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Atmaram S/O. Narayan Sanap vs Sangita W/O. Atmaram Sanap And … on 5 November, 2019

(1) cri rev appln 286.18

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 286 OF 2018

1. Atmaram S/o Narayan Sanap,
Age 46 years, Occ. Service,
R/o Tandalwadi (Bhilla),
Tq. Beed, Dist. Beed.
Presently residing at –
Janai Nivas, House No.2362,
Narsimh Colony, Chakradhar Nagar,
Shahu Nagar, Pangri road, Beed,
Tq. Dist. Beed. … APPLICANT
(Original Non applicant No.1)
Versus

1. Sangita W/o Atmaram Sanap,
Age 40 years, Occu. Household,
R/o Tandalwadi (Bhilla),
Tq. Dist. Beed.

2. Kalpana D/o Atmaram Sanap,
Age 22 years, Occ. Education,
R/o. – As above.

3. Taniksha D/o Atmaram Sanap,
Age 16 years, Occ. Education,
R/o. – As above.
Minor under Guardianship of
Respondent no.1. … RESPONDENTS
(Original Applicant Nos. 1 to 3)

Advocate for Applicant : Mr. C.V. Dharurkar.
Advocate for Respondents : Mr. Sudarshan J. Salunke.

CORAM : MANGESH S. PATIL, J.

RESERVED ON: 26.09.2019
PRONOUNCED ON: 05.11.2019

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(2) cri rev appln 286.18

JUDGMENT :-

Heard. Rule. The Rule is made returnable forthwith. The learned

advocate for the Respondents waives service. At the request of both the sides

the matter is heard finally at the stage of admission.

2. The Applicant was married to the respondent no.1 on 15.05.1993

and the couple was blessed with Respondent nos. 2 and 3 daughters out of the

wedlock. He is impugning the concurrent findings in the judgment and order

passed by the Magistrate in a proceeding initiated by the Respondent no.1

under Section 12 of the Protection of Women from SectionDomestic Violence Act,

2005 (hereinafter referred as to the ‘SectionD.V. Act’) dated 02.11.2017 and the one

passed by the learned Sessions Judge in the appeal preferred by him whereby

the Sessions Judge dismissed it by the judgment and order dated 17.10.2018.

3. Shorn of verbiage the averments of the Respondent no.1 in her

complaint under Section 12 of the D.V. Act are to the effect that since after the

marriage on 15.05.1993 she started cohabiting with the Applicant in his house

at Tandalwadi (Bhilla) Taluka and District Beed. Since the marriage itself he

subjected her to physical and mental abuse by declaring that he wanted to

marry with an educated girl but had to marry her who was illiterate. Some

how she continued to pull on. She then alleged that he played a fraud by

deceiving her to get an admission to D.Ed. course by showing her to be a

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(3) cri rev appln 286.18

divorcee and compelled her to obtain a divorce in Hindu Marriage Petition

No.66 of 2000. He compelled her to give consent for such divorce by

threatening her to desert her and the daughters. He promised her that the

decree would only be a paper decree and obtained a decree for divorce on

20.10.2000. She further averred that in spite of passing of such a decree for

divorce she continued to cohabit with him in the same household as husband

and wife along with their daughters and stayed there for a period of ten long

years.

4. She further averred that in April 2010 he solemnized marriage

with one Sheetal Niwas Bade and brought her home. He declared that since

there was a divorce there was no relation between her and him and threatened

her of dire consequences if she objected. Since thereafter the second wife has

been cohabiting with them in the same house. She then alleged that on

22.08.2010 she was abused, beaten and driven out from the house. She

approached police and a Non Cognizable Case No.226 of 2010 was registered.

Annoyed by it he again assaulted her on 24.11.2010 therefore she again

approached police and another Non Cognizable Case No.361of 2010 was

registered. A similar episode occurred again on 15.10.2011 and another Non

Cognizable Case No.331 of 2011 was registered. She then alleged that even on

the date of that complaint she was cohabiting in the same household with their

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(4) cri rev appln 286.18

daughters. She was subjected to physical torture. She is not being provided

for her maintenance. He is also not providing for the education and other

daily expenses of the daughters and persistently insisted her to leave the

company.

5. She then alleged that he is serving as a lecturer in a college and

was earning Rs. 27,000/- and odd. Besides he has agricultural land and was

earning handsomely. He also derives income from rent.

6. Lastly she averred that she has also filed Regular Civil Suit No.342

of 2011 on 08.08.2011 seeking declaration that the decree for divorce was null

and void and has also filed a police complaint for the offences punishable

under Section 498-A, Section494, Section420, Section504, Section323 read with Section 34 of the Indian

Penal Code. Accordingly she claimed various reliefs under the SectionD.V. Act.

