respondent continues to be legally weeded wife of the petitioner and
in that contingency the question is whether the wife who is in
domestic relationship with the petitioner is entitled to seek the relief
under the provisions of the Domestic Violence Act. Though the
learned counsel for the petitioner had vehemently argued that the
parties are governed by Muslim Personal Laws and therefore the
provisions of the Domestic Violence Act cannot be invoked, per
contra Mrs.Irani would submit that there is no intention of the
legislature to restrict the provisions of Protection from Womens of
Domestic Violence Act, 2005 to a particular category of women and
to specifically exclude the women belonging to the Muslim religion.
8. Perusal of the provisions of the Protection of Women
from Domestic Violence Act, 2005 would reveal that it is an
enactment to provide for more effective protection for rights of
women guaranteed under the Indian Constitution who are the
victims of the violence. The enactment no way intends to restrict its
application to any particular category of women but it intends to
protect the women aggrieved, who are victims of Domestic Violence.
The definition and connotation of “Domestic Violence” under
Section3 of the enactment do not indicate any intention either
express or implied to exclude Muslim women. Section36 of the
said enactment provides that the provisions of the Act shall be in
addition to and not in derogation of the provisions of any other law
for the time any force. Thus, the scheme of the enactment do not
restrict the applicability of the provisions of the Act to a particular
category of women, nevertheless to a woman belonging to a
particular religion. No doubt the Muslim women are also governed
by several other enactments in the form of Muslim Women
(Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim
Marriage Act, 1939 etc., however, the rights conferred under the
said enactments can in no way curtail the operation or Protection
granted under The Protection of Women from Domestic Violence
Act. In these circumstances the contention advanced by the learned
counsel for the petitioner that the respondentwife could not avail
the provisions of the Domestic Violence Act is not sustainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 114 OF 2018
WITH
CIVIL APPLICATION NO.518 OF 2018
Mr.Ali Abbas Daruwala V/s. Mrs.Shehnaz Daruwala.
CORAM : SMT.BHARATI H. DANGRE, J
PROUNCENED ON : 04th MAY 2018.
Citation: 2018(6) MHLJ 596
challenging the order dated 22.06.2017 passed by the Family Court
at Bandra below Exh7 in petition No.A1097/2015, thereby
allowing the application and directing the petitioner to pay an
amount of Rs.25,000/ per month to the petitioner and Rs.20,000/
per month each for both the children towards interim maintenance
from the date of the filing of the application including the house
rent. The petitioner is aggrieved by the said order and prays for
quashing and setting aside the said order on the ground that the
Family Court has exceeded its jurisdiction in passing the said order.
A brief chronology of facts and events leading to the filing of present
petition is culled out in the subsequent paragraphs.
2. The petitioner and the respondent belong to Islamic
Alvi Bohra Community and were married on 16.10.1997. Out of the
said marriage three children were born and one eldest son expired
on 28.10.2014. The other two children are aged 14 and 13 years
respectively.
The respondentwife filed petition for divorce under the
Dissolution of Muslim Marriage Act, 1939 seeking dissolution of the
marriage, before the Family Court at Bandra on 15.04.2015 and
invoked provisions of Section 2(viii)(a)(d) of the Dissolution of
Muslim Marriage Act, 1939 and also prayed for custody of the
children, maintenance and accommodation. The said prayer for
divorce was opposed by the petitioner by filing written statement.
On the very same day when the proceedings were
instituted for divorce, the respondentwife moved an interim
application seeking maintenance and accommodation and in the
said application she reiterated the statements made in the petition
and claimed an amount of maintenance for herself as well as two
minor children, taking into consideration the earning capacity of the
petitionerhusband and her requirements. The amount of Rs.2 lakhs
was claimed towards maintenance for herself and an amount of
Rs.1,50,000/ was claimed towards the maintenance of the children
along with the cost of litigation. The petitioner filed his response to
the said application on 23.04.2016 opposing the said claim.
The husband raised an objection by filing application
under Order 7 Rule 11(a) of the Civil Procedure Code which came
to be rejected by the Family Court by observing that the petition for
dissolution of marriage cannot be dismissed in such a fashion. On
20th May 2016 the wife again filed an application for monthly
maintenance for herself and her minor children which was marked
as Exh.34.
