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IN THE COURT OF THE SPL. JUDL. MAGISATRATE OF I CLASS FOR
TRIAL OF PROHN. AND EXCISE OFFENCES, NELLORE.
Saturday, this the 31 st day of December, 2016
Present: - Smt.A.Padma,
Spl. Judl. Magistrate of I Class
for trial of Prohn. and Excise Offences, Nellore.
DVC No.35 of 2012
1. Sk. Rubeena, w/oAzahar Basha, aged 31 years,
2. Sk. Muneeb.
3. Sk.Sajeed. (Petitioners No.2 and 3 are being minors, Rep., by next friend guardian1st petitioner) All are R/o Ranganayakulapet, Nellore. Petitioners/ Aggrieved persons.
-Vs-,,
1. Sk. Azahar Basha, aged 34 years, S/o late Ghousemohiddin, Junior Asst., Z.P.P. High School, Dakkali, SPSR Nellore District.
2. Sk.Muntaz, aged 50 years,
3. Sk. Apsar, 32 years,
4. Sk.Anwaar, aged 35 years, C/o Teacher, Z.P.P. School, Penubarthi, Rapur mandal.
5. Sk. Iliyaz, Teacher, Z.P.P School, Sullurpet, Mambantu village.
6. Sk. Jabbar, S/o late Sk. Basha Saheb, B.C. colony, Kondandaramapuram, Manubolu (PO) & (M), Nellore District.
7. Sk. Dilshad, W/o Khadar Basha, D.No.W1/417-A, Malvaya Nagar, Gudur.Respondents.
This case coming on this day before me for hearing in the presence of Sri. S. Nageswara Rao, Advocate for petitioners/ aggrieved persons and Sri A.T.R. Ratnakar, advocate for respondents and having stood over for consideration till this day, this court made the following:- : O R D E R:
1. The aggrieved person filed this proceedings against respondent
No.1 to 7 u/sec 12 of Domestic Violence Act seeking relief u/sec 18,19,20 and 22 of Domestic Violence Act.
2. Brief facts of application are that the marriage of the aggrieved person was performed with the first respondent on 29-8-2005 at Somisetty 2
Kalyana Mandapam, Ranganayakulapeta, Nellore as per Muslim rights and customs and usages prevailing in their community in the presence of elders of both parties. At the time of marriage an amount of Rs.6 lakhs towards dowry, 25 sovereigns of gold ornaments to the aggrieved person and 5 sovereigns of gold towards to the first respondent and 200 grams of silver articles, Hero Honda Motor cycle and house hold articles, suit of Rs.5,000/- as mentioned in Jehaz patti were given to the respondents as demanded by them and that the father of aggrieved person spent Rs.3 lakhs towards marriage expenses.
i) At the instigation of other respondents, the first respondent used to beat the aggrieved person with a belt and press her neck, the first respondent got illegal intimacy with a lady. When the aggrieved person was pregnant, the first respondent failed to provide medical care and as such she gave birth to physically challenged child. After giving birth to a physically challenged child, all the respondents harassed the aggrieved person and tried to neck out her from the house with an intention to perform second marriage to the first respondent. On 3-7-2007 the 5th respondent caught hold the hand of the aggrieved person and beat her and caused bleeding injuries. The aggrieved person gave a report to S.H.O of Rapur P.S., then all the respondents requested her to settle the matter amicably, hence, she compromised with the respondents, thereafter her family was shifted to Ram
Nagar, Nellore.
ii) The aggrieved person gave birth to second male child on 8-5- 2010 and after delivery she joined her husband at Rapur. At that time the first respondent demanded her Rs.2 lakhs to discontinue his illegal intimacy and challenged her that he got a right to marry 4 woman as per Muslim law.
All the respondent supported him and they have made attempts to perform second marriage of the first respondent. The aggrieved person gave a report to S.H.O of Mahila P.S. u/sec 498-A of IPC, thereafter the S.H.O of Mahila P.S., gave counselling to both the parties, then the first respondent undertook 3 that such incident would not happen in future. On that day itself the first respondent took her to her marital home at Rapur. Thereafter, the first respondent was granted anticipatory bail. He fabricated false documents on 13-5-2011 alleging to be Talak notice and came to Nellore to visit the mother of the aggrieved person and sent separate envelop covers with white papers.
On receiving white papers her parents dropped her at the house of her husband. While residing along with her, the first respondent filed a
F.C.O.P.No.294/2011 on the advice of other respondents. The respondents got issued notice to the aggrieved person in F.C.O.P.No.294/2011 by way of substitute service in Praja Sakthi paper, the brother of the aggrieved person read the newspaper and informed the same to the aggrieved person. When the aggrieved person asked the same as to why he got filed
F.C.O.P.No.294/2011 and got substitute service of notice to her by way of newspaper, on that the first respondent and other respondents abused her, beat her and necked her and her children from the house. Then she came to know that the first respondent created false documents of anticipatory bail,
F.C.O.P.No.161/11, Talak notice and DDs. The aggrieve person noted the DD numbers and asked the Bank Manager, State Bank of India, Fathekhan pet
Branch, Nellore, she came to know that her husband obtained the D.Ds and he himself cancelled the D.Ds and enchased them. It shows evil intention of her husband to get red off her and that he fabricated all false documents.
