1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION No.322 OF 2009 1. Tabbasum Maisan Shaikh, Age: 23 years, Occ: Household, r/o Kallam at present Zorigalli, Near Bharat Talkies, Osmanabad, Tq. & Dist. Osmanabad. 2. Saniya Maisan Shaikh, Age: 04 years ( minor), u/g of her real mother i.e. Petitioner No.1. ...PETITIONERS VERSUS 1. The State of Maharashtra, (Notice/copy to be served through the office of Public Prosecutor, Bombay High Court, Bench at Aurangabad). 2. Jalaboddin Budan Shaikh, Age 45 years, Occ: Business, r/o. Indiranagar Zopadpatti, Kallm, Tq.Kallam, Dist.Osmanabad. 3. Najma Budan Shaikh, Age 55 years, Occ: Business, r/o as above. ...RESPONDENTS ... Mr.A.V.Rakh, Adv., h/f Mr. Subhash V.Mundhe, Adv., for the petitioners. Mr. D.V.Tele, A.P.P., for respondent no.1. Respondent no.2 absent, though served. Mr.A.T.Ghute, Adv., h/f Mr. S.T.Ghute, Adv., for respondent no.3. 2 CORAM: A.V.POTDAR, J. DATE :29-6-2010 *** PER COURT : 1. Heard Mr. A.V.Rakh, learned Counsel, holding for Mr. Subhash V.Mundhe, learned Counsel for the revisional applicants/original petitioners, Mr. D.V.Tele, learned A.P.P., for respondent no.1, and Mr. A.T.Ghute, Adv., holding for Mr. S.T.Ghute, learned Counsel for respondent no.3. Respondent no.2 absent, even though duly served. 2. By the present Criminal Revision Application under Section 401 of Code of Criminal Procedure, the revision petitioners, who were applicants in Miscellaneous Application No. 378/2008 before the learned Chief Judicial Magistrate, Osmanabad, have assailed the judgment and order passed in Criminal Appeal No.46/2009 by the second Additional Sessions Judge, Osmanabad, vide his judgment and order dt.31st Oct.,2009, as, by the said judgment and order, the learned Additional Sessions Judge-II, Osmanabad, allowed the appeal and set aside the order passed by the learned Chief Judicial Magistrate in Miscellaneous Criminal Application No.378/2008. 3 3. Heard respective Counsel as well as learned A.P.P. in support of their rival claims. 4. Considering the small point which is raised in this revision application, heard finally at the stage of admission as, now, record and proceeding is already received. Before considering the submissions made across the Bar it is necessary to consider, as the judgment of the first appellate Court is assailed by this Criminal Revision, under Section 401 of Code of Criminal Procedure wherein, there is a very limited scope to this Court in revisional jurisdiction, as to whether there is proper appreciation of the evidence led before the trial Court and, while appreciating or rejecting the evidence, whether any illegality is committed by the first appellate Court, who has allowed the appeal by setting aside the order passed by the learned Chief Judicial Magistrate, Osmanabad, in Miscellaneous Criminal Application No.378/2005 filed under the provisions of Protection of Women from Domestic Violence Act, 2005 - under Section 12, read with Sections 18 and 20 of the said Act. 5. Such of the facts, which are necessary for consideration of the submissions made across the Bar, can be summarized as follows: Revision Petitioners have filed an 4 application under the provisions of Protection of Women from Domestic Violence Act of 2005 against respondent no.2 and respondent no.3 herein. Respondent no.2 is the brother-in-law of the first petitioner while respondent no.3 is the mother-in-law of the first petitioner and grand mother of the second petitioner. At the outset it is stated in the said application that the first petitioner got married with Maisan who is brother of respondent no.2 and son of respondent no.3. It is alleged that the marriage of the first petitioner with deceased Maisan took place somewhere on 15th Feb.,2004 as per the provisions of Mohemmedan Law. It is alleged that due to harassment of respondent no.2 and respondent no. 3, the husband of the petitioner committed suicide somewhere on 18th June, 2005. Thereafter, the petitioners were driven out by these respondent nos. 2 and 3 and since the month of June, 2005, the petitioners are residing with the parents of the first petitioner. It appears that before the learned Court of Chief Judicial Magistrate, Osmanabad, this application was contested by respondent no.2 and respondent no.3 by filing their written statement wherein they have denied all the contentions raised in Miscellaneous Criminal Application by these petitioners. They have not disputed that the first petitioner is a wife of deceased Maisan and second petitioner is the daughter born out of the 5 wedlock of first petitioner and Maisan. But, according to these respondents, after the marriage of the first petitioner with deceased Maisan, within 15 days, they started residing separately. Allegation about harassment are denied in toto as well as the allegations in respect of the Stridhan and other expenses are also specifically denied. 