3. It is a specific case of the petitioner that he gave Talaq
to the respondent on 29.03.2017 and since the wife herself was
claiming divorce, he was under an impression that she would not
object to the same. The wife objected to the divorce granted by the
petitioner and according to the petitioner she accepted the amount
of Mehar and she returned the said amount only on 08.05.2017.
According to the petitioner since, the wife herself had approached
and filed the proceedings under the Dissolution of Muslim Marriage
Act, she had no justification to oppose the said Talaknama dated
29.03.2017. The Family Court vide order dated 06.05.2017 passed
a restrain order, restraining the petitioner for performing the second
marriage. The petitioner moved an application for deciding the
maintainability of the petition and also praying for framing
preliminary issue of jurisdiction under Section 9A of the Civil
Procedure Code. The learned Family Court by order dated
17.07.2017 ordered that the issues raised in the application would
be added to other issues to be dealt by the Court.
On 09.06.2017 the respondent filed an application
under Section 12, 18, 19, 20, 22 and 23 of the Domestic Violence
Act, 2005 and prayed for the similar relief which she had prayed in
the earlier application. On 22.06.2017 the Family Court passed an
impugned order which is assailed in the present petition.
4. In support of the petition I have heard Ms.Angha
Nimbkar appearing for the petitioner she would submit that the
petitioner and respondents are governed by the Muslim Personal
Laws and different enactments govern their personal relationship of
including The Muslim Personal Law (Shariat) Application Act 1937,
The Dissolution of Muslim Marriage Act, 1939 and The Muslim
Women (Protection of Rights on Divorce) Act, 1986. The learned
counsel would invite attention to the provisions contained in the
Muslim Women (Protection of Rights on Divorce) Act, 1986 and
specifically to the provision contained in Section3 of the said Act
which contemplate a reasonable and fair provision of maintenance
to be made and paid to a wife during iddat period. She would also
invite attention to Section3 of the said Act which reads thus :
“(3) Where an application has been made under subsection
(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 subsection (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.”
5. She would also make reference to Section2 of The
Dissolution of Muslim Marriage Act, 1939 and would submit that
the said Act permits a women to obtain a decree for dissolution of
marriage on the grounds set out in the said section. The learned
counsel for the petitioner would thus submit that the Family Court
has erred is not considering the fact that divorce sought under the
Act for all practical purposes is by way of “Khula” and that is a
reason there is no provision for any other reliefs for maintenance,
custody of children etc., provided in the Act. She would submit that
“Khula” is a mode of dissolution of marriage by agreement between
husband and wife and the divorce by “Khula” is divorce by consent
at the instance of the wife in which she gives or aggrieves to give a
consideration to the husband for release from marriage. She would
submit that the husband after following the established procedure
under the Muslim Law are has pronounced “Talaq” on 29.03.2017
thereby dissolving the marriage solemnized between the parties and
amount of mehar/dower of Rs.60,000/ was send to the respondent
on 30.03.2017, which came to be returned by her only on
06.05.2017. The learned counsel would submit that the respondent
is a divorced wife and her rights are enumerated and limited under
the Muslim Women (Protection of Rights on Divorce) Act, 1986.
She would submit that the petition filed before the Court was
exclusively under the Dissolution of Muslim Marriage Act, 1939
where there is no provision for any ancillary reliefs, as are available
under the Domestic Violence Act, 2005. She would also submit that
the learned Family Court did not consider that the complaint under
Section12 was filed as an after thought, after after filing of the
application for maintenance. She would also emphasis that the
respondent has not mentioned the provision of law under which the
relief was claimed. She would also assail the order of the Family
Court on the ground that the Court did not consider the
qualifications of the wife and her potential to earn a livelihood for
herself.
Per contra learned counsel Ms.Irani would support the
impugned order. She would submit that in no contingency it is a
case of 'Khulla'. She would submit that the provisions of Protection
of Domestic Violence Act do no create any restriction on the wife to
invoke the provisions of the said enactment on the ground that she
is governed by Muslim Personal Law. Mr.Irani would submit that the
wife had instituted proceedings under the Dissolution of Muslim
Marriage Act 1939 specifically invoking Section2(viii)(a) and (d).
She would submit that for the married Muslim women there was no
provision available to obtain a decree from the Court seeking
Dissolution of Marriage, in case the husband neglect to maintain her
and make her life miserable by inflicting cruelty on her and in
absence of such a provision being available, Muslim women were
subjected to utmost misery. In order to provide a remedy to such
oppressed women, the Dissolution of Muslim Marriage Act, 1939
came to be enacted enabling a women married under Muslim Law
to obtain a decree for Dissolution of Marriage on the grounds
enumerated under Section2. According to the learned counsel the
wife had invoked the provisions of the said enactment seeking
divorce on ground of cruel treatment meted out to her.
