Chattisgarh High CourtMohd. Ashraf Khan vs Najma Bano 2 Mcrc/7841/2019 ... on 21 January, 20201\n\n\n\n                                                                          AFR\n             HIGH COURT OF CHHATTISGARH, BILASPUR\n                     Criminal Revision No. 696 of 2017\n                      Order Reserved on 27.11.2019\n                      Order Delivered on 21.01.2020\n\n      Mohd. Ashraf Khan S/o Nawab Khan Aged About 56 Years R/o B-05 Urja\n      Nagar, Deepika, Police Station Deepika, District Korba Chhattisgarh.\n                                                                ---- Applicant\n                                     Versus\n      Najma Bano D/o Late Shayasuddin Aged About 47 Years Wrongly Shown As\n      Wife Of Mod. Ashraf Khan R/o House Of Tapas Ghosh, Behind House Of Dr.\n      Madhuliaka Mishra, Talapara Road, Vinoba Nagar, Ward No. 13, Police\n      Station Tarbahar, District Bilaspur Chhattisgarh.\n                                                              ---- RespondentFor the Applicant              :       Shri K.A. Ansari, Senior Advocate with\n                                       Shri Vipin Singh, Advocate.For the Respondent             :       Shri Rajesh Kumar Kesharwani,\n                                       Advocate.Hon'ble Shri Justice Rajendra Chandra Singh Samant\n                                   CAV ORDER1. This revision has been brought challenging the legality, propriety and\n\n   correctness of the order passed by the Learned Fourth Additional\n\n   Sessions Judge, Bilaspur in Criminal Appeal No.49 of 2017 by which the\n\n   order passed by the Judicial Magistrate First Class, Bilaspur dated\n\n   29.9.2015 was set aside and reliefs were granted to the respondent\n\n   under the provisions of Protection of Women fromDomestic Violence Act,\n\n   2005 (for short 'DV Act, 2005).2. It is submitted by counsel for the applicant that the applicant got\n\n   divorced with the respondent on 13.1.2009.          The application underSection 12of the DV Act, 2005 was filed by the respondent on218.12.2012 and the learned JMFC passed the order dated 29.9.2015\n\nrejecting the said application. The appeal filed by the respondent underSection 29of the DV Act, 2005 has been erroneously allowed by the\n\nAppellate Court.    It is further submitted by the applicant that the\n\nrespondent being a divorcee did not have any locus standi to file the\n\napplication underSection 12of the DV Act, 2005. As the relationship\n\nbetween them has come to an end on 13.1.2009 and the respondent had\n\nstarted living separately; the respondent is no longer a member of the\n\nfamily and that being so she cannot claim the reliefs and protection under\n\nthe provisions ofDV Act, 2005. The applicant was also prosecuted by\n\nthe respondent for the commission of offence underSection 498Aof the\n\nIPC and in the said case bearing No. 274 of 2008 decided on 17.10.2012,\n\nthe applicant was acquitted of the charge. The applicant has deposited\n\nthe amount in Sunni Muslim Jamat, Korba area. The receipt of the same\n\nis filed as Annexure-P/3 and the decision of the Jamat is filed as\n\nAnnexure-P/4.3. Relying on the judgment of Nagpur High Court in the case ofSmt. Sadhana vs. Hemantin Criminal Revision Application (REVN)\n\nNo.121 of 2018 decided on 18.4.2019 by a Single Bench, it is also\n\nsubmitted that after the severance of matrimonial relationship between\n\nthe parties, the complaint under theDV Act, 2005 would not be\n\nmaintainable.   There has to be a domestic relationship between the\n\nparties covered under the definition inDV Act, 2005. The respondent is\n\nalready receiving maintenance underSection 125of Cr.P.C. Therefore, it\n\nis a case in which there is no incidence of domestic violence with the\n\nrespondent on the date she has filed the application underSection 12of3theDV Act, 2005. Reliance has also been placed on the judgment of\n\nDelhi High Court in the case of Harbans Lal Malik vs. Payal Malik in\n\nCriminal Revision Petition No.253 of 2010 dated 29.7.2010 and also\n\non the judgment of Punjab & Haryana High Court in the case ofAmit\n\nAgarwal and others vs. Sanjay Aggarwal and othersin Criminal\n\nMisc. No. M-36736 of 2014 decided on 31.5.2016 wherein, it has been\n\nheld that after the domestic relationship has come to an end, the\n\napplication