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Atul Omkar Sahay Jauhari vs The State Of Maharashtra And Anr on 21 December, 2018

wp-124-2015.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.124 OF 2015
WITH
WRIT PETITION NO.3627 OF 2017

Atul Omkar Sahay Jauhari …Petitioner
vs.
The State of Maharashtra and Anr. …Respondents

Mr. Atul Omkar Jauhari, the Petitioner in person.
Ms. Neena Jauhari, the Respondent in person present.

CORAM : M. S. SONAK, J.
RESERVED ON : 14th DECEMBER, 2018
PRONOUNCED ON : 21st DECEMBER, 2018
JUDGMENT:

. Heard Mr. Atul Omkar Jauhari, the Petitioner in person

as well as his wife Ms. Neena Atul Jauhari, the Respondent No. 2

in person.

2. The challenge in Writ Petition No. 124 of 2015 is to the

orders dated 31st December, 2012 and 4th August, 2014 made by

the Judicial Magistrate and the Sessions Judge in proceeding

under the Protection of Women from Domestic Violence Act, 2005

(D.V. Act).

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3. This Court, by order dated 21st December, 2016, issued

rule in the Petition but declined the prayer for interim relief. The

order dated 21st December, 2016 read thus:

1 The above Writ Petition takes exception to the
judgment and order dated 04/08/2014 passed by the
learned 2nd Additional Sessions Judge, Thane by which
order the Appeal filed by the Petitioner against the
judgment and order dated 31/12/2012 passed in the
proceedings initiated under the Protection of Women from
Domestic Violence Act, 2005 being S.C.C. No.367 of 2008
is taken exception to by way of the above Petition.

2 There is a concurrent finding of fact recorded by both
the Courts below that the Petitioner herein has caused
domestic violence to the Respondent wife. The said finding
has been principally assailed in the above Petition.

3 Hence “Rule.” The Respondent No.2 waives notice.

4 In terms of the final order passed by the learned Civil
Judge Junior Division and JMFC, Vashi, the Petitioner
herein who was the Respondent in the said proceedings
has been restrained from creating third party interest in
the matrimonial house. In so far as the maintenance
granted by the learned Civil Judge Senior Division Thane
is concerned, the said order has come to an end in view of
the fact that the Marriage Petition filed by the Petitioner
herein came to be dismissed by the said Court. Hence
when the matter reached by way of an Appeal to the
Sessions Court against the order dated 31/12/2012
passed by the learned CJJD JMFC, Vashi, the Appellate
Court having regard to the fact that the maintenance
order passed by the learned Civil Judge, Senior Division
Thane has come to an end in view of the dismissal of the
Marriage Petition filed by the Petitioner herein has
enhanced the maintenance to the Respondent No.2 from

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Rs.5,000/to Rs.25,000/. This enhancement as indicated
above is ascribable to the fact that the maintenance
granted by the Civil Judge, Senior Division, Thane has
come to an end. The reason for grant of the said
maintenance has been mentioned in the impugned order.

5 It is required to be noted that the Respondent No.2
herein is working as a Yoga Teacher from which,
according to her, her income is ranging from Rs.6,000/to
Rs.8,000/. The couple has two grown up children i.e. a
son who is 26 years old who is pursuing management
studies in IMT, Gaziyabad and a daughter who is 19
years old who is also pursuing management studies in
SIES, Nerul, Navi Mumbai. The fees of the son and
daughter are paid by the Petitioner. Undoubtedly there
would be other expenses which the Respondent No.2 wife
would have to take care of especially having regard to the
fact that they are grown up children. In my view,
therefore, no interim relief can be granted in respect of
the amount of maintenance as also no interim relief can
be granted in respect of the Respondent No.2 being
permitted to occupy the bed room in the flat in question.

4. In the present matter, both Mr. Atul Jauhari and his

wife Neeena Jauhari had applied to the Committee constituted

under Chapter IV-A (ii) of the Bombay High Court Appellate Side

Rules for permission to appear in person. The Committee, after

taking note of the fact that Mr. Atul made false statement, declined

to accord any permission to Atul Jauhari to present his case in

person. However, such permission was granted to his wife Ms.

Neena.