All the respondents committed domestic violence by harassing the aggrieved person mentally, the aggrieved person and her children do not have any properties and that they are ready to join the first respondent.
iii) The first respondent is working as Junior Assistant in Z.P.
School, Dakkali and earning Rs.35,000/- towards salary. He is also getting
Rs.10,000/- per month towards house rent and doing money lending business and he is earning Rs.20,000/- per month towards interest and the first respondent is having capacity to maintain her and her children.
4 iv) In view of above ill-treatment and harassment of the respondents, the aggrieved person prayed the Court a) to direct the first respondent to take the aggrieved person to his marital fold b) to direct the first respondent to pay Rs.6,000/- per month towards daily necessities of
Food, clothes of the aggrieved person c) to direct the first respondent to pay
Rs.2,000/- per month towards school fee and Educational expenses of their two minor children d) to direct the first respondent to pay Rs.2,000/- per month towards medical expenses of first son of the respondent e) to direct the first respondent to pay Rs.3,000/- towards rent and electricity charges of the aggrieved person f) to direct the first respondent and second respondent to return the dowry amount of Rs.6 lakhs, 25 sovereings of gold ornaments, 5 sovereigns of gold articles given to the first respondent and 200 grams of
Silver, Rs.50,000/- given towards Hero Honda Bike, Rs.1,50,000/-towards house hold articles, Rs.3,00,000/- towards marriage expenses g) to direct the respondents not to alienate the joint property that is the shared house property situated at Rapur and h) to direct the first respondent to pay Rs.6 lakhs towards compensation to the aggrieved person.
3.The respondents filed counter by admitting the relationship between the parties and denying the other averments of the application as to receiving of dowry, demand of additional dowry and harassment of the aggrieved person for additional dowry. The respondents submitted that the respondents Nos.3 to 7 have no domestic relationship with the aggrieved person, respondent Nos.5 to 7 are residing separately in some other mandals in Nellore District, respondent Nos.3 and 4 are residing separately from respondent Nos.1 and 2 at Dycass road, Respondent No.4 is working as Head
Master at Penubarthi village, Rapur, Respondent No.3 is a private school teacher at Dycass road, Nellore,Respondent No.5 is Hindi Pandit at Tada mandal in Z.P. High School, Chinna Mambottu since 2009. Respondent No.6 is a retired police Head constable, permanent resident of Manubolu village,
Respondent No.7 is a house wife and her husband is Deputy Tahsildar at
Naidupeta, therefore the above respondents have not committed any act of 5 domestic violence. The allegations against them were made by the aggrieved person since they are the relatives of husband of aggrieved person i.e, Respondent No.1. The respondent No.1 married the aggrieved person on 29-8-2005 in the presence of elders of both parties without any cash or kind and the elders fixed the Mehar amount as Rs.11,250/-, thereafter the aggrieved person joined the marital fold of first respondent and started to pick up quarrels with the first respondent and his mother i.e,
Respondent No.2. She compelled the first respondent to put up a separate family at Nellore, but as he is a Junior Assistant at Z.P. High School of
Vepinapi of Rapur mandal on compassionate grounds and he has to maintain his mother respondent No.2 and his younger brother, he refused to shift the family from Rapur to Nellore, in that connection the aggrieved person picked up quarrellers with respondent No.1 and 2.
i) On 15-6-2006, the aggrieved person gave birth to a son who is aged about 7 years by the time of filing the counter. Thereafter the aggrieved person did not choose to join the first respondent inspite of mediations conducted by the elders. Finally the respondent No.1 approached the Government Khaji District Court at Barracks, Nellore -1 and filed a petition inviting the aggrieved person on 16-5-2007, after following due procedure, the Government Khaji directed the aggrieved person to join respondent No.1 on or before 21-6-2007. On the orders of Khaji, the aggrieved person joined respondent No.1 and lived happily with him for 10 days. Again she repeated her demand to shift the family to Nellore. When the first respondent refused her demand, she lodged a false report against respondent No.1 to 5 and father of respondent No.2, the S.I of police compromised the same on 3-7-2007. On 15-7-2007, respondent No.1 shifted his family to Nellore and resided in a house bearing door No.24-2-1103, III street, Ram Nagar, Dargamitta, Nellore -3 i.e., house of Shaik Masthan from 15-7-2007 till 31-12-2009 and from 1-1-2010 till 31-3-2011 and in Door No.
22-2-140, Kummari sreet, at Halthalim Majeed owned by Sk. Abdul Kareem from 1-4-2011 to 15-5-2013 and at 7-408, IV street, Shanthi Nagar, A.K.