underSection 12of the DV Act, 2005 shall not be\n\nmaintainable.4. Learned counsel for the respondent submits that all the facts and\n\ncircumstances of this case are in favour of the respondent. The definition\n\nof aggrieved person underSection 2(A)of the DV Act, 2005 and this act\n\nvery clearly mentions that the relationship between two persons can\n\neither be continuing or could have existed at one point of time; therefore,\n\nthe divorce between the parties makes no difference. The applicant has\n\nnot challenged the order of maintenance passed against him by the\n\nFamily Court.5. Relying on the judgments of the Supreme Court in the cases of\n\nJuveria Abdul Majid Patni vs. Atif Iqbal Mansoori and another\n\nreported in 2014 (1) SCC 736 andShamim Ara vs. State of U.P.\n\nreported in 2002(7) SCC 518, it is submitted that the revision filed is\n\nwithout any substance. It is also submitted that the present revision filed\n\nagainst the order of the Appellate Court is not maintainable as there is no\n\nprovision to file any revision against the appellate order under the\n\nProtection of Women fromDomestic Violence Act, 2005, as such, the4revision be dismissed.6. In reply, it is submitted by counsel for the applicant that the revision\n\nagainst the order of the Appellate Court is maintainable. It has been\n\nclearly held in Amit Agarwal's case (supra) and Harbans Lal Malik's\n\ncase (supra). This point has been elaborately decided by the Full Bench\n\nof Allahabad High Court in the case ofDinesh Kumar Yadav vs. State\n\nof U.P. and Anr. in Criminal Revision No.582 of 2016 decided on\n\n2.8.2016. Therefore, this revision is maintainable and the applicant is\n\nentitled for relief.7. Heard both counsel for the parties and perused the material available\n\non record.8. Firstly, the maintainability of the revision petition is considered. This\n\npoint has been elaborately discussed in the judgment of Full Bench of\n\nAllahabad High Court in Dinesh Kumar Yadav's case (supra) in which it\n\nhas been held after elaborate discussion that as the remedy of an appeal\n\nhas been provided underSection 29of the DV Act, 2005 before a Court\n\nof Sessions which means a Court of Sessions referred underSection 6read withSections 7and9of the Cr.P.C. without saying anything more\n\nregarding the procedure to be followed in such an appeal, there being\n\nnothing contrary to theDV Act, 2005 which may be indicative of the\n\napplication of the provision ofCr.P.C. to such an appeal. The normal\n\nremedies available against the judgment and order passed by a Court of\n\nSessions by way of appeal and revision is prescribed under theCr.P.C.\n\nbefore the High Court which is also available against the order passed in5appeal underSection 29of the DV Act, 2005, therefore, this case law\n\nholds ground and the revision against the appellate order is found to be\n\nmaintainable.9. The only question raised by the applicant in this case is regarding the\n\nmaintainability of the proceeding against him under the provisions of theDV Act, 2005 on the ground that on the date of filing an application there\n\nexisted no relationship between the parties. In the application filed by the\n\napplicant underSection 12of the DV Act, 2005 there is no mention of\n\ndivorce between the parties. The respondent has pleaded that she has\n\ndriven out of her matrimonial home on 11.5.2008 and since then she is\n\nliving separately. The applicant had submitted his reply and made a\n\nstatement that he had divorced the respondent on 13.1.2019 in\n\naccordance with Muslim law.10. Respondent - Najma Bano (AW-1) has not made any statement in\n\nher examination-in-chief regarding the dissolution of marriage and has\n\ndenied the question put to her in cross-examination that the applicant has\n\ndivorced her. There is similar statement of denial by the other witnesses\n\nfrom the applicant's side. The applicant in this case i.e. Mohd. Ashraf\n\nKhan as (NAW-1) has stated in his examination-in-chief that he has\n\ndivorced the respondent on 13.1.2009 and produced the photocopy of\n\nTalaknama and also the photocopy of decision of Muslim Jamat dated\n\n20.1.2009. In cross-examination, he has admitted that the respondent\n\nafter leaving him in 2008 has not come back. He has denied adverse\n\nsuggestions given in cross-examination. Arif Khan (NAW-2) is son of the\n\napplicant who has given statement that his father has divorced the6respondent in the year 2009. In cross-examination, he has admitted that\n\nhe had hearsay knowledge regarding the divorce.               