High Court

Legal Reasoning

1 916cra102.23 JUDGMENT.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 102 OF 2023Malti Shalik Patil,Age: 60 years, Occ. Housewife,R/o; Flat No. 12, House No. 453,Rakesh Nagar, Dr. Zakir Hussen Colony,Jalgaon. … APPLICANTVERSUS1.Shalik Balu Patil,Age; 72 years, Occ; Pensioner,R/o : 12 Rakesh Nagar,Dr. Zakir Hussen Colony,Jalgaon.At present residing at Vrudshashram,Pimprala Shivar, Jalgaon.2.State of Maharashtra. ...RESPONDENTS...Advocate for Applicant : Mr. Akshay G. Mularge h/f Mr. Jitendra VijayPatil.Advocate for Respondent No. 1 : Mr. Satej S. JadhavRespondent No. 2-State : Ms. A.S. Deshmukh... CORAM : ABHAY J. MANTRI, J. DATE : 26.09.2025.ORAL JUDGMENT :1.The Original applicant, being aggrieved by the judgmentand order dated 13.02.2023 passed by the learned Additional SessionsJudge, Jalgaon, in Criminal Appeal No. 97 of 2022, whereby allowed 2 916cra102.23 JUDGMENT.odtthe Appeal filed by respondent No. 1 and set aside the Judgment andOrder dated 13.07.2022 passed by the learned Magistrate in P.W.D.V.A.No. 69/2019 thereby dismissed the Original Application filed by theapplicant; hence, the applicant has preferred this Revision Application.2.Heard the learned Advocate for both parties. Perused theimpugned judgment, order, and the evidence on record. I have alsogone through the judgments relied upon by the learned Advocates forthe parties.3.At the outset, it appears that the applicant, the wife ofrespondent No. 1, had filed an application under Section 12 of theProtection of Women from Domestic Violence Act (Hereinafter referredto as the “DV Act”) for the grant of various reliefs under the D.V. Act, asprayed in the application. After considering the evidence on record, thelearned Magistrate has held that the applicant has proved thatrespondent No. 1 has committed domestic violence against her. Hence,a protection order was issued in her favour to prohibit the respondentfrom committing any act of Domestic violence and granted maintenanceof Rs. 8,000/- p.m. to her. Also, restraining the respondent fromobstructing her from residing in a shared household or driving her outof the house. Further restraint from transferring the said sharedhousehold permanently. The Magistrate has also granted compensationof Rs. 50,000/- to the applicant. 4.Being aggrieved by the said judgment and order, 3 916cra102.23 JUDGMENT.odtrespondent No. 1 has preferred an appeal before the Additional SessionsJudge, Jalgaon, and the learned Additional Sessions Judge, afterconsidering evidence on record, held that the applicant has failed toprove that the respondent has committed any act of domestic violenceagainst her and accordingly allowed the appeal and dismissed theoriginal application. Hence, the applicant has preferred this RevisionApplication.5.Learned Advocate for the applicant vehemently contendedthat the order passed by the learned Magistrate was just and proper;however, the learned Additional Sessions Judge has not consideredprovisions of the D.V. Act and the evidence on record in properperspective and erred in passing the impugned order. The learnedAdditional Sessions Judge has erred in holding that the applicant hasfailed to prove the domestic violence at the hands of respondent No. 1;on the contrary, the said order is inconsistent with the settled principlesof the law. The learned Additional Sessions Judge has erred indiscarding the testimony of the applicant on the ground that theapplicant has failed to examine the other witnesses in support of hercase.6.To buttress his submission, the learned Advocate for theapplicant has relied upon the judgment of this Court (Bombay) inKaushal Arvind Thakker Vs. Jyoti Kaushal Thakker, in Cri. Rev. Appli. No. 234 of2023, decided on 22.03.2024, he also drew my attention to the findings 4 916cra102.23 JUDGMENT.odtrecorded by this Court at paragraph No. 73 of the said judgment, asunder :-“In cases of domestic violence, it is not necessary that theacts complained of are required to be substantiated bydocumentary evidence in the form of medical recordsor police reports. It is well known that as the marriageis subsisting, more often than not there is no policecomplaint filed and the physical abuse may not be tosuch an extent as to require hospitalisation, in whichcase the medical record would substantiate the abuse.”7.In paragraph No. 74 of the said judgment, reliance wasplaced on the