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Nagar post, Nellore -4 owned by Kavili Veeraswamy. At this juncture the aggrieved person and first respondent have taken all their belongings by executing an undertaking latter signed by respondent No.1 and 2 and the aggrieved person and the witnesses. The aggrieved person again started harassing the first respondent to shift her family from Ram Nagar to
Ranganayakulapet, Nellore where the house of parents of aggrieved person is situated. It was rejected by the first respondent, in this connection the aggrieved person left the society of the first respondent on 20-1-2010 without his knowledge. Thereafter, brothers and father of aggrieved person have taken away all belongings including gold purchased by respondent
No.1 i.e, 28 sovereigns of gold, clothes, cash, marriage photos, marriage certificate, house hold ration card, documents of respondent No.1 along with motor bike Hero Honda Splendor bearing Regd. No.AP 26 N 6744. Finally the first respondent went to the house of parents of the aggrieved person and requested the aggrieved person to join him but she refused.
ii) The first respondent requested the aggrieved person to join him, the aggrieved person and her mother demanded an amount of Rs.8 lakhs from the first respondent to join him. They have threatened him that they would get a criminal case registered on his failure to given the amount.
The matter was placed before the mediators. In the mean time on 8-5- 2010, the aggrieved person gave birth to second son by name Sajeed who is aged 3 years by the time of filing of the counter. Though the relations are strained in between the aggrieved person and the first respondent, he spent the amount for her delivery at Swathi Nursing Home, Santhapet, Nellore -1.
iii) Finally on 14-6-2010 the first respondent went to the aggrieved person along with elders and requested her to come and join but the aggrieved person refused to join him without his fault. Consequently, the first respondent decided that the aggrieved person did not want any conjugal relationship with him and that she has only shown interest towards his money. Hence, he decided to pronounce Talak. On refusal of aggrieved 7 person, he pronounced triple Talak on 27-5-2011 in the presence of two mediators i.e, 1) Shaik abdul Jabbar, resident of Manubolu village and mandal 2) Mohammed Anwar Basha, resident of Gudur town and mandal,
SPSR Nellore District as per Muslim personal law and as such the aggrieved person is no longer live as wife of respondent No.1 and there is no marital relationship between them in their personal law towards person and the property. The said Talak uttered orally in the presence of above said two male witnesses who are Muslims and as such it became irrevocable.
Immediately when the written deed of Talak was sent to the aggrieved person, the same was acknowledged by her as Triple repetition. The respondents sent the Talaknama prepared in the presence of Sk.Abdul
Jabbar and Md.Anwar Basha along with DDs for Rs.1,500/- towards Iddat and
Rs.11,250/- towards Mohar bearing Nos.584778 and 584779 respectively, mentioning all the above facts.
iv) The first respondent filed F.C.O.P.No.161/2011 before the
Hon’ble Family Court, Nellore with the advice of well wishers of both parties,
the parties entered into compromise and the first respondent filed a memo
before the Hon’ble Family Court in CF.No.4035/2011 on 25-07-2011 by not
pressing FCOP.No.161/2011 but the aggrieved person did not join him and approached the CEO, Zilla Parishad, Nellore and filed several petitions against him to terminate his service. Though the first respondent withdrawn
FCOP.No.161/2011, he had neither by his conduct revoked the talak nor by expressly stating before two competent Muslim witnesses that he had revoked the Talak dated 27-5-2011. By virtue of said Talak, the respondent
No.1 renounced the aggrieved person from the state of being his wife which emphatically declares that all the rights and liabilities between respondent
No.1 and the aggrieved person as husband and wife have ceased and dissolved.
v) It is further mentioned in the counter that on 30-9-2011, the first respondent filed FCOP.No.294/2011 praying to dissolve the marriage in 8 between first respondent and the aggrieved person from the date of pronouncing triple talak i.e 27-5-2011, thereafter on 3-4-2012, the aggrieved person filed DVC No.8/2012 before the V. Addl. Judl. Magistrate of First Class
Court, Nellore and it was transferred to this Court, the aggrieved person also lodged a report before Woman Police Station, Nellore on 21-5-2012 in
Cr.No.37/2012 u/sec 498-A r/w 34 of IPC and sec.3 and 4 of D.P.Act. The same was numbered as CC.No.141/2013 on the file of V.A.J.M.F.C., Nellore and pending for disposal.
vi) It is further contended in the counter by the respondents that after gap of three years, the aggrieved person lodged a domestic violence case against them without showing any proximity. Since the first respondent pronounced Talak prior to filing of the present proceedings i.e, on 27-5-2011, the marriage between himself and aggrieved person was dissolved and there is no question of domestic violence against the aggrieved person between 20-1-2010 and 3-4-2012 i.,e the date of filing of present proceedings. The first respondent is getting salary of Rs.13,604/- per month. The aggrieved person obtained false residential certificate from the village surpanch, Rapur on 17-8-2011 basing on said certificate,
Tahsildar, Rapur mandal issued a residential certificate to her. She also created a dish bill dt. 11-02-2012 and morphed a photo as if her elder brother was giving dowry to the 1st respondent at the time of betrothal, in her parental house.
vii) The first respondent was deputed to CEO’s office, Z.P.Achari
Street, Nellore on 8-8-2007, the said order was cancelled on 25-11-2010 and he was relieved on 12-1-2011, he stayed at Nellore during that period.