Similar is the\n\nstatement of another witness from applicant's side Shakeel Ahmed.\n\nAccording to him, he has heard about the divorce of the applicant with his\n\nwife/ the respondent.11. The respondent has claimed that no divorce has taken place\n\nwhereas, the applicant had pleaded regarding the divorce between him\n\nand the respondent. Therefore, the burden was upon to the applicant to\n\nprove the factum of divorce as it was required for the purpose of coming\n\nto a conclusion in this case. According to the statements given in the\n\nnon-applicant's evidence by the witnesses, it is found that on 13.1.2009\n\nwhen the said divorce took place, the respondent was not present before\n\nthe applicant. The applicant himself has made only an oral statement\n\nand filed photocopies of the documents regarding divorce and the\n\ndecision of the Muslim Jamat.       No effort has been made by him to\n\nproduce the original divorce paper or to produce the witness of said\n\ndivorce since according to the muslim law, it is essential that divorce\n\nshould took place in presence of witnesses. There is also no statement\n\nor evidence that the divorce has taken place in presence of witnesses.\n\nThere is also no statement or evidence that the said divorce/ talak was\n\ncommunicated to the respondent, because under Muslim Law the\n\ncommunication of Talak is also essential. In Shamim Ara's case (supra),\n\nthe Supreme Court has held in paragraph 16 is as under:'We are also of the opinion that the talaq to be effective\n    has to be pronounced. The term 'pronounce' means to\n    proclaim, to utter formally, to utter rhetorically, to declare,\n    to utter, to articulate (See Chambers 20th Century7Dictionary, New Edition, p.1030). There is no proof of talaq\n      having taken place on 11.7.1987. What the High Court has\n      upheld as talaq is the plea taken in the written statement\n      and its communication to the wife by delivering a copy of\n      the written statement on 5.12.1990. We are very clear in\n      our mind that a mere plea taken in the written statement of\n      a divorce having been pronounced sometime in the past\n      cannot by itself be treated as effectuating talaq on the date\n      of delivery of the copy of the written statement to the wife.\n      Respondent No.2 ought to have adduced evidence and\n      proved the pronouncement of talaq on 11.7.1987 and if he\n      failed in proving the plea raised in the written statement,\n      the plea ought to have been treated as failed. We do not\n      agree with the view propounded in the decided cases\n      referred to by Mulla and Dr.Tahir Mahmood in their\n      respective commentaries, wherein a mere plea of previous\n      talaq   taken     in   the   written   statement,    though\n      unsubstantiated, has been accepted as proof of talaq\n      bringing to an end the marital relationship with effect from\n      the date of filing of the written statement. A plea of\n      previous divorce taken in the written statement cannot at\n      all be treated as pronouncement of talaq by the husband\n      on wife on the date of filing of the written statement in the\n      Court followed by delivery of a copy thereof to the wife. So\n      also the affidavit dated 31.8.1988, filed in some previous\n      judicial proceedings not inter partes, containing a self-\n      serving statement of respondent no.2, could not have been\n      read in evidence as relevant and of any value.'12.    There is no evidence from the applicant's side that talak was\n\npronounced or formally proclaimed and the same was communicated to\n\nthe respondent.       Therefore, it cannot be said that the divorce under\n\nmuslim law has effectively taken place between the applicant and the\n\nrespondent. Hence, on the basis of this finding, I am of this view that the8learned Appellate Court has not committed any error and the impugned\n\n        order needs no interference.13.       Accordingly, this revision petition is dismissed.Sd/-(Rajendra Chandra Singh Samant)\n                                                          Judge\nNimmi