover from his possession her wedding presents and dowry and authorizes the magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. The wordings of Section 3 of the Act appear to indicate that the husband has two separate and distinct obligations : (1) to make a reasonable and fair provision for his divorced wife; and (2) to provide maintenance for her. The emphasis of this section is not on the nature or duration of any such provision or maintenance, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, within the iddat period. If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligations of both reasonable and fair provision and maintenance by paying these amounts in a lump sum to his wife, in addition to having paid his wifes mahr and restored her dowry as per Section 3 (1) (c) and 3 (1) (d) of the Act. Precisely, the point that arose for consideration in Mohd. Ahmad Khan v. Shah Bano Begum, (1985) 2 SCC 556 case was that the husband has not made a reasonable and fair provision for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 CrPC. This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are a reasonable and fair provision and maintenance to be made and paid as provided under Section 3 (1) (a) of the Act and these expressions cover different things, firstly, by the use of two different verbs to be made and paid to her within the iddat period, it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act, which empowers the magistrate to issue an order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to provision. Obviously, the right to have a fair and reasonable provision in her favour is a right enforceable only against the womans former husband, and in addition to what he is obliged to pay as maintenance; thirdly, the words of the Holy Quran, as translated by Yusuf Ali of mata as maintenance though may be incorrect and that other translations employed the word provision, this Court in Shah Banos case dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether mata was rendered maintenance or provision, there could be no pretence that the husband in Shah Banos case had provided anything at all by way of mata to his divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to mata is only a single or one time transaction which does not mean payment of maintenance continuously at all. This contention, apart from supporting the view that the word provision in Section 3(1)(a) of the Act incorporates mata as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables a reasonable and fair provision and a reasonable and fair provision as provided under Section 3 (3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Bano's case, actually codifies the very rationale contained therein. (para 28)
14. The Apex Court has further held that "A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support is satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners."
15. The Apex Court has in the case of Union of India v. Devendra Kumar Pant and others, AIR 2010 SC 1253 dealing with the principles of invoking or applying the provisions of any Act has held in paragraph 16 that "When invoking or applying the provisions of the Act, it is necessary to keep in view that the intention of the Act is to give a helping hand to persons with disability so that they can lead a self-reliant life with dignity and freedom."
16. In the case of Badshah v. Sou. Urmila Badshah Godse and another, AIR 2014 SC 869 the Apex Court has held that "purposive interpretation needs to be given to the provisions of Section 125 Cr.P.C. The purpose is to achieve "social justice", which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society."
17. It is to be noted that when the decision of Danial Latifi and another v. Union of India (supra) was pronounced, the 'Act' was not in existence. It came into force after receiving the assent of the President on September 13, 2005, and published in the gazatte of India, Extra Part II, Section 1 dated 14.9.2005, from the date October 17, 2006.
18. The definition of Sections 2 (a) & (f) and 3 of the Act do not make any distinction between Hindu women and Muslim women. Concept to matrimonial violence cannot vary in accordance with religious persuation. The Secular constitution does not recognize and accept the existence of different varieties of Matrimonial violence like Hindu violence, Christian violence, Muslim violence and Secular violence. The violence is confined to the violence mentioned in Sections 12 of the 'Act'.
19. Section 36 of the Act, reads as follows: -
"36. Act not in derogation of any other law. - The provisions of this Act shall in addition to, and not in derogation of the provisions of any other law, for the time being in force."
20. Section 36 of the 'Act' also makes it clear that the provisions of this Act are in addition to the provisions of any other law for the time being in force. This clearly goes to show that the provisions of the 'Act' are in addition to the provisions of 'Act of 1986'.
21. Section 2 (a) and (f) of the 'Act' includes any woman, who is or has been in domestic relationship and during that relationship lived together in shared household. In view of this, the submissions made by the learned counsel for the revisionists that the provisions of the 'Act' are not applicable to divorced muslim women is not acceptable, as this 'Act' has been passed to give relief to an aggrieved woman, who has sufferred from domestic violence, irrespective of caste and religion, and is a beneficial legislation. Sections 17, 18, 19 & 20 of the Act are reproduced below: -
17. Right to reside in a shared household. - (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
18. Protection orders. - The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from -
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
19. Residence orders. - (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order -
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.
20. Monetary reliefs. - (1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
22. A persusal of 'Act', specially proviso of Section 12 (2) of the Act, shows that it does not create any additional right in favour of wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws. While the 'Act' specifies the duties and function of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, but the 'Act' is silent about the duties of husband, or the duties of wife. Thus, maintenance can be fixed by the court under the 'Act' only, as per prevalent law regarding providing of maintenance by husband to the wife, and also under Section 20 (3) of the 'Act'.
23. The words 'Compensation' and 'Damages' used in Section 12 of the 'Act' cannot be treated and equated with the word 'Maintenance', mentioned in Section 20 (3) of the 'Act'.
