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Bangalore District Court
Tabrez Ahmed vs Apsha Roshni on 3 May, 2025
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Crl.A.No.1931/2024
KABC010298422024
IN THE COURT OF THE LIX ADDL. CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 3rd day of May, 2025.
PRESENT:
Sri Somashekara. A., B.A.L., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
Crl. Appeal No.1931/2024
APPELLANT/S: Mr.Tabrez Ahmed,
S/o.Mr.Mushtaq Ahmed,
Aged about 33 years,
R/at No.25/1,
Bannerghatta Road,
New Gurappanapalya,
Bengaluru-560 029.
(By Sri.Rizwanulla Mohammed Riyazulla, Adv.)
-Vs-
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Crl.A.No.1931/2024
RESPONDENT/S: 1) Smt.Apsha Roshini,
W/o. Tabrez Ahmed,
D/o.R.K.Pasha,
Aged about 32 years.
2) Master Abdullah Ahmed,
S/o.Tabrez Ahmed,
Aged about 3.5 years,
Repted. by mother
Smt.Apsha Roshni.
(Both are r/at No.104, (Old No.50),
ITI Layout, Benson Town Post,
Bangalore-560 006.)
(By Sri.V.Venkataramappa, Advocate)
JUDGMENT
Appellant has filed this appeal under section 29 of The Protection
of Women from Domestic Violence Act 2005, to set aside the order
dated.23.09.2024 passed in Crl.Misc.No.19/2024 pending on the file of
Metropolitan Magistrate Traffic Court-IV, Bengaluru.
2. Rank of the parties is referred to as per their ranks
assigned before the trial court.
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Crl.A.No.1931/2024
3. The facts of the case leading to this appeal may be
summarized as under:-
The appellant is the respondent and the respondent No.1 is
the complainant before the trial court. The respondent has field
petition under section 12 of The Protection of Women from Domestic
Violence Act 2005, against the Appellant.
Along with the petition interim applications under section 18(e)
and 19(d)(e) R/w section 23(2) of Protection of Women from Domestic
Violence Act for grant of interim reliefs. While passing exparte on the
said interim applications the Trial Court vide order dated.23.09.2024
has directed the appellant to pay interim maintenance amount of
Rs.8,000/- per month.
4. Aggrieved by the said order the present appeal has been
field by the appellant. In the appeal memo it is contended that the
respondent No.1 is working women and earning an amount of
Rs.35,000/- per month, but the Trial Court refused to consider the
said fact. The marriage of the appellant with respondent was simple
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Crl.A.No.1931/2024
arranged marriage. Therefore, the question of Dowry Demand does
not arise. After the marriage the respondent was not interested in
living with the appellant in a joint family has she was insisted for
nuclear family. The said fact leads to misunderstanding in the
matrimonial house. The respondent always in the house of
neighborhood when he questioned with her she went to parental
house and lodged Dowry harassment complainant against him and
his family members. The Trail Court without conducting enquiry was
passed interim order and which is not permissible under law. The
Trial Court fail to consider the objection statement of the respondent.
Therefore, the appellant submitted that the said order passed by the
Trial Court is liable to the set aside.
5. Notice of the petition has been issued to the respondent,
who appeared through his counsel and contested the matter. At the
inspection of this appeal this Court stayed the orders passed on I.A.
No.I by the Trail Court subject to condition that appellant shall pay
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Crl.A.No.1931/2024
monthly maintenance of Rs.8000/- per month till disposal of this
Appeal. But the appellant has not complied with the said interim
order.
6. Heard the learned counsel for the appellant and
respondent.
7. The following points that would arise for my
determination:-
1. Whether Trial Court is justified in passing interim
maintenance of Rs.8000/- per month to the
respondent/petitioner?
2. Whether there is legal infirmity in the impugned
judgment, which requires interference of this court?
3. What Order?
8. My findings on the aforesaid points as follows:-
Point No.1: In the Affirmative,
Point No.2: In the Negative,
Point No.3: As per final order,
-for the following:-
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Crl.A.No.1931/2024
REASONS
9. POINTS No.1 & 2 :- The admitted facts in this case that,
there is no dispute regarding relationship between the parties and
they blessed with a Boy. The allegation against the respondent is
that he started abusing the petitioner and harassing for one or other
reason, the respondent always find false with the petitioner for silly
reason and often quarrel with her without any reason. Respondent
and his family members started harassing and abusing in filthy
language to bring additional dowry and thereafter he neglect to
maintain the petitioner, he gave dowry harassment. The respondent
is running a TNT Chicken Kabab point at Bannerghatta road and
earning Rs.3,00,000/- to Rs.4,00,000/- per month and also getting
rent.