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5. Although, it is true that Atul Jauhari did make a false

statement before the Committee, in the peculiar circumstances of

the present matter, Atul Jauhari was permitted to present his case

in person. Atul Jauhari pointed out that he had in the past

engaged several advocates to appear on his behalf and his

advocates have now refused to appear on his behalf. His wife

Neena Jauhari has also made complaints that her husband Atul

keeps seeking adjournments in this matter thereby delaying, final

disposal of this matter. Therefore, taking into consideration all

these circumstances, Atul Jauhari was permitted to present his

case in person.

6. Mr. Atul Jauhari, the Petitioner submits that no less

than 11 complaints were filed by his wife to the police authorities

against him. However, such complaints were false and no

substance was found in any such complaints. He submits that

there was absolutely no material on record to establish that the

Petitioner had indulged in any domestic violence as defined under

Section 3 of the D.V. Act. He submits that in absence of any

material on record to establish that there was any domestic

violence, two Courts clearly exceeded their jurisdiction in making

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the impugned orders. Mr. Atul submits that in the present case,

the protection officer has not submitted any domestic incident

report and in the absence of such report, the Magistrate, was not

at all empowered to make the impugned order. He submits that

this is serious infirmity in making the impugned orders, which

therefore deserve to be set aside.

7. Mr. Atul submits that he is jobless since 2010. He does

not earn any thing and this aspect was not taken in to

consideration by the two Courts whilst awarding maintenance. He

submits that without there being any documentary evidence as to

the earning of the Petitioner. The two Courts, have wrongly

concluded that the income of the Petitioner was Rs. 25 lakhs p.a.

The Petitioner submits that in fact the record indicates that the

Petitioner’s salary was hardly Rs. 60,000/- p.m. in the year 2008

an therefore it is inconceivable that his income would be Rs. 25

lakhs p.a. by the year 2012. He submits that there is no evidence

that the Petitioner was working with M/s. M.S. Thor (U.K based

company). Mr. Atul submits that the amount of maintenance

awarded to the wife and children is excessive. In awarding such

maintenance, the two Courts failed to appreciate that the

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Respondent No. 2 is a Yoga teacher who used to higher hall to

conduct her Yoga classes. Therefore, the two Courts erred in

believing the Respondent No. 2 when she stated that her income

was only Rs. 6,000/- p.m. In any case, the two Courts failed to

consider that the income of the Respondent No. 2 must have

increased manifold in the last 10 years because she continue to

take Yoga classes and private Yoga tuitions.

8. In Writ Petition No. 3627 of 2017, the Petitioner

challenges mainly orders dated 3 rd August, 2017 28th August, 2017

issued by J.M.F.C., issuing warrants against him for failure to

comply with orders for payment of maintenance.

9. Mr. Atul states that even though he has cleared all the

arrears of maintenance and there are presently no arrears of

maintenance to be paid, no less than 3 distress warrants came to

be issued against the Petitioner. The Petitioner submits that this is

totally inappropriate and therefore executing Courts be directed to

forthwith withdraw such distress warrants.

10. Ms. Neena Jauhari, the Respondent No. 2 defends the

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impugned orders on the basis of reasoning contained therein. She

submits that the Petitioner is a well qualified person and earns

substantially. She submits that the Petitioner is harassing her and

is determined to deny her maintenance. She submits that there are

still arrears of over Rs. 11 lakhs or even more of maintenance. She

submits that even after issuance of distress warrant, the Petitioner

avoid the payment of maintenance. She therefore submits that this

Petition may be dismissed and the Petitioner be directed to clear all

the arrears.

11. The written submissions placed on record by the

Petitioner on the previous occasion have also been taken into

consideration as part of Petitioner’s contentions.

12. The rival contentions now fall for my determination.

13. In the present case, there is no dispute that the

Petitioner and Respondent No. 2 are in domestic relationship with

one another as defined under Section 2(f) of the D.V. Act. There is

evidence that the Petitioner has indulged in domestic violence as

against the Respondent No. 2. The Petitioner is not right in his

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contention that the police authorities found no substance in the 11

complaints made by Respondent No. 2 against the Petitioner. In

any case, the scope of criminal proceeding and the scope of

proceeding under D.V. Act is quite different. In the proceeding

under D.V. Act the independent evidence was lead by the parties

and upon considering of the same, the two Courts have recorded

concurrent findings that the Petitioner indeed perpetrated domestic

violence on the Respondent No. 2. The Petitioner has not been able

to demonstrate any errors or perversity in these findings of fact

recorded by two Courts on the aspect of domestic violence.