7. The Applicant contested that proceeding by filing his written

statement. He admitted to have solemnized marriage with the Respondent

no.1 and even admitted paternity of both the girls. He denied to have ever

subjected her to any domestic violence or to have driven out of his house. He

contended that after the birth of first daughter she started frequently

quarreling with him and on her own left his company in the year 1997.

Attempts were made to resume conjugal rights during the period 1997 to June

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(5) cri rev appln 286.18

2000. But even during that period she never cohabited at a stretch for more

then a month and half. He then admitted to have obtained a decree for

divorce but has denied to have engineered it by practising any fraud. He

contended that since she was not ready to resume cohabitation he had no

other option but to file the proceeding for divorce on the ground of desertion.

They entered into a settlement. As per the terms of the settlement she agreed

to receive Rs.30,000/- by way of permanent alimony and even as a part of the

compromise an agricultural land was purchased in her name. Having accepted

such terms of settlement after due verification the decree was passed by the

learned Judge which reached finality and brought about severance of marital

ties once for all. Since thereafter she never resumed cohabitation. Annoyed by

he having solemnized second marriage, after a lapse of ten long years since the

decree for divorce was passed, she has filed concocted proceedings and has

also filed false and bogus complaint.

8. He admitted that he has been serving as a lecturer but contended

that he was still maintaining the daughters. The first daughter is cohabiting

with him and even he is spending for the education and livelihood of the

second daughter. Thus he prayed to dismiss the complaint.

9. After giving an opportunity to lead evidence to both the sides and

having heard them finally, by the impugned judgment and order the learned

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(6) cri rev appln 286.18

Magistrate held that the Respondent no.1 was still having domestic relations

with the Applicant. There was enough evidence to conclude that she was

subjected to domestic violence and even though there was a dispute regarding

divorce pending before the Civil Court, she was entitled to claim maintenance

and accordingly directed him to pay to the Respondent nos. 1 and 3 Rs.

7,500/- per month and Rs.5,000/- per month respectively from the date of the

application. The Magistrate also directed him to pay to the Respondent no.1

Rs.1,00,000/- as compensation and Rs.2,000/- as costs. He also directed him

not to subject her to any domestic violence. However holding that the first

daughter was residing with him, the proceeding to her extent was dismissed.

10. He preferred appeal under Section 29 of the D.V. Act but the

learned Sessions Judge concurred with the observations and the conclusions

drawn by the Magistrate and dismissed the appeal. Hence this Revision.

11. The learned advocate for the Applicant submitted that there is

admittedly a decree for divorce which has reached finality. It is after a long

lapse of ten years that the Respondent no.1 has preferred to impugn such a

decree by filing a suit in the year 2010. So long as it is not quashed and set

aside, it has the sanctity of law as held in the case of Inderjit Singh Grewal Vs/

State of Punjab and Another; 2012 CRI. L.J. 309. The learned advocate also

submitted that in view of the observations of the Supreme Court, the facts in

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(7) cri rev appln 286.18

that case being similar to the one in the matter in hand, the Courts below

ought not to have bypassed the observations and the conclusions and should

have dismissed the complaint. The decision was cited before both the Courts

below and they have not given sound reasons to bypass it. The learned

advocate would then submit that both the Courts below have failed to consider

that the decree for divorce was obtained by way of a compromise and ought

not to have been easily circumvented.

12. The learned advocate for the Applicant also submitted that both

the Courts below have not appreciated the facts and evidence in the proper

perspective and have reached a perverse and arbitrary conclusion simply on

the basis of the fact that the second daughter was born after the decree for

divorce was obtained, to conclude that in spite of decree of divorce the couple

had continued to cohabit as husband and wife. Both the Courts failed to

appreciate the fact that the second daughter was born barely three and half

months after the divorce and it was just possible that the Respondent no.1 was

pregnant at the time of divorce. The Applicant never disputed the paternity of

the second daughter and at the most it could be said that the couple had access

to each other when the second daughter could have been conceived which

could be the time up to June 2000. The learned advocate thereafter sought to

place reliance on the judgment of this Court in the case of Jayesh Uttamrao

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(8) cri rev appln 286.18

Khairnar and Others Vs. State of Maharashtra and Others; 2013 (3) Mh.L.J.

305, Kishor Shrirampant Kale Vs. Sou. Shalini Kishor Kale and Others; 2010

CRI. L.J. 4049 and an unreported decision of a coordinate bench of this Court

(Nagpur bench) in Smt. Sadhana w/o Hemant Walwatkar Vs. Hemant s/o

Shalikramji Walwatkar in Criminal Revision Application (Revn.) No.121 of

2018 dated 18.04.2019.

