Ansar v. Haseena and Asna Ansaraged

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 22ND DAY OF JULY 2019 / 31ST ASAHADA, 1941** ## **RPFC.No.372 of 2016** **AGAINST THE ORDER/JUDGMENT IN MC 180/2014 of FAMILY COURT, CHAVARA DATED 20-02-2016** ## **REVISION PETITIONER/RESPONDENT:** **ANSAR, AGED 37 YEARS, S/O.IBRAHIMKUTTY,NEDUMTHODATHU VEEDU,MUKUNDAPURAM MURI,CHAVARA VILLAGE,KARUNAGAPPALLY.** **BY ADV. SRI.M.R.SASITH** ## **RESPONDENT/PETITIONERS:** |**1**|**HASEENA,**| |---|---| ||**D/O.IBRAHIMKUTTY, AGED 28 YEARS, PUTHENPURAKKAL**| ||**VEEDU,PULIYOORVANCHI MEKKUM MURI,THODIYOOR**| ||**VILLAGE,KARUNAGAPPALLY-690547.**| |**2**|**ASNA ANSARAGED 8 YEARS**| ||**D/O.ANSAR,PUTHENPURAKKAL VEEDU,PULIYOORVANCHI MEKKUM**| ||**MURI,THODIYOOR VILLAGE,KARUNAGAPPALLY-690547.**| ||**BY ADVS.**| ||**SRI.SUBHASH CYRIAC**| ||**SMTSHEEBA JOSEPH**| **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21.02.2019, ALONG WITH Crl.Rev.Pet.674/2017, Crl.Rev.Pet.911/2017, Crl.Rev.Pet.923/2017, THE COURT ON 22/7/2019 PASSED THE FOLLOWING:** RP(FC) No.372/2016 & others 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 22ND DAY OF JULY 2019 / 31ST ASAHADA, 1941** **Crl.Rev.Pet.No.674 of 2017** **AGAINST THE ORDER/JUDGMENT IN MC 21/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, KARUNAGAPPALLY DATED 28-03-2016** **AGAINST THE ORDER/JUDGMENT IN CRA 170/2016 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, KOLLAM DATED 23-05-2017** ## **REVISION PETITIONER/RESPONDENT:** **ANSAR,** **S/O.IBRAHIMKUTTY, AGED 37 YEARS,NEDUMTHODATHU MEKKATHIL VEEDU,MUKUNDAPURAM MURI, CHAVARA VILLAGE,KARUNAGAPPALLY TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.M.R.SASITH** ## **RESPONDENT/APPELLANTS/PETITIONERS & STATE:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** - **2 HAZEENA, D/O.IBRAHIMKUTTY, AGED 29 YEARS,PUTHENPURAKKAL HOUSE, PULIYOORVANCHI SOUTH, THODIYOOR, KARUNAGAPPALLY.** - **3 ASNA,** - **D/O.HAZEENA, AGED 10 YEARS, PUTHENPURAKKAL HOUSE, PULIYOORVANCHI SOUTH,THODIYOOR, KARUNAGAPPALLY. (MINOR REPRESENTEDBY HER MOTHER, THE 2ND RESPONDENT).** **BY ADVS. SRI.SUBHASH CYRIAC SMTSHEEBA JOSEPH** RP(FC) No.372/2016 & others 3 **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21.02.2019, ALONG WITH Crl.Rev.Pet.372/2017, Crl.Rev.Pet.911/2017, Crl.Rev.Pet.923/2017, THE COURT ON 22/7/2019 PASSED THE FOLLOWING:** RP(FC) No.372/2016 & others 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 22ND DAY OF JULY 2019 / 31ST ASAHADA, 1941** **Crl.Rev.Pet.No.911 of 2017** **AGAINST THE ORDER/JUDGMENT IN MC 21/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, KARUNAGAPPALLY** **AGAINST THE ORDER/JUDGMENT IN CRA 40/2017 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, KOLLAM DATED 23-05-2017** ## **REVISION PETITIONER/RESPONDENT:** **HAZEENA, D/O IBRAHIMKUTTY, PUTHENPURACKAL HOUSE, PULIYOORVANCHI SOUTH, THODIYOOR, KARUNAGAPPALLY.** **BY ADVS. SRI.SUBHASH CYRIAC SMTSHEEBA JOSEPH** ## **RESPONDENT/APPELLANT/STATE:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, MANMOHAN PALACE COMPOUND, ERNAKULAM-682031.** |**2**|**ANZAR**| |---|---| ||**S/O.IBRAHIMKUTTY, NEDUMTHODATHU HOUSE,**| ||**MUKUNDAPURAM, CHAVARA, KARUNAGAPPALLY, KOLLAM-**| ||**690518.**| |**3**|**ADDL. R3. NOUFAL,**| ||**AGED 20 YEARS**| ||**S/O NASARUDHIN, NEDUMTHODATHAMEKATHILEEDU, CHAVARA**| ||**VILLAGE, MEENAMBALLY MURI, MUKUNDAPURA PO, KOLLAM-**| ||**691585.(ADDL.R3 IS IMPLEADED AS PER ORDER DATED**| ||**21/02/2019 IN CRL.MA,NO.01/2018)**| ## **BY ADV. SRI.M.R.SASITH** RP(FC) No.372/2016 & others 5 **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21.02.2019, ALONG WITH Crl.Rev.Pet.372/2017, Crl.Rev.Pet.674/2017, Crl.Rev.Pet.923/2017, THE COURT ON 22/7/2019 PASSED THE FOLLOWING:** RP(FC) No.372/2016 & others 6 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 22ND DAY OF JULY 2019 / 31ST ASAHADA, 1941** **Crl.Rev.Pet.No.923 of 2017** **AGAINST THE ORDER/JUDGMENT IN MC 21/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, KARUNAGAPPALLY** **AGAINST THE ORDER/JUDGMENT IN CRA 170/2016 of VI ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, KOLLAM DATED 23-05-2017** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **HAZEENA, D/O IBRAHIMKUTTY, PUTHENPURACKAL HOUSE,PULIYOORVANCHI SOUTH, THODIYOOR, KARUNAGAPPALLY.