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Anita Dashrath Dolare vs Dashrath Mahadev Dolare And Anr on 13 September, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 2300 OF 2018
WITH
WRIT PETITION NO. 2281 OF 2018

Anita Dashrath Dolare ]
Age- 33 years, Occupation- Nil, ]
Residing at C/o. Ravi Dharma Kale, ]
Santosh Nagar, Bale, Taluka North Solapur, ]
District Solapur ] …Petitioner
(Original Applicant)
Versus

1. Dashrath Mahadev Dolare ]
Age- 43 years, Occupation -Service, ]
Residing at post Shirpur, Taluka Malshiras, ]
District Solapur ] (Original Opponent)

2. The State of Maharashtra ] …Respondents

……
Mr.A.S.Kulkarni for the Petitioner.
Mr.S.S.Shah for Respondent No.1.
Mr.N.B.Patil, APP for Respondent No.2-State.
……

CORAM : S.S.SHINDE J.
RESERVED ON : 5TH SEPTEMBER 2019
PRONOUNCED ON : 13TH SEPTEMBER 2019

JUDGMENT

1. Rule. Rule made returnable forthwith. With the consent of the

parties, these petitions are heard finally and disposed of at the stage

of admission.

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2. Since both the petitions are arising out of common judgment

and order dated 09.04.2018 passed by learned Additional Sessions

Judge, Solapur, the same are heard together and being disposed of

by common judgment.

3. The Writ Petition No. 2300 of 2018 takes an exception to the

judgment and order dated 09.04.2018 passed by learned Additional

Sessions Judge, Solapur thereby allowing Criminal Revision

Application No. 116 of 2017 arising out of order dated 11.08.2017

passed by learned Judicial Magistrate First Class, Solapur in Criminal

Miscellaneous Application No. 1677 of 2016.

4. The Writ Petition No. 2281 of 2018 takes an exception to the

order dated 09.04.2018 passed by learned Additional Sessions

Judge, Solapur thereby allowing Criminal Revision Application No.

115 of 2017 arising out of order dated 11.08.2017 passed by learned

Judicial Magistrate First Class, Solapur in Criminal Miscellaneous

Application No. 1678 of 2016.

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5. The brief facts and circumstances giving rise for filing the

present petitions are as under :

6. In Writ Petition No. 2300 of 2018, it is the case of the petitioner

that the petitioner is original applicant and respondent No.1 is original

opponent. The petitioner and respondent No.1 are wife and

husband. They got married on 20.05.1997 at Solapur, and all the

marriage expenses were incurred by the petitioner. Respondent

No.1 is working as a teacher in Zilla Parishad School at Vadibangla,

Taluka- Malshiras, District -Solapur and getting salary of Rs. 50,000/-

p.m. in Zilla Parishad School at Solapur. Respondent No.1 is having

a big house consists of four rooms, which is situated at Gat No.

1466/A at Village Mahalunga, Taluka-Malshiras, District-Solapur and

also having an agricultural land in the name of his father. It is further

case of the petitioner that after marriage, for quite some time the

relations with respondent No.1 were cordial, but later on respondent

No.1 started quarreling for one or other reason with her, as well as

with her father-in-law and mother-in-law. The parents of the petitioner

resolved the dispute between them through mediator. However, all

the efforts of the petitioner were in vain and respondent No.1,

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unnecessarily harassed the petitioner. During the existence of first

marriage, respondent No.1 contracted second marriage with one

Sadhana in the year 2013 and out of that wedlock, they have one

son. Thereafter, respondent No.1 started giving threats to the

petitioner and therefore, the petitioner had no any option but to leave

the matrimonial house, and after leaving the matrimonial house, she

started residing with her parents. Therefore, the petitioner has filed

an application under Sectionsection 125 of the Code of Criminal Procedure

(for short, “the SectionCr.P.C.”) before the learned Judicial Magistrate First

Class, Solapur in Criminal Miscellaneous Application No. 943 of 2012

and after hearing both the sides, the learned Magistrate was pleased

to pass an order thereby granting maintenance amount of Rs.5,000/-

p.m. and Rs.1,000/- towards cost on 29.07.2013.

