golaghatjudiciary.gov.ingolaghatjudiciary.gov.in/jmnt/2016/march/sdjm/MISC (DV...that the aggrieved woman is legally married wife of Yusuf Ali, They denied all the allegations of torture,

Page 1

MISC.(D.V.) CASE NO: 54 OF 2014

MRS. SAJINA BEGUM –Vs- YUSUF ALI & ORS.

TYPED BY ME

SDJM(S), GOLAGHAT

DISTRICT: GOLAGHAT

IN THE COURT OF THE SUB DIVISIONAL JUDICIAL MAGISTRATE (S),

GOLAGHAT

MISC. (D.V.) CASE NO: 54/ 2014

UNDER SECTIONS 12, PROTECTION OF WOMEN

FROM DOMESTIC VIOLENCE ACT,2005

SAJINA BEGUM

-VERSUS-

YUSUF ALI

YAKUB ALI

HAJIRA KHATOON @ MISIR BEGUM

PRESENT : B. DUTTA, SUB DIVISIONAL JUDICIAL MAGISTRATE (S),

GOLAGHAT

ADVOCATE FOR THE AGGRIEVED PERSON: MD. TAHIR ALI

ADVOCATE FOR THE RESPONDENT: SRI P. BORBORA

EVIDENCE RECORDED ON: 09/04/15, 28/05/15, 04/02/16

ARGUMENT HEARD ON: 10/03/2016

JUDGMENT DELIVERED ON: 21/03/2016

FINAL ORDER

1) The allegedly aggrieved person Smti Ayesha Begum @ Salma

(in short aggrived person or petitioner) has preferred this petition

under Sections 12, Protection of Women from Domestic Violence Act,

Page 2



TYPED BY ME

SDJM(S), GOLAGHAT

2005 (in short D.V.Act) claiming reliefs under Sections 18,19,20,22

and 23 of the said Act.

2) The factual matrix that led to institution of the instant

proceedings, as alleged by the aggrieved person, is that she got

married to Yusuf Ali as per Muslim rites on 11/05/11. She brought

several things from parental home to matrimonial home at the time of

marriage. Things were of value of about 2 lacs. She began to stay at

matrimonial home after marriage. She gave birth to a son on

10/10/2012. After about 4 months of marriage, her husband, father-

in-law Yakub Ali, mother-in-law Hazira Khatoon began to demand Rs.

50,000/- from her. They threatened to kill her.

Her husband complained about her articles, brought from

parental home, beat her and rebuked her using obscene words. The

respondents suspected her with any person. If she talked with

anyone, the 1st respondent used to beat her being instigated by other

respondents. Respondents confined her in room while going out. Their

torture increased. Being confined in the room, she had to break

bamboo wall of the room to come out and quench her thirst and to

eat something. After returning they tortured her for this, beat her,

tried to kill her.

Several times she had to come to prrental home for her

security. Being persusded by her guardian she returned to

matrimonial home.

Respondents treated the aggrieved woman like servant. They

did not allow her to mingle with neighbours. In January, 2013

respondent Yusuf Ali drove her out of home in connection with

Page 3



TYPED BY ME

SDJM(S), GOLAGHAT

demand for dowry and kept the son with them. On that day

respondents beat her severely. On that day she informed at

Chumonigaon police outpost. On 27/01/2013 the police made the

partiesto arrive at an amicable settlement. Both parties put signature

on an agreement. But after some days respondents continued with

their torture upon the aggrieved woman. On 02/07/2014 being

instigated gy other respondents, respondent Yusuf Ali drove her out of

him after beating. Then her brother brought her in critical condition to

parental home. since then she has been at parental home with her

son. Her parental family members contacted respondents several

times for bringing her dowry articles, but they did not return.

Ultimately in November, 2014 they declared that they would not

return dowry articles.

Respondent Yusuf Ali has not paid any maintenance to the

aggrieved woman and her son. Yusuf Ali is a healthy person. He has

business, cultivation. He earns around Rs. 50,000/- per month. But

aggrieved woman has no source of income.

So, the aggrieved person made a prayer for following reliefs-

(a) To direct the respondents to pay monthly maintenance of Rs. 20,000/-

(twenty thousand rupees) to her,

(b) To direct respondents to pay compensation of an amount of Rs.

2,00,000/- (two lacs rupees) to the aggrieved woman,

(c) To recover her „Stridhan‟ articles.

Page 4



TYPED BY ME

SDJM(S), GOLAGHAT

3) The respondents appeared and filed written statement. They admitted

that the aggrieved woman is legally married wife of Yusuf Ali, They

denied all the allegations of torture, demand for money or articles.