24. For getting relief of maintenance under sub Clause (3) of Section 20 of the Act, any woman has to prove that she was subjected to economic abuse, as defined under Section 3, Explanation 1 (iv) of the Act, and that she was deprived of all or any economic or financial resources to which the aggrieved person is entitled to under any law or custom whether payable under the order of court or otherwise.
25. Sections 3 and 4 of 'Act of 1986' are quoted below: -
3. Mahr or other properties of Muslim woman to be given to her at the time of divorce. -
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to -
(a) A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband:
(b) Where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children:
(c) An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
(d) All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.
(3) Where an application has been made under sub-section (2) by a divorced woman the Magistrate may; if he is satisfied that-
(a) Her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) The amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of subsection (1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him dispose of the application after the said period.
(4) If any person against whom an order has been made under subsection (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974) and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment of a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.
4. Order for payment of maintenance. -
(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order:
Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:
Provided further that if any of the parents is unable to pay his or her share of maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relative as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the proviso to subsection (1), the Magistrate may, by order direct the State Wakf Board established under Section 9 of the Wakf Act, (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under subsection (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.
25. These provisions make husband of a divorced muslim woman liable to certain extent, that too if conditions mentioned have not been complied.
26. In her complaint, Amna Muzaffar has in para 4 averred that earlier Mohd. Waqar was getting inadequate salary, so she also sought employment as a teacher and saved much. It has been stated that when salary of Mohd. Waqar increased, she left her job.
27. In her statement, she has admitted that she left the job, when she was admitted in hospital, being ill. She was employed in Dubai for only three years.
28. She has further replied in her cross examination that Waqar never transferred any amount from his earning to her account in Faizabad.
29. Statement of account of Mrs. Amna Muzaffar bearing no.86612200040523 of Syndicate Bank has been filed as Annexure 5. A perusal of it reveals that in the month of March, 2009 an amount of Rs.2,74,468/-, in the month of May, 2009 Rs.1,05,982/-, in the month of August, 2009 an amount of Rs.6.13,589.02, in the month of January, 2010 an amount of Rs.22,02,643/-, in the month of March, 2010 an amount of Rs.1,76,722/-, in the month of May, 2010 an amount of Rs.3,50,000/-, in the month of November, 2010 an amount of Rs.2,00,000/-, in the month of December, 2010 an amount of Rs.2,31,058/- and in the month of March, 2011 an amount of Rs.2,00,000/- was transferred in the above account from Sharjah.
30. It is also noteworthy that according to statement of Mrs. Amna Muzaffar, she left the job in the year 2007 or 2008, so she has not explained as to what was the source of above amount, which was transferred in her bank account from Sharjah. It is also evident from the above bank account statement that she had Rs.30,62,526.98 in her above account as balance on 31st March, 2011. This statement of account also reveals that in the month of February, 2012 Rs.10,00,000/-, Rs.12,00,000/- and Rs.15,00,000/- was transferred to one Akbar, by Mrs. Amna Muzaffar, and Rs.11,50,000/- was transferred to Mrs. Rukhsana, and only Rs.50,839.06 and Rs.52,775.98 remained remained left in her account on 31st March, 2012 and 31st March, 2013.
31. The above financial status/transactions by parties have bearing on the capacity of Mrs. Amna Muzaffar for maintaining herself.
32. In the instant case, Mrs. Amna Muzaffar is an educated woman, with a qualification of M.Sc. (Enviorental Science). Under these circumstances, fixing the maintenance amount by the court without considering this aspect is not warranted under the provisions of the 'Act'.
33. We are living in an era of equality of sexes. The constitution provides equal treatment to be given irrespective of sex, caste, creed and religion.
34. Right of residence and right of food from the kitchen of matrimonial home is a significant factor considering the averments of divorce. If the wife has been divorced, then the order passed by both the courts below regarding providing of room in matrimonial house and food from the kitchen is definitely erroneous, and if she is not divorced, then that order may be treated to be justified.
35. The husband has very categorically stated in the objection to the complaint of domestic violence that he has given divorce to Amna Muzaffar on 30.1.2012. Annexure 4 is an application moved by Amna Muzaffar before the Family Court, Faizabad under Section 3 (2) of Act of 1986. This application was filed on 12.8.2013 in which she has admitted that she is filing this application as divorced woman. It has also been mentioned that after going through the objection filed by Mohd. Waqar in the proceedings of the Act, she came to know of the divorce, and its intimation. In para 4 too she has claimed that after giving divorce she has not received the amount of mahr, which is Rs.Fifty One Lacs.
36. The statement of the victim in the complaint under Section 12 of the 'Act' was recorded on 22.8.2013 before the Magistrate i.e. after filing of application under Section 3 (2) of Act of 1986.