7. It is further the case of the petitioner that, respondent No.1 has

not challenged the order dated 29.07.2013 passed by learned IXth

Judicial Magistrate First Class, Solapur in Criminal Miscellaneous

Application No. 943 of 2012 and therefore, the said order attained

finality, and hence, as respondent No.1 is not paying an amount of

maintenance in compliance with order passed by the learned

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Magistrate, to the petitioner, she preferred Cri. Miscellaneous

Application No. 1677 of 2016 for execution of order dated 29.07.2013

passed by learned IXth Judicial Magistrate First Class, Solapur in

Criminal Miscellaneous Application No.943 of 2012. During pendency

of the said Application, respondent No.1 preferred an Application

below exhibit 6 thereby stating that, the petitioner cannot recover

maintenance amount in both the proceedings i.e., the Application

filed under Sectionsection 125 of the Cr.P.C. and in the Application filed

under Sectionsection 12 of the Protection of Women from SectionDomestic Violence

Act, 2005 (for short, “the SectionD.V. Act’). The petitioner did file a reply to

the said Application, and after hearing both the parties, learned

Magistrate was pleased to reject the Application below exhibit 6

preferred by respondent No.1 in Cri. Miscellaneous Application No.

1677 of 2016 on 11.08.2017.

8. It is further the case of the petitioner that, respondent No.1

being aggrieved by the order dated 11.08.2017 passed by learned

Judicial Magistrate First Class, Solapur in Criminal Miscellaneous

Application No. 1677 of 2016 below exhibit 6 preferred Criminal

Revision Application No. 116 of 2017 before the Sessions Court,

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Solapur. The learned Sessions Judge, Solapur after hearing both the

sides was pleased to allow the Revision Application preferred by

respondent No.1 by its judgment and order dated 09.04.2018.

9. In Writ Petition No. 2281 of 2018, it is the case of the petitioner

that the petitioner is original applicant and respondent No.1 is original

opponent. The petitioner filed an application under Sectionsection 12 of the

D.V. Act before the learned Judicial Magistrate First Class, Solapur in

Cri. Miscellaneous Application No. 1983 of 2014 and after hearing

both the sides, the learned Magistrate was pleased to pass an order

granting maintenance amount of Rs. 4,000/- p.m. and Rs. 1,000/-

towards house rent on 22.12.2015.

10. It is further the case of the petitioner that, being aggrieved by

the judgment and order dated 22.12.2015 passed by learned IXth

Judicial Magistrate First Class, Solapur in Criminal Miscellaneous

Application No. 1983 of 2014 thereby not allowing the prayer of the

petitioner in toto to direct respondent No.1 to pay Rs. 50,000/- p.m.

towards maintenance and Rs. 10,000/- p.m. towards house rent.

The petitioner filed Criminal Appeal No. 9 of 2016 before the

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Sessions Court, Solapur praying therein to direct respondent No.1 to

pay Rs. 50,000/- towards maintenance. However, it appears that the

Appellate Court did not cause interference in the order passed by the

trial Court and hence, the order passed by the learned Magistrate

attained finality. As respondent No.1 was not paying amount of

maintenance as directed by the learned Magistrate, the petitioner

preferred Criminal Miscellaneous Application No. 1678 of 2016 for

execution of order dated 22.12.2015 passed by learned IXth Judicial

Magistrate First Class, Solapur in Criminal Miscellaneous Application

No. 1983 of 2014. During pendency of the said Application,

respondent No.1 preferred an application below exhibit 6, thereby

stating that the petitioner cannot recover maintenance amount in both

the proceedings i.e., arising out of the Application filed under Sectionsection

125 of the Cr.P.C. and the Application filed under Sectionsection 12 of the

D.V. Act. The petitioner filed a reply to the said Application and after

hearing both the parties, learned Magistrate was pleased to reject the

Application below exhibit 6 preferred by respondent No.1 in Criminal

Miscellaneous Application No. 1678 of 2016 on 11.08.2017.

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11. It is further case of the petitioner that respondent No.1 being

aggrieved by the order dated 11.08.2017 passed by learned Judicial

Magistrate First Class, Solapur in Criminal Miscellaneous Application

No. 1678 of 2016 below exhibit 6 preferred Criminal Revision

Application No. 115 of 2017 before the Sessions Court, Solapur. The

learned Sessions Judge, Solapur after hearing both the sides was

pleased to allow the Revision Application preferred by respondent

No.1 by its judgment and order dated 09.04.2018. Hence, these

petitions.