** **BY ADVS. SRI.SUBHASH CYRIAC SMTSHEEBA JOSEPH** ## **RESPONDENT/STATE 7 RESPONDENT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,MANMOHAN PALACE COMPOUND,ERNAKULAM. 682031.** **2 ANZAR, S/O IBRAHIMKUTTY,NEDUMTHODATHU HOUSE,MUKUNDAPURAM, CHAVARA,KARUNAGAPPALLY, KOLLAM 690518.** **BY ADV. SRI.M.R.SASITH** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21.02.2019, ALONG WITH Crl.Rev.Pet.372/2017, Crl.Rev.Pet.674/2017, Crl.Rev.Pet.911/2017, THE COURT ON 22/7/2019 PASSED THE FOLLOWING:** RP(FC) No.372/2016 & others 7 RP(FC) No.372/2016 & others 8 ## **JUDGMENT** **[ RPFC 372/2016 ,Crl.Rev.Pet.674/2017 ,Crl.Rev.Pet.911/2017 ,Crl.Rev.Pet.923/2017 ]** These proceedings arise from the orders in MC No.21/2012 of JFMC, Karunagappally and MC No.180/2014 of the Family Court, Chavara. 2. In MC No.21/2012, the case of the petitioners was that, the first petitioner had married the respondent on 8/5/2006. The second petitioner child was born in that marriage on 1/12/2007. The respondent was employed in military service and after the marriage, he returned to the place of employment. He is a drunkard and drug addict, it was alleged. The mother of the respondent was cruel and subjected the first petitioner to physical and mental harassment. The respondent also harassed the first petitioner. Thereafter, petitioners were driven out of the house on 30/1/2009. When her mother and brother intervened, they were attacked, leading to the registration of crime No.733/2009 of Chavara Police station. It was stated in the petition that the matrimonial relationship was resumed on 9/9/2011. Again the petitioners were driven out of the matrimonial home on 6/1/2012. Respondent thereafter refused to maintain her. She has no independent source of income and hence, she filed MC under RP(FC) No.372/2016 & others 9 section 12 of the Protection of Women from Domestic Violence Act . Petitioner sought protection order, residence order and maintenance at the rate of Rs.10,000/- per month. Respondent appeared and denied having committed acts of domestic violence. He stated that the earlier dispute was mediated and settled. A false crime was registered against him and the family members. The first petitioner was arrogant and impertinent in nature. He refuted the allegation that the petitioner and the child were thrown out of the house. He had only a salary of Rs.11,457/-. He has to take care of his mother and has also to pay monthly loan installment of Rs.5567/-. 3. On the basis of the pleadings, parties went for trial. On the side of the petitioner PW1 was examined and Exts.1 to P12 were marked. There was no evidence on the side of the respondent. 4. The court below by the impugned order refused to grant residence order on the ground that absolutely no evidence was adduced to show that the respondent was the owner of the house. However, there was an order restraining the respondent from committing acts of domestic violence. Court below granted order of maintenance at the rate of Rs.7,000/- to the first petitioner and Rs.3,000/- to the child. 