Under these circumstances, how the aggrieved person will stay at Rapur along with the 1st respondent during that period, however there is no proof that the aggrieved person jointly resided with the first respondent from 20-1- 2010. Hence, all the respondents prayed the Court to dismiss the proceedings.
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4.The aggrieved person got examined herself as PW1 and a gold smith to be PW2. She also got examined PW3 the brother of the aggrieved person, PW4 the Head Master, Dakkali High School, PW5 the Branch
Manager, State Bank of India, Fathekhanpet Branch,Nellore and got marked
Ex.P1 to P32 documents on her behalf.
5.The first respondent got himself examined to be RW1, in order to prove his contention and to disprove the contention of the aggrieved person and he got marked Ex.R1 to 20 on his behalf.
6.Now the points for consideration are :
1) Whether the aggrieved person is entitled for protection order and an order against the first respondent to take the aggrieved person to his marital fold ?
2) Whether the aggrieved person is entitled for an amount of
Rs.6,000/- for day to day needs, Rs.2,000/- for the Education of her two sons, Rs.2,000/- for the medical expenses of elder son of the aggrieved person and Rs.3,000/- towards house rent and Electricity bills from the first respondent ?
3) Whether the aggrieved person is entitled to recover an amount of
Rs.6 lakhs given towards dowry, 25 sovereigns of gold given to the aggrieved person and 5 sovereigns of gold given to the first respondent which is in the possession of the respondents, Hero
Honda Motor cycle worth of Rs.50,000/-, Jahaz articles worth of
Rs.1,50,000/- and Rs.3 lakhs towards marriage expenses ?
4) Whether the aggrieved person is entitled for compensation of amount of Rs.6 lakhs for harassing the aggrieved person and trying to get divorce from her to get another marriage by respondent
No.1 ?
5) To what relief ?
7.The aggrieved person got examined herself as PW1 and gold smith to be PW2 to prove the purchase of gold articles at the time of her marriage, PW3 the brother of the aggrieved person in order to prove dowry and domestic violence caused against the aggrieved person, PW4 the Head 10
Master, Dakkali High School in order to prove the salary of first respondent and PW5 the chief Manager, S.B.I, Fathekanpet Branch to prove cancellation of DDs allegedly sent to the aggrieved person by the first respondent along with Talak notice, by the first respondent himself. The first respondent got himself examined to be RW1 in order to prove his contention and to disprove the contention of the aggrieved person.
8. Before going to appreciate the oral evidence of both the parties, it is pertinent to through light on the documents produced by both the parties.
PW1 got marked 28 Exhibits and the first respondent got marked 20 Exhibits on his behalf. Many of the documents of both the parties were challenged by the other party. Ex.P1 residence certificate dated 26-2-2011 issued by
Tahsildar, Rapur mandal and Ex.P2 residence certificate dated 17-8-2011 filed by the aggrieved person were challenged by the respondents. The respondents filed Ex.R2 cancellation of residence certificate issued on 17-8- 2011 by stating that the aggrieved person obtained the same dishonestly from Surpanch, Gram Panchayat, Rapur. None of the parties got examined either the Surpanch,Gram Panchayat or Tahasildar, Rapur mandal to prove their contention. Since none of the parties examined witness who issued
Ex.P1 and P2 or Ex.R2, the Court not inclined to believe the contents mentioned in Ex.P1 and P2 as well as Ex.R2.
9.The aggrieved person filed Ex.P4 cable bill allegedly issued by
Sai cable net work in order to prove the fact that aggrieved person was residing at Rapur during the month of January, February,2012. The first respondent filed a certificate obtained from Sai Cable net work that the PW1 is not their customer and that they have not given any cable connection to
PW1. Since none of the parties has examined any witness in this regard, this
Court is not inclined to act upon either Ex.P4 or Ex.R3.
10. Coming to Ex.P9 certified copy of empty envelop sent by the first respondent to the aggrieved person claiming to be Talak notice, the 11 same was marked before the Hon’ble Family Court, Nellore as Ex.B11. Here, in the present case, though the same is marked certified copy of empty envelop cover cannot be considered to be empty envelop cover for the reason that unless it is opened, the Court cannot come to the conclusion that the same is an empty envelop cover. Ex.P13 is the photograph of the currency note bundles kept in a plate. The aggrieved person did not file any photograph to show that the plate along with currency bundles or currency bundles kept in the plate were given to the respondents towards dowry.