37. A perusal of the statement of Amna Muzaffar before the Additional Chief Judicial Magistrate, Ist Class, Faizabad reveals that she has not stated about the divorce in her examination in chief. Her statement continued till 23.9.2013. Both the courts below have not considered this while deciding the complaint and appeal. Additional Chief Judicial Magistrate, Ist Class, Faizabad has while deciding the application has considered the plea that even a divorce muslim woman is entitled to get protection under the Act. This clearly goes to suggest that the Magistrate has considered and passed order in the light of fact that there was divorce between Mohd. Waqar and Amna Muzaffar. In view of the above, the observation made by the appellate court in the decision that Mohd. Waqar has failed to prove the divorce is perverse, and not based on evidence on record.
38. Considering this fact that Amna Muzaffar has herself filed an application under Section 3 (2) of 'Act of 1986' for mahr treating herself to be a divorced woman, then the order passed by the Magistrate granting a room in matrimonial house and food from the joint kitchen is erroneous, and illegal. Consequently, the condition imposed that without permission and consent of the petitioner no one should enter in her room is also erroneous, as a muslim divorced wife is not entitled to live in the matrimonial house, and get food from the joint kitchen, in view of provisions of Section 4 and other sections of 'Act of 1986'.
39. The learned Magistrate and learned appellante court have not ventured into this aspect. They have to give clear cut finding as to whether there was any domestic violence. From a perusal of order of learned Magistrate dated 7.12.2013 it is clear that the learned Magistrate has given two instances of domestic violence, (1) demand of money and vehicle is domestic violence; and (2) forcefully getting the signature of the wife on blank papers, and curtailing her freedom also comes within the perview of domestic violence.
40. It is also on record that to prove the financial transactions an application was moved before the Magistrate for summoning the statement of account of Amna Muzaffar from the bank, but that was rejected on the ground that husband should have filed 'refusal of bank to provide these documents'. This order, rejecting summoning of statement of account, clearly goes to show, that revisionist was deprived from producing certain evidence, which, in view of financial statement mentioned in this judgment, has bearing on the capacity of maintenance, hence this application was wrongly rejected.
41. A perusal of Section 12 of the 'Act' also reveals that the Magistrate shall, while passing the order, take into consideration any domestic incident report received by him from the protection officer, or service provider, as has been mentioned in proviso to Section 12 (1) of the 'Act'. From a perusal of appellate order, or the order of the trial court, it is clear that no such report was considered by the Magistrate before passing the order.
42. It is worth mentioning that the revisional court cannot reassess or reappraise the evidence, and cannot upset the findings of fact recorded by the trial court by substituting its own finding. In the cases of State of Kerala v. K.M. Abdullah and Co., AIR 1965 SC 1585; Munna Devi v. State of Rajasthan, AIR 2002 SC 107; Associated Cement Co. Ltd. v. Keshvanand, 1997 DCR - 3 - 457 (SC); and Dulichand v. Delhi Administration, AIR 1975 SC 1960 it has been held that while the appellate jurisdiction is co-extensive with the original Court's jurisdiction as an appreciation and re-appreciation of evidence is concerned, the revisional court has simply to confine to the legality and propriety of the findings and as to whether the subordinate court acted within it's jurisdiction. A revisional court has no jurisdiction to set aside the findings of the fact recorded by the Magistrate and impose or substitute it's own findings. Sections 379 to 401 Cr.P.C. confer only limited power of revisional court to the extent of satisfying the legality, propriety or regularity of the proceedings or orders of the lower court and not to act like appellate court for other proposes including, the recording of new findings of fact on fresh appraisal of evidence.
43. It will not be out of place to quote the words of Justice Shiv Narayan Dhingra of Delhi High Court in Criminal Misc. Case No.491 of 2009 (Sanjay Bhardwaj and others v. The State and another) decided on August 27, 2010 that "It must be remembered that there is no legal presumption that behind every failed marriage, there is either dowry demand or domestic violence. Marriages do fall for various other reasons also. The difficulty is that real causes of failure of marriages are rarely admitted in courts. Truth and honesty is becoming a rare commodity in marriages and in averments made before the courts."
44. Both the courts below have not considered the entire evidence on record in right perspective and have also not appllied the law properly.
45. In view of the aforementioned discussions, the criminal revision is liable to be allowed, and is hereby allowed. Both the impugned orders dated 5.3.2014 passed by the learned Additional Sessions Judge, Court No.1, Faizabad in Criminal Appeal No.2 of 2014; and dated 7.12.2013 passed by the learned Additional Chief Judicial Magistrate - I, Court No.10, Faizabad are quashed. The matter is remanded back to the trial court for deciding the case afresh in the light of the observations made above. Parties are directed to appear before the court below on 21.5.2014, and the court below will make all endeavour to decided the case within another period of two months.
Order Date :- 6.5.2014 Anupam (Justice Arvind Kumar Tripathi - II)