The Hon'ble Supreme Court in the case of Nikita (supra),
relying upon the earlier judgment of Hon'ble Supreme Court in the case of Rupali Devi Vs. State of Uttar Pradesh & Ors., 2019 (6) SCALE 96 and in particular Para 16 thereof held that, the Courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.
7. Respondent No. 2 has stated in the affidavit that, she is residing with her brother at Mumbai. The said aspect has been considered by the Sessions Court. In the light of judgment of Hon'ble Supreme Court in the aforesaid case, and also observations made by both the Courts below, there is no substance in the contention of learned counsel for the Petitioner that, Magistrate's Court at Mumbai has no jurisdiction to entertain the complaint.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3398 OF 2017
Mohammad Zuber Farooqi Vs State of Maharashtra
2. Neelima Akhtar
CORAM : S. S. SHINDE, J
DATE : 25th SEPTEMBER 2019
1. Rule. Rule made returnable forthwith, with the consent of parties
matter is heard and disposed of finally at the stage of admission.
2. It is the case of the Petitioner that, on 26.12.2008, the Petitioner
and Respondent married in Lucknow as per Muslim law. On 10.01.2009 the
Respondent No. 2 migrated to North Carolina, USA with the Petitioner. In the
year 2012, the Petitioner and Respondent No. 2 shifted to California. On
13.09.2013, Respondent No. 2 gave birth to male child i.e. Zayan Farooqi. On
19.08.2014 Respondent No. 2 left Petitioner's home in USA and went to her
brother's place in Columbus, Indiana USA. On 13.09.2014 and 14.09.2014, the
Petitioner and Respondent No. 2 met at public place in Columbus. On the very
same date, the Petitioner filed divorce and child custody petition in the
Superior Court in California. In between 14.01.2015 to 20.01.2015 several
attempts were made by the California Superior Court to serve the summons to
Respondent No. 2, but she deliberately evaded service. On 21.01.2015,
Respondent No. 2 came to India and resided in Meerut. On 06.05.2015, the
Petitioner gave divorce to Respondent in India. In July 2016, Respondent No. 2
filed permanent Custody Petition in Family Court, Bandra. In September 2016,
the lawyer of Respondent No. 2 claimed that an email was received from the
Petitioner's lawyer in USA. On 15.10.2016, Respondent No. 2 filed an FIR.
It is further the case of the Petitioner that, on 02.11.2016, the
Superior Court of California passed the custody order of the child in the
Petitioner's favour. On 18.11.2016, the warrant of arrest was served by
California Superior Court to Respondent No. 2.
On 21.11.2016, Respondent No. 2 filed a Domestic Violence case
under Section 12 of Protection of Women from Domestic Violence Act, 2005
(herein after for sake of brevity will be referred as 'said Act') before the learned
Metropolitan Magistrate Court, Mulund. The Metropolitan Magistrate, Mulund
passed the maintenance order on 18.03.2017. On 23.06.2017, the Sessions
Court dismissed the Criminal Appeal filed by Petitioner.
3. Learned counsel appearing for the Petitioner submits that, there
was more than two years delay in filing the complaint by Respondent No. 2
before the learned Magistrate's Court. When there was delay, on the said
ground alone, the Magistrate ought to have dismissed the complaint. In
support of aforesaid contention, learned counsel appearing for the Petitioner
relied upon the exposition in the case of Trilochan Singh Vs. Manpreet Kaur &
Anr1, Santosh Kumar Yadav & Anr. Vs. State of UP & Anr2, Seja Dharmesh Ved
Vs. State of Maharashtra3, Inderjeet Singh Ghrewal Vs. State of Punjab & Anr4,
Arun Vyas Vs. Anita Vyas5.
1 Misc. Single No. 4177/2012.
2 2015 SCC online ALL 8656.
3 Criminal Appeal No. 160/2011.
4 (2011) 12 SCC 588.
5 (1999) 4 SCC 690.