11.Ex.P15 certified copy of photos, one of the photos among which, it is seen that the first respondent was receiving currency note bundles with a plate. The learned counsel for the respondents challenged the photo and he contended that the photograph was product of photo morphing technique and that it cannot be looked into. The learned counsel for the respondents filed video graphs and C.D. along with some other photographs of marriage of the first respondent in order to send them for comparison with
Ex.P15 photographs by the Forensic Expert to prove the fact that the photo of giving dowry is a product of photo morphing technique. The Court allowed the petition on 6-1-2016 and directed both the parties to file original photos if any since the Ex.P15 is a certified copy of photograph, the same cannot be examined to detect the fact that whether it was a product of photo morphing technique and posted the matter to 20-1-2016. On 20-1-2016 both the parties have filed memo stating that they do not have any photographs relating to the marriage. On 16-2-2016 the Court recorded its observation on the docket that the photographs sought to be examined by the scientific experts of A.P.F.S.L are the certified copies of photographs filed by the aggrieved person before the Hon’ble Family Court and as such the examination cannot be done without filing the original photographs. Hence, the aggrieved person was directed to file original photographs of giving dowry. On 24-2-2016 the aggrieved person filed a memo stating that she does not have any other photographs except those on record. When the 12 aggrieved person does not have the original photographs, how she got the certified copy of the photographs, was not explained to the Court.
12. However, the aggrieved person having an opportunity to get the original photographs by substituting them with certified copy from the Court where the original photographs were marked, she did not do so. If giving of dowry is a real fact and if it is photographed, there is no reason for the aggrieved person to reject the same from comparing with the photographs and marriage CDs produced by the respondents, by Forensic expert. It is the contention of the aggrieved person, that they have photographs of giving dowry to the respondents but she denied the fact of possessing any such photograph when the Court ordered her to produce, it gives raise to a reasonable doubt. However, the Court can draw presumption u/sec.114 illustration (g) of Indian Evidence Act that if it is produced, it would be infavourable to the person who withholds a document.
13.Ex.P14 Jahaz patti is also challenged by the respondents. The respondents filed carbon copy of Ex.P14 and the same is marked as Ex.R5.
Ex.P14 shows the list of 74 items. This is also a certified copy of the document marked before the Family Court. Item No.74 is dowry of Rs.6 lakhs. The signature allegedly made by the respondent No.1 and the father of aggrieved person are seen in Ex.P14 in Jahaz patti. But carbon copy of
Ex.P14 which is marked as Ex.R5 shows only 73 items it does not show the last item which is cash of Rs.6 lakhs. All the items in Ex.P14 are seen in
Ex.R5 except the dowry of Rs.6 lakhs with exact hand writing and spaces since it is a carbon copy. Ex.R5 does not contain the signature of any person. The contention of aggrieved person is that Ex.R5 carbon copy is a created one for the purpose of this case. This Court is of the opinion that a document can be created but carbon copy of the original cannot be created.
Ex.P5 is nothing but carbon copy Ex.P14, except last entry and signatures in
Ex.P14. It is clear that entry No.74 and signatures are added in the original copy and that the addition is not made in the carbon copy.
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14.Coming to the documents filed by the respondents, Ex.R1 certificate of residence issued by Tahsildar, Nellore mandal was challenged by the aggrieved person. She filed certified copy of statement of village
Revenue officer, Nellore -8, Nellore mandal stating that first respondent played fraud against Public officials and obtained a forged residence certificate. This certificate further shows that the first respondent was residing at Rapur village of Rapur mandal by that time. Ex.P7 i.e, four rent receipts allegedly issued by two different owners were also challenged by the aggrieved person, she filed the statement of Shaik Abdul Kareem to that effect which is marked as Ex.P21, wherein he stated that the first respondent obtained the same by playing fraud. The respondents also filed Ex.R19 a
C.D. relating to conversation between aggrieved person and her parents through the cell phone of first respondent. This exhibit was marked subject to objection as to proof of voice. The respondents did not exhibit the document while marking and also at the time of advancing arguments. They have not taken any steps for proving the voice therein is the voice of aggrieved person herein. In fact when the Court opened document at the time of appreciation of evidence, it was found to be an empty C.D.
15.Both the parties have produced their evidence as to the validity
Talak allegedly pronounced by first respondents. Since deciding the validity of Talak is not within the jurisdiction of this Court and the petition for dissolution of marriage filed by the first respondent is pending before the
Court of competent jurisdiction under FCOP No.294/2011, this Court is not inclined to go into the fact of validity of alleged talak pronounced by the first respondent. Since the documents filed by both the parties are creating a doubt over the case of both the parties, this Court inclined to rely upon oral evidence of the parties to the proceedings.
Point No.1
16.The aggrieved person claimed protection from the respondents.