6. From the record and proceedings received from the Courts below it is revealed that in support of the allegations made out by the first petitioner in the application, the first petitioner has filed her affidavit of examination in chief. Bare perusal of this affidavit reveals that it is nothing but reproduction at verbatim of the facts stated in the application itself. Other than this affidavit of examination in chief tendered before the learned Court of Chief Judicial Magistrate, Osmanabad, no other documentary or oral evidence is led by the first petitioner in support of the allegations and averments made against respondent nos. 2 and 3 in this revision in support of her contention. It appears, considering the evidence led by the parties, the learned lower Court was impressed that the averments in the application stand true and hence, as the petitioners are not entitled for maintenance, the relief was granted by the Court of learned Chief Judicial Magistrate under 6 the provisions of Protection of Women from Domestic Violence Act, 2005, by which the respondents were directed to pay compensation in the sum of Rs.50,000/- to these petitioners. The respondents were also directed that these petitioners are entitled for a plot - a house property as per the share of husband of first petitioner in the entire property. The respondents were also directed not to alienate the house property as well as to return the Stridhan to the first petitioner. 7. Record and proceedings further shows that respondent nos. 2 and respondent no.3, being aggrieved by the order passed by the learned Chief Judicial Magistrate, in Miscellaneous Criminal Application No.378/2008, vide order dt. 13th May, 2009, preferred Criminal Appeal No. 46/2009, which came to be decided on 31st Oct., 2009. The first appellate Court was pleased to allow the appeal by setting aside the order passed by the learned Chief Judicial Magistrate in Miscellaneous Criminal Application No. 378/2008, vide judgment and order dt.13th May, 2009, for his reasoned order which is assailed and under challenge in the present revision application. 8. Considering the submissions made across the Bar as well as perusal of the record and 7 proceedings received from the lower appellate Court as well as the first Court, the fact is clear that, so far as the evidence recorded by the first petitioner in support of her allegations is the only evidence of affidavit of examination in chief which is at verbatim copy of the facts stated in the application itself. It is also admitted position that other than this affidavit of examination in chief, no documentary or oral evidence is led by the first petitioner in support of her claim. 9. It is observed by the first appellate Court in paragraph No.6 that as per the allegations and the facts stated in the affidavit of examination in chief, the petitioners are admittedly not residing with these respondents since 1st of June, 2005. The fact remains, the parties to this revision application are Mohemmedans. While considering whether the late husband of the petitioner left any property, as per the law of inheritance under the provisions of Mohemmedan Law, absolutely, no evidence is led before the lower Court. Under the provisions of Mohemmedan Law and, particularly, the law of inheritance, there is no concept of inheritance by birth but, there is concept of inheritance as the property can be acquired after the death of the person from whom the parties are claiming their right of inheritance. Nothing is on record 8 to show, the property in the hands of respondent nos. 2 and 3 is the property to which, by way of right of inheritance, the late husband of the first petitioner was entitled to. Secondly, it is settled legal position that there is no concept of joint family property and holding of joint property amongst the Mohemmedans. Apart from it, no incident of any harassment or violence, as contemplated under the provisions of Domestic Violence Act of 2005, no evidence is led at all before the first Court by these petitioners. 10. Under the revisional jurisdiction of this Court, this Court is required to consider whether while allowing the first Appeal, whether any illegality was committed at the hands of the Additional Sessions Judge who had allowed the Criminal Appeal by not properly appreciating the evidence led before the trial Court. For the purpose of appreciation of the evidence, the first requirement that some evidence required to be led. The record and proceeding shows, in support of the contentions of the petitioner, no evidence is led at all before the learned lower Court. Since no evidence is led before the learned lower Court, then no questions arises to appreciate whether it was led properly or otherwise. 9 11. In the aforesaid premises, for the reasons recorded by the first appellate Court in paragraph no.6 of his order and judgment, this Court did not feel, in revisional jurisdiction of this Court, any interference is required, to quash and set aside the order assailed and impugned under this Criminal Revision. In the premises, as no evidence is led by the petitioners before the lower Court and it is properly appreciated by the first appellate Court that, in view of no evidence led by the first petitioner before the learned lower Court, petitioner is not entitled for any relief under the provisions of Domestic Violence Act of 2005. 12. For the reasons stated and discussed in all the paragraphs supra, the order impugned in this Criminal Revision is well reasoned order, requires no interference at the hands of this Court. The Revision Application sans any merit, stands dismissed. [A.V.POTDAR, J.] ... agp/322-09crra 10