13. The learned advocate for the Respondents vehemently submitted

that there was ample evidence before both the Courts below demonstrating

that in spite of a decree for divorce, the couple had cohabited together as

husband and wife for a considerable period of time. There was ample

evidence to show that the decree for divorce was obtained to enable the

Respondent no.1 to take admission to D.Ed. course under a category which

provided for special seat to a divorcee women. The learned advocate would

further submit that even assuming for the sake of arguments that there was

such a divorce, still, as has been held by the Supreme Court in the case of

Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori and Another; (2014) 10

Supreme Court Cases 736, even if it is assumed that the Respondent no.1 is a

divorcee, she is entitled to file a proceeding under Section 12 of the D.V. Act in

respect of a past domestic violence. The learned advocate would further point

out that in this decision the Supreme Court has distinguished the earlier

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(9) cri rev appln 286.18

decision in the case of Inderjit Singh Grewal (supra). The two Courts below

have rightly appreciated such legal scenario and have rightly held the

Respondent no.1 to be entitled to file a proceeding under Section 12 of the D.V.

Act. The learned advocate also cited decisions of various High Courts rendered

relying upon the decision in the case of Juveria Abdul Majid Patni (supra).

14. I have carefully gone through the record and the proceeding and

the judgments of the two Courts below. Needless to state that since there are

concurrent findings of the two Courts below, this Court should be circumspect

in invoking the revisional powers under Section 397 read with Section 401 of

the Code of Criminal Procedure. It is only if the decisions rendered by the two

Courts below can be said to be either perverse, arbitrary or capricious that this

Court can invoke such powers.

15. As can be appreciated the whole controversy revolves around the

fact as to what is the consequence of the decree of divorce in the peculiar facts

and circumstances of the matter in hand.

16. As has been laid down in the case of Inderjit Singh Grewal (supra)

when the decree for divorce has been challenged by the Respondent no.1 by

filing a civil suit wherein she is alleging that it was obtained by fraud or

misrepresentation, so long as the decree for divorce is not quashed and set

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( 10 ) cri rev appln 286.18

aside or declared as null and void in that civil proceeding, both the Courts

below and even this Court cannot overlook the decree of divorce. It has been

specifically observed in the case of Inderjit Singh Grewal (supra) that even if

such a decree is non est or null and void it will have to be so declared by the

competent Civil Court and would not lose its efficacy till then. Since

admittedly a civil suit filed by the Respondent no.1 has not yet reached finality,

one can only proceed on the premise that there is a decree of divorce between

the Applicant and the Respondent no.1.

17. However, in the case of Juveria Abdul Majid Patni(supra), the

decision in the case of Inderjit Singh Grewal (supra) has been distinguished

with following observations in paragraph no. 28:

“28. In Inderjit Singh Grewal the appellant Inderjit Singh and
Respondent 2 of the said case got married on 23-9-1998. The
parties to the marriage could not pull on well together and
decided to get divorce and, therefore, filed a case for divorce
by mutual consent under Section 13-B of the Hindu Marriage
Act, 1955. After recording the statement in the said case, the
proceedings were adjourned for a period of more than six
months to enable them to ponder over the issue. The parties
again appeared before the Court on second motion and on the
basis of their statement, the District Judge, Ludhiana vide
judgment and order dated 20-3-2008 allowed the petition and
dissolved their marriage. After dissolution of marriage the
wife filed a complaint before the Senior Superintendent of
Police, Ludhiana against Inderjit Singh under the provisions
of the SectionDomestic Violence Act alleging that the decree of
divorce obtained by them was a sham transaction. It was
further alleged that even after getting divorce both of them
had been living together as husband and wife. In the said

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( 11 ) cri rev appln 286.18

case, the Superintendent of Police, City I conducted the full-
fledged inquiry and reported that the parties had been living
separately after the dissolution of the marriage. Hence, no
case was made out against Inderjit Singh. In this context, this
Court held that Section 12 “application to Magistrate” under
the SectionDomestic Violence Act challenging the said divorce was
not maintainable and in the interest of justice and to stop the
abuse of process of court, the petition under Section 482
Cr.PC was allowed. The law laid down in the said case is not
applicable for the purpose of determination of the present
case.”

18. As can be noticed, even in the matter of Inderjit Singh Grewal

(supra), there was a divorce by mutual consent under Section 13 (b) of the

SectionHindu Marriage Act, 1955. A first motion was made and the matter was

adjourned for statutory period of six months to enable the parties to reflect. A

second motion was made after the lapse of six months and it is thereafter that

a judgment and order dissolving the marriage was passed. It is thereafter that

the wife had filed a complaint with the Superintendent of Police complaining

of domestic violence alleging that the decree of divorce was a sham transaction

and in spite of such a decree the couple was living together as husband and

wife. The Superintendent of Police conducted a full-fledged inquiry and had

reported that the parties were living separately since after dissolution of

marriage and in that context the Supreme Court held that the wife was not

entitled to file any application to the Magistrate under Section 12 of the D. V.

Act and that the proceeding was rightly quashed by invoking the powers under

Section 482 of the Code of Criminal Procedure.