She admitted in her cross-examination that respondent No.3 and 4 are 14 residents of Penubarthi village of Rapur mandal, Respondent No.5 is the resident of Sullurpeta, Respondent No.6 is the resident of Manubolu mandal and respondent No.7 is the residence of Gudur. Respondent No.1 and 2 were residing at Vepinapi of Rapur mandal. Since the addresses of the respondents No.3 to 7 as shown by the aggrieved person are in different mandals of Nellore District and the aggrieved did not show any premises to be the shared house hold of all the respondents and herself and her admission as to their residence in different mandals and as there is no specific allegation averred and proved against the respondent No.3 to 7, this
Court is of the considered view that the respondent No.3 to 7 were added formably in order to cause mental pain to the first and second respondents only.
17.Coming to the harassment caused by first and second respondents against the aggrieved person, marriage of aggrieved person took place on 29-8-2005 and the aggrieved person went to the house of her parents in the month of January, 2006 for delivery, she gave birth a male child on 15-6-2006. It shows that she was there at the first respondent for about 4 months before the birth of her first child. After her delivery she joined the first respondent on 24-6-2007 and she gave a report to police on 3-7-2007 and that police has given counselling and after counselling they have shifted to Nellore and started residing separately. It shows that the aggrieved person stayed for about 15 days after birth of her first son at the house of respondent at Rapur. The respondent got deputation orders to work at Z.P., Nellore on 30-8-2007 and worked at Nellore Z.P. till 12-1-2011.
During that period on 20-1-2010 the aggrieved person went to her parents house again for delivery of her second child from Kummari Veedhi, Nellore. It shows that first respondent and herself resided together at Nellore for about 2 ½ years in total.
18.As per the contention of aggrieved person, she joined her husband at Rapur after birth of her second son but the contention of the first 15 respondent is that the aggrieved person did not join him after the birth of their second son. The first respondent further contended that the aggrieved person went to the house of her parents for her second delivery on 20-1- 2010 and she gave birth to their second son on 8-5-2010 and she did not return to his house and as such he called for a mediation on 14-6-2010 and that since the aggrieved person did not join him, he pronounced triple talak on 27-5-2011 and filed FCOP.N.161/2010 for dissolution of marriage.
Thereafter, he filed a memo before the Court by stating that with the intervention of elders matter was compromised and that himself and the aggrieved person are living happily at Rapur at the residence of the first respondent. But the contention of aggrieved person is otherwise. She contended that she joined the respondents in the year 2010 after her second delivery at Rapur and that she stayed at Rapur till February, 2012.
Withdrawal of FCOP.No.161/11 with the reason of aggrieved person and the first respondent for residing together at Rapur is supporting the version of aggrieved person. The aggrieved person filed the present D.V.C. in the month of April, 2012 and filed a criminal case against the respondents in the month of May, 2012 as per the evidence available on record.
19.It is understood by the above pleadings that aggrieved person and the 1st respondent have resided together in spells and if there is any domestic violence that was by respondent No.1 only but not by respondent
No.2 to 7 since the aggrieved person and first respondent have been residing together from 2007 separately from the above respondents. It is seen from the contents of the petition that Respondent No.1 used to harass the aggrieved person with the active support of other respondents and that all the respondents used to harass her by beating her and locking in a room and that they were not giving her sufficient food and that they used to ask her to leave the house and that they tried to perform second marriage of the first respondent and that the first respondent used to say that he is having illegal contacts with another lady and that in order to get rid of that, he wants an amount of Rs.2 lakhs from the parents of the aggrieved person. In fact the 16 allegations against other respondents cannot be taken into consideration since the aggrieved person and the first respondent were residing separately from the year 2007 and the fact of respondent No.1 demanding Rs.2 lakhs from the aggrieved person to get rid of the lady with whom he is having illegal intimacy, is not mentioned in her affidavit. Under these circumstances, this Court is of the opinion that the aggrieved person could not prove the facts relating to harassment of all the respondents against her which requires an order of protection against the respondents.
20.Coming to the direction as sought by the aggrieved person against the first respondent to take the aggrieved person to his marital fold, the evidence on record shows that the first respondent filed a petition before the Family Court, Nellore in FCOP.No.294/2011 for dissolution of marriage between the aggrieved person and first respondent and the same is pending for disposal. However, directing the husband to take wife to his marital fold is not within the jurisdiction of this Court under the Domestic Violence Act.
Hence, this point is decided accordingly.
Point No.2
21.Coming to the issue of maintenance, expenses towards necessities, Educational, Medical expenses, house rent and Electricity bill come under maintenance. The first respondent has already been paying
Rs.7,000/- P.M to the children of the aggrieved person as admitted by both the parties. The first respondent admitted that his mother is getting pension. Hence, the first respondent has no liability to maintain his mother.
