Revisionists v. State of Uttarakhand and another

16.01.2020 passed by First Additional Session Judge, Nainital in Criminal Appeal No.39 of 2019, ‘Smt. Amina Tabassum Karimi Vs. State and others, whereby the Appellate Court allowed the appeal and respondent nos.2 and 3/revisionist nos.1 & 2 herein, were directed to pay Rs.3,000/- per month to respondent no.2 herein as maintenance. 1

2. Learned counsel for the revisionists would submit that respondent no.2 filed an application before the Protection Officer against her real brother, sister and brother-in-law stating therein that she is a divorcee and residing in her parental house for last 17 years; that, now all these five persons have thrown her out from her parental house and have also forcefully withdrawn Rs.3 lakhs from her bank account; that, the Protection Officer prepared a report in Form-II and forwarded it to the Chief Judicial Magistrate, Nainital on 18.08.2017; that, after recording the statements of the parties, learned CJM dismissed the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (“the Act”) on 28.02.2019. Thereafter, against the dismissal order, the respondent no.2 preferred an appeal under Section 29 of the Act before the Session Judge, Nainital, which was registered as Criminal Appeal No.39 of 2019; that, the appeal was allowed by the First Additional Session Judge, Nainital vide its judgment and order dated 16.01.2020, by which revisionist nos.1 and 2 were directed to pay a sum of Rs.3,000/- per month to respondent no.2, as maintenance. Furthermore, the Appellate Court directed the revisionists to permit Respondent No. 2 to reside at Noorani House, Popular 2 Compound, Mallital, Nainital, and further restrained them from interfering with her right of residence at the said premises.

3. Learned counsel for the revisionists would further submit that the Appellant Court has passed the judgment on the basis of presumption and surmises that too without application of mind; that, Appellate Court has given the finding regarding Domestic Violence in paragraph no.13, which is based on an incident, which was not in the application filed by respondent no.2, therefore, the finding recorded by the Appellate Court regarding Domestic Violence is perverse and illegal. The revisionists, being the brothers of respondent no. 2, are not liable to pay maintenance to her under Section 125 Cr.P.C. or under any other law, including Muslim Personal Law.

4. Learned counsel for the appellant has further submitted that respondent no. 2 has neither pleaded nor filed any document to substantiate her claim that she is entitled to seek maintenance from her brothers.

5. In support of his contention, learned counsel for the revisionists placed reliance upon the judgment 3 rendered by the Hon’ble Allahabad High Court in the case of ‘Naimullah Sheikh and Anr. Vs. State of U.P. and Ors, reported in (2024) 1 Crimes (HC) 309. The relevant paragraph of the judgment reads as under:- “………………………………………………………… …………………… This part of the provision of law says that not the aggrieved persons but also her children, if any, may claim maintenance 'under' 'in addition' to order of maintenance under section 125 Cr.P.C. And further that the maintenance can be claimed under or addition to any other law for the time being in force. The way provision has been worded, gives a clear indication that section 12 of the DV Act is essentially a procedural law, which can be resorted to by any aggrieved person, who draws a substantive right for maintenance from under section law, whether 125 Cr.P.C. or personal law applicable to the parties or any other law for the time being in force. Thus law is quite clear to the extent that maintenance can be claimed under any law which provides for the same. Further that even if maintenance has already been granted under one law, the aggrieved person can ask for monetary relief for maintenance under any other law in addition, under the provisions of the DV Act. Thus this law seeks to avoid multiplicity of proceedings. Now a question may arise that when rights have been provided for elsewhere, why such enactment was needed at all? In my opinion the legislature has, keeping up with the objective of this enactment, has cut down the procedural formalities and facilitated grant of quicker reliefs. Section 20(2) of the DV Act says that the monetary relief granted under this section shall be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The scope for grant of particular kind of monetary relief that is 4 is further widened in section "maintenance" that an the DV Act which says 20(3) of appropriate lump-sum may be ordered to be paid as maintenance the nature of circumstances of a particular case. In my opinion, if the provisions of section 20(1)(d) of the DV Act are interpreted in harmony with rights given to an aggrieved person under any other law, it appears that the substantive right to receive maintenance may emanate from other laws, however quick and shorter procedure to obtain the same, has been provided in the the DV Act, 2005. The rights which the parties may have under other laws whether civil or criminal, have been given a cutting edge by the Act. In my view, this explains the use of words "more effective protection to women" in the foreword which described the reasons behind this enactment.”

6. Per contra, learned counsel for respondent no.2 would submit that as per Muslim Law, respondent no.2 is entitled 1/4 share of the property of her brothers.

7. After hearing the leaned counsel for the parties and after perusing the record, respondent no. 2 has failed to establish by any documentary evidence that the revisionists are bound to maintain her or provide her residence, either under the provisions of the DV Act, Section 125 Cr.P.C., or the Personal Law governing the parties. Therefore, the judgment and order dated

16.01.2020 passed by First Additional Session Judge, Nainital in Criminal Appeal No.39 of 2019, ‘Smt. Amina Tabassum Karimi Vs. State and others cannot be 5 sustained and is hereby set aside. Respondent no. 2 shall be at liberty to pursue her claim of share before the appropriate forum, in accordance with law. BS BALWAN T SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=fbbd191c8bdb8b16e8ca7937deaf72a17 c02fe2eacbf28cdf4ba7ce8640c5820, postalCode=263001, st=UTTARAKHAND, serialNumber=04E141DF4614F9A4D5F48346EB5 53DE5185F418755DC00A7A13C14A680C3FA90, cn=BALWANT SINGH (Alok Mahra, J.)

18.09.2025 6