Muslim jamath case regarding தலாக் thalak full order of THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN Crl.R.C.No.1097 of 2017 and Crl.R.C.No.526 of 2015 and C.M.P.No.1436

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Orders Reserved on : 02.11.2021)
(Orders Pronounced on : 24.11.2021)

CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
Crl.R.C.No.1097 of 2017 and
Crl.R.C.No.526 of 2015 and C.M.P.No.1436 of 2018
1.Abizar N.Rangawals
2.Nuruddin Rangawala ….Petitioner in Crl.R.C.No.1097 of 2017
V.Sakina …Petitioner in Crl.R.C.No.526 of 2015
.. Vs ..

Mrs.Sakina … Respondent in Crl.R.C.No.1097 of 2017
1.Abzer
2.NooruddinRangawala
3.AlifiyaRangwala
4.State rep.by
Inspector of Police,
W-11, All Women Police Station,
High Court Compound,
Chennai – 600 104. …Respondent in Crl.R.C.No.526 of 2015 PRAYER in Crl,R.C.No.1097 of 2017: Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C., to set aside the order passed in C.A.No.52 of 2013 and 223 of 2013 dated 17.06.2017 by the V Additional Sessions Judge, Chennai against M.C.No.3 of 2011 dated
11.02.2013 by the learned VII Metropolitan Magistrate, George Town, Chennai.
PRAYER in Crl,R.C.No.526 of 2015: Criminal Revision Case filed under
Section 397 r/w. 401 of Cr.P.C., to reverse the judgment rendered by
VII Metropolitan Magistrate in C.C.No.1861 of 2012 pronounced on 12th December 2014 by finding the all the accused guilty of offences under Section 341, 498-A, 506/2 read with Section 34 of the Indian Penal Code.
Crl.R.C.No.1097 of 2017:-
For petitioners :Mrs.Geeta Ramaseshan
For Respondent
Crl.R.C.No.526 of 2015:- : Mr.V.Prakash, Senior Counsel
For Mr.V.Manohar
For Petitioner :Mr.V.Prakash, Senior Counsel
For Mr.K.Sudalia Kannan
For R1 to R3 : Mr.Dr.Krishanmurthy
For R4 : Mr.S.Vinoth Kumar,
Public Prosecutor (Crl.Side)
C O M M O N O R D E R
Crl.R.C.No.1097 of 2017 is filed by the husband against the order of learned Metropolitan Magistrate No.III in C.C.No.1861 of 2012 dated 12.10.2014 which is filed under Domestic Violence Act.
2. Crl.R.C.No.526 of 2015 is filed by the wife seeking enhancement of sentence awarded in C.C.No.1861 of 2012 dated 12.10.2014 on the file of the VIII Metropolitan Magistrate, George Town, Chennai.
3. Mr.V.Prakash, learned counsel appearing for the wife and Mr.Dr.Krishnamurthy, learned counsel appearing for the husband.
4. Heard the learned Senior Advocate/Advocates appearing for the the respective parties.
Admitted factual matrix of the case:-
5. The marriage between the revision petitioner in Crl.R.C.No.1097 of 2017 and the first respondent therein was solemnized on 18.09.2005 at Dawoodi Bhora Jamat, Dr.Syedna Mohammed Burhanuddin Shaeb Street (Moore street), Chennai – 01.
Out of their lawful wed-lock, two female children, namely Hussaina Abizer and Munira Abizer were born to them. Difference of opinion arose between them and they are living separately.
6. “Talaaq” was pronounced as thrice required under their personal law, under letters dated 05.09.2011, 08.10.2011 and 11.11.2011 respectively. Such pronouncements were made by e-mails as well as by SMS through his mobile phone to the mobile phone of the wife.
7. The above marriage solemnized on 18.09.2005 at Dawoodi
Bhora Jamat, Dr.Syedna Mohammed Burhanuddin Shaeb Street (Moore Street), Chennai – 01 was hereby dissolved by a decree of divorce in
O.S.No.73 of 2012, on the file of the II Additional Principal Family Court, Chennai.
Crl.R.C.No.1097 of 2017:-
8. The respondent/wife filed M.C.No.3/2011 before the VII
Metropolitan Magistrate under Sections 12, 13, 19, 20 and 21 of the
Protection of Women from Domestic Violence Act, seeking the monthly maintenance for the minors and compensation for Domestic Violence committed upon her and also for the protection order under Section 18.
