It has been held by the Hon'ble Division Bench of Bombay High
Court in the matter of Mahomed Abdul Aziz Hidayat (Supra) that under
the Muhamadan Law there is no obligation on the father-in-law to
maintain the widow of his son. The relevant portion of the above decision
is quoted below:-
“ 2. The principles with regard to maintenance under the Muhamadan
Law are fairly well settled, and the main principle is, as is to be found
in Mulla's Muhamadan Law, p. 286 and Mulla relies upon the
statement of law in Baillie's Digest of Muhamadan Law at p. 467,that
a person is liable to maintain another when that person could be the
heir of the person whom he is called upon to maintain. In this case the
father-in-law could never be the heir of his daughter-in-law, and
therefore on that principle there is no obligation to maintain the widow
of his son. ..........................”
Section 36 of the PWDV Act, 2005 provides that the provisions of
that Act shall be in addition to, and not in derogation of the provisions of
any other law, for the time being in force. In the decision of Mrs.
Nanadita Sarkar Nee Sen (Supra), the concept of Hindu Adoption and
Maintenance Act, 1956 was taken into consideration vis a vis the
provisions of PWDV Act, 2005. In the case in hand both parties are
Mohammedan and as such under the Muhamadan Law, opposite party
no.2, being father-in-law, is under no obligation to provide maintain
allowance to the widow of his son namely the petitioner.
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present:
The Hon’ble Justice Md. Mumtaz Khan
CRR No. 979 of 2017
Shabnam Parveen Vs. The State of West Bengal & Ors.
Judgment on : 24.11.2017
The instant revision has been preferred by the petitioner/widow
daughter-in-law of Opposite Party Nos. 2 and 5 and sister-in-law of
Opposite Party Nos. 3 and 4 assailing the order dated January 24, 2017
passed by the learned Additional District and Session Judge, First Court,
Sealdah, South 24 Parganas in Criminal Appeal No. 31 of 2016 setting
aside the order granting monetary relief to the petitioner under section
20(d) of the Protection of Women from Domestic Violence Act.
The facts leading to the instant revision is that the
petitioner/widow daughter-in-law filed an application under Section 12of the Protection of Women from Domestic Violence Act (hereinafter
referred to as ‘PWDV’ Act) against her in-laws namely the Opposite
Parties before the learned Additional Chief Judicial Magistrate at Sealdah
seeking relief under section 18, 19, 20, 22 and 23 of the Act which
registered as Complaint case no.63 of 2015. She also prayed for interim
relief and the learned Magistrate, 2nd court, Sealdah by an order dated
June 22, 2016 allowed the monetary relief directing Opposite Party
No.2/father-in-law to pay Rs. 2,500/- per month to the petitioner/widow
daughter-in-law under Section 20(d) of the PWDV Act. Being aggrieved
by and dissatisfied with the same Opposite Party No.2/father-in-law
preferred appeal being Criminal Appeal No. 31 of 2016 and the learned
Additional Session Judge, First Court, Sealdah, South 24 Parganas
allowed the appeal and set aside the order directing payment by Opposite
Party No.2/father-in-law to this petitioner/widow daughter-in-law by the
impugned order. Being aggrieved by the same petitioner has preferred
the instant revision.
It was submitted by the learned advocate for the petitioner that
this petitioner after marriage started her conjugal life with her husband
in the joint mess of the opposite parties but during her stay there she
was subjected to cruelty by the opposite parties and was finally driven
away by them from the matrimonial home. It was also submitted by him
that there was a joint family business and after death of the husband of
the petitioner father-in-law is looking after that business and their family
income is more than Rs.50,000/- per month whereas this petitioner has
no independent source of her income and accordingly learned Magistrate
taking into account the same directed Opposite Party No.2/father-in-law
to pay Rs. 2,500/- per month till the disposal of the proceeding under
Section 12 of the protection of PWDV Act but the learned Additional
District & Sessions Judge set aside that order by the order. According to
him learned Additional District & Sessions Judge was not justified in not
taking into account that petitioner has no independent source of herincome whereas father-in-law is looking the joint family business and
earning more than Rs.50,000/- per month while rejecting the order
passed by the learned Magistrate.