10. On the other hand, the respondent has taken specific
contention that when he was working as a helper in car accessories.
Now he is jobless and as such he cannot pay an amount of
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Crl.A.No.1931/2024
Rs.8,000/- maintenance amount. The Trial Court without
appreciating the facts, has passed erroneous order and as such he
pray to set aside the said order. The learned counsel for the
respondent vehemently submitted that the respondent is very much
attached with his son/petitioner No.2. But the petitioner No.1 for one
or other reason is avoiding to meet him therefore, the petitioner No.1
is not entitled for any maintenance.
11. As can seen from the submission canvased by the learned
advocates for the parties and from the documents available on record,
the marriage between the petitioner/wife and respondent husband was
solemnized on 22.04.2019, but after the marriage, mental and physical
harassment was meted out to the wife and, therefore, she was driven
out of the from her matrimonial house, which led to filing an application
under section 12 of PWDV Act.
12. The main facet of arguments canvased by the learned
advocate for respondent relaying upon Sec.12 of the PWDV Act, that
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Crl.A.No.1931/2024
the appellant/wife has deserted the respondent/husband and as such
she is not entitled for any maintenance, which is granted by the
impugned order.
13. Another submission is made by the advocate for
respondent with regard to income of the respondent. According to him
the respondent has lost his job and now he is facing financial problems
to lead his livelihood. What is required to taken into consideration while
awarding maintenance to the wife, has been considered by the Hon’ble
Apex Court Jabsir Kaur Sehgal Vs. District Judge Dehradun & others.,
reported in (1997) 7 SCC 7, wherein the Hon’ble Apex Court has
observed as under,
“The court has to consider the status of the parties, their
respective needs, the capacity of the husband to pay
having regard to his reasonable expenses for his own
maintenance and of those he is obliged under the law
and statutory but involuntary payments or deductions.
The amount of maintenance fixed for the wife should be
such as she can live in reasonable comfort considering
her status and the mode of life she was used to when
she lived with her husband and also that she does not
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Crl.A.No.1931/2024
feel handicapped in the prosecution of her case. At the
same time, the amount so fixed cannot be excessive or
extortionate.”
The Court has also gone through the decisions relied upon by
the learned advocate for the petitioner. There cannot be any dispute
with regard to the ratio laid down in the same. However, in the facts
and circumstances of the case on hand and this being discretionary
relief, which requires to be granted judiciously, the said decisions
would be of no help to the present petitioner at this juncture.
14. At this stage, I would also like to refer to the well known
decision of the Hon’ble Apex Court in case of Rajnesh Vs. Neha,
reported in (2021) 2 SCC 324, wherein the Hon’ble Apex Court, after
considering various case laws as well as various provisions like the
provision of Criminal Procedure Code, 1973, Hindu Marriage Act,
Domestic Violence Act, Special Marriage Act and others, has
considered the issue of maintenance and settled the law on this
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Crl.A.No.1931/2024
aspect, which in the facts of the present case is squarely applicable
to the case on hand.
15. From the aforesaid enunciation of law, it is limpid that
the obligation of the husband is on a higher pedestal when the
question of maintenance of wife and children arises. When the
woman leaves the matrimonial home, the situation is quite different.
She is deprived of many a comfort. Sometimes the faith in life
reduces. Sometimes, she feels that she has lost the tenderest friend.
16. There may be feeling that her fearless courage has
brought her the misfortune. At this stage, the only comfort that the
law can impose is that the husband is bound to give monetary
comfort. That is the only soothing legal balm, for she cannot be
allowed to resign to destiny. Therefore, the lawful imposition for
grant of maintenance allowance. I have also considered the findings
given and conclusion arrived at by the learned Judge concerned
while passing impugned order and found that no error is committed
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Crl.A.No.1931/2024
by the learned Judge concerned, which requires any interference
from the hands of this Court.
17. The submission of the learned counsel that the husband
has lost his job cannot be directed to pay maintenance is noted only
to be rejected, as the husband being an able bodied man is
expected to work and take care of the wife. Any interference of the
order that is impugned would run foul of the judgment of the Apex
Court in the case of Apex Court in the case of ANJU GARG AND
ANOTHER VS. DEEPAK KUMAR GARG, wherein at paragraphs 10
to 14 has held as follows:
This Court had made the above observation as the Court
felt that the family court in the said case had conducted the
proceedings without being alive to the objects and reasons,
and the spirit of the provisions under Section 125 of the
Code. Such an impression has also been gathered by this
Court in the case on hand. The Family Court and
disregarded the basic canon of law that it is the sacrosanct
duty of the husband to provide financial support to the wifeJudge
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Crl.A.No.1931/2024and to the minor children. The husband is required to earn
money even by physical labour, if he is an able-bodied,
and could not avoid his obligation, except on the legally
permissible grounds mentioned in the statute. In
Chaturbhuj Vs. Sita Bai2, it has been held that the object of
maintenance proceedings is not to punish a person for his
part neglect, but to prevent vagrancy and destitution of a
deserted wife, by providing her food, clothing, and shelter
by a speedy remedy. As settled by this Court, Section 125
Cr.P.C., is a measure of social justice and is specially
enacted to protect women and children. It also falls within
the Constitutional sweep of Article 15(3), reinforced by
Article 39 of the Constitution of India.