9. The wife examined herself as P.W.1 and marked as Exs.P1 to
P7, while the husband side examined himself as R.W.1 and marked as Exs.R1 to R9.
10. After trial, the learned Magistrate has held that the husband had committed the Domestic Violence and dismissed the petition against the third respondent. While the husband and father-in-law were held to have committed an act of Domestic Violence and protection order was also passed prohibiting the husband and father- -in-law from interfering with the custody of the children by the petitioner/wife and also prohibited from entering the school of minor Hussaina and also prohibited the husband and the father-in-law from causing any violence on the wife and relatives of the petitioner.
11. The Court below granted the following amounts in therespective heads.
Heads Amount
Rent Rs. 15,000/-
School Fees Rs. 75,000/-
Medical Expenses Rs. 2,500/-
Food Cloths Rs. 15,000/-
Household Expenditure Rs. 5,000/-
Physical and Mental Injury Rs.10,00,000/-
12. Aggrieved by the said order, both the parties have appeared to have filed appeal.
13. While the husband has filed Crl.A.No. 52/2013, the wife has filed Crl.A.No.223 of 2013 before the V Additional Sessions Court, Chennai.
14. Protection order is passed directing the 1st and 2nd respondents from committing any act of domestic violence and protection order is passed prohibiting the 1st and 2nd respondents from interfering with the custody of the children by the petitioner and the 1st respondent is prohibited from entering the School of minor Haasaina, namely Caliber International Academy. Prohibition order is also granted prohibiting the 1st and 2nd respondents from causing any violence to the wife and relatives of the wife and also the 1st respondent is prohibited from communicating to the petitioner in any form.
15. In the appeal, the appeal filed by the husband was dismissed. While the appeal filed by the wife and return of articles was partly allowed and as against the order passed in Crl.A.No.223 of 2013 this revision is filed by the husband in Crl.R.C.No.1097 of 2017.
16. Mrs.Geetha Ramaseshan, learned counsel appearing for the revision petitioner/husband would draw my attention by stating that as per the learned Metropolitan Magistrate order, monthly maintenance of Rs.37,500/- was granted to the wife, protection order has also been granted and compensation under Section 19 to an extent of Rs.10,00,000/- was also granted, which is exorbitant and without any scientific method. She also drew my attention to the answer elicited in the cross-examination regarding position of partial share in the property and also stated that, at the relevant point of time, the children were studying in a YGP Academy and thereafter, they moved to the school run by the Bohra community.
17. Per contra, Mr.V.Prakash, learned Senior Advocate appearingfor the wife would contend that, in view of the customary practice being prevalent in the Bohra Community in Muslim religion, divorce has to be recorded in the Jamath, whereas even after obtaining the declaration of marriage between one Sakin and Abizer N.Rangwala solemnized on 18.09.2005, which has been dissolved in O.S.No.73 of 2012, by the learned II Additional Principal Judge, Family Court, Chennai. The husband has not intimated to the Jamath and further, he has re-married and has two children through the second marriage. Now, for the want of registration of declaration of Talaq, the wife is unable to decide her future course of action in life.
18. The wife has also filed Crl.R.C.No.526 of 2015 before this Court for enhancement of sentence awarded in C.C.No.1861 of 2012. The case arises out of the complaint given by the wife against the husband and father in law and mother in law and the case has been registered and the same is filed in against the order of the learned VII Metropolitan Magistrate wherein A1 and A2 were convicted for the offence under Section 323 I.P.C with fine of Rs.1,000/- each and acquitted the accused under Section 341 I.P.C.
19. The case has been registered for an offence under Sections341, 324, 498-A and 506(ii) read with Section 34 of I.P.C., the learned Magistrate has held that A3/ mother in law has not committed the offence, however, held that A1 and A2 have committed offence under Section 323 of the I.P.C and accordingly, awarded the fine of
Rs.1000/-
20. After considering the submissions made by Mr.V.Prakash, learned Senior Advocate appearing for the wife and also the submissions of Mrs.Geetha Ramaseshan, learned counsel for the husband in Crl.R.C.No1097 of 2012 and Dr.Krishnamurthy, learned counsel in Crl.R.C.No.526/2015, the learned Magistrate, while dealing with M.C.No.3/2011 has considered the evidence of the wife and also Exs.P10,11,12,15,16 and 17 and also Ex.R1 Income Tax Return filed by the husband. In the appeal, additional documents were also marked.
