High Court
Facts
( 1 ) 22 cri wp 1676.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1676 OF 2024Abhay Arun Daithankar,Age: 45 years, Occ : Pvt. Service,R/o Sadguru Nagar, NearKalika Devi Temple,Old Ausa Road, Latur....PETITIONERV/s.1.Mousami w/o Abhay Daithankar,Age: Major, Occ : Household,R/o Jai Niwas behind Sahyadri Hospital,Near Rajiv Gandhi Chowk, Latur.2.Aaditya s/o Abhay Daithankar,Age: 18, Occ : Education,R/o Parijat behind Sahyadri Hospital,Near Rajiv Gandhi Chowk, Latur.3.Arya s/o Abhay Daithankar,Age: 12, Occ : Education,Through his mother i.e. Respondent no.1R/o Parijat behind Sahyadri Hospital,Near Rajiv Gandhi Chowk, Latur.....RESPONDENTS.....Dr. R.R. Deshpande h/f. Priyanka Deshpande, Advocate for the Petitioner Mr. Amol A. Kokad, Advocate for the Respondent No.1...…CORAM : Y.G. KHOBRAGADE, J.DATE :10.02.2025ORAL JUDGMENT:-1.At the outset it is submitted that considering the matrimonialdispute between the Petitioner and Respondent No.1, this Court has granted
Legal Reasoning
( 7 ) 22 cri wp 1676.2414.On the face of the record, it prima facie appears that, theRespondent No.1 filed assets and liabilities affidavit at Exh.6 but she has notdisclosed her educational qualification and some columns are left blank may bedue to lack of knowledge or for want of information or due to nonunderstanding of the information. In column no.(f) of the affidavit, theRespondent No.1 disclosed the name of the employer as Abhay ArunDaikthankar i.e. Petitioner, who is the Husband of the Respondent No.1 andshown his profession as Teacher and monthly income of Rs.80,000/-.15.The Respondent No.1 also furnished declaration stating that, theinformation which has been given in the Affidavit of Assets and Liabilities aretrue and correct and in case the statement made in the affidavit is foundincorrect, it would certainly constitute an offence under Section 199 read withSection 191 and 193 of the I.P.C. punishable with imprisonment up to 7 yearsand fine and also punishable under Section 209 with imprisonment up to 2years and fine. So also, the Respondent No.1 verified the contents of theaffidavit of assets and liabilities.16.The Petitioner filed Exh. 46, an Application and prayed for actionu/s 340 of Cr.P.C., for the offence u/s 195 of IPC, alleging that, theRespondent-Wife filed an affidavit pertaining to assets and liabilities by notdisclosing her educational qualification and kept some columns blank, hence, ( 8 ) 22 cri wp 1676.24she has committed perjury because the Respondent No.1 has completedDiploma in Medical Electronics Engineering from Women’s Polytechnic Latur inthe year of 2005 and she has completed professional course of Beauty Therapistin the year 2018 from the Astha Skill Development Center, Latur.17.On 22.08.2024, the learned Family Court passed the impugnedorder below Exh.46 considering various case laws cited therein and held that,Section 340 of the Cr.P.C., mandates preliminary enquiry and an opportunity ofhearing to the Accused before a complaint under Section 195 of the Cr.P.C. isnecessary. It is further held that, as per the ratio laid down in case of Dr.Santosh V/s. Amita; 2019 (3) Mh.L.J. 189, it is explicit that even the Courtcomes to the conclusion that, offence is made out but the Court is not bound tomake complaint regarding the commission of offence and said course will beadopted only if the Court thinks fit that it is expedient in the interest of justiceto do so and not in every case. And non-disclosure of educational qualificationin the assets and liabilities which does not make impact on the administrationof justice and no prejudice is caused to the present Petitioner.18.Chapter XI of the I.P.C. provides prosecution for false evidence andother offences against public justice. Section 340 of the Cr.P.C. provides perjuryin cases for the offences under Section 195. Needless to say that, merely theRespondent No.1 did not disclose her educational qualification it does not ipso ( 9 ) 22 cri wp 1676.24facto attract Section 340 of the Cr.PC. and no prosecution can be launchedunder Section 195, 191, 199 of the I.P.C. It is not the case of Petitioner that,though the Respondent No.1 is drawing regular income but she has suppressedsaid fact and made false statement on oath. On perusal of Exh.46, it does notappear that, the Respondent No.1 has submitted false information with anintention to claim maintenance against the Petitioner. Therefore, to my mindno action is required to be taken under Section 340 of the Cr.P.C. Further,merely non-disclosure of educational qualification in the form of enclosure ofassets and liabilities does not affect the administration of justice. Therefore, Ido find that, the findings recorded by the learned Family Court are just andproper and no interference is called at the hands of this court. 