11. The Family Court, in the instant case had not only over-
looked and disregarded the aforesaid settled legal position,
but had proceeded with the proceedings in absolutely
pervert manner. The very fact that the right of the
respondent to cross examine the witnesses of the
appellant original applicant was closed, as he had failed to
appear before the Family Court despite the issuance of
warrants, clearly established that he had not regards for
the Court or for the law. The allegations made by the
appellant -wife in her evidence before the court had
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Crl.A.No.1931/2024
remained unchallenged and, therefore, there was no
reason for the Family Court to disbelieve her version, and
to believe the oral submissions made by the learned
counsel appearing for the respondent which had not basis.
In absence of any evidence on record adduced by the
respondent disputing the evidence adduced by the
appellant, the Family Court could not have passed the
order believing the oral submissions of the learned counsel
for the respondent. She had clearly stated as to how she
was harassed and subjected to cruelty by the respondent,
which had constrained her to leave the matrimonial home
along with her children, and as to how the respondent
had failed and neglected to maintain her and her
children. She had also proved by producing the
documentary evidence that her father had paid money to
the respondent from time to time to help the respondent
for his business. Even if the allegations of demand of
dowry by the respondent were not believed, there was
enough evidence to believe that money wa being paid to
the respondent by the father of the appellant -wife, which
substantiated her allegation that the respondent was
demanding money from her father and was subjecting
her to harassment. The errant respondent had also gone
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Crl.A.No.1931/2024
to the extent of questioning her chastity alleging that
Rachit was not his biological son. There was nothing on
record to substantiate his such baseless allegations. His
application for DNA test was also rejected by the Family
Court. Of course, of the Family Court granted the
maintenance petition so far as the appellant no.2-son
was concerned, nonetheless had thoroughly mis-
directed itself by not granting the maintenance to the
appellant-wife.
18. By keeping the above said principles of law in mind,
though the respondent is unemployed and not in a position to pay
monthly maintenance he has not independent source of income. The
Trial court will declining to entertain the defense set up by the
respondent referring to the material on record has ordered and interim
maintenance at the rate of Rs.8,000/- per month.
19. Be that as it may if respondent has deserted the wife
irrespective of his financial status, his bound to pay maintenance
wife and children. Admittedly, at the very young age, the petitioner
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Crl.A.No.1931/2024
No.1 is made to leave the company of her husband burden with
female child. Therefore, regard to these hard relatives of the
appellant wife, the Trial Court awarded an amount of Rs.8,000/- per
month.
20. The petitioner under the grab that he has lost his
employment, cannot shy away from his responsibility of maintaining
the wife and minor daughter. Interim maintenance at the rate of
Rs.8,000/- per month to the wife and minor son is not exorbitant.
With these reasons I answer Point No.1 in the Affirmative and Point
No.2 in the Negative.
21. Point No.3:- For the foregoing the reason I proceed to
pass the following:-
ORDER
The Criminal Appeal filed under section of 29 of
PWDV Act is hereby dismissed.
Judge
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Crl.A.No.1931/2024Consequently, the order passed by the learned
MMTC-IV, Bengaluru in Crl.Misc.19/2024, dated.
25.09.2024 is hereby conformed.
Office is hereby directed to send the certified
copy of this Judgment to the trial court.
(Dictated to the Typist on Computer, corrected, signed and then
pronounced by me in the open court on this the 3 rd day of May, 2025.)
(Somashekara A.)
LIX Addl. City Civil & Sessions Judge,
BANGALORE CITY.
Judge
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Crl.A.No.1931/2024
(Judgment pronounced in open court (vide
detailed separate judgment)
ORDER
The Criminal Appeal filed under section of 29 of
PWDV Act is hereby dismissed.
Consequently, the order passed by the learned
MMTC-IV, Bengaluru in Crl.Misc.19/2024,
dated.25.09.2024 is hereby conformed.
Office is hereby directed to send the certified
copy of this Judgment to the trial court.
(Somashekara A.)
Judge
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Crl.A.No.1931/2024
LIX Addl. C.C. & Sessions
Judge, BANGALORE CITY.
Judge
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