As per the evidence of PW4, the Head Master, Dakkali, Z.P. High School, the first respondent is getting Rs.43,607/- per month as salary. The aggrieved person is not earning by doing any work. It is not the case of the first respondent that the aggrieved person is a capable person and that she is also earning for the family. Since the children of the aggrieved person are of tender age, they require Education and allround development and it is not unnatural for the children to reside along with their mother for satisfying 17 their needs like nourishment, the Court is of the considered view that the respondents can be ordered to pay an amount of Rs.3,000/- in addition to an amount of Rs.7,000/- being paid by him at present for the Education and well being of the children.
22.Though the aggrieved person failed to prove any ground for living separately from her husband, as the children are residing along with the Aggrieved person and the children of tender age require assistance of their mother for their all-round development and nourishment, this Court is of the opinion that the first respondent can be directed to provide an alternative accommodation to the aggrieved person and her children or to pay an amount of Rs.3,000/- for securing the same level of accommodation.
Point No.3
23.As per the evidence of PW1, her parents given dowry of Rs.6 lakhs to the respondents, 25 sovereigns of gold to her and 5 sovereigns of gold to the first respondent, 200 grams of silver, Hero Honda and house hold articles to a tune of Rs.1,50,000/- and that they have spent Rs.3 lakhs towards marriage expenses. The aggrieved person though filed the certified copies of photographs showing receipt of dowry by respondent No.1, she did not file the original photographs to send the same to the Forensic Science
Laboratory when the other party challenged the same that they have created the photographs by photo morphing Technology. When the respondents filed the petition to send the same to Forensic Science Laboratory with their expenses, there is no reason for the aggrieved person to deny and consequently to prove her case that they have given dowry. When the aggrieved person denied produce any such original photographs or video
before the Court, this Court is not inclined to believe the fact that they have
given dowry by placing currency bundles in plate to the respondent No.1 without any corroborating evidence by way of bank statements or any other proof. In fact the brother of Aggrieved person i.e, PW3 admitted in his cross- examination that by the time of marriage of aggrieved person, his 18 father was working in Bakery and that a case relating to car financing was registered against this witness and that he is doing buying and selling cars business and that he filed I.P in the year 2014 and that a criminal case for cheating was registered against his brother Mansoor and that the same is pending before the Court. These admissions are giving an inference that the aggrieve person, her father and her brothers are not financially sound.
Under these circumstances, giving an amount of Rs.6 lakhs at a time and spending an amount of Rs.3 lakhs towards marriage expenses, Rs.1,50,000/- towards house hold expenses and money towards 30 sovereigns of gold by the father of the aggrieved person is creating a doubt.
24.The aggrieved person though got examined PW2 gold smith from whom the gold ornaments were purchased, he could not substantiate his version, during his cross-examination. Answers given by this witness in his cross-examination have shaken his entire chief examination. He admitted in his cross-examination that he did not file any report to show that he had given the duplicate bills to his auditor and that he filed the Bill books returned to him after audit and that he has not filed any document to show that he has running RJK Jewellaries and that he does not have a duplicate bills of Ex.P26 to 28 at present. Hence, his evidence cannot be taken to be the basis for purchasing gold by the parents of aggrieved person at the time of marriage. Even if the gold is purchased there is no evidence on record that it was given to the respondents on their demand and the same is in the possession of respondents at present.
25.Coming to the motor cycle allegedly given to the first respondent, the aggrieved person admitted during her cross-examination that the motor cycle is in the name of her brother. The first respondent also filed Ex.R6 form-24, B-Register of motor vehicle maintained by RTA, Nellore.
It shows the date of registration as 25-11-2005, it shows that the vehicle was registered on 25-11-2005 in the name of Mansoor. Sk. It is also seen from 19
Ex.R6 that the same was under finance agreement with Ashok Layland
Limited from 2005 to 2008 and under finance agreement with Srinivasa Auto
Finance from 2008 onwards, this Exhibit was taken print out on 15-5-2013. It is evident from Ex.R6 that the vehicle is in the name of Mansoor Sk. from 2005 to 2013. Under these circumstances, it cannot be said that the vehicle was given to respondent No.1 as part of dowry. Under these circumstances, the Court is of the opinion that the aggrieved person could not prove the fact of giving dowry, gold, motor cycle, house hold articles to the respondents and also to prove the fact that they have spent an amount of Rs.3 lakhs for the marriage of aggrieved person on the demand of the respondents.
Hence, this point is decided against the aggrieved person.
Point No.4
26.Coming to compensation as claimed by the aggrieved person, this Court is of the considered view that both the parties to the proceedings have created many documents, they have proved that the other party has no reason to reside separately but the aggrieved person could not prove any specific act of Domestic violence against the respondents as discussed in point No.1. Under these circumstances, the Court is of the considered view that the aggrieved person is not entitled to claim any compensation from the respondents.