Ms.Irani would submit that the in the said proceedings
the wife moved an application seeking reliefs available under
Section12 of the D.V. Act including the monetary relief. She would
submit that there is no legal embargo in her approaching the
competent Court by invoking the said provision. She would pray for
upholding of the impugned order and would submit that the
proclamation of Talaq by the husband cannot nullify the benefits
flowing to her unless the factum of Talaq is proved by sufficient
evidence.
6. On consideration of the arguments advanced by the
parties in support of their respective claim, the first point which
arise for consideration is whether the Family Court was justified in
entertaining the application filed by the respondentwife in light of
the fact that the parties belong to Islamic Alvi Bohra Community
and specifically in the backdrop of Muslim Women (Protection of
Rights on Divorce) Act, 1986. The issue is whether proceedings
claiming relief under D.V. Act, can be entertained specifically when
the main petition filed by the wife is under the Dissolution of the
Muslim Marriage Act, 1939.
It is not in dispute that the wife has instituted
proceedings for divorce praying for dissolution of marriage
solemnized on 17.09.1997 under the provisions of Section 2(viii)(a)
and (d) of Dissolution of Muslim Marriage Act. The said provision
permits the woman married under the Muslim Law to obtain a
decree for dissolution of marriage on the ground that the husband
has treated her with cruelty or made her life miserable and that he
has disposed of her property or prevent her from exercising her legal
rights over it.
In the said proceedings the wife had moved an
application at Exh.7 by way of an interim application on
15.04.2015. The said application is titled as “Application for
maintenance and residential accommodation”, without specifying
the section. Perusal of the application would however reveal that
the wife has alleged that she has filed petition for divorce and
custody of her children and she sought to place reliance on the said
petitions. In the said application the wife has claimed an interim
maintenance from the husband for meeting the expenses of her
children as well as her own expenses. The said application no doubt
do not mention the provision which is sought to be invoked. The
learned counsel for the petitioner had advanced a submission that
the parties being governed by the Muslim Women (Protection of
Rights on Divorce) Act, 1986 which governs the entitlement for
maintenance of Muslim women who have been divorced by and who
have obtained divorce from husband. As per the petitionerhusband,
pursuant to filing of the said proceeding he had given
Talaq to the respondentwife to 29.03.2017. The contention of the
husband is that the wife was otherwise seeking divorce and he has
granted divorce which would partake a form of “Khula”. He would
submit that the wife had accepted the amount of Mehar in pursuant
to the Talaq being pronounced on 30.03.2017. However, she turned
back and returned the Meher on 08.05.2017. It is the specific case
of the petitionerhusband that on 28.04.2017, the husband remarried
since the wife had accepted the Meher thereby leading to a
conclusion that the Talaq pronounced by the husband was
acceptable to her. However, it is a specific case of the wife that the
said dissolution of marriage cannot be treated as Khula and in fact
Mrs.Irani had invited attention to the pleadings and would submit
that she has not accepted the said Talaknama and rather in light of
the latest pronouncement of the judgment by the Apex Court in the
case of Shayara Bano V/s. Union of India & Ors. (20179SCC1),
the Talaknama is not valid. Mrs.Irani would submit that under the
Muslim Law, in certain circumstances the power to initiate divorce
proceeding is given to the wife and she had instituted the
proceedings for the said purpose. However, she would submit that
her client has not accepted the Talaknama dated 29.03.2017 and in
any contingency she would take appropriate steps to deal with the
said issue separately.
7. In the present case the pronouncement of the Talaq is
disputed by the wife and the husband will have to be prove the said
factum of Talaq. As till the time the Talaq is not proved, the
respondent continues to be legally weeded wife of the petitioner and
in that contingency the question is whether the wife who is in
domestic relationship with the petitioner is entitled to seek the relief
under the provisions of the Domestic Violence Act. Though the
learned counsel for the petitioner had vehemently argued that the
parties are governed by Muslim Personal Laws and therefore the
provisions of the Domestic Violence Act cannot be invoked, per
contra Mrs.Irani would submit that there is no intention of the
legislature to restrict the provisions of Protection from Womens of
Domestic Violence Act, 2005 to a particular category of women and
to specifically exclude the women belonging to the Muslim religion.