5. Aggrieved by the above judgment, husband has filed Criminal Appeal No.40/2017 and the wife has preferred criminal RP(FC) No.372/2016 & others 10 appeal No170/2016. By a common judgment, Criminal Appeal No.170/2016 was allowed granting residence order to the petitioners. Criminal Appeal No.40/2017 was allowed and maintenance order to the first respondent was set aside on the premise that in the meanwhile husband has lost his job. 6. In MC No.180/2014 filed under 125(1) Cr.P.C before the Family Court, Chavara, petitioners in MC No.21/2012 are the petitioners. Same set of allegations, as referred to in MC NO.21/2012 were reiterated in the present proceedings. It was alleged that the respondent was working in BSF. It was further alleged that he drew a monthly salary of Rs.42,000/- He has other source of income including yield from the property, and received Rs.10,000/- per month. Hence, the petitioners claimed Rs.10,000/for the first petitioner and Rs.6,000/- to the second petitioner. 7. Respondent appeared and filed objection contending that first petitioner was cruel, that she had remarried and was residing with her husband. He asserted that he drew salary of only Rs.11,457/- per month. The first petitioner was working in a private organization and was receiving salary of Rs.10,000/- per month, it was alleged. 8. On the side of the petitioner PW1 was examined and Ext.P1 to P18 were marked. RW1 was examined and Exts.D1 to D11 were RP(FC) No.372/2016 & others 11 marked. The court below on the basis of the records concluded that the respondent was drawing a salary of Rs.37,771/-. There was no evidence to show that the wife was employed. On the basis of the available materials, the court below granted maintenance of Rs.5,000/- per month for the first petitioner and Rs.6,000/- per month to the second petitioner. 9. The above judgment in MC No.180/2014 is challenged by the husband in RPFC No.372/2016. Against the judgment in MC No.21/2012, Criminal Appeal Nos.170/2016 and 40/2017 were preferred by the parties before the District Court Kollam. That common judgment of the appellate court is under challenge at the instance of the wife in Criminal R.P.No.923/2017 and Crl.R.P.No.911/2017. The husband has moved Crl.R.P.No.674/2017 challenging the judgment in Criminal Appeal NO.170/2016 in MC No.21/2012 of JFMC , Kollam to the extent it has granted residence order in favour of the wife. 10. Heard both sides and examined the records. 11. There is no dispute about the marriage and the paternity of the child. The court below on an evaluation of the entire records, concluded that the petitioner herein was getting a salary of Rs.37,771/-. It was held that there was nothing to show that wife was gainfully employed. Hence, the court below by the impugned RP(FC) No.372/2016 & others 12 order granted Rs.5,000/- per month to the first petitioner and Rs.6,000/- to the second petitioner. 12. In MC No.21/2012, both sides had no case that the wife had any house of her own. Case of the petitioners was that Ext.P8 indicated that the property was under the share of the respondent. The mother had only a life interest in the property. In fact , it has come on record that the mother had died on 21/12/2014. This was not disclosed by the respondent in his objection. In MC No.180/2014 even after the death of the mother, the respondent in his objection had claimed that he has to maintain the mother also. At the time of cross examination, he admitted that it was an incorrect statement. 13. Finding of the trial court that there was no evidence of ownership of the residence does not appear to be factually correct. It was held so by the appellate court in Criminal Appeal No.170/2016. Relying on Ext.P8, the lower appellate court held that, petitioners are entitled for residence order. Evidently, this conclusion arrived at by the appellate court is based on cogent materials and does not call for any interference. 