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( 12 ) cri rev appln 286.18

19. In the matter in hand the situation is not exactly similar to the one

that was obtaining before the Supreme Court in the case of Inderjit Singh

Grewal (supra). Both the Courts below have discussed the evidence and have

objectively scanned it and have demonstrated as to how prima facie the decree

of divorce was not acted upon and the couple i.e. Applicant and the

respondent no.1 had continued to cohabit in the same abode in spite of such a

decree.

20. True it is that while appreciating these circumstances, both the

Courts below have given importance to the birth of the second child after the

decree of divorce was passed and in doing so have jumped to a conclusion that

this circumstance alone was sufficient to demonstrate that in spite of decree of

divorce the couple had continued to cohabit as husband and wife. However,

the learned Magistrate and the learned Sessions Judge failed to appreciate the

fact that the second daughter was born on 03.02.2001 i.e. barely three to four

months of the date of dissolution of marriage i.e. 20.10.2000. They failed to

consider the fact that even according to the Applicant, the respondent no.1 was

cohabiting with him till June 2000 and if that was the case, the second

daughter could have been conceived till June 2000. He is not disputing her

paternity and therefore, it cannot be said that she was convicted after the

decree of divorce was passed.

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( 13 ) cri rev appln 286.18

21. Be that as it may, there was ample evidence before the two Courts

below to come to a plausible conclusion that though the decree of divorce was

obtained in the year 2000, the Applicant and the Respondent no.1 had

continued to cohabit in the same household. If that was the case, she was

indeed entitled to file a proceeding under Section 12 of the D.V. Act.

22. Besides, assuming for the sake of arguments that the marriage

stood dissolved by the decree of divorce, still, as has been held in the case of

Juveria Abdul Majid Patni (supra), she would be entitled to file a proceeding

under Section 12 of the D.V. Act in respect of the past domestic violence. The

following observations from paragraph no. 30 are relevant:

“30. An act of domestic violence once committed,
subsequent decree of divorce will not absolve the liability of
the respondent from the offence committed or to deny the
benefit to which the aggrieved person is entitled under the
SectionDomestic Violence Act, 2005 including monetary relief under
Section 20, child custody under Section 21, compensation
under Section 22 and interim or ex parte order under Section
23 of the Domestic Violence Act, 2005.”

23. In view of such observations, no fault can be found in the decision

of the two Courts below in relying upon these observations and holding that

the proceeding initiated by the Respondent no.1 was maintainable.

24. So far as decision of coordinate benches of this Court in the case

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( 14 ) cri rev appln 286.18

of Jayesh Uttamrao Khairnar (supra) and Kishor Shrirampant Kale (supra) are

concerned, obviously the decisions were rendered prior to the decision in the

case of Juveria Abdul Majid Patni (supra). Besides the facts and circumstances

obtaining in those matters are clearly distinguishable from the facts of the

present case.

25. So far as the decision in the case of Smt. Sadhana w/o Hemant

Walwatkar (supra) is concerned, it seems to be per incuriam in as much as the

decision in the case of Juveria Abdul Majid Patni (supra) has been refused to

be followed when it clearly distinguishes the decision in the case of Inderjit

Singh Grewal (supra). Rather it has been erroneously observed that the

decision in the case of Juveria Abdul Majid Patni (supra) was considered by the

Supreme Court in the case of Inderjit Singh Grewal (supra), when factually it

could not have been since the decision in the case of Juveria Abdul Majid Patni

(supra) was later in point of time. Therefore the Applicant is not entitled to

derive any benefit from the decisions of this Court in the case of Jayesh

Uttamrao Khairnar, Smt. Sadhana w/o Hemant Walwatkar and Kishor

Shrirampant Kale (supra).

26. Having concluded that the two Courts below have rightly come to

a conclusion about entitlement of the Respondent no.1 to file a proceeding

under Section 12 of the D.V. Act, the question of the reliefs to which she is

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( 15 ) cri rev appln 286.18

entitled to remain to be considered. As is demonstrated by the two Courts

below, the Applicant in his cross-examination has specifically admitted that he

earns a salary of Rs.46,000/- per month and also owns agricultural land. He

also admitted that the second daughter has been residing with the Respondent

no.1. He then admitted that till the year 2010 even the first daughter was

residing with the Respondent no.1 and it is only thereafter that the first

daughter started cohabiting with him. He was unable to produce any receipts

about having spent for the education of the second daughter and also admitted

not to have provided for maintenance of the Respondent no.1. Both the Courts

below having considered such evidence have decided the quantum of

maintenance and the compensation. I find no sufficient and cogent reason to

interfere even in respect of the quantum. There is no substance in the revision

and it is liable to be dismissed.

27. The Revision is dismissed. The Rule is discharged.

[MANGESH S. PATIL, J.]

KAKADE

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