Respondents contended that after marriage the aggrieved

woman showed unwillingness to maintain conjugal relationship with

her husband. She wanted to go to parental home. she came out

without telling them. Then Yusuf Ali and Yakub Ali brought her back

from Naharani Charali. She told them that due to pressure from the

parents she got married to Yausuf Ali. She was not willing to get

married to him. Repondents informed her parents abou it. Then her

parents came and brought her to their house. She stayed there for

about 18/19 days and then she returned.

She stayed at matrimonial home for about 2 months. After that

she began to go to parental home twice or thrice per month. after

about 10 months without informing them she went to parental home.

after about 15 days her husband went with respondent Yakub Ali and

neighbours Pajiratddin, late sahabuddin to bring her. Parental family

members of aggrieved woman rebuked them. But respondents

brought her to their house. After that aggrieved woman stopped

working at matrimonial home. Again respondents informed her

parents about it. Her parents brought her for some time. After return

she again continued her behaviour. Once her father brought her with

him for her rural treatment. Then her husband went to her parental

home. her parents suggested him to consult psychiatrist for the

aggrieved woman. Her husband came to know know that aggrieved

woman was not taking medicines. He brought her to his house, but he

could not make her take medicines. Whenever they forced her to take

Page 5



TYPED BY ME

SDJM(S), GOLAGHAT

medicines, she falsely complained her parents that the respondents

were torturing her. Then her father brought her to his house.

She stayed at parental home for 3 months. Then respondents

brought her to their house. Again her father brought her to his house.

Then health of respondent Hazira Khatoon deteriorated. So,

respondent Yusuf Ali went to bring the aggrieved woman. But her

parents refused to send her. After that respondent Yusuf Ali returned;

but continued to visit his wife and son, and supply them with goods,

whenever he could. Once while he tried to bring them to his house,

parental family members of aggrieved woman tried to beat him.

After 8 months of that incident aggrieved woman‟s father

made a complaint at majgaon mosque, where people, assembled, told

both the parties to amicably settle the matter. At night on that day

respondent Yusuf Ali and Yakub Ali brought the aggrieved person to

their house with 3 other persons namely Piyaruddin, Abdul Hemid and

Sorujan Ali. After staying at matrimonial home for one day aggrieved

woman again created chaos for going to parental home. then

abovesaid 3 persons were called for. They talked to the aggrieved

woman. Then she stayed peacefully for about 7/8 days. After that she

again started to demand to go to parental home, she continued her

visit to parental home 4/5 times a month. once being prevented by

her husband she created hue and cry. Abovesaid 3 persons were

called for. Aggrieved person told that she would not stay there. then

her parental family was informed. For one month her father brought

her with him. Her husband visted her and her son. But her father

drove him out. aggrieved woman told him that she would come if her

Page 6



TYPED BY ME

SDJM(S), GOLAGHAT

husband gets separated. On his refusal she told him not to visit them

after that. After that respondents got notice of the instant case.

Respondents further stated that Yusuf Ali is a daily wage

labourer. He earns around Rs. 2500/- per month.

Respondents prayed to dismiss this case.

4) The aggrieved person in support of her case examined as

many as two witnesses, including herself. The respondents examined

one witness. After adducing her evidence aggrieved woman defaulted

in appearance. So, cross-examination of D.W.s had to be dispensed

with.

5) I have heard the argument, put forwarded by learned counsel

for the respondents. Argument by aggrieved woman had to be

dispensed with due to her default in appearance.

6) FACTS ADMITTED BY THE RESPONDENTS:-

(i) That the petitioner is wife of respondent Yusuf Ali,

(ii) That she stayed with them at their house,

(iii) That due to their co-habitation a son was born,

(iv) That the aggrieved woman is at parental home now alongwith the

son.

POINTS FOR DETERMINATION

7) The following points for determination arose before this court

for a fair disposal of this case after consideration of contentions and

counter-contentions of the parties-

Page 7



TYPED BY ME

SDJM(S), GOLAGHAT

(i) Whether the respondents subjected the aggrieved person to any act

of „domestic violence‟?

(ii) Whether the aggrieved person is entitled to reliefs, as prayed for?

On these points, the decision of this Court and reasons

thereof are discussed below-

DISCUSSION,DECISION AND REASONS THEREOF

8) Point (i) Whether the respondents subjected the

aggrieved person to any act of ‘domestic violence’?

(8.1) PW1 aggrieved woman stated that she was at husband‟s house

after marriage and was blessed with a son. She is at parental home

with the son now. After 5 months of marriage her husband, mother-

in-law and father-in-law demanded dowry, money amounting to Rs.

50,000/-. On her inability to meet the demands her husband beat her.