4. It is further submitted that, the learned Magistrate has no
jurisdiction to entertain the complaint, since the alleged domestic violence is
not committed in India. It is submitted that, the stay of Respondent No. 2 in
Mumbai is temporary, and therefore, learned Magistrate has no jurisdiction to
entertain the complaint. The allegations that, Petitioner forced Respondent No.
2 to discontinue her Masters program and told her to join the Petitioner in
California, and she was made to work hard in pregnancy are false allegations.
The Petitioner has obtained order for custody of Zayan i.e. son of Petitioner
and Respondent No. 2, from the Superior Court of California. Respondent No.
2 carried her jewelery with her to Columbus, Indiana. The order of American
Court cannot be executed in India. Learned counsel invites attention of this
Court to the averments in the application and grounds taken therein and
submits that, the order passed by the Metropolitan Magistrate 53rd Court at
Mulund, Mumbai and also Additional Sessions Judge, City Civil and Sessions
Court, Greater Mumbai, which are impugned in this petition are deserves to be
quashed and set aside.
5. On the other hand learned counsel appearing for Respondent No.
2 relying upon the affidavit in reply made following submissions:a)
Respondent No. 2 is dependent upon the Petitioner who is
gainfully employed with the Government of United States of America and must
shouldered the responsibility of the wife as per standard of living.
b) Respondent No. 2 is residing at Mumbai with her brother, and
therefore, she has instituted proceedings before Magistrate's Court at Mumbai.
The Petitioner is probably drawing salary more than One Lac USD. Learned
counsel invites attention of this Court to the averments in the reply so as to
point out how the amount of Rs.30,000/is
inadequate in view of the fact that,
she has to pay rent of Rs. 24,000/per
month to the house owner. It is
submitted that, the Petitioner was constantly threatening the Respondent No. 2
that he will take divorce. Learned counsel invites attention of this Court to the
averment in Paragraph 4 of affidavit in reply and submits that, the alleged
harassment and threats given by the Petitioner are stated in the said
paragraph. It is submitted that on 13.01.2015 when Respondent No. 2 asked
the Petitioner about renewal of visa, the Petitioner flatly refused for such
renewal. It is submitted that, the Hon'ble Supeme Court in the case of Nikita
Versus Yadwinder Singh & Ors, Criminal Appeal No. 1096 of 2019 arising out
of SLP (Criminal) No. 10566 of 2018 held that, at the place where the wife
takes shelter after leaving or driven away from the matrimonial home on
account of acts of cruelty committed by the husband or his relatives, would,
dependent on the factual situation, also have jurisdiction to entertain a
complaint alleging commission of offences under Section 498A of the Indian
Penal Code.
c) Learned counsel invites attention of this Court to the findings
recorded by both the Courts below. It is submitted that, in spite of undertaking
given before the High Court that, the Petitioner will deposit entire amount
towards arrears of maintenance, the Petitioner even till date has not deposited
more than 60% of the total amount of arrears towards maintenance. Therefore,
learned counsel submits that, petition may be rejected.
6. Heard learned counsel appearing for the Petitioner and learned
counsel appearing for Respondent No. 2. With their able assistance perused
pleadings and grounds taken in the petition, annexures thereto and reply filed
by Respondent No. 2. The Hon'ble Supreme Court in the case of Nikita (supra),
relying upon the earlier judgment of Hon'ble Supreme Court in the case of
Rupali Devi Vs. State of Uttar Pradesh & Ors., 2019 (6) SCALE 96 and in
particular Para 16 thereof held that, the Courts at the place where the wife
takes shelter after leaving or driven away from the matrimonial home on
account of acts of cruelty committed by the husband or his relatives, would,
dependent on the factual situation, also have jurisdiction to entertain a
complaint alleging commission of offences under Section 498A of the Indian
Penal Code.
7. Respondent No. 2 has stated in the affidavit that, she is residing
with her brother at Mumbai. The said aspect has been considered by the
Sessions Court. In the light of judgment of Hon'ble Supreme Court in the
aforesaid case, and also observations made by both the Courts below, there is
no substance in the contention of learned counsel for the Petitioner that,
Magistrate's Court at Mumbai has no jurisdiction to entertain the complaint.