19.The Petitioner also challenged the order dated 22.08.2024 passedbelow Ex.39. Needless to say that, the Petitioner has filed Exh.39 an applicationfor issuance of direction to file documents mentioned in Annexure-1 attachedwith the application vide Section 91 of the Cr.P.C. On 22.08.2024, the learnedFamily Court passed the impugned order holding that, the Respondent No.1/Original Applicant has already filed requisite documents along with Exh.42.The Respondent No.1 filed other documents i.e. Account of Statements ofVishwakarma Mahila Bachat Gat, Spurti Mahila Bachat Gaut, which shows that,the Respondent No.1 does not hold account. Therefore, impugned order dated
Arguments
( 2 ) 22 cri wp 1676.24sufficient opportunities to both the sides for settlement of dispute betweenthem despite of same, they have failed to settle the dispute. Irrespective of thethe facts, this Court also intervened and gave understanding by mediating butboth the parties declined to settle the dispute. Therefore, both the parties werecalled upon to argue the matter on merit.2.Rule. Rule made returnable forthwith. With the consent of bothsides, heard finally at the stage of admission.3.Heard at length Mr. Deshpande, the learned counsel appearing forthe Petitioner and Mr. Kokad, the learned counsel appearing for theRespondent Nos.1 to 3.4.By present petition, the Petitioner/Husband has questioned thelegality and validity of orders dated 22.08.2024 passed below Exh.39 andExh.46 by the learned Family Judge, Latur, in Petition No. E-239/2021. Thepresent Petitioner is the Original Non-Applicant and present Respondent Nos.1to 3 are the Original Applicants in proceeding bearing Petition No.E-239/2021,filed under Section 125 of the Code of Criminal Procedure, 1973 (for brevityherein-after to be referred as “Cr.P.C.”) The Petitioner is the husband ofRespondent No. 1 and father of the Respondent Nos. 2 & 3. For the sake ofbrevity, parties to present petition shall be referred in their original capacity asApplicants and Non-Applicant. ( 3 ) 22 cri wp 1676.245.Brief facts which has given rise to the filing of this petition arethat, on 25.05.2001, marriage of the Petitioner and Respondent No.1 wassolemnized as per the customs and rites prevailing in their society. Out of saidwedlock, they came to be blessed with two children i.e. present RespondentNos. 2 & 3. However, due to domestic violence raised at the hands of the Non-Applicant as narrated in the application u/s 125 of Cr.P.C., the Non-ApplicantNo.1 was compelled to stay at her parental house with her children.6.The Applicants Nos.1 to 3 have instituted a Petition No. E-239/2021 under Section 125 of the Cr.P.C., and thereby prayed formaintenance. The Applicants have also filed an application for interimmaintenance. Further the petition is also supported by the Affidavit of Assetsand Liabilities in pursuance of guidelines framed by the Hon’ble Supreme Courtin the case of Rajnesh V/s. Neha and Another; (2021) 2 SCC 324, the ApplicantNo. 1 had file an affidavit of Assets and Liabilities at Exh.6.7.The learned counsel appearing for the present Petitioner canvassedthat, though the Respondent No.1 filed an affidavit of assets and liabilities,however, the Respondent No.1 failed to disclose her educational qualificationand left many columns blank therein. Therefore, the Respondent No.1 haveconcealed facts of her education in declaration form of assets and liabilities andfurnished false affidavit which amounts to an offence u/s 195 of Indian Penal ( 4 ) 22 cri wp 1676.24Code, 1860 (for brevity hereinafter to be referred as “IPC”), hence, it isnecessary to take action u/s 340 of Cr.P. C. 8.The learned counsel for the present Petitioner further canvassedthat, the present Respondent concealed and did not disclose following materialof facts as under:a)The Original Applicant has completed her Diploma in Medical Electronics Engineering Polytechnic in the year 2000.b)The Original Applicant has completed professional course of Beauty Therapist in the year 2018 from the Astha Skill Development Center, Latur.9.Therefore, the present Petitioner has filed Exh.46, an Applicationunder Section 340 read with Section 195 of the Cr.P.C., and thereby prayed forinitiation of action against the present Respondent No.1/Original Applicant No.1 for an offence punishable u/Sec. 193, 195 of Cr.P.C. However, the learnedtrial Court passed the impugned order dated 22.08.2024, holding that prior todecision on the application for interim maintenance, the Petitioner has filedpresent application and omission of details of educational qualification, thathas no impact on administration of justice, neither it caused any prejudice tothe present Petitioner, hence, rejected the application. 