12. Learned Counsel appearing for the petitioner submits that the

learned Judge did not appreciate and accepted the contention of the

petitioner that, the proceedings under Sectionsection 125 of the Cr.P.C. and

proceedings under the D.V.Act, are independent proceedings and

therefore, both the orders of maintenance will stand independently

and hence, the petitioner is entitled to receive maintenance in both

the proceedings from respondent No.1. He further submits that

learned Judge has not properly considered purport and scope of

Sectionsection 20 (1) (d) of the SectionD.V. Act, and that provisions of the said Act

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shall be in addition to and not in derogation of the provisions of any

other law for the time being in force. He further submits that the

learned Judge ought to have considered the fact that, an amount of

maintenance awarded under the D.V. Act, cannot be considered an

amount of maintenance under section 125 of the Cr.P.C.

13. Learned Counsel further submits that, respondent No.1 has not

challenged the order passed by the learned Magistrate on the

application preferred by the petitioner under Sectionsection 125 of the

Cr.P.C. Respondent No.1 is working as a teacher in Solapur Zilla

Parishad School and getting salary of Rs. 60,000/- p.m. and,

therefore, respondent No.1 can easily pay Rs. 5,000/- p.m. towards

maintenance. He further submits that, during existence of first

marriage with the petitioner, in the year 2013, respondent No.1

illegally contracted second marriage with one Sadhana, and out of

said wedlock, they have one son. He further submits that, the

petitioner is residing with her parents and she has no other source of

income except an amount received towards maintenance. He further

submits that, the learned Sessions Judge erroneously exercised

jurisdiction and passed the impugned order without considering

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overall facts and circumstance of the present case. In support of

aforesaid contentions, learned Counsel appearing for the petitioner

placed reliance on the exposition of law in the case of (1) Prakash

Babulal Dangi Versus The State of Maharashtra Anr. along with

connected petition, decided by learned Single Judge of this Court on

10.10.2017 in Criminal Writ Petition No. 3791 of 2016, (2) Shome

Nikhil Danani versus Tanya Banon Danani, decided by learned Single

Judge of Delhi High Court on 11.04.2019 in Criminal Revision

Petition No. 994 of 2018 and (3) Shome Nikhil Danani Versus Tanya

Banon Danani, decided by the Supreme Court on 22.07.2019 in

Petition (s) for Special Leave to Appeal (Crl.) No. (s). 6005/ 2019.

14. Learned Counsel appearing for respondent No.1 while relying

upon the contents of the applications filed by respondent No.1 below

exhibit 6 in Criminal Miscellaneous Application Nos. 1677 of 2016

and 1678 of 2016, submits that the petitioner herein filed two

separate applications praying for maintenance, before the trial Court.

One under Sectionsection 125 of Cr.P.C. and another application was filed

under Sectionsection 12 of the D.V. Act. He further submits that in both the

applications, the Court directed respondent No.1 to pay Rs.5,000/-

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p.m. towards maintenance to the petitioner. He further submits that

the petitioner is not entitled to receive maintenance amount in both

the proceedings. The petitioner is entitled to recover/ receive

maintenance amount in only one case out of two cases filed by the

petitioner. In support of aforesaid contentions, learned Counsel

appearing for respondent No.1 pressed into service the ratio laid

down by learned Single Judge of Bombay High Court, Bench at

Aurangabad, in the case of Vishal s/o.Rajesaheb Gore Vs. Sow.

Aparna w/o. Vishal Gore Anr.1. He invites attention of this Court to

the reasons assigned in the orders passed by the Sessions Court in

Revision Applications filed by respondent No.1, and submits that both

the petitions may be rejected.

15. Heard learned Counsel appearing for the petitioner and learned

Counsel appearing for respondent No.1 at length. With their able

assistance, perused the pleadings in the petitions and grounds taken

therein, and also annexures to the petitions. I have also perused

reasons assigned by both the Courts below. This Court (Coram:

Dr.Shalini Phansalkar-Joshi, J.) on 10.10.2017 had occasion to

1 2018 ALL MR (Cri) 3339.

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consider similar issue in the case of Prakash Babulal Dangi (supra)

and reached to a conclusion that, the proceedings initiated under

Sectionsection 125 of the Cr.P.C. and proceedings initiated by an aggrieved

person i.e., wife taking recourse to Sectionsection 20 (1) (d) of the SectionD.V. Act

are independent proceedings and, therefore, both the orders passed

in the said proceedings will stand independently. It would be apt to

reproduce paragraph Nos. 7 and 8 of the said judgment, which reads

as under :

"7. Now both the proceedings being independent, both the orders
will stand independently and, hence, husband will have to pay not
only the maintenance awarded under the SectionDomestic Violence Act,
which was of an interim nature and taking into consideration that
maintenance only, the wife was awarded the maintenance under
Section 125 of Cr.P.C. only from the date of the order. It has to be
held that this order under Section 125 of Cr.P.C. stands
independently and in addition to the maintenance awarded under
the SectionDomestic Violence Act.