8. Perusal of the provisions of the Protection of Women
from Domestic Violence Act, 2005 would reveal that it is an
enactment to provide for more effective protection for rights of
women guaranteed under the Indian Constitution who are the
victims of the violence. The enactment no way intends to restrict its
application to any particular category of women but it intends to
protect the women aggrieved, who are victims of Domestic Violence.
The definition and connotation of “Domestic Violence” under
Section3 of the enactment do not indicate any intention either
express or implied to exclude Muslim women. Section36 of the
said enactment provides that the provisions of the Act shall be in
addition to and not in derogation of the provisions of any other law
for the time any force. Thus, the scheme of the enactment do not
restrict the applicability of the provisions of the Act to a particular
category of women, nevertheless to a woman belonging to a
particular religion. No doubt the Muslim women are also governed
by several other enactments in the form of Muslim Women
(Protection of Rights on Divorce) Act, 1986, Dissolution of Muslim
Marriage Act, 1939 etc., however, the rights conferred under the
said enactments can in no way curtail the operation or Protection
granted under The Protection of Women from Domestic Violence
Act. In these circumstances the contention advanced by the learned
counsel for the petitioner that the respondentwife could not avail
the provisions of the Domestic Violence Act is not sustainable.
Further, the submission of the learned counsel for the petitioner that
the wife had moved an application namely Exh.7 in a proceeding
which she had instituted under the Dissolution of Muslim Marriage
Act, 1939 and therefore they are not tenable, needs to be cursorily
dealt with. The Section26 of the Act of 2005 permits the relief to
be availed under Sections18, 19, 20, 21 and 22 to be sought in any
legal proceedings before a Civil Court, Family Court or Criminal
Court affecting the aggrieved person whether, such proceedings
were initiated before or after the commencement of this Act. SubSection
2 of Section26 makes it amply clear that in such relief may
be sought for in addition to and alongwith any other relief that the
aggrieved person may seek in such suit or legal proceeding before
Civil or Criminal Court.
9. In the present case wife had instituted the proceedings
by taking aid of Section2(viii) and has specifically filed the
proceedings on the ground of the cruel treatment meted out to her
and her children by making her life miserable by subjecting her to
cruelty and by preventing her to exercise her legal right over the
property. On perusal of the proceedings filed by the wife it revealed
that she had taken out proceedings for dissolution of the marriage
on the ground of cruelty, which is a form of Domestic Violence. The
term Domestic Violence is assigned a specific meaning in the Act of
2005 which include an act of harming, injuring, and endangering
the health, safety, life or well being, whether physical or mental of
the aggrieved person including the physical, sexual, verbal and
emotional abuse and also economical abuse. Thus, the ground on
which the wife has sought dissolution of marriage is cruelty and the
proceedings initiated though under the provisions of Dissolution of
Muslim Marriage Act, 1939 stand on the same platform as
proceeding instituted by wife under the provisions of Domestic
Violence seeking relief under Section12 of the Act, she being an
aggrieved women.
In any contingency by taking recourse to Section26 of
the Domestic Violence, it is permissible for the respondentwife to
file proceedings seeking the relief under Sections18, 19, 20, 21 and
22 of the Domestic Violence Act, in addition to and along with the
relief that she has otherwise sought in the pending proceedings.
Thus, the claim for interim maintenance filed by the wife cannot be
said to be completely alien to the provisions under which she has
approached the Court by way of main petition seeking Dissolution of
Marriage on the ground of cruelty. By way of an interim relief she
has sought maintenance from the husband and since there is no bar
for her to invoke the provisions of The Protection of Domestic
Violence Act, 2005, such an application is duly entertained by the
Judge Family Court, such an application cannot be thrown away
only on the ground that it is not mentioned as to under what
provision of law, the said application has been preferred. The Court
has entertained the said application considering the factum of
destitution being put forth by the wife and has treated her as an
aggrieved person and has entertained the said application for
interim maintenance and directed payment of amount of
Rs.25,000/ to the wife and Rs.20,000/ for the children along with
rent of the house at rate of Rs.40,000/. The Court has considered
that the wife has been subjected to vagrancy and is unable to
maintain herself and her children whereas the husband owed a
moral responsibility to maintain his wife and the children
specifically in case of subsisting marriage and therefore has passed
the impugned order dated 22.06.2017.
