Syed Md. Nadeem @ Mohsin and Others vs State and Another

Rajiv Sahai Endlaw, J.—The Petitioners seek quashing of, a) the complaint preferred by the Respondent No. 2 (stated to be ex-wife of the Petitioner No. 1) under the Protection of Women from Domestic Violence Act, 2005; b) the order dated 1st March, 2011 u/s 23 of the Act in the said complaint proceeding, directing the Petitioner No. 1 to pay interim maintenance of Rs. 8,000/- per month to the Respondent No. 2; and, c) as well as the order dated 23rd May, 2011 of dismissal of the first appeal u/s 29 of the Act against the order dated 1st March, 2011 (supra).

The counsel for the Petitioners has inter alia contended that the provisions of the Act and at least of Section 23 qua maintenance would not be applicable to Mohammedans owing to Sections 3 & 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is also contended that the parties having divorced, cannot be said to be in a domestic relationship for the Act to be attracted. Reliance is placed on A. Sreenivasa Rao and Others Vs. The State of A.P. and Another,

As far as the latter of the aforesaid contentions is concerned, I do not find any merit therein. The definition of "aggrieved person" in Clause (a) and (f) respectively of Section 2 of the Domestic Violence Act uses the expression "is, or has been, in a domestic relationship and "who live or have, at any point of time, lived together in a shared household". The said words are wide enough to cover even divorced couples. As far as the judgment of the Andhra Pradesh High Court is concerned, the same is an ex-parte order and without considering the aforesaid provisions.

However I find certain observations in ADIL and Others Vs. State and Another, and in Harbans Lal Malik Vs. Payal Malik, to be holding to the contrary.

Prima facie it also appears that Muslim Women Act would not come in the way of applicability of the provisions of the Domestic Violence Act to Mohammedans; if it were to be so held, owing to the Hindu Marriage Act, 1955 also containing provisions qua maintenance, Domestic Violence Act would not apply to Hindus also, making the same otiose.

However, the said aspect also requires further consideration.

Issue notice. Notice is accepted by the Ld. APP for the state. The Petitioner to serve the Respondent No. 2 by all modes including dasti, returnable on 18th July, 2011.

No case for granting interim stay is made out. The counsel for the Petitioners however states that in terms of the orders impugned, a payment of approximately Rs. 1,50,000/- towards arrears is to be made by 20th June, 2011. He states that the Petitioners shall pay a sum of Rs. 75,000/- on or before 20th June, 2011 and the balance remaining amount before the next date of hearing.

The orders impugned are modified to that extent only. The Petitioners are permitted to make the payment as aforesaid. Crl.M.A. No. 7238/2011 is disposed of.

Cr. M.A. No. 7239/2011 (for exemption)

Allowed, subject to just exceptions.