8. It has to be held so in view of Section 20 (1) (d) of the
SectionDomestic Violence Act, which clearly provides that, 'in proceedings
under the D.V.Act, the Magistrate may direct the Respondent to
pay the maintenance to the aggrieved person as well as her
children, if any, including an order under or in addition to an order
of maintenance under Section 125 of Cr.P.C. or any other law for
the time being in force'. Therefore, the power to award
maintenance under SectionD.V. Act is in addition to an order of
maintenance under Section 125 of Cr.P.C. or any other law for the
time being in force. Section 36 of the D.V. Act makes the things
further clear by providing that, ' the provisions of the D.V.Act shall
be in addition to and not in derogation of the provisions of any
other law for the time being in force'. Therefore, it follows that the
amount of maintenance awarded under the D.V.Act cannot be
substituted to the order of maintenance under Section 125 of
Cr.P.C".

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16. After recording the aforesaid findings, in paragraph No. 11 of

the said judgment, the learned Single Judge has observed that, both

the orders; the one passed under the provisions of SectionDomestic

Violence Act and another passed under Sectionsection 125 of Cr.P.C., are

required to be complied by the petitioner therein i.e., Prakash Babulal

Dangi in the said case.

17. The learned Single Judge of Delhi High Court while considering

the similar issue in the case of Shome Nikhil Danani (supra), in

paragraph Nos. 17 to 21 has observed as under :

"17. Clearly the scope of Section 20 of the DV Act is
much wider than that of Section 125 Cr.P.C. While Section
125 SectionCr.P.C. talks only of maintenance, Section 20 DV Act
stipulates payment of monetary relief to meet the expenses
incurred and losses suffered as a result of the domestic
violence including but not limited to loss of earning, medical
expenses, loss caused due to destruction, damage or
removal of any property from the control of aggrieved person.
Further, Section 20(1)(d) of the DV Act clearly provides that
"In proceedings under the SectionDV Act, the magistrate may direct
the Respondent to pay the maintenance to the aggrieved
person as well as her children, if any, including an order under
or in addition to an order of maintenance under Sectionsection 125
Cr.P.C. or any other law for the time being in force".

18. This clearly shows that an order under Section 20
DV Act is not restricted by an order under Sectionsection 125 Cr.P.C.

The Trial Court clearly erred in not appreciating the distinction
between the two provisions and the reasoning is clouded by
an impression that the respondent- wife in the application
under Sectionsection 23 was only seeking an order of maintenance,
which is not the case. In her application under Sectionsection 23 of
the DV Act, the respondent wife has inter-alia sought

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residence rights under Section 19 and protection under
Section 18 apart from the monetary relief under Section 20.

19. Reference may also be had to the Judgment of a
coordinate bench of this court in Karamchand Ors Vs State
NCT of Delhi Anr (2011) 181 DLT 494 and of the Supreme
Court of India in Juveria Abdul Majid Khan Patni Vs Atif Iqbal
Masoori (2014) 10 SCC 736, wherein the Supreme Court has
held that monetary relief as stipulated under Section 20 is
different from maintenance, which can be in addition to an
order of maintenance under Section 125 Cr.P.C.or any other
law.

20. Further, it may be seen that proceeding under the
SectionDV Act and under Sectionsection 125 Cr.P.C are independent of each
other and have different scope, though there is an overlap. In
so far as the overlap is concerned, law has catered for that
eventuality and laid down that at the time of consideration of
an application for grant of maintenance under SectionDV Act,
maintenance fixed under Sectionsection 125 Cr.P.C shall be taken
into account.

21. The Judgment in the case of Rachna Katuria Versus
Ramesh Kathuria (supra) relied upon by learned Senior
Counsel for the Petitioner to contend that SectionDV Act does not
create any additional right to claim maintenance on the part of
the aggrieved person and if a woman had already filed a suit
claiming maintenance and after adjudication maintenance has
been determined, she does not have a right to claim
additional maintenance under the SectionDV Act is per in curium as
it does not notice the very provisions of Section 20 and Section23 of
DV Act. Further now the Supreme Court of India in Juveria
Abdul Majid Khan Patni Vs Atif Iqbal Masoori (supra) has held
that monetary relief under Section 20 DV Act is in addition to
maintenance under Sectionsection 125 Cr.P.C".