9. The case of the husband is that he has pronounced
Talaq on 29.03.2017 and in light of this development such an order
is not justified, is also liable to be ignored since the factum of Talaq
has not been proved by the husband and merely because Talaknama
is tendered in the Court, the marriage cannot be said to have been
dissolved. Even assuming for the sake of it the marriage stands
dissolved by Khula taking it to be divorce by consent at the instance
of the wife, the husband cannot be completely absolved of his
liablity to maintain his wife and children, in the specific background,
that he has remarried and he is maintaining two children of the wife
whom he had remarried. The learned counsel for the petitioner has
also invited attention of the Court on a subsequent application filed
by the wife under Sections12, 18, 19, 20, 22 and 23 of the
Protection of Women from Domestic Violence Act, 2005 on
09.06.2017 and she would submit that if this application is filed
under the provisions of the Domestic Violence Act, under what
provision of law did the Family Court entertained the earlier
application and passed an order below Exh7. As this Court has
already observed that the said application was filed in Petition No.A
1097/2015 instituted by the wife for Dissolution of Marriage under
the Dissolution of Muslim Marriage Act, 1939 and she would submit
that this Act contains no provision for any interim maintenance or
provision for custody of children. However, perusal of the
provisions of the Muslim Women (Protection of Rights on Divorce)
Act, 1986 would reveal that certain rights are conferred even on a
woman who has been divorced by who have obtained divorced from
her husband and make such a woman entitled to a reasonable and
fair provision and maintenance to be paid to her within the period
of Iddat. Not only this such a woman is also entitled to an amount
equal to some of Mehar or dower agreed to be paid to her at the
time of the marriage according to the Muslim Law and also entitled
for all the properties given to her before and at the time of the
marriage and after the marriage by her relative, friends or her
husband.
10. The purpose of any provision of law which is beneficial
to a woman is to provide some solace to a woman during the
subsistence of the marriage or even after she is divorced out of the
said marriage and since the Domestic Violence Act is an enactment
to provide effective protection of rights of woman, who are victims
of violence, the respondent wife cannot be denied the umbrella of the said
legislation. The respondentwife has staked her claim by filing
proceedings under the Domestic Violence Act 2005 claiming monthly
maintenance for herself and her children vide Exh34. On the said
application, the respondent husband has been directed to produce all or
any of the documents which are in existence or his possession and which
are not produced by him so as to reflect his earnings. Though it is a
specific case of the petitionerhusband that he has divorced to his wife, it
cannot be expressed as a gospel truth specifically in light of the latest
pronouncement of the Hon'ble Apex Court in case of Shayara Bano V/s.
Union of India & Others as to what would be the effect of such
Talaknama. In any contingency this Court is not concerned with the
validity of the said Talaknama at this stage and in this proceedings. This
Court will have to restrict itself to the impugned order dated 22.06.2017
passed by the Family Court at Bandra directing the husband to pay
monthly amount for maintenance of the wife and the children and also to
pay for the rent of the house where the wife is residing.
The objection raised by the learned counsel for the
petitioner Ms.Anagha Nimbkar to the maintainability of the
application on which the impugned order came to be passed is not
sustainable for the reasons stated above and since this Court at
arrived at a conclusion that the parties being governed by the
Muslim Personal Law is not an impediment in the wife invoking the
jurisdiction of the Court under the provisions of the Domestic
Violence Act and there is no embargo of the said Court to confer the
relief on the women who is an “aggrieved person” within the scope
and meaning of the Act merely because she belongs to Muslim
religion. The contention of the learned counsel for the petitioner
therefore deserves to be rejected.
The impugned order has taken into consideration the
earning capacity of the husband and the needs of the wife. In the
application filed by the wife a statement was made that the husband
was depositing an amount of Rs.10,000/ to Rs.15,000/ per month
in her account, which was not found to be sufficient to maintain
herself. The Court taken in to consideration the said aspect of the
matter and also the statement that the husband is regularly paying
certain amount to the wife from which she is withdrawing some
regular amount. The Court has also noted that the wife has no
shelter and in such circumstances the impugned order cannot be
faulted with and their appears to be no illegality or perversity in the
said order which would warrant and inference at the instance of this
order. In the result the impugned order is upheld. The present
petition being devoid of any merit and substance, is liable to be
dismissed.
(SMT.BHARATI H. DANGRE, J.)
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