Mr. Anand S/O. Uddhavrao Bagde And … vs Sau. Vanita W/O. Anand Bagde on 11 January, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION No.798 OF 2017

1. Mr. Anand s/o. Uddhavrao Bagde,
Age 43 years,
Occupation : Service,
R/o. Gumgaon Mine, MOIL Ltd.,
Officers Colony, Post Khapa, The. Saoner,
Distt. Nagpur.

2. Mr. Uddhavrao s/o. Ramji Bagde,
Age 69 years,
Occupation : Nil.

3. Sau. Sushila w/o. Uddhavrao Bagde,
Age 65 years,
Occupation : Household,

Petitioner Nos.2 and 3 R/o. Plot No.47,
Vaishali Nagar, Nagpur. : PETITIONERS

…VERSUS…

Sau. Vanita w/o. Anand Bagde,
Aged about 34 years,
Occupation : Service,
R/o. Plot No.263-B,
Dixit Nagar, “Samved”, Nari Road,
Nagpur. : RESPONDENT

———————————
Shri R.R. Vyas, Advocate for the Petitioners.
Shri Satyendra Singh, Advocate for the Respondent.
———————————

CORAM : S.B. SHUKRE, J.

th
DATE : 11
JANUARY, 2018.

ORAL JUDGMENT :

1. Heard.

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2. Rule. Rule made returnable forthwith.

3. Heard finally by consent.

4. This petition challenges legality and correctness of the order

dated 12.12.2013, passed in a domestic violence case being Misc.

Criminal Application No.1936/2010, by Judicial Magistrate, First Class,

Nagpur.

5. By the impugned order, all the petitioners are prohibited

from committing any act of domestic violence or aiding or abetting any

act of domestic violence directed against the respondent. The impugned

order also directs the petitioner No.1 to pay rental of Rs.5,000/- per

month to the respondent and further directs to pay to the respondent

medical expenses of Rs.31,000/-.

6. It is the contention of the learned counsel for the petitioners

that the prohibitory order could not have been passed against all the

petitioners, particularly the petitioner Nos.2 and 3, the parents of the

petitioner No.1, as there is no prayer made in the application that has

been filed under Sections 12,18,19,20,22 and 23 of the Protection of

Women from Domestic Violence Act, 2005 (hereinafter referred to as,

DV Act”) seeking such a relief even against the petitioner Nos.2 and 3.

According to the learned counsel for the respondent, the impugned order

is perfect and even in the absence of a specific prayer made, such relief

can be granted.

7. The DV Act being a beneficial legislation enacted for

achieving the overall welfare of the women and protecting their right to

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gender equality, even if there is no prayer specifically made for grant of a

particular relief, the relief can always be granted or moulded according

to the facts established on record and needs of justice. Therefore, just

because there is no prayer specifically made in the application filed under

the provisions of the DV Act, it cannot be stated, as a general proposition

of law, that a particular relief not prayed for cannot be granted by the

Magistrate. But, while granting such a relief not specifically asked for,

the learned Magistrate has to remain conscious of the pleadings of the

parties and material produced before him so as to do proper justice

between the parties. If there are no pleadings and no material is

produced enabling the Court to entirely mould or grant a particular

relief, the Court of Magistrate would not be justified in granting any a

relief not prayed for or otherwise it would amount to giving a relief

without any foundation being laid for it.

8. In the present case, no such foundation appears to be laid by

the respondent. Nothing is stated specifically about the particular acts

which in the opinion of the respondent could be stated to be amounting

to domestic violence committed by the petitioner Nos.2 and 3 and that

apart, there is no supportive material produced on record. Of course,

some allegations are made against the petitioner Nos.2 and 3, but those

allegations are vague and made in general terms. Therefore, the Court of

Judicial Magistrate, one has to say, has committed serious error in

granting a relief not specifically asked for by the respondent as against

petitioner Nos.2 and 3. To this extent, the paragraph No.2 of the

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operative part of the order deserves to be substituted by issuing

prohibition only against the petitioner No.1 and removing such

prohibition imposed against petitioner Nos.2 and 3.

9. As regards grant of rental of Rs.5,000/- per month by the

learned Magistrate to the respondent, I am of the view that no perversity

or illegality could be noticed in the impugned order. Although it is

submitted by learned counsel for the petitioner that for a wife with a

child, no dwelling house comprising two bed-rooms would be required, I

must say, what has been granted by the learned Magistrate as rental in

the present case is only an amount in which, it is unthinkable to hire on

rent a dwelling house or apartment consisting of two bed-rooms in a big

city like Nagpur. Therefore, no interference with the impugned order in

this regard is warranted.

10. About the medical expenses of Rs.31,000/- granted by the

learned Magistrate, I would say, there is something which requires

correction. It is an admitted fact that in the proceedings initiated under

Section 125 of Cr.P.C., the Family Court by the order passed on 1.3.2013

has already granted Rs.15,000/- as delivery expenses to the respondent.

The amount of Rs.31,000/- granted as medical expenses in the present

case includes this amount of Rs.15,000/- and, therefore, this very

amount would have to be deducted from the amount of Rs.31,000/- and

to this extent paragraph 4 of the operative part of the impugned order

deserves to be modified.

11. In the circumstances, the writ petition is partly allowed.

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12. It is directed that only petitioner No.1 stands prohibited from

committing any act of domestic violence or any act which would amount

to aiding or abetting the commission of domestic violence vis-a-vis the

respondent.

13. It is further directed that the petitioner No.1 shall pay

medical expenses of Rs.16,000/- to the respondent.

14. The impugned order stands modified in the above terms,

while other operative parts of the impugned order stand confirmed.

15. The rent amount of Rs.5,000/- per month shall started to be

deposited from the month of January 2018 and it shall be credited

directly into the Saving Account No.874610110009826 of the respondent

with Bank of India, Kadbi Chowk Branch, Nagpur on or before 10 th day of

every month.

16. For the month of January 2018, rent is permitted to be

deposited latest by 20th January 2018 by crediting it to the said account

of the respondent.

17. Rule is made absolute in the above terms.

JUDGE
okMksns

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