14. In Crl.Appeal No.40/2017, the respondent herein had contended that he was terminated from service. He depended on the meagre income, it was contended. Hence, respondent pleaded that order in order in MC No.21/2012 was liable to be set aside. RP(FC) No.372/2016 & others 13 The appellate court had found that the evidence showed that the first petitioner was an aggrieved person under section 2(a) of the DV Act. There was no evidence to show that she had any employment. It was also found by the court below that though husband pleaded that talak was pronounced, there was no evidence to show that talak had come into effect. Hence, the court concluded that the marriage was subsisting. In the appeal, the husband did not challenge maintenance to the child. Hence, the lower appellate court did not interfere with the finding of the trial court regarding the maintenance to the child. However, the lower appellate court interfered in the order to the extent of granting maintenance to the wife, essentially on two grounds. It was held that in MC No.180/2014, the Family Court, Chavara had ordered maintenance of Rs.5,000/- to the wife. The second reasoning was that the husband had lost his job and it was a changed circumstances that ought to have been taken into consideration for interference in the order. Hence, the lower appellate court interfered in the order in MC No.21/2012 and the maintenance order granted to the first petitioner was set aside. 15. In _**Prakash Babulal Dangi v. State of Maharashtra ( W.P.(C) No.3791/2016)**_ it was contended that, once the husband had suffered an order of maintenance under the Domestic Violence Act, he was not liable to pay under section 125 Cr.P.C. However, RP(FC) No.372/2016 & others 14 this contention was rejected by the court below and it was held that the husband had to comply with the order passed in the proceedings under section 125 Cr.P.C.and under the DV Act. On the other hand, learned counsel for the respondent relying on _**Shamima Farooqui v.Shahid Khan(2015 KHC 4261)**_ contended that principle behind maintenance under section 125 was for betterment of financial state as well as to compensate for the mental agony that woman suffers. It was held that sustenance does not mean and can never be allowed to mean, a mere survival. It was also held by the Supreme Court that maintenance within the parameters of section 125 Cr.P.C. has to be adequate, so that she can live with dignity as she would have lived in matrimonial home. 16. Chhattisgarh High Court in _**Neeraj Kumar Pathak v Ritu Pathak(2017 KHC 2603)**_ relying on _**Farooqui v. Shahid Khan(AIR 2015 SC 2025)**_ held that inherent and fundamental principle behind section 125 Cr.P.C. was for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. Based on this principle, it was contended by the learned counsel for the petitioners that the petitioners were entitled for maintenance under section 125 Cr.P.C. and all other components not contemplated under section 125 Cr.P.C., in a proceedings under the DV Act. RP(FC) No.372/2016 & others 15 17. There cannot be any dispute that there may be application to pay maintenance under both counts. However, that does not mean that in appropriate cases, the court can confine to one of the reliefs. In the case at hand, the court below on materials arrived at a conclusion that the husband has lost his job. Even otherwise, the wife was entitled for maintenance under the order of the Family Court, Chavara. Hence, the court below was justified in confining the relief. I find no reason to interfere in the conclusion in MC No.180/2014. Consequently, Crl.R.P.No.911/2017 does not call for any relief and liable to be dismissed. The impugned order in MC No.180/2014 of the Family Court is liable to be sustained. Hence, RP(FC) No.372/2016 is liable to be dismissed. In the light of the above findings, Crl.R.P.No.674/2017 is not sustainable. Consequently, Crl.R.P.No.923/2017 also is not sustainable. In the result, all the revisions are dismissed confirming the respective orders under challenge. **Sd/-** dpk **SUNIL THOMAS JUDGE**