High Court
Legal Reasoning
( 1 ) corrected-915 cri wp 215.19IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD915. CRIMINAL WRIT PETITION NO. 215 OF 20191.Vicky S/o Gorge RathodAge: 336 yrs, Occ. Service,Adds: K-Type House no.412,Tadiwala Road, Near Pune Station,Pune.2. Georg S/o Madhukar RathodAge: 56 yrs, Occ. Nil.Adds: K-Type House no.412,Tadiwala Road, Near Pune Station, Pune.3. Sunanda w/oGeorg RathodAge: 52 yrs, cc. Household,ОAdds: K-Type House no.412, Tadiwala Road, Near Pune Station,Pune.4. Rita w/o Lwarence SamualAge: Major, Occ. Household,Adds: K-Type House no.412, Tadiwala Road, Near Pune Station, Pune.5. Sujata w/o Sunil KardakAge: 45 yrs, Occ. Service,Adds: Somnath Nagar, ChandanNagar Area, Pune.6. Ashok Paul ShindeAge: 70 yrs, Occ. Nil,Adds: Tadiwala Road,Near Pune Station, Pune.7. Sunil S/o Rambhau KardakAge: Major, Occ. Business,Adds: Somnath Nagar, Chandan Nagar Area, Pune....PETITIONERS
Legal Reasoning
( 2 ) corrected-915 cri wp 215.19V/s.1.Saw. Anita w/o Vicky RathodAge: 33 yrs, Occ. Service,R/o. Kanosa Parisar, Shirasgaon,Tq: Shrirampur, Dist. Ahemadnagar.2. The State of Maharashtra throughA.G.P. Aurangabad....RESPONDENTS.....Ms. Kalpana Kulkarni (Sonpawale) and Mr. Dayanand M. Hange, Advocate for the Petitioners (Appointed)Mr. S.M. Ganachari, APP for the Respondent-StateMr. Niraj Chudiwal h/f. Satej Jadhav, Advocate for the Respondent No.1..…CORAM : Y.G. KHOBRAGADE, J.DATE :10.01.2025ORAL JUDGMENT:-1.As per order dated 16.07.2024, the Mediator has submitted it’sreport dated 16.10.2024 stating that the Mediation is failed. The said report istaken on record and marked ‘X’ for identification.2.Rule. Rule made returnable forthwith. Heard finally with consentof both the sides at the stage of admission.3.The petitioners have invoked jurisdiction of this Court underArticle 227 of the Constitution of India and questioned legality and validity ofthe Judgment and order dated 21.06.2018 passed by the Additional SessionsJudge, Shrirampur, in Criminal Appeal No.40/2014 thereby judgment andorder dated 01.11.2014 passed by the learned JMFC, Shrirampur, in Criminal ( 3 ) corrected-915 cri wp 215.19Misc. Application No.307/2010 has been partly quashed and set aside. Furtherthe Petitioner No.1/Ori. Non-Applicant No.1 directed to pay monthlymaintenance @ Rs.2500/- per month to the Applicant/Wife and Rs.1500/- permonth to the minor daughter-Rechal. The Respondent no. 1 wife is a originalApplicant and the Petitioners are original Non-Applicants in Criminal Misc.Application No.307/2010. 4.Facts giving rise to the present petition are that, Petitioner No.1 isthe Husband of the Respondent No.1. The marriage between Respondent No.1and Petitioner No.1 was solemnized on 20.09.2009 as per Christian customsand rites. Out wedlock they blessed with female child- Rechal. On 21.12.2012,the Respondent No.1 filed a Misc. Criminal Application No.307/2010 beforethe JMFC, Shrirampur, alleging that, she was subjected to domestic violence atthe hands of the Petitioners. After conclusion of the trial, on 01.11.2014, thelearned JMFC passed an order and rejected application filed by the RespondentNo.1.5.Being aggrieved by said order, the Respondent No.1 filed aCriminal Appeal No.40/2014 before the Sessions Court, Shrirampur. On21.06.2018, the learned Appellate Court passed the impugned order andquashed and set aside the judgment and order on 01.11.2014 passed by theJMFC, Shrirampur in Criminal Misc. Application No.307/2010 and directed the ( 4 ) corrected-915 cri wp 215.19present Petitioner No. 1 to pay monthly maintenance of Rs.2500/- per monthto the present Respondent No.1/aggrieved party and Rs.1500/- to the minordaughter-Rechal.6.The learned counsel appearing for the Petitioners canvassed that,the learned Sessions Court failed to appreciate the fact about involvement ofsubstantial and valuable right of the Petitioner No.1 such as the restitution ofconjugal rights. The learned Sessions Court further fail to appreciate materialfacts that, the Respondent No.1 failed to bring sufficient evidence to provedomestic violence against her at the hands of the petitioners. Therefore,impugned order passed by the First Appellate Court in a mechanical manner.The Respondent No.1 failed to bring substantial evidence to constitutedomestic violence at the hands of the petitioners. On the other hand, thelearned JMFC passed the judgment and order dated 01.11.2014 holding that,the Respondent No.1/aggrieved party has not brought any evidence on recordto prove that, the Petitioners 4 to 7 raised domestic violence contemplated u/s3 of the D.V. Act, against the Respondent No.1. However, the learnedAppellate Court failed to consider material evidence placed on record andpassed the impugned order which is illegal, bad in law, hence, prayed for quashand set aside. ( 5 ) corrected-915 cri wp 215.197.Per contra, the learned counsel appearing for the RespondentNo.1/aggrieved party supported findings recorded by the learned AppellateCourt. The learned counsel for the Respondent no. 1 canvassed that,matrimonial relations between the Respondent No.1 and the Petitioner No.1 isstill intact. Since, the Petitioners have raised domestic violence defined underSection 3 of the D.V. Act, therefore, the Respondent No.1 was compelled to stayaway from the Petitioner No.1. The Petitioner No.1 is working in the KEM,Hospital. As per salary slip Exh.31, the petitioner no. 1 drawing salary ofRs.8602/- per month. Therefore, considering evidence available on record, thelearned Appellate Court granted monthly maintenance @ Rs.2500/- per monthfor Respondent No.1 and Rs.1500/- per month for minor daughter. Therefore,impugned order is just and proper, hence, prayed for dismissal of the petition. 