Point No.5
27.In the result, the petition is partly allowed. The first respondent is directed to pay an amount of Rs.10,000/- towards maintenance of children of aggrieved person and Rs.3,000/- towards alternative accommodation from the date of petition. The first respondent is directed to pay the accumulated maintenance amount within a period of 3 months from the date of this order.
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Subsequent monthly maintenance shall be paid on or before 10th day of every succeeding month.
Dictated to the Personal Assistant, transcribed by him, corrected
and pronounced by me in open Court this the 31st day of December, 2016.
Spl. Judl. Magistrate of First Class for
Trial of Prohn. & Excise Offence, Nellore.
Appendix of Evidence Witnesses examined For Aggrieved persons: PW1 Sk. Rubeena. PW2: Sk. Kareemullah. PW3:Sk. Moosood. PW4:C. Babaiah. PW5: G. Rama Krishna Rao.
For Respondents:-
RW1: Sk. Azahar Basha.
Documents Marked
For Aggrieved persons :
Ex.P1 Certified copy of certificate of Residence of aggrieved person dt.26-2-2011. Ex.P2: Certified copy of certificate of Residence of aggrieved person dt.17-8-2011. Ex.P3: Certified copy of fee card in 2 pages, issued by G.P. Narasimham, E.M. School dt.23-12-2011. Ex.P4: Certified copy of cable bill issued by Sai Cable Net work dt.11-2-2012. Ex.P5: Certified copy of prescription slip relating to PW1 issued by LAS Govt. Hospital, Rapur dt.11-2-2012. Ex.P6: Certified copy of compromise letter between parties to the proceedings dt.17-6-2007. Ex.P7: Certified copy of compromise letter dt.6-10-2007 Ex.P8: Certified copy of statement of R1 given to Inspector, women P.S. dt.13-5-2011. Ex.P9: Certified copy of empty envelop cover dt.30-5-2011. Ex.P10: Certified copy of empty envelop cover. Ex.P11: Certified copy of Praja Sakthi daily News paper dt.31-12-2011. Ex.P12: Certified copy of counter filed by the respondent in
Crl.M.P.No.3775/12 in DVC No.35/12.
Ex.P13: Photos. Ex.P14: Certified copy of Jahaz patti. Ex.P15: Certified copy of photos in 21 in number. Ex.P16: Certified copy of application of PW1 under RTI Act to SBI, Fathekhanpet. Ex.P17: Certified copy of application of PW1 under RTI Act to SBI, Hyderabad. Ex.P18: Certified copy of legal notice issued to Tahsildar dt.9-2-2014. Ex.P19: Certified copy of Acknowledgement of Tahsildar dt.10-2-2014.
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Ex.P20: Certified copy of certificate issued by VRO. Ex.P21: Certified copy of rental certificate. Ex.P22: Certified copy of Petition in FCOP.No.161/11. Ex.P23: Certified copy of not pressing memo in FCOP.No.161/11.
Ex.P24: Certified copy of Decree in FCOP.No.161/11. Ex.P25: Certified copy of order in FCOP.No.161/11. Ex.P26: Cash bill dt.25-6-2005. Ex.P27: Cash bill dt.25-6-2005. Ex.P28: Cash bill dt.15-7-2005. Ex.P29: Certified copy of certificate issued by commercial Tax Dept. Dt.7-2-2003. Ex.P30: Photostat copy of certificate issued under Maa Seva relating to Registration of Establishment. Ex.P31: Pay slip. Ex.P32: Photostat copy of acquaintance Register
For Respondents:-
Ex.R1: Residential certificate issued by Tahsildar, Nellorein favour of Respondent No.1 dt.16-5-2013. Ex.R2: Residential certificate of R1. Ex.R3: Certificate of clarification issued by cable operator dt.15-3-2013 Ex.R4: Certified copy of Govt. Distric Khaji, Nellore dt.17-6-2007. Ex.R5: Certified copy of original Jihaz patti. Ex.R6: Extract of Hero Honda Splender bearing No.AP 26 N 6744 issued by RTA. Ex.R7: House rent receipts issued by Sk.Abdul Kareem. Ex.R8: Certified copy of Talaknama. D.27-5-2011. Ex.R9: Certified copy of Talak notice dt.30-5-2011. Ex.R10: Certified copy counter in FCOP.No.294/2011. Ex.R11: Certified copy of F.I.R in Cr.No.37/12. Ex.P12: Certified copy of charge sheet in CC.No.141/2013. Ex.R13: Certified copy of deputation order dt 8-8-2007. Ex.R14: Reliving certificate dt.30-8-2007. Ex.R15: Attested copy of cancellation proceedings. Ex.R16: Certified copy of order in Crl.M.P.No.543/11. Ex.R17: Certified copy of order in Crl.M.P.No.642/11. Ex.R18: Certified copy of order and decree in FCOP.No.161/2011 dt.25-7-11. Ex.R19: C.D. relating to conversation between aggrieved person and her parents. Ex.R20: Photographs 30 in number. Spl.JMFC