14. The material on record indeed establishes that the

Petitioner used to beat and abuse the Respondent No. 2. The

Respondent No. 2 has deposed to the domestic violence suffered by

her in substantial details. Her evidence has not been dented either

in the course of cross examination or the other evidence on record.

Significantly, the Respondent No. 2 deposed that the Petitioner’s

own sister also made attempts at conciliation and in order to

convince the Petitioner to behave better with Respondent No. 2 and

also to accept the children in the new house. Since, the case of the

Petitioner is that he has perpetrated no domestic violence

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whatsoever against Respondent No. 2, the minimum that was

expected of the Petitioner was to examine his own sister who would

have been in the best position to throw light on the domestic

circumstances, at the matrimonial home of the Petitioner and

Respondent No. 2. However, the Petitioner, failed to examine his

own sister and therefore, adverse inference is liable to be drawn

against the Petitioner.

15. The two Courts have recorded findings that the

Petitioner indeed perpetrated domestic violence upon the

Respondent No. 2. This domestic violence was in the form of both

physical as well as mental abuse. The Petitioner by refusing the

maintenance to Respondent No. 2 also perpetrated economical

abuse upon the Respondent No. 2. Despite, orders for

maintenance, the Petitioner, refused to pay the maintenance

requiring the Respondent No. 2 to repeatedly approach the various

Courts of law. The Respondent No. 2 now states that the Petitioner

is still due and payable the arrears of maintenance and over Rs. 11

lakhs, for which she is made to approach the Courts.

16. There is no substance in the contention of the Petitioner

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that he is unable to maintain Respondent No. 2. The record

indicates that during the pendency of H.M. Petition NO. 322 of

2008 instituted by the Petitioner against the Respondent No. 2

seeking for divorce, there was an order which required the

Petitioner to pay maintenance of Rs. 20,000/- to Respondent No. 2.

However, this Petition came to be dismissed on 21 st April, 2014.

The Petitioner as recorded by Sessions Judge, in the impugned

order dated 4th August, 2014, had not chosen to challenge the

order dated 21st April, 2014 dismissing his H.M. Petition No. 322 of

2008. Since the maintenance of Rs. 20,000/- p.m. was Pendente

lite, the same terminated consequent upon the dismissal of H.M.

Petition No. 322 of 2008. The Magistrate, in the proceeding under

D.V. Act quite correctly took cognizance of this circumstance and

awarded maintenance of Rs. 25,000/- to Respondent No. 2, taking

into consideration the time lag and the fact that the cost of living

increased with time.

17. The Petitioner, has not at all been candid as regards his

employment status. His entire objective appears to be to suppress

facts and take advantage of the unfortunate situation in which

Respondent No. 2 is unable to produce documents or documentary

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evidence as regards the Petitioner’s employment status and precise

income. However, there are attendant circumstances, on basis of

which the two Courts have rightly concluded that the Petitioner is

very much in a position to pay the maintenance awarded by them

to Respondent No. 2. There is neither any perversity nor any

jurisdictional error in the findings recorded by the two Courts or

the approach of the two Courts.

18. The Respondent No. 2 has herself admitted to being a

Yoga teacher. No doubt, Respondent No. 2 must be earning some

income as Yoga teacher. However, it is only after taking into

consideration this income that the maintenance amount has been

determined by the two Courts.

19. This is not a case where the Magistrate has not taken

into consideration the domestic incidents reports or the report of

the service provider. The Magistrate has taken into consideration

both the documentary as well as oral evidence placed on record by

both the parties from which it is evident that the Petitioner has

perpetrated domestic violence upon the Respondent No. 2. The

Magistrate as well as Sessions Judge have taken into consideration

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the overall facts and circumstances of the case and the findings

recorded by the two Courts are amply borne out from the material

on record. Clearly, therefore, there is no case made out to warrant

interference.