18. The judgment passed by learned Single Judge of Delhi High

Court in the case of Shome Nikhil Danani (supra) was challenged by

revision petitioner therein before the Hon'ble Supreme Court, by filing

Petition (s) for Special Leave to Appeal (Crl.) No (s). 6005 of 2019.

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The Supreme Court while dismissing the said petition observed as

under :

".... we are of the view that the High Court of Delhi was
justified in coming to the conclusion that the mere passing of
an order under Section 125 of the Code of Criminal
Procedure 1973 did not preclude the respondent from seeking
appropriate reliefs under the Protection of Women from
SectionDomestic Violence Act 2005. Hence, we decline to entertain
the special leave petition under SectionArticle 136 of the Constitution.
The special leave petition is accordingly dismissed".

19. In the light of discussion made herein-above and since the

scope of Sectionsection 20 of the D.V. Act is much wider than Sectionsection 125 of

the Cr.P.C., and further proceedings under Sectionsection 20 (1) (d) of the

SectionD.V. Act empowers the Magistrate to grant maintenance to the wife

as well as her children. In addition to an order of maintenance

passed under Sectionsection 125 of the Cr.P.C., therefore, the contention of

respondent No.1 that the petitioner is entitled to receive maintenance

amount in only one case is devoid of any merits. Learned Counsel

appearing for respondent No.1 while relying upon the judgment of

learned Single Judge (Coram: P.R.Bora,J.) of Bombay High Court,

Bench at Aurangabad, in the case of Vishal s/o.Rajesaheb Gore

(supra), made submission that, the view taken by this Court in the

said judgment is after interpreting the scope of Sectionsection 125 of the

Cr.P.C and the provisions of the D.V.Act, and ultimate conclusion

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reached is that, an aggrieved person i.e., wife is entitled to receive

maintenance amount in only one case and not in both the

proceedings. In this respect, it is relevant to mention that the

judgment in the case of Prakash Babulal Dangi (supra) was

delivered by the learned Single Judge (Coram: Dr.Shalini

Phansalkar-Joshi, J.) of this Court on 10.10.2017, and the judgment

in the case of Vishal s/o.Rajesaheb Gore (supra) was pronounced on

13.06.2018. An exposition of law in the case of Prakash Babulal

Dangi (supra) has binding force and Co-ordinate Bench is bound to

follow the same unless some dissent is expressed, and the matter is

referred to a larger bench by formulating issues / questions for

consideration of said Bench. In that view of the matter, exposition in

the case of Prakash Babulal Dangi (supra) had binding effect and,

therefore, the said judgment ought to have been followed in the case

of Vishal s/o.Rajesaheb Gore (supra) .

20. Apart from it, as already discussed, there is judgment of the

Delhi High Court in the case of Shome Nikhil Danani (supra) taking

view that the proceedings under Sectionsection 20 of the D.V.Act and

Sectionsection 125 of the Cr.P.C. are independent and both the proceedings

are maintainable. The said judgment is confirmed by the Supreme

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Court. Therefore, the aforesaid proceedings, which were filed under

Sectionsection 125 of the Cr.P.C. and under the D.V.Act were maintainable,

and as a corollary and in addition to maintenance already granted

under Sectionsection 125 of the Cr.P.C., the petitioner was entitled to claim

maintenance under the D.V.Act.

21. For the aforesaid reasons, the impugned judgment and order

dated 09.04.2018 passed by learned Additional Sessions Judge,

Solapur in Criminal Revision Application Nos. 115 of 2017 and 116 of

2017 is hereby quashed and set aside. The order dated 11.08.2017

passed by learned Judicial Magistrate First Class, Solapur rejecting

the applications, below exhibit 6, of respondent No.1 in Criminal

Misc. Application Nos. 1677 of 2016 and 1678 of 2016 stand's

restored and confirmed, and consequently respondent No.1 is

directed to continue to deposit amount towards maintenance strictly

as ordered by the learned Magistrate in both the proceedings,

independently.

22. Rule made absolute in above terms. Both the petitions stand

disposed of accordingly.

(S.S.SHINDE, J.)

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