Vijay S/O Maruti Gaikwad vs Savita Vijay Gaikwad And Anr on 13 December, 2017

1 Cri WP 362/17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 362 OF 2017

Vijay S/o Maruti Gaikwad, Aged 41 PETITIONER
Years, Occupation Service, Resident
of Puntamba, Taluka Rahata,
District Ahmednagar

V E R S U S

1 Sau. Savita Vijay Gaikwad, Aged 35 RESPONDENTS
Years, Occupation Service

2 Sunny Vijay Gaikwad, Aged 12 Years,
Occupation Education, Minor, under
guardianship of real mother i.e.
respondent No.1

Both resident of C/o. Zumbarlal
Rakhmaji Jadhav, R.D. Type Chal
No.24, Room No.2, Shivajinagar,
Rahuri Factory, Taluka Rahuri,
District Ahmednagar

Mr. N.C. Garud, Advocate for the Petitioner
Mr. Vivek V. Tarde, Advocate for the Respondents

CORAM : T.V. NALAWADE, J.

DATE : 13th DECEMBER, 2017

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ORAL JUDGMENT :

This petition is filed to challenge the

decision in Criminal Appeal No. 01 of 2016 which was

pending before the Court of learned Additional

Sessions Judge, Kopargaon and also to challenge the

decision in Criminal M.A. No. 123 of 2014 which was

pending before the Court of Judicial Magistrate, First

Class, Rahata, which was filed by the present

respondents against the present petitioner under the

provisions of Protection of Women From Domestic

Violence Act, 2005. In that proceeding, learned

Judicial Magistrate directed the present petitioner

and his relatives to make payment of Rs.1,000/-

towards rent of the house, Rs.2,000/- towards

maintenance of wife and Rs.1,000/- towards maintenance

of minor issue. The direction was also given to pay

Rs.50,000/- to respondents as compensation. This order

was challenged by filing the appeal. In the Appeal,

learned Sessions Court maintained the order made as

against the present petitioner as it is, but the order

as against relatives of petitioner has been set aside

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3 Cri WP 362/17

by the Sessions Court.

2. The submissions made by the learned counsel

for the petitioner show that, in the past, proceedings

under Section 125 of Cr.P.C. was filed by the

respondent-wife as against the petitioner-husband, and

in that proceedings, the present petitioner had

admitted the relationship between them, and due to

that, the maintenance order is made under section 125

of Cr.P.C. against the present petitioner. Learned

counsel for the petitioner submitted that due to order

of learned Magistrate, the petitioner is required to

pay around Rs.7,000/- per month and he cannot afford

to make such payment to the respondents. Learned

counsel for the petitioner submits that the petitioner

is required to maintain his old parents, his wife and

two years born child from wife Anita. It is also

contended that he is required to maintain his sisters

and also the family members of his brother. The

contention of the present petitioner that respondent

No.1 is not his wife is not acceptable and that

contention was not made in the proceedings filed under

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Section 125 of Cr.P.C. and that order has become

final. It is not in dispute that respondent No.2 is

born to respondent No.1 from petitioner. In view of

this, there is no need to go into more details of this

contention.

3. The contention made for the petitioner that

the amount of maintenance awarded to the respondents

is exorbitant, has no force. The submissions made and

record show that at the relevant time the petitioner-

husband was getting salary of more than Rs.30,000/-

per month and after that there is revision of pay due

to 7th pay-commission. Now, the husband must be getting

Rs.40,000/- per month. Therefore, it can be said that

respondent No.1-wife who is entitled to around

Rs.8,000/- per month is not getting more amount than

the capacity of petitioner.

4. Another submission was made by the learned

counsel for the petitioner that Protection of Women

From Domestic Violence Act came in force in the year

2005 and respondent No.1-wife had admitted that she

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was living separate from the husband since the year

2003, and so, the provisions of said Act cannot be

applied to the present case. In view of definition of

“domestic relationship” given in Section 2 of the Act

and also the other provisions of the Act, in which it

is mentioned that it is required to be proved that he

was in such relationship at any point of time and they

lived together, aforesaid submissions of the

petitioner-husband cannot be considered. There is no

force in the submission on legal point.

5. Another submission was made by the learned

counsel for the petitioner that the petitioner is

acquitted in the criminal case which was filed against

him for offence punishable under Section 498-A of the

Indian Penal Code by respondent-wife and, therefore,

it cannot be said that he had treated the respondent-

wife with cruelty. This submission is not acceptable.

The offence is required to be proved beyond reasonable

doubt. Therefore, there is no force in these

submissions.

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6. Learned counsel for the petitioner submitted

that the learned Judicial Magistrate had not called

the report of Protection Officer and that is required

in law under Sections 8, 9 and 12 of the Protection of

Women From Domestic Violence Act, 2005. It is

submitted that in provision like Section 12 of the

Act, the word “shall” is used and so unless and until

the report is called, the order cannot be made. This

submission is also unacceptable. The provisions of

Sections 8, 9 and 12 of the Act are enabling

provisions and they are made for the benefit of victim

like the wife. The provisions of Section 12 of Act

show that if the Protection Officer has discharged his

duty after approaching by wife and he submits report,

that report needs to be considered under Section 12 of

the Act. That does not mean that in each case the wife

should approach the officer first and only after that,

she can go to the Court. If the matter is before the

Court and the wife preferred not to approach the

Protection Officer, the Court is not bound to call the

report of Protection Officer. Thus, there is no force

in this submission also.

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7 Cri WP 362/17

7. In view of these circumstances and the

discussion made above, this Court holds that it is not

possible to interfere in the decision given by the

Magistrate and in the Appeal. In the result, petition

stands dismissed.

( T.V. NALAWADE, J. )

SRM/13/12/17

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