20. There is no merit in the grievance made by the

Petitioner in Writ Petition No. 3627 of 2017. The J.M.F.C. upon

verification that the Petitioner is avoiding payment of maintenance,

even though there was no stay from any higher Courts, was left

with no alternative than issuing warrants against the Petitioner. By

order dated 3rd August, 2017, this is precisely what the J.M.F.C

has done. By application at Exhibit 25, the Petitioner applied for

recall of the warrant. The J.M.F.C, upon detailed consideration of

all Petitioner’s contention and the authorities relied upon by him,

rejected this application by order dated 28 th August, 2017. There is

no error in the two orders so as to warrant any interference with

them.

21. The Courts, before issuing warrants may verify whether

the Petitioner is in arrears. This should not be taken as licence by

the Petitioner to delay the execution proceeding or to raise some

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additional and extraneous issues like the issues which he

attempted to raise in the course of argument. The Petitioner

attempted to urge that the payments made by him for education of

his children should also to construed as payments made for

maintenance of Respondent NO. 2 in terms of the impugned order

and such other issues. Needless to add that such contention are

totally misconceived and therefore, may not be entertained by the

executing authorities.

22. The Petitioner has also relied upon the following

authorities in support of the Petition.

(1) Govinda Bhagoji Kamble and Ors. vs. Sadu Bapu

Kambale, (2005) 1 Mh.L.J. 651.

(2) Ashok Yeshwant Samant vs. Suparna Ashok Samant,

1991 Cri.L.J. 766.

(3) T. Kausalya vs. T. Narayana Reddy, 1998 Cri.L.J. 1795

(4) Sanjay Bhardwaj and Ors. vs. The State, Cri. M.C. No.

491 of 2009. (Delhi High Court)

(5) Ritu Raj Kant vs. Anita, Cm(M) No. 1790 of 2006, Delhi

High Court.

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(6) Kaushik vs. Sangeeta Kaushik and Ors., Writ Petition

No. 32 of 2014

(7) Bhagwan Dutt vs. Kamla Devi and Anr., Criminal Appeal

No. 228 of 1970.

23. The decision in Govinda Kamble (supra) is not at all

relevant to the grounds urged by the Petitioner in the present

proceeding and therefore can be of no assistance to the Petitioner.

In case of Ashok Samant (supra), the learned single Judge of this

Court has held that there is no provision either under Section

125(3) or 127 (1) of Cr.P.C to enable the trial Judge to proceed with

the application on the condition of deposit part or whole of the

arrears of interim maintenance. Again even this is not at all

relevant to the issue raised in the present Petition. Finally the

decision of the learned single Judge of Andhra Pradesh High Court

in T. Kausalya (supra) entirely based on the facts peculiar to the

said matter on the issue of maintenance.

24. The ruling in Sanjay Bhardwaj (supra) and Ritu Raj

Kant (supra) of the Delhi High Court turn on the peculiar facts

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which were found to be involved in the said matters. They have no

bearing on the issue raised in the present Petition. In case of

Kaushik (supra) decided on 5th May, 2014, the learned single

Judge of this Court has held that in the absence of any findings as

to domestic violence, the Magistrate has no power to award the

maintenance. In the present case, based upon the evidence on

record, the Magistrate, has recorded clear findings that the

Petitioner perpetrated domestic violence upon the Respondent No.

2. Therefore, the decision in Kaushik (supra) is also not

applicable. The decision in the case of Bhagwan Dutt (supra)

relates to the expression “Unable to maintain herself” in the context

of maintenance. In the present case, consistent with the ruling of

the Apex Court, the two Courts have correctly concluded that the

Petitioner is liable to pay maintenance in which she was

accustomed before she become a victim of domestic violence.

25. In any case, refers to later decision in the case of

Shamima Farooqui vs. Shahid Khan, (2015) 5 SCC 705, the

Hon’ble Supreme Court has held that inherent and fundamental

principle behind Section 125 of Cr.P.C. is for the amelioration of

the financial state of affairs as well as the mental agony and

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anguish that a woman suffers when she is compelled to leave her

matrimonial home. The statute commands that there have to be

some acceptable arrangements so that she can sustain herself.