Learned Advocate for the opposite parties submitted that opposite
party no.2 is a retired person having no independent source of income
and denied having joint family business with the deceased husband of
the petitioner. He further submitted that petitioner is the widow
daughter of Opposite Party No.2 and they are governed under the
Mohammedan law and as per the Mohammedan law widow daughter-inlaw
is not entitled to any maintenance from her father-in-law. According
to him learned Additional District & Sessions Judge was quite justified in
setting aside the order passed by the learned Magistrate.
He relied on the decisions in the matter of Mahomed Abdul Aziz
Hidayat Vs. Khairunnissa Abdul Gani reported in AIR (37) Bombay 245
and Mrs. Nanadita Sarkar Nee Sen Vs. Sri Tilak Sarkar and Ors. reported
in (2015) 1 C Cr LR (Cal) 892 in support of his submissions.
I have considered the submissions of both sides and gone through
the impugned order and the documents annexed with the instant
revision.
The procedure for obtaining orders of reliefs has been provided
under Chapter IV of the PWDV Act, 2005. Section 12 of the PWDV Act
has given right to the aggrieved person to present an application before
the Magistrate seeking one or more reliefs under the Act. “Aggrieved
person” as defined in Sub-Section(a) of Section 2 of the PWDV Act, 2005,
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. “Domestic relationship”, as defined
in Sub-Section(f) of Section 2 of Act, means a relationship between two
persons who live or have, at any point of time, lived together in a shared
household, when they are related by consanguinity, marriage, or througha relationship in the nature of marriage, adoption or are family members
living together as a joint family.
Petitioner's domestic relationship with the opposite parties is not
an issue before this court in the instant revision. The only question
involved in the instant revision is whether the father-in-law has any
obligation to maintain the widow of his son.
It has been held by the Hon'ble Division Bench of Bombay High
Court in the matter of Mahomed Abdul Aziz Hidayat (Supra) that under
the Muhamadan Law there is no obligation on the father-in-law to
maintain the widow of his son. The relevant portion of the above decision
is quoted below:-
“ 2. The principles with regard to maintenance under the Muhamadan
Law are fairly well settled, and the main principle is, as is to be found
in Mulla's Muhamadan Law, p. 286 and Mulla relies upon the
statement of law in Baillie's Digest of Muhamadan Law at p. 467,that
a person is liable to maintain another when that person could be the
heir of the person whom he is called upon to maintain. In this case the
father-in-law could never be the heir of his daughter-in-law, and
therefore on that principle there is no obligation to maintain the widow
of his son. ..........................”
Section 36 of the PWDV Act, 2005 provides that the provisions of
that Act shall be in addition to, and not in derogation of the provisions of
any other law, for the time being in force. In the decision of Mrs.
Nanadita Sarkar Nee Sen (Supra), the concept of Hindu Adoption and
Maintenance Act, 1956 was taken into consideration vis a vis the
provisions of PWDV Act, 2005. In the case in hand both parties are
Mohammedan and as such under the Muhamadan Law, opposite party
no.2, being father-in-law, is under no obligation to provide maintain
allowance to the widow of his son namely the petitioner.
Therefore, taking into account the entire circumstances, there
appears no illegality or irregularity in the impugned order passed by thelearned Additional Sessions Judge,1st Court Sealdah setting aside the
order of the Magistrate directing opposite party no.2, father-in-law, to
pay interim monetary allowances to the petitioner, daughter-in-law. In
the result revision fails.
Trial court is directed to hear out the main application of the
petitioner under section 12 of the PWDV Act, 2005 seeking several reliefs
under the Act and conclude the same as expeditiously as possible
preferably within a period of three months from the date of
communication of this order. I make it clear that all issues are kept open
and shall be decided on the basis of the evidence adduced by the
respective parties without being influenced by the observations made in
the body of the judgment.
The instant revisional application is, thus, disposed of. No order
as to costs.
Urgent photostat certified copy of this judgement, if applied for, be
given to the parties expeditiously upon compliance with the necessary
formalities in this regard.
(Md. Mumtaz Khan, J.)
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