10.The learned counsel appearing for the Petitioner relied onJudgment dated 07.03.2018 passed by the Co ordinate Bench of this Court at ( 5 ) 22 cri wp 1676.24Principal Seat in Criminal Application No.728/2017 (Farid Ahmed Qureshi V/s.State of Maharashtra and Anr.), wherein it is held that, for filing of complaintunder Section 340 read with Section 195(1)(b) of Cr.P.C., for making falsestatement before this Court, contrary to the record and for not disclosing trueand correct facts is made out. Therefore, opinion of the Court is that, theoffences as contemplated under Section 193, 196, 199, 200 and 209 of theI.P.C. appears to have been committed.11. Further he relied on Judgment dated 30.10.2012 passed by the Coordinate Bench of this Court at Principal Seat in Civil ApplicationNo.12382/2016 in Appeal From Order No.102/2011, CPR ManufacturingIndustries Limited V/s. Sergi Transformer Explosion Prevention TechnologiesPvt. Ltd. And Ors.; 2013 All M.R. (1) 153, wherein it is held that, in aproceeding under Section 340 of the Cr.P.C. only a prima facie opinion isrequired to be reached out by the Court and challenge is required to beestablished during trial.12.Per contra, the learned counsel appearing for the Respondentscanvassed that, merely omission about disclosure of educational qualification inthe affidavit of assets and liabilities does not constitute perjury as contemplatedunder Section 195 of the I.P.C. It is further canvassed that, keeping somecolumns blank in the prescribed form, as per the guidelines laid down in the ( 6 ) 22 cri wp 1676.24case of Rajnesh cited (supra), it does not warrant initiation of actioncontemplated under Section 340 of the Cr.P.C. It is further canvassed that,merely submitting a declaration form of assets and liabilities on affidavit andgiving declaration stating that, the information disclosed in the affidavit doesnot amount to perjury and no offence has been constituted, unless thedeclarant enter into witness box and testify the statement made in saiddeclaration. However, the Petitioner has filed application Exh.46 and prayedfor action under Section 340 of the Cr.P.C., at the primary stage even prior todecision of application for interim maintenance. Therefore, the learned trialCourt has rightly rejected the application, hence, prayed for dismissal of thepetition.13.Having regard to the submissions canvassed on behalf of bothsides, I have gone through the petition paper book. It is not in dispute that, on25.02.2011, the marriage of Petitioner and Respondent No.1 was solemnizedand out of said wedlock, the Respondent Nos.2 and 3 are born. Admittedly, theRespondents have filed Petition No.E-239/2021 under Section 125 of theCr.P.C. and prayed for maintenance against the Petitioner. The Respondentshave filed a separate application for grant of interim maintenance. It is a matterof record that, the Respondent No.1 filed affidavit disclosing her assets andliabilities, educational qualification, employment, source of earning as per lawlaid down by the Hon’ble Supreme Court in case of Rajnesh cited (supra).
Decision
( 10 ) 22 cri wp 1676.2428.02.2024 passed below Exh.39 is just and proper and no interference iscalled at the hands of this Court.20.In view of above discussion, the Writ Petition is dismissed. Rule isdischarged.21.Needless to say that, the Respondent/Wife filed a Petition No. E-239/2021 and prayed for maintenance for herself and her minor children. Theapplication for interim maintenance is still pending. However, the Petitionerdragged the Respondent-Wife to this Court and compelled her to avail serviceof the legal practitioner and shifted financial burden on the shoulder ofRespondent No.1 for making payment of fees to the legal practitioner. TheRespondent-Wife has no source of income and due to filing of this petition, theRespondents are facing delay in getting justice. Therefore, considering the factthat the Respondents are struggling for their survival and to meet bread andbutter but they are compelled to incur expenses towards litigation charges.Therefore, to overcome from such exigencies, it would be just and proper todirect the Petitioner to pay Rs.20,000/- towards litigation charges to theRespondents within a period of 15 days from today, failing which said amountshall be recovered from the Petitioner towards arrears of maintenance charges. [Y.G. KHOBRAGADE, J.]mub