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Mamta Gautam Wankhede vs Gautam Sukhdev Wankhede on 2 February, 2018

cwp.245.17.jud 1

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

CRIMINAL WRIT PETITION NO.245 OF 2017

Petitioner : Mamta Gautam Wankhede,
Aged 48 years, Occ. Household.
R/o 17, Income Tax Colony,
Ranapratap Nagar, Nagpur : 440 022.

— Versus —

Respondent : Gautam Sukhdev Wankhede
Aged 50 years, Occ : Retired Judge,
R/o 304, Jagat Towers, Tilak Nagar,
Amravati Road, Nagpur.

———————
Shri B.B. Meshram, Advocate for the Petitioner.
Shri D.V. Chauhan, Advocate for the Respondent.
———————

CORAM : S.B. SHUKRE, J.
DATE : 2nd FEBRUARY, 2018.

ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally by

consent.

02] This petition challenges the order dated 16/01/2017

passed by Additional Sessions Judge, Nagpur in Criminal Appeal

No.54/2016 thereby upsetting the order dated 08/02/2016 passed

by the Judicial Magistrate First Class, Nagpur in Misc. Cri. Case

No.414/2012 granting maintenance of Rs.7,000/- per month to the

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petitioner under Section 20(1)(d) of the Protection of Women from

Domestic Violence Act, 2005 (for short ‘D.V. Act’).

03] The admitted facts of the case are that application

under Section 12 of the D.V. Act was filed in the year 2012 and that

the Family Court had already granted, by passing an order on

11/01/2013, interim maintenance of Rs.5,000/- per month to the

petitioner, which was later on by final order enhanced to Rs.7,000/-

per month. The final order of maintenance was passed by the

Family Court on 02/04/2016 ,and this order not having been

challenged by the respondent has attained finality.

04] The power to grant maintenance under Section 20(1)(d)

of the D.V. Act conferred upon the Magistrate is in the nature of

monetary relief and is directly related to suffering of the losses by

the aggrieved person and any child of the aggrieved person as a

result of domestic violence. Therefore, unless it is shown that the

aggrieved person and/or her child has suffered such a loss, no

order of maintenance can be passed under Section 20(1)(d) of the

D.V. Act. In a given case, the aggrieved person has in her hand an

order of maintenance granted in her favour under Section 125 of

Cr.P.C. or any other law for the time being in force, still,

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maintenance can be granted to the aggrieved person or a child or

both by invoking power under Section 20(1)(d) of the D.V. Act. But,

in such a case, the order of maintenance to be granted would be in

addition to the maintenance already granted to the aggrieved

person or a child under the other law and that in order to be

entitled to receive such additional maintenance, the aggrieved

person or a child would have to establish that subsequent to the

order of maintenance passed under the other law, there were fresh

circumstances amounting to domestic violence leading to suffering

of loss by her or her child. If no such circumstances are pleaded

and proved, the power of granting maintenance under Section

20(1)(d) of the D.V. Act cannot be exercised by the Magistrate in

such a case. This is also the view taken by the learned single Judge

of this Court in the case of Koushik s/o Anil Gharami vs. Sau.

Sangeeta Koushik Gharami ors., reported in 2014 All MR(Cri)

2398, when he observed in paragraph 9 thus :

“It is thus, clear that the monetary relief is available for
the children of the aggrieved person if the monetary
relief is required to meet the expenses incurred by the
aggrieved person as a result of domestic violence. The
monetary relief is also permissible in case losses are
suffered by the aggrieved person, as a result of the
domestic violence. The monetary relief is available to

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children of the aggrieved person under Section 20 of
the Act. However, the aggrieved person is under
obligation to establish that she had to meet the
expenses incurred and losses suffered due to domestic
violence on the part of the respondent. In the present
case, since the learned Magistrate has come to a
conclusion that the domestic violence could not be
proved and since that finding of the learned Magistrate
has not been challenged by the aggrieved person, if
follows that no relief could have been given to
respondent Nos.2 and 3 also.”

05] In another case, which was the case of B. Prakash vs.

Deepa Anr., reported in 2016 All MR(Cri)168, learned Single Judge

of Madras High Court taking the same view, has held that the

maintenance which could be granted under Section 20(1)(d) of the

D.V. Act is in the nature of mandatory relief and such mandatory

relief cannot be granted unless two conditions are fulfilled i.e.

sufferance of domestic violence by the aggrieved person at the

hands of her husband as contemplated under Section 3 of the D.V.

Act and incurring of expenses and/or suffering of losses by the

aggrieved person or her child as a result of such domestic violence.

