High Court
Legal Reasoning
( 1 ) crwp210.18IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 210 OF 2018WITHCRIMINAL APPLICATION NO. 3835 OF 2023Umesh s/o. Dattatraya Pathak..PetitionerAge. 38 years, Occ. Service,R/o. Flat No.33, Building No. 118,Shivrang Society, Rabodi, Thane (W).VERSUS1)Mrs. Madhura w/o. Umesh Pathak,..RespondentsAge. 33 years, Occ. Household,R/o. C/o. Vishwanath Methe,House No. 557, Chikalthana,Aurangabad.2)The State of MaharashtraThrough Chikalthana Police Station,Chikalthana, Aurangabad.Mr. M.M. Joshi, Advocate for the petitioner.Mr. H.H. Padalkar, Advocate for the respondent.Ms. A.S. Deshmukh, AGP for respondent-2/State.CORAM:KISHORE C. SANT, J.RESERVED ON:07.07.2025PRONOUNCED ON:24.07.2025ORDER :-01.Heard learned Advocates for the parties. This petition is takenup for final disposal at the stage of admission by consent of the parties. ( 2 ) crwp210.1802.The petitioner is husband of respondent No.1. By way of thispetition, the petitioner has prayed for setting aside judgment and orderdated 21.09.2017, passed by the learned Additional Sessions Judge,Aurangabad, in PWDVA Appeal No. 49 of 2015. The learned Judge,thereby, modified the order passed by the learned 12th JMFC, Aurangabaddated 05.02.2015, passed in Criminal Misc. Application No. 1337 of 2012.The learned JMFC by way of the impugned order, had directed thepetitioner to pay an amount of Rs.10,000/- per month towardsmaintenance and medical expenses to the wife. It was further directedto pay Rs.4000/- per month towards rent. The petitioner and hisrelatives were also directed to pay an amount of Rs. 2 lakhs towardscompensation to the wife. The learned Sessions Judge by way of theimpugned order confirmed the order to the extent of grant of Rs. 4000/-per month to the wife. The direction to the extent to pay an amount ofRs.2 lakhs towards compensation was modified and instead of directing itto be paid the respondents and relatives, it is restricted only to theextent of husband.03.The facts in the petition unfolded are that on 12.07.2008, theMarriage between the parties took place at Majalgaon. The parties ( 3 ) crwp210.18resided together at Majalgaon for 8-10 days. Within few days of themarriage, the wife went to her parents’ house at Aurangabad on thepretext of appearing for examination. She stayed with her parents anddid not return to Majalgaon. For brief period, she came to Majalgaon andagain went to Aurangabad, as her mother was to undergo an eyeoperation. Since December, 2008 till July, 2010, she stayed with herparents only. On 19.01.2010 a meeting took place between the parties.It was decided to take divorce by mutual consent. The husband wasresiding at Thane due to his service. On 17.07.2010 as per allegation ofthe husband, the wife came with her parents to Thane and threatened ofcriminal complaint. On 31.07.2010 father of the husband lodged acomplaint against the wife and her parents. An NC was registeredbearing No. 465 of 2010. However, the husband and wife again startedresiding together separate from parents in a rented premises, in anotherlocality in Thane. The couple, however, still could not pull on well. Thehusband again filed complaint against wife in the Women’s GrievanceRedressal Cell on 01.12.2010. There statements of wife, father andbrother were recorded. Ultimately, the husband filed proceeding fordivorce bearing HMP No. 118 of 2011 in the Family Court, Thane on theground of cruelty on 24.06.2011. On receipt of summons in divorceproceeding, the wife filed DV proceeding. She also filed a complaint
Legal Reasoning
( 4 ) crwp210.18under sections 498-A and 323 of the IPC. In this DV proceeding, thelearned JMFC passed an order in favour of the wife and against husbandand relatives. Said order came to be modified. Thus, the petitioner isbefore this Court. 04.Learned Advocate Mr. Joshi for the petitioner submits that thepetitioner-husband approached this Court with a case that there is noevidence of domestic violence and still the order is passed. It isnecessary to show instances of domestic violence to get any relief underthe provisions of the Protection of Women from Domestic Violence Act.The wife had also filed proceeding under sections 498-A and 323 of theIndian Penal Code against the husband and his relatives. The learnedTrial Judge was pleased to acquit the husband and relatives from theoffence under section 498-A of the IPC, however, conviction undersection 323 of the IPC was awarded. In the appeal, the learned SessionsJudge acquitted them even from the offence punishable under section323 of the IPC. Thus, there is no substance in the allegation. He furthersubmits that the domestic violence proceeding was filed only to harassthe husband and in-laws. The learned Sessions Judge has failed toappreciate these aspects and instead of allowing the appeal completely,has only allowed it partly. ( 5 ) crwp210.1805.Learned Advocate Mr. Padalkar for the respondent-wifesubmits that there is ample evidence on record to show instances ofdomestic violence. The evidence is rightly considered by the learnedSessions Judge and he has rightly passed the order. He prays fordismissal of the petition.06.Learned Advocate for the petitioner submitted that when theparties were residing separately for maximum period after marriage,there is no question of domestic violence. A divorce proceeding was filedby husband and it is only to counter the said proceeding, the wife haslodged the DV proceeding. The wife is also an educated woman havingdegree in Computer Science. Since 2010, they were residing separately.From December, 2008 till July, 2010, she was staying with her mother.Thus, there is no any instance of domestic violence. The proceeding itselfis