8. So far question of limitation for filing the proceedings under
Section 12 is concerned, the Hon'ble Supreme Court in the case of Krishna
Bhattacharjee Versus Sarathi Choudhary And Another, (2016) 2 SCC 705 held
that regard being had to concept of “continuing offence” and demands made
by wife, application made by appellant wife under Section 12, 2005 Act after
about 2 yrs of judicial separation, not barred by limitation.
9. It is true that, the learned counsel appearing for the Petitioner has
relied upon the judgment of Bombay High Court so also other High Courts.
However, in the list of judgments submitted, the judgment of Hon'ble Supreme
Court pronounced in the year 2016, in the case of Krishna Bhattacharjee
(supra) would hold the field. In that view of the matter, there is no substance
in the contention of learned counsel for the Petitioner that, there was
inordinate delay in filing the complaint.
10. So far alleged harassment is concerned, both the Courts below
have made prima facie observations about the said alleged harassment. Since
the order passed by the learned Magistrate directing the Petitioner to pay
interim maintenance is an interim order and since the proceedings pending
before the Magistrate are still pending wherein the Petitioner will have
opportunity to contest the said proceedings, it may not be appropriate to give
elaborate reasons about alleged harassment and domestic violence.
Respondent No. 2 has made out a prima facie case that there was domestic
violence.
11. It appears that, the Petitioner has deposited more than Rs.
7,00,000/towards
interim maintenance, however, as rightly submitted by
Respondent No. 2, the Petitioner has not deposited entire amount towards
interim maintenance till date. Learned counsel for Respondent No. 2 during
the course of arguments submitted that, more than half of the total amount
towards arrears of maintenance has not been deposited/paid by the Petitioner
to Respondent No. 2. Learned Advocate appearing for the Petitioner on 10th
April 2018 made statement before this Court (CoramNitin
W. Sambre, J.)
that, the Petitioner undertakes to clear the entire arrears by June 22, 2018 in
two installments, the first of which 50% of arrears be paid by May 25, 2018
before the learned Magistrate and the second by June 22, 2018 before same
Court. It appears that, this Court granted stay to the execution of the order of
learned Magistrate and also the order of arrest till the next date. It was also
observed in the said order that, if the Petitioner fails to deposit the arrears
towards maintenance, the Court will be constrained to vacate the adinterim
order passed by the Court. It appears that, thereafter, adinterim
relief was not
continued. However, on 14th August 2019 adinterim
relief was granted in
terms of prayer clause (b) with the hope that, the Petitioner will deposit
remaining amount of arrears towards maintenance. However, till date, the
Petitioner has not deposited the remaining amount.
12. There are concurrent findings of facts recorded by the courts
below that Respondent No. 2 is entitled for interim maintenance. Those
findings appears to be in consonance with the material placed on record. In
that view of the matter, no case is made out to cause interference in the
impugned order. Hence, writ Petition stands rejected. Rule stands discharged.
13. Since the writ petition is rejected, Respondent No. 2 would be
entitled to resort to an appropriate remedy for execution/implementation of
the interim directions issued by the learned Magistrate, which are confirmed
by the Sessions Court.
14. In view of disposal of writ petition, adjudication of the criminal
application is not necessary and same stands disposed of accordingly.
15. The observations made herein above are prima facie in nature and
confined to the adjudication of the present writ petition only.
16. All the contentions raised on merits are kept open to be agitated
before the concerned Court.
17. At this stage, learned counsel appearing for the Petitioner prays
for continuation of adinterim
relief granted by this Court on 14.08.2019 for
four weeks from today. However, the said prayer is vehemently opposed by the
learned counsel appearing for contesting Respondent. However, in the interest
of justice, adinterim
relief granted by this Court on 14.08.2019 to continue for
a period of four weeks from the date of uploading the judgment on the official
website.
[S. S. SHINDE , J]
No comments:
Post a Comment