The learned Single Judge further held that a previous order for

maintenance passed by a Magistrate under Section 125 of Cr.P.C.

would not be a bar for a Magistrate acting under Section 20 of the

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D.V. Act to pass yet another order granting monetary relief under

Section 20 of the D.V. Act. But, the learned Judge qualified his such

view by observing that before an order of maintenance under

Section 20 of the D.V. Act is passed, the wife must plead and prove

that subsequent to the order made under Section 125 of Cr.P.C., the

husband caused the domestic violence and on account of the

same, she suffered loss entitling her to receive additional

maintenance. The relevant observations of the learned Judge

appearing in paragraph 18 are reproduced thus :

“18. If the wife wants to modify an order made
under Section 125 of the Code, seeking enhancement of
the maintenance amount, the only option available for
her is to file a petition under Section 127 of the Code
before the same Magistrate, who passed the order. In
other words, the order made under Section 125 of the
Code can be modified or varied only by the same
Magistrate, who passed the earlier order. An order made
under Section 125 of the Code for maintenance by one
Magistrate cannot be varied or modified by a Magistrate
acting under Section 20 of the Act. Therefore, it should
be noted that a monetary relief granted towards
maintenance under Section 20 of the Act may be not in
modification of the previous order for maintenance
passed under Section 125 of the Code, but it may be in
addition to the said order for maintenance passed under

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Section 125 of the Code. If an order has already been
made under Section 125 of the Code for maintenance,
there can be no doubt that the wife had proved either
neglect or refusal on the part of the husband. If the wife
wants an order under Section 20 of the Act, in addition
to the order under Section 125 of the Code, she has to
prove fresh acts of the husband constituting the
domestic violence subsequent to the passing of the
earlier order under Section 125 of the Code. She cannot
rely on the acts of the husband constituting domestic
violence, which happened prior to the passing of the
order under Section 125 of the Code. For getting an
order under Section 20 of the Act, in addition to the
earlier order under Section 125 of the Code, the wife
should plead and prove that subsequent to the said
order made under Section 125 of the Code, the husband
had caused domestic violence and on account of the
same, she had suffered loss and thus, she is entitled for
additional amount as maintenance. Thus, it is
manifestly clear that a previous order made under
Section 125 of the Code is not a bar for an aggrieved
wife to approach a Magistrate under Section 20 of the
Act, for monetary relief as an additional relief of
maintenance, provided subsequent to the passing of the
earlier order under under Section 125 of the Code, the
husband has committed domestic violence resulting
loss to the wife.”

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06] In the circumstances referred to above, it was necessary

for the petitioner to have shown sufficient cause in terms of what

has been discussed in the earlier paragraphs as to why she was

entitled to receive more maintenance amount in the proceedings

initiated under the D.V. Act, in addition to what was already granted

to her by the Family Court. In particular, It was necessary for her to

bring on record some evidence establishing the change of

circumstances warranting grant of further maintenance amount to

her by taking recourse to the power of the Court under Section 20

of the D.V. Act.

07] However, it is seen that the petitioner miserably failed

to bring on record any such additional circumstances justifying her

claim to receive more maintenance amount. The learned

Magistrate, while granting the additional maintenance amount, did

not take into consideration the relevant facts and applicable

principles of law. His order also does not show any reason worth

the name as to why it was necessary for him to grant additional

maintenance under Section 20 of the D.V. Act. The only reason, if it

could be called so, stated by him appears on the face of it, to be

queer and has no place in law.

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08] The learned Magistrate has gone on record saying that

filing of divorce petition by the respondent against the petitioner

after 23 years of marriage itself amounted to domestic violence.

The remark is outlandish and, if I may say so, is alien to the known

jurisprudential concepts. If this is the way how the applications

filed under Section 12 of the D.V. Act are decided, as has been done

in the present case by the learned Magistrate, as rightly submitted

by the learned Counsel for the respondents, all the provisions of

law, be they be from Hindu Code Bill or Family Courts Act or D.V.

Act, creating rights and obligations of parties while maintaining a

fine balance between the competing interests of both sides, would

be rendered nugatory and a party would dither to initiate a

proceeding for assertion of his right, for the fear of being labelled

as merchant of domestic violence. The learned Magistrate shall do

well to avoid making such remarks without giving any thought to

rights and obligations of parties under the law.

09] What has not been done by the learned Magistrate,

however, has been done by the appellant Court, when it

appropriately considered the material available on record and law

applicable to it. Therefore, I do not think that the findings recorded

by the learned Additional Sessions Judge-3, Nagpur in his order

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dated 16/01/2017, which is impugned in the present petition, would

be termed as illegal or perverse or arbitrary. As stated earlier,

because the respondent did not place on record any justifiable

material entitling her to receive more maintenance amount in

addition to what was already granted to her by the Family Court,

she could not have been held as entitled to receive the same by

the learned Magistrate. This was a manifest illegality committed by

the learned Magistrate, which has been cured by the impugned

order.

10] There is no merit in this petition. It deserves to be

dismissed. The writ petition stands dismissed. Rule is discharged.

(S.B. Shukre, J.)

*sdw

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