decision of Aruna Omprakash Shukla Vs. Omprakash DevanandShukla (2021 SCC Online Bom. 1292), where it was held that “In cases ofdomestic violence, it is often found that the wife does not immediatelyrush to the police when inflicted with physical, mental, psychologicaland economic abuse, and even if such a person suffers injuries, theywould not necessarily keep medical records of the same.” 8.As such, he submitted that in view of the mandate in thesaid judgment, the order passed by the learned Additional SessionsJudge is improper and contrary to the settled position of the law, andtherefore, liable to be set aside. Hence, he urged for allowing an appealby restoring the judgment and order passed by the learned JudicialMagistrate, First Class.9.Per Contra, learned Advocate for respondent No. 1 hasstrongly opposed the application, contending that the applicant hasfailed to prove that respondent No. 1 has committed domestic violence 5 916cra102.23 JUDGMENT.odtagainst her. Therefore, the findings recorded by the learned AdditionalSessions Judge are just and proper, and no interference is required. Hefurther drawn my attention to the paragraph Nos. 12 to 21, of thejudgment of the appellate Court and submitted that the learnedAdditional Sessions Judge after considering evidence on record hasrightly held that the conduct of the applicant shows that she is not atrustworthy witness and as such, her testimony was discarded andtherefore, she propounded that no interference is required in theimpugned judgment and order passed by the learned AdditionalSessions Judge.10.To buttress her contention, she has relied upon thejudgment of the Hon’ble Apex Court in Kamlesh Devi Vs. Jaipal and Ors. inSpecial Leave Petition (Criminal) Diary No (s) 34053 of 2019 decided on04.10.2019 (S. C.) and also in Shyamlal Devda and Others Vs. Parimala inCriminal Appeal No. 141 of 2020 (Arising out of SLP (Cri.) No. 4979 of 2019)decided on 22.01.2020 and pointed out that the applicant has failed toprove that the respondent No. 1 has committed domestic violenceagainst her and, therefore, the respondent No. 1 is not required to paymaintenance to the applicant. Alternatively, she submitted that therespondent-husband is a handicapped person and consequently urgedthe dismissal of the petition against him. 11.It is pertinent to note that the respondent No. 1 does notdispute his relationship with the applicant. He is not disputing that he 6 916cra102.23 JUDGMENT.odtwas an X-military serviceman and was not getting a pension. Similarly,during the cross-examination, he admitted that respondent No. 1 joinedthe services in Life Insurance Corporation, Bhusaval (for short “L.I.C”)and has worked there for 16 years and 5 months. He furthercategorically admitted that he would get a pension of Rs. 29,434/- p.mfrom the Army Service and L.I.C. Service. However, he failed to produceany document on record showing how much pension he has receivedfrom the Indian Army Service and the L.I.C. Department. In fact, it wasincumbent upon the applicant to produce all documentary evidencesupporting his defence. The applicant categorically deposed that therespondent NO. 1 is getting Rs. 40,000/- pension from the MilitaryDepartment and the L.I.C. Department. She produced a Bank Pass Bookin that regard, wherein it appears that the respondent No.1 is getting anamount of Rs. 14,551/- from the L.I.C. and Rs. 29434/- from the IndianArmy Service. Thus, it is evident that the respondent husband is gettinga total amount of Rs. 43,985/- from both services.12.The next question that arises before the Court is ‘whetherthe respondent No. 1 has committed domestic violence against theapplicant or not.’ In that regard, it appears that the learned JudicialMagistrate First Class has considered the said issue in paragraph No. 19and categorically held that the filing of the divorce petition by therespondent No. 1 itself shows that he has committed domestic violenceagainst the applicant. However, the learned Additional Sessions Judge 7 916cra102.23 JUDGMENT.odthas not considered the evidence on record in its proper perspective, andtherefore, the findings recorded by the learned Magistrate appear well-reasoned.13.It is worth to note that the learned Additional SessionsJudge has not considered the definition of the “Domestic Violence,”,under Section 3 of the D.V. Act, in its proper perspective, and did notconsider the mandate in