21. After going through the finding rendered by both the Courts below, I find that the finding rendered by the trial Court was confirmed by the Appellate Court in the appeal filed by the husband. The wife underwent Domestic Violence in the shared house and the instance stated was in detail described by the Lower Appellate Court clearly shows that the wife has been victim of repeated acts of Domestic Violence in the hands of the revision petitioner/husband. Therefore, I find that the finding rendered by the learned Magistrate, as confirmed by the Appellate Authority, the necessity for the protection order on being satisfied and accordingly, the finding rendered by the Courts below that she was subjected to Domestic Violence and compensation of Rs.10 lakhs has been granted, was confirmed by the Lower Appellate Court.
22. On a perusal of the documents filed by both sides and also taking note of the fact that the monthly maintenance awarded to the tune of Rs.37,500/- cannot be said to be excessive and also Rs.17,000/- per year for the students for educational purpose of the minor also cannot termed as excessive and hence I find that on both the score, the finding rendered by both the Courts below appears to be just and fair assessment of maintenance.
23. On the point of compensation for domestic violence, I findthat it is a higher side. Taking into consideration the act of violence found to have been committed by the husband and in-laws, I find that the same may be reduced to Rs.7.5 lakhs to be payable within a period of two months. In all other respects, the order of maintenance and order of educational expenses as ordered by the trial Court, is hereby confirmed. The balance of the amount, has to be paid within a period of 3 months on equal installments, failing which, the respondent/wife is entitled to move for appropriate orders before the learned Magistrate Court.
24. (a) Since the Jamath is not a party before this Court, this Court is not expressing any opinion as to the procedure adopted by the Bohra community in the Jamath. It is for the Jamath to decide the future course of action in the matter of this kind.
(b) Taking into consideration the factual situation, as extracted supra, the wife should also be given an option to make an entry of passing of the decree by the competent Civil Court for the entry in the Jamath register and any such denial is being given to the Muslim Woman, I feel that the Woman’s right in the above stated situation cannot be denied on the ground of being woman. Right to declare her marital status is a right of a woman.
(c) Such a right cannot denied on the ground of she beingwoman. The order of decree of dissolution of marriage between the parties passed by the Family Court is binding upon the Jamath and thus, I find that in exercise of powers conferred upon this Court under Section 482 of Cr.P.C., this Court directs the Jamath of Bohra community situated in Chennai that the Jamath is hereby required to register the decree of divorce passed by the competent Court in O.S.No.73 of 2012 between the parties so as to enable the wife to decide the future course of action in her life which this Court feels that such a direction will meet the ends of justice.
(d) As observed earlier, it is left open to the Jamath to decide the future course of action regarding the procedure in the matters of this kind.
25. With these observations, Crl.R.C.No.1097 of 2017 filed by the husband, is partly-allowed to the extent indicated above.
Crl.R.C.No.526 of 2015:-
25. The trial Court on a consideration of the evidence, has come to the conclusion that the evidence adduced by the prosecution is to infirm to hold the commission of Section 498-A I.P.C and also Section 341I.P.C and accordingly, acquitted the accused and convicted the accused for the offence under Section 323 sentenced to pay fine of
Rs.1,000/- i.e., maximum fine that can be granted and hence, I find that Crl.R.C.No.526 of 2015 filed by the wife to enhance the punishment order passed in C.C., does not call for any interference in the absence of any perversity in finding or irregular or illegality in the proceedings of the learned Magistrate and in the absence of any perversity, I find that the order passed by the learned Magistrate in CC.No. does not call for interference and accordingly, this Criminal Revision petition is hereby dismissed.
26. In the result,
(i) Crl.R.C.No.1097 of 2017 is partly allowed and the compensation of Rs.10,00,000/- awarded by the learned Magistrate as confirmed by the Appellate Court is reduced to Rs.7.5 lakhs. In all other aspects, the order passed under the Domestic violence Act is hereby confirmed with a direction to the Jamath as stated in para 24.
(ii) Crl.R.C.No.526 of 2015 is dismissed.
24.11.2021
nvi
Internet:Yes/No
Speaking Order:Yes/No
To
1. The V Additional Sessions Judge, Chennai
2. The VII Metropolitan Magistrate, George Town, Chennai. 
RMT.TEEKAA RAMAN, J.
nvi
Pre-Delivery order in
Crl.R.C.No.1097 of 2017 and
Crl.R.C.No.526 of 2015 and
C.M.P.No.1436 of 2018
24.11.2021