(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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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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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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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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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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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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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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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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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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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
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( 11 ) cri rev appln 286.18case, 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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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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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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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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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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