DVA quashed, enhancement of maintenance stayed

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No. 5242 of 2010

MODI KAMLESHKUMAR SEVANTILAL – Applicant(s)
Versus
STATE OF GUJARAT & 1 – Respondent(s)

Appearance : MR YM THAKORE for Applicant(s) : 1,
MR DC SEJPAL, APP for Respondent(s) : 1,
MR MEHUL H RATHOD for Respondent(s) : 2,
MR JAYKAR B PATEL for Respondent(s) : 2,

CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI

Date : 04/02/2011

ORAL ORDER

Petitioner is husband of respondent No.2. He seeks quashing of Criminal Misc. Application No.474/09 filed by wife under the provisions of the Protection to Women from Domestic Violence Act (‘the Act’ for short). In the said application, the wife has prayed for several reliefs including enhancement of maintenance, arrangement for premises for residence, etc. The petitioner opposed the said proceedings on various grounds including the ground that he has been regularly paying maintenance as fixed by the court below under section 125 of the Criminal Procedure Code. On 15.6.2010 while issuing notice, the following order was passed:

“Heard learned advocate for the applicants.

It is submitted that as per the order dated 01.04.2009 passed in Criminal Revision Application No.678 of 2008, amount as agreed upon is being paid regularly. The impugned complaint under the provisions of the Protection of Women from Domestic Violence Act, 2005 is nothing but an offshoot with a view to harass the applicants, and therefore, the impugned complaint deserves to be stayed.

In view of the above, issue notice returnable on 12.07.2010.

In the meanwhile, ad-interim relief in terms of para 11(B).

Direct service is permitted.

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Service of the notice issued by this Court is permitted to be served through the In-charge Police Officer of the area concerned.”

Subsequently on 31.1.2011 as well as today, I have heard the learned advocates appearing for the parties on various issues. The main contention of the petitioner was that proceedings under the Act are not maintainable since the husband and wife are residing separately long before the Act was brought into force. On the other hand, counsel for the wife submitted that there are allegations of domestic violence even after the Act was brought into force. Be that as it may, during the course of hearing both sides agree to certain formula. Husband had agreed to increase maintenance and make some provision for rent in lieu of residential premises for the wife. Wife agreed to accept said amounts in lieu of the reliefs made in the proceedings under the Act which are challenged in this petition.

I had on previous occasion requested the counsel for the petitioner to make available latest salary slips of the petitioner who is employed as Executive Engineer in ONGC since long. Copies of these salary slips are taken on record. I have perused the statements of monthly income of the petitioner, statutory compulsory and other deductions from his salary as also other liabilities which primarily includes, maintenance of his aged widowed mother. It is, however, stated that the petitioner has two other brothers who are also earning and would therefore obviously be sharing the responsibility to maintain the mother. It is stated that the couple has no children out of the wedlock.

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From the salary slips of the petitioner it can be seen that he earns sizable income every month. Of course, he has to pay substantial income tax and other deductions such as, car loan which he has taken in addition to contributing compulsory deductions towards provident fund. Despite which, he takes home a sizable salary for himself and his family. Under the circumstances, counsel for the petitioner, under the instructions of the petitioner who is present in court, agree that monthly maintenance be enhanced from Rs.10,000/- to Rs.15,000/- per month prospectively. He submitted that in lieu of residence for the wife, the petitioner is prepared to pay Rs.5,000/- by way of rent. Counsel for the wife under the instructions of his client, who is also present in court, stated that the wife will be satisfied with such increase at this stage with liberty to apply in future if the conditions undergo significant change.

With respect to the increase in the maintenance, I am of the opinion that a formal order should be passed by the learned Magistrate. For that purpose, respondent No.2 wife may apply to the learned Magistrate. The husband shall agree to such increase as stated above. The learned Magistrate shall pass order bearing in mind the above observations and agreement between the parties. Such increase in monthly maintenance from Rs.10,000/- to Rs.15,000/- will be with prospective effect and shall be payable to the wife from the date of the application. However, in addition to the above, the petitioner shall pay Rs.5,000/- towards rent in lieu of residence for the wife.

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The above observations and directions shall not be treated to mean that proceedings under the Act are maintainable and the order is passed without prejudice to the contentions of both sides.

In view of the above arrangement between the parties which is formalized in this order, proceedings under the Act being Criminal Misc. Application No.474 of 2009 are quashed. Rule is made absolute to the above extent.

(Akil Kureshi, J.)

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