filed after 2½ years after separation. The learned Courts below failedto appreciate this fact. The wife’s complaint that the husband ignoredher complaint about humidity in Thane is an instance of domesticviolence. This, hardly can be taken as an instance of domestic violence.The Trial Court considered only photocopies of documents as evidence.Incorrect findings are recorded. The Trial Court failed to appreciate that ( 6 ) crwp210.18the facts stated by the husband and admitted facts were not required tobe proved. However, the learned JMFC recorded finding that the husbandhas not proved facts as stated by him. This finding is contrary to therecord. He thus submits that even the Sessions Court did not appreciatethis fact. He, thus, prays for allowing the writ petition.07.Learned Advocate for the respondent-wife pointed outevidence of the husband to submit that from the evidence it is clear thathe committed an act of domestic violence. He submits that theallegations in the DV proceeding itself is sufficient to prove the case. Heprays for dismissal of the writ petition.08.The learned Trial Court considered copy of the FIR in the caseunder section 498-A of IPC and prescription of Doctor showing that thewife was suffering from cough. He further considered that the husbanddid not come forward for compromise. The husband failed to produce onrecord copy of complaint filed with the Women’s Grievance Redressal Cellthat there was domestic violence on petty reasons. The husband used tosuspect character of the wife, which amounts of domestic violence andmental torture. The husband deserted the wife economically. ( 7 ) crwp210.1809.The learned Sessions Judge while allowing the application hasset aside the order to the extent of relatives of the husband. It isdiscussed that there is nothing on record to show that the husband triedto bring back the wife for cohabitation. He further considered that in theflat at thane, there was moisture due to water leakage from the wall.Therefore, she was facing breathing problem and still that complaint wasnot properly handled by the husband and confirmed the finding to theextent of the husband.10.The learned Advocate for the petitioner submits that so far ascomplaint with Women’s Grievance Redressal Cell is concerned, there isclear admission by wife about filing of such complaint. He rightly pointedout that there is no instance of any domestic violence. The complaintabout moisture in the flat cannot be said to be an act of domesticviolence. The finding about suspicion about character, this Court findsthat there is no allegation by the husband anywhere in his pleading or inhis evidence. The learned JMFC has also specifically recorded that thereis no allegation of assault. The learned JMFC, however, has recorded thatpulling quarrels on petty reasons amounts to domestic violence. ThisCourt can hardly take such instance as an act of domestic violence. Sofar as desertion is concerned, it has come on record that in-fact it is wife ( 8 ) crwp210.18who stayed with her mother under the pretext that her mother had toundergo eye operation. So far as findings of the learned Sessions Judgeis concerned, this Court finds that those findings are without any basis.On one hand, the learned Sessions Judge has accepted that aftermarriage it is the wife who left company of the husband on her own, stillhe has considered the same to be an act of domestic violence. So far asbringing back wife for cohabitation is concerned, in the reply of thehusband itself he has given instances showing that he tried to bring herback. The finding recorded by the Sessions Court is thus against therecord. Having difficulty in breathing because of moisture due to leakagein wall can hardly be said to be an act of domestic violence. There is nota single instance on record showing any act of domestic violence. Boththe Courts by erroneous reasoning have come to a conclusion that therewas violence at the hands of the husband.11.The learned Advocate for the petitioner rightly relied upon anorder passed by this Court in the case of Jayesh Uttamrao Khairnarand Ors. Vs. The State of Maharashtra & Ors., [Cri. W.P. No. 259of 2009 – Aurangabad Bench]. This Court in the said judgment, hasheld that the proceeding was filed with malafide intention to harass thehusband and his relatives and quashed the proceeding.
Decision
( 9 ) crwp210.1812.It is clear that, unless there is an act of domestic violence, norelief can be prayed under the DV Act. In absence of any domesticviolence and for the reasons which are consequential, this Court findsthat both the Courts below committed mistake in recording that therewas domestic violence at the hands of the present petitioner-husbandand have passed the orders against the record, which deserve to be setaside.13.Therefore, this Criminal Writ Petition is allowed in terms ofprayer clause (B) and disposed off.14.So far as Criminal Application No. 3835 of 2023 is concerned,same is filed by wife to withdraw an amount of Rs. 2 lakhs deposited byhusband in this Court and for directions to comply order of this Courtdated 19.04.2023 directing the husband to deposit 50% of the arrears toshow his bonafides. The husband has already deposited an amount ofRs. 2 lakhs pursuant to order passed by this Court. It is alleged that theamount of arrears as on today is much higher. Considering the reasonsgiven above, this Court is not inclined to allow this application in itsentirety. Since an amount of Rs.2 lakhs is already deposited, the ( 10 ) crwp210.18respondent-wife is entitled to withdraw an amount of Rs.2,00,000/-(Rupees Two Lakhs Only). The Criminal Application is accordinglydisposed off.[KISHORE C. SANT, J.] snk/2025/JUL25/crwp210.18