8.Having regard to the submissions canvassed on behalf of both thesides, I have gone through the petition paper book. It is an undisputed factthat, on 20.09.2009, marriage between the Petitioner No.1 and RespondentNo.1 solemnized as per customs and rites prevailing in the Christiancommunity. After the marriage, the Respondent No.1 co-habited with thePetitioner No.1 in his joint family. The Petitioner Nos.2 and 3 are parental inlaws, whereas, the Petitioner Nos.2 and 4 are married sister in laws of theRespondent No.1. The Petitioner No.6 is the maternal uncle of her husband. It ( 6 ) corrected-915 cri wp 215.19is also admitted fact that out of wedlock between the Petitioner No.1 andRespondent No.1, a female child-Rechal born.9.The Respondent No.1/ aggrieved person filed an application underSection 12 of the D.V. Act, alleging that, she was subjected to domestic violenceat the hands of the Petitioners. Further when she was carrying pregnancy, shewas not treated properly and no medical treatment was provided to her. Evenafter she delivered a child, the Petitioner No.1 questioned that he is notbiological father of female child. So also, quarrel was raised with her andduring course of quarrel she was assaulted. Therefore, she lodged a reportwith the Shrirampur city Police Station. Therefore, family dispute between herand petitioners was settled and reconciled after furnishing undertaking by thePetitioner no. 1 in respect of taking her proper care. In spite of said fact, thePetitioner No.1 fail to change his attitude toward her. The Respondent No.1further alleged that when she was giving swing to her daughter on cradle, thePetitioner No.2, her father-in-law entered in house under influence of liquorand caught hold her hand but she rescued herself by twisting her hand butagain on 06.12.2010, the Petitioner No.2 caught hold her hand. So also, shewas subjected to domestic violence on account of raising demand of dowry.10.Needless to say that, the Respondent No.1 filed evidence affidavitat Exh.20 and reiterated the facts of the complaint. The Respondent No.1 ( 7 ) corrected-915 cri wp 215.19undergone cross-examination conducted on behalf of the present Petitioners.However, nothing has been solicited except denial of certain facts. TheRespondent No.1 specifically stated that, she studied up to 12th standard butshe denied that she is not ready to co-habit with the Petitioner No.1. TheRespondent No.1 further denied that, the present Petitioner never subjected herto domestic violence. She further denied that she working being a Nurse inSakhar Kamgar Hospital.11.The Respondent No.1 examined her mother Sushila RaosahebBhosle at Exh.33. This witness undergone cross-examination. This witnessadmitted that, the Petitioner/Original N.A. No.1 and the Original N.A.No.7/Petitioner No.7 are not staying in same shelter house.12.The Petitioner No.1/Original Non-Applicant No.1 filed evidenceaffidavit at Exh.35, wherein, he admitted about existence of husband and wiferelations between him and Respondent No.1. In cross-examination, the presentPetitioner No.1 admitted that he studied up to 12th standard. He admitted thathe made efforts for restitution of conjugal rights between him and Respondentno. 1 but he denied about raising domestic violence against the Respondentno. 1. ( 8 ) corrected-915 cri wp 215.1913. On 01.11.2014, the learned JMFC passed Judgment and order holdingthat, the Respondent No.1/aggrieved party failed to prove about raisingdomestic violence at the hands of the Petitioners. On 21-06-2018, the learnedAppellate Court re-appreciated entire evidence and held that, the RespondentNo.1/aggrieved party proved about rasing domestic violence at the hands ofthe Petitioners and granted maintenance of Rs.2500/- per month in respect ofRespondent no. 1/ wife and Rs.1500/- in resepct of the minor daughter.14.In the case of Kalyan Dey Chowdhury V/s. Rita Dey ChowdhuryNee Nandy; (2017) 14 SC 200, the Hon’ble Supreme Court considered case ofDr. Kulbhusahan Kumar Vs. Raj Kumari and Anr., (1970) 3 SCC 129, wherein,it is held that, the wife is entitled for of 25% of her husband’s net salarytowards maintenance.15.In the case in hand, the present Petitioner himself admitted that heis a permanent employee of KEM Hospital. As per salary certificate Exh.31, thepetitioner no. 1 drawing gross salary of Rs.8602/- per month. The learnedAppellate Court granted maintenance of Rs.2500/- per month to theRespondent no.1/ wife and Rs.1500/- in resepct of the minor daughter, whichdoes not appear unreasonable and exorbitant. Therefore, I do not find that thePetitioners have made out substantial grounds to interfere with the findings ( 9 ) corrected-915 cri wp 215.19recorded by the First Appellate Court. In view of above discussion, the Petitionis dismissed. Rule is discharged.16.Since the counsel for the petitioners appointed from the legal aid,therefore, Fees for the appointed counsel is quantified @ Rs.10,000/- and it ispayable by the High Court Legal Services Authority. [Y.G. KHOBRAGADE, J.]mub