Section 3 of the Act, nor considered definitionsof “aggrieved person”, domestic relationship” and thereby, the learnedAdditional Sessions Judge has erred in holding that the applicant hasfailed to prove the domestic violence at the hands of respondenthusband. In fact, as observed by the learned Magistrate, the filing of theDivorce Proceeding by the husband itself indicates that the respondenthas committed domestic violence against the wife. Apart from this, non-payment of maintenance and the payment of rent related to the sharedhousehold, as contemplated under Section 3, Explanation (iv) of theD.V. Act, also amounts to domestic violence. Therefore, it seems that thelearned Additional Sessions Judge has erred in reversing the findingsrecorded by the learned Magistrate. The findings recorded by thelearned Additional Sessions Judge appear to be contrary to the mandateof Section 3 of the D. V. Act and the evidence on record. Therefore, thesaid findings cannot be sustained in the eyes of the law, and the sameare liable to be set aside.14.In Shamlal and Kamlesh Devi (supra), the Hon’ble Apex Court 8 916cra102.23 JUDGMENT.odthas held that, except for the husband and parents-in-law, theapplication of Domestic Violence filed against the rest of the appellantstherein has been allowed. It is observed that “the petitioner andrespondents therein are not the persons residing together in a sharedhousehold. There were vague allegations that the respondents arefamily members. There is no whisper of the respondent with thepetitioner therein, and they appear to be neighbours.” Therefore, theApex Court has passed the order. However, the facts in the above twojudgments are distinct from the case at hand; consequently, they arehardly of any assistance to the applicant.15.On the contrary, the observations made in paragraph No.73 of the Kaushal and the decision of Aruna referred in paragraph No.74of the judgment (Supra) are applicable to the case at hand.16.It is pertinent to note that it is an obligation of the husbandto maintain his wife; therefore, he cannot be permitted to plead that heis unable to maintain her due to financial constraint, as he is capable ofearning and has sufficient means to maintain her. Moreover, a judicialnote can be taken that there are rises in the prices of the essentialcommodities. Therefore, the maintenance amount granted to theapplicant by the Magistrate is not sufficient to satisfy her daily needs,but appears to be too meagre.17.Apart from that, the provisions of the D.V. Act are socialwelfare provisions, which must be subjected to an extensive beneficial 9 916cra102.23 JUDGMENT.odtconcern for the wife. It is to be noted that since 2019, the applicant hasnot received any amount. The learned Advocate for the applicant alsosubmitted that the applicant has not received any maintenance amountawarded by the learned Magistrate to date. The application was filed inthe year 2019. Till this date, the respondent husband has failed to pay asingle paisa to the applicant and therefore, in my view, what has beenawarded the compensation by the learned Magistrate is just and proper,as the applicant has spent her money and time spent to get her rightsenforced before this Court.18.Thus, on perusal of the record and order passed by thelearned Magistrate, as well as the learned Additional Sessions Judge, itappears that the judgment and order passed by the learned Magistrateis just and proper. However, the order of reversing the judgment passedby the learned Magistrate by the Additional Sessions Judge is contraryto the mandate of the provisions of the D.V. Act, as well as to the settledposition of law, and therefore, the judgment and order of the learnedAdditional Sessions Judge are liable to be set aside under the revisionaljurisdiction. As such, an interference is required in the impugnedjudgment and order of the appellate Court. 19.As a result, the judgment and order dated 13.02.2023,passed by the learned Additional Sessions Judge, Jalgaon, is herebyquashed and set aside. The judgment and order passed by the learnedJudicial Magistrate First Class are restored. 10 916cra102.23 JUDGMENT.odt20.Inform the learned Judicial Magistrate, First Class, as wellas the Additional Sessions Court, Jalgaon, accordingly.21.The Revision Application stands allowed in the above termsand is disposed of.22.No order as to the costs. ( ABHAY J. MANTRI, J. ) mahajansb/