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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
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