Her mother-in-law told that she would bring a niece after driving out

the aggrieved woman. Her father-in-law said about killing her. They

used to suspect her. They did not allow her to mingle with

neighbours. Once respondents snatched away her son. Then she

informed at police station. That time an amicable settlement was

arrived at. After that again her husband beat her. Other respondents

instigated him. Her father, jamsed, Isanul Haque went and saw her

lying on ground. Since then she has been at parental home.after filing

this case she has received her articles from the respondents.

During cross-examination, PW1 admitted that her husband, father-in-

law, Inkram Ali brought her to Dr. Bijoy Bora of Golaghat for

treatment. She denied that she was also brought to Dr. Adinath

Page 8



TYPED BY ME

SDJM(S), GOLAGHAT

Sharma of Jorhat. She admitted about filing a complaint by her father

at Majgaon Mosque and about bringing her to matrimonial home at

that night by her husband, father-in-law and other two persons.

(8.2) PW2 Jamsed Ahmed stated that he knows both the parties. After

about 5/6 months of marriage of aggrieved woman with respondent

Yusuf Ali, respondents asked for money from her, beat her, drove her

out of home. PW2 has business at the neighbourhood of the

respondents. As such, he knows about happennings at their house.

Whenever parental family members of the aggrieved womaan went

she was not allowed to talk to them. In 2013 differences between the

parties were amicably setteled at Chumonigaon police outpost. But

again torture upon the aggrieved woman was started. Once in 2014

she was confined in a room. She got fainted. Then PW2 went there.

He alongwith her brother and Isanul Haque brought her to parental

home. now, she is at parental home. Yusuf Ali has made no

correspondence with her.

During cross-examination, PW2 stated that he is uncle of the

aggrieved woman. He stated that both parties complained at Majgaon

mosque and 3 persons namely Piyaruddin, Abdul Hemid and Sorujan

Ali were appointed as guardians. He admitted that after about 7/8

days of settlement at majgaon Mosque the aggrieved woman came to

parental home. He stated that due to torture, meted out again, the 3

persons, assigned by the Mosque surrendered the matter.

(8.3) DW1 Yusuf Ali stated that on 11/05/2011 after one month of

marriage the aggrieved woman showed her unwillingness to stay at

Page 9



TYPED BY ME

SDJM(S), GOLAGHAT

his house. He brought her to parental home. on 10/10/12 she gave

birth to a son. She went to parental home after that; then refused to

come. He brought her to his house. She again went to parental home.

Her mother told that there might be some mental problem of the

aggrieved woman. He brought her to Dr. Bijoy Bora, then to Dr.

Adinath Sharma. Doctor told to take medicines for 3 years. But after 5

days her father brought her with him. Her father did not allow her to

get treated. He proposed respondent Yusuf Ali to stay at his house

[aggrieved woman‟s parental home]. once her father beat him while

he went to visit her. Her father complained at Majgaon Jamat. There

both parties amicably settled. He brought her. After about one month

she told that if she was not allowed to go home, she would commit

suicide. Then her parental family members were called for. DW1‟s co-

villagers were also there. she was sent to parental home. after that

she did not return. PW2 denied all the allegations of torture,

contention of informing at Cumoni outpost by the aggrieved woman.

He stated that now he is not paying maintenance allowances to the

aggrieved woman. He gives sometimes if he finds someone. During

pendancy of this case the aggrieved woman came to his house and

stayed for two months. Then went to parental home. both parties

then entered into an agreement before the Notary. She told before

leaving that she is at parental home at her own wish.

(8.4) Now, evidence of DW1 remained uncontroverted due to non-

cross-examination. He stated that aggrieved woman‟s father

complained at Majgaon Jamat. But aggrieved woman did not state

that either in her petition or in her examination-in-chief. As her father

Page 10



TYPED BY ME

SDJM(S), GOLAGHAT

was complaining and she was allegedly aggrieved, she should have

stated about it. Only during cross-examination, she admitted that. By

applying presumption under illustration (g) of Section 114, Indian

Evidence Act, it can be said that such evidence would have been

unfavourable to the aggrieved woman.

(8.5) One allegation of the aggrieved woman is that respondent Yusuf

Ali has not been maintaining her and her son. DW1 himself stated that

he is not maintaining the aggrieved woman and her son now. Then

again he stated that if he finds someone, then sometimes he sends

money to them. PW1 stated that Yusuf Ali has not been maintaining

her. PW2 also stated that Yusuf Ali has not been making

correspondence with the aggrieved woman. So, here preponderance

of probability lies in favour of the aggrieved woman. It shows that

Yusuf Ali has been at least abusing the aggrieved woman

economically. Allegations against other respondents could not be

proved by the aggrieved woman by reliable evidence. She stated

certain new things against them during her deposition, which

allegations were not in her petition. So, allegations of domestic

violence found to be proved only against Yusuf Ali.