This principle of sustenance gets more heightened when the

children are with her. Sustenance does not mean mere survival. A

woman who is constrained to leave matrimonial home, should not

be allowed to feel that she has fallen from grace and move hither

and thither for arranging sustenance. As per law, she is entitled to

lead a life in similar manner as she would have lived in the house

of her husband. Maintenance under Section 125 of Cr.P.C. has to

be adequate so that she can live with dignity as she would have

lived in her matrimonial home. She cannot be compelled to become

a destitute or a beggar.

26. At paragraph 19, the Hon’ble Supreme Court observed

thus :

“19. From the aforesaid enunciation of law it is
limpid that the obligation of the husband is on a
higher pedestal when the question of maintenance of
wife and children arises. When the woman leaves
the matrimonial home, the situation is quite different.
She is deprived of many a comfort. Sometimes her
faith in life reduces. Sometimes, she feels she has
lost the tenderest friend. There may be a feeling that
her fearless courage has brought her the misfortune.

At this stage, the only comfort that the law can

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impose is that the husband is bound to give
monetary comfort. That is the only soothing legal
balm, for she cannot be allowed to resign to destiny.
Therefore, the lawful imposition for grant of
maintenance allowance”.

27] In Bhuwan Mohan Singh Vs. Meena and ors (2015) 6 SCC

353 the Hon’ble Supreme Court at paragraph 2 has observed thus:

“2. Be it ingeminated that Section 125 of the Code of
Criminal Procedure (for short “the Code”) was
conceived to ameliorate the agony, anguish, financial
suffering of a woman who left her matrimonial home
for the reasons provided in the provision so that some
suitable arrangements can be made by the court and
she can sustain herself and also her children if they
are with her. The concept of sustenance does not
necessarily mean to lead the life of an animal, feel
like an unperson to be thrown away from grace and
roam for her basic maintenance somewhere else. She
is entitled in law to lead a life in the similarmanner
as she would have lived in the house of her husband.
That is where the status and strata come into play,
and that is where the obligations of the husband, in
case of a wife, become a prominent one. In a
proceeding of this nature, the husband cannot take
subterfuges to deprive her of the benefit of living with
dignity. Regard being had to the solemn pledge at the
time of marriage and also in consonance with the
statutory law that governs the field, it is the
obligation of the husband to see that the wife does
not become a destitute, a beggar. A situation is not to
be maladroitly created whereunder she is compelled
to resign to her fate and think of life “dust unto dust”.

It is totally impermissible. In fact, it is the sacrosanct
duty to render the financial support even if the
husband is required to earn money with physical
labour, if he is ablebodied. There is no escape route

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unless there is an order from the court that the wife
is not entitled to get maintenance from the husband
on any legally permissible grounds”.

28] In Badshah Vs. Urmila Badshah Godse and Anr, (2014)

1 SCC 188, the Hon’ble Supreme Court has commended purposive

interpretation to the provisions of law which deal with

maintenance. The purpose is to achieve ‘social justice’. In

interpreting provisions relating to maintenance, the court is

expected to bridge the gap between law and the society. Provisions

relating to maintenance fall in the category of legislation which is

aimed at empowering the destitute and achieving the social justice,

equality and dignity of the individual. In dealing with such cases,

there is necessity for drift from the ‘adversarial litigation’ to ‘social

context adjudication’ which is the need of the hour. The Hon’ble

Supreme Court has observed that law regulates relationship

between people. It prescribes patterns of behaviour. It reflects the

values of society. The role of the court is to understand the

purpose of law in society and to help the law to achieve its

purpose. But the law of a society is a living organism. It is based

on a given factual and social reality that is constantly changing.

Sometimes change in law precedes societal change and is even

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intended to stimulate it. In most cases, however, a change in law is

the result of a change in social reality. Indeed, when social reality

changes, the law must change too. Just as change in social reality

is the law of life, responsiveness to change in social reality is the

life of the law. It can be said that the history of law is the history of

adapting the law to society’s changing needs. In both constitutional

and statutory interpretation, the court is supposed to exercise

discretion in determining the proper relationship between the

subjective and objective purposes of the law.

29. Applying the aforesaid principles to the facts of the

present case, it cannot be said that the maintenance amount

awarded is excessive.

30. Therefore, for all the aforesaid reasons, there is no case

made out in these Petitions to interfere with the impugned orders.

Both these Petitions are liable to be dismissed and are hereby

dismissed.

31. There shall be no order as to costs.

(M. S. SONAK, J.)

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