Point (i) decided partly in affirmative,partly in negative.

(9) Point (ii) Whether the aggrieved person is entitled to

reliefs, as prayed for?

Page 11



TYPED BY ME

SDJM(S), GOLAGHAT

(9.1) It is admitted by the respondents that minor son of the parties

is now with the aggrieved woman at her parental home. there is no

dispute that aggrieved woman has no source of income. As point No.

(i) is decided in affirmative, it can certainly be said that aggrieved

woman is entitled to maintenance from her husband.

(9.2) Contention of aggrieved woman is that Yusuf Ali earns arouns

Rs. 50,000/- per month. Contention of respondent is that he earns

around Rs. 2500/- per month as a daily wage earner. There is nothing

on record which shows that he is not able bodied. Hon‟ble Supreme

Court observed in „SHAMIMA FAROOQUI –VS- SHAHID KHAN‟

[judgment dated 06/04/15]-

“In this context,we may profitably quote a passage from the

judgment rendered by the High Court of Delhi in Chander Prakash

Bodhraj –vs- Shila Rani Chander Prakash [17]wherein it has been

opined thus:- “An able-bodied young man has to be presumed to be

capable of earning sufficient money so as to be able reasonably to

maintain his wife and child and he cannot be heard to say that he is

not in a position to earn enough to be able to maintain them

according to the family standard. It is for such able-bodied person to

show to the Court cogent grounds for holding that he is unable to

reasons beyond his control, to earn enough to discharge his legal

obligation of maintaining his wife and child. When the husband does

not disclose to the Court the exact amount of his income, the

presumption will be easily permissible against him.”

Page 12



TYPED BY ME

SDJM(S), GOLAGHAT

(9.3) Here Yusuf Ali has not been able to prove exact amount of his

income. He stated about his income in an approximate amount. Even

if daily wage is considered to be at least Rs. 250/- per day, and

working day per month is taken to be 25 days in average, his

minimum monthly income will be 6,250/-. Obviously as an able bodied

person he has capacity to indulge in productive works and earn more.

While fixing monthly maintenance allowance, the interest of the minor

son, who is with the aggrieved woman, will occupy prime importance.

Moreover, during deposition DW1 has not stated about his any other

liability. Keeping in view all aspects, monthly maintenance allowance

for the aggrieved woman is fixed at Rs. 3500/-.

(9.4) PW1 stated that she has already received her articles from the

respondents.

(9.5) Keeping in view entire facts and circumstances of the case, and

after perusing evidence on record, this court does not consider it to be

a proper case to grant compensation to the aggrieved woman.

Decision:- Point (ii) is partly decided in affirmative, partly in negative.

(10) In view of the above discussion and the decisions, reached in

the points for determination no. (i) and (ii) this court holds -

(a) That respondents Yakub Ali and Hazira Khatoon are not found to

be liable for committing acts of „domestic violence‟.

(b) Respondent Yusuf Ali is found to be liable for committing acts of

„domestic violence‟ upon the aggrieved person.

(c) That respondent Yusuf Ali shall pay a maintenance of Rs. 3,500/-

(three thousand and five hundred rupees)only per month for the

Page 13



TYPED BY ME

SDJM(S), GOLAGHAT

maintenance of the aggrieved person alongwith her son.

The order of maintenance is effective from the date of filing

the application by the aggrieved woman.

Each of the parties to be provided with a copy of this order

free of cost. Send another copy to the Protection Officer, Golagaht

for information.

The case is disposed of on contest without costs.

Given under my hand and the seal of this court on this the 21st

day of March,2016 at Golaghat.

SMTI B. DUTTA

SUB DIVISIONAL JUDICIAL MAGISTRATE(S), GOLAGHAT

Page 14



TYPED BY ME

SDJM(S), GOLAGHAT

APPENDIX (A)Prosecution Exhibits: Nil (B)Defence Exhibits: Nil (C)Prosecution Witnesses: (i) PW1- Sajina Begum (ii) PW2- Jamsed Ahmed (D)Defence witnesses:

(i) DW1- Yusuf Ali

SMTI B. DUTTA

SUB DIVISIONAL JUDICIAL MAGISTRATE(S), GOLAGHAT

Documents

golaghatjudiciary.gov.ingolaghatjudiciary.gov.in/jmnt/2016/march/sdjm/MISC (DV...that the aggrieved woman is legally married wife of Yusuf Ali, They denied all the allegations of torture,