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Kishore Dharmabalan Mundakel vs Geeta Maruti Dhotre Alias Geeta … on 11 October, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO.100 OF 2017

WITH

CIVIL WRIT PETITION NO.3222/2017

Kishor Dharmabalan Mundakel ….. Applicant

Vs.

Geeta Maruti Dhotre @
Geeta Kishore Mundakel ….. Respondent

Mr. Vinod Thekkara for the Applicant
Ms. Geeta Kishore Mundakel – Respondent in person.

CORAM: K.K.TATED, J.

DATED : OCTOBER 11, 2019

P.C.

1 Today the matter is placed on board for speaking to
the minutes of order dated 08.08.2019.

2 The learned counsel for the Applicant submits that
some typographical errors have been crept in the order
dated 08.08.2019, which are as under:

a. In cause title, instead of Criminal Writ Petition
it should be Civil Writ Petition

b. In appearance, delete the word Cri.

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c. On page 2, para 3, line 4, instead of Juhu it

should be Mulund. In 7th line of said para instead of
Rs.1 Lac it should be Rs.15,000/-.

d. On page 8, para 11, last line, instead of defeat it
should be defend.

e. On page 8, para 12, line 2, instead of nothing it
should be considering the. In line 10 of said the para
instead of for it should be from.

f. On page 10, para 17, line 4, instead of
challenging it should be as well as.

g. On page 11, para 18, in line 10, add the word am
in between I and also.

h. On page 11, para 19, line 4 instead of deposited
it should be decided.

i. On page 12, para 19(d) be substituted as under:

“(d) The order passed by the Additional
Sessions Judge, Mumbai in Criminal Appeal
No.611 of 2016 is set aside along with the order
dated 06.05.2016 passed by 27 th Metropolitan
Magistrate Court, Mulund, with liberty to
Respondent No.2 – Wife to file appropriate
application before the Family Court for the same
cause of action which shall be decided on its own
merits.”

j. On page 12, para 19(g) be substituted as under:

“(g) Petitioner husband is directed to pay
sum of Rs.15000/- by way of maintenance on

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or before 10th June of each month to the child
from the Month of August, 2019 and also to
pay all the expenses of child towards medical
and education on production of original
receipts till further orders from Family Court,
Bandra, Mumbai.

k. On page 13, para 19(h) instead of allowed it
should be kept open.

3. The order dated 08.08.2019 stands corrected
accordingly, which reads thus:

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO.100 OF 2017
WITH
CIVIL WRIT PETITION NO. 3222 OF 2017

Kishore Dharmabalan Mundakel …. Applicant.

Vs.

Geeta Maruti Dhotre alias Geeta
Kishore Mundakel ….
Respondent.

Mr. Bharat Mehta i/b Mr. Vinod K. Thekkara
Advocate for Applicant in Revn. and for petitioner in the
Writ Petition.

Mrs. Geeta Maruti Dhotre @ Geeta Kishore Mundakel
Respondent present in person
Mr. C.D. Mali, learned AGP for State in both matters.

CORAM : K.K.TATED, J.

DATED : 8TH AUGUST, 2019.

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P.C.

Heard Learned Counsel for the Parties.

2. By this Writ Petition, petitioner husband under
SectionArticle 226 of the Constitution of India challenging the
order dated 21st November, 2014 passed by Family Court
at Bandra, Mumbai below Exhibit – 6 in interim
application No. 124 of 2012 in Petition No. A-889 of 2012
directing the petitioner to pay monthly maintenance of
Rs. 12000/- to the Respondent No.2 for minor child from
the date of application i.e. 09.04.2012 till the disposal of
the matter.

3. The petitioner also claimed relief for transfer of
application No. 10/DV/2015 filed by the respondent No.2
before the learned Metropolitan Magistrate, 27 Court at
Mulund, Mumbai under Section 12, Section18, Section19, Section20 and Section22 of

the Protection of Women from SectionDomestic Violence Act,
2005 and rules 2005 for various reliefs including for an
order of maintenance at the rate of Rs.15000/- per month,

to the Family Court, Bandra, Mumbai for hearing and
final disposal alongwith petition No. A889 of 2012 filed by
Respondent No.2 for divorce under Section 13 (1) (ia) and
(ib) of the SectionHindu Marriage Act, 1955.

Basavraj G. Patil                                                           4/16

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4. During the course of argument, the learned counsel
for petitioner submit that, at present, petitioner is
seeking relief of transfer of matter from Magistrate Court
to the Family Court at Bandra, Mumbai for hearing and
final disposal on its merits.

5. In criminal revision application No.100 of 2017,
petitioner husband challenges the order dated 16.12.2016
passed by Ld. Session Court in Criminal Appeal No.611 of
2016 and the order dated 06.05.2016 passed by Ld.
Metropolitan Magistrate, 27th Court, Mulund, Mumbai in
CC No. CC 10/DV/2015 directing the petitioner to pay
interim maintenance of Rs.15,000/- per month to his son
from the date of filing of the application i.e. 22.01.2015
till the final disposal of the said application.

6. The learned counsel for petitioner submit that as
per Section 26(3) of the Protection of Women from
SectionDomestic Violence Act, 2005, duty cast upon the person to
disclose the proceeding if any filed by them for all the
same reliefs before any other Court and the order if any
passed. Section 26 of the said act read thus :

"26. Relief in other suits and legal proceedings.

(1) Any relief available under Sectionsections 18, Section19, Section20, Section21
and Section22 may also be sought in any legal

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proceeding, before a civil Court, family Court or
a criminal Court, affecting the aggrieved person
and the respondent whether such proceeding
was initiated before or after the commencement
of this Act.

(2) Any relief referred to in sub-section (1) may be
sought for in addition to and alongwith any other
relief that the aggrieved person may seek in such
suit or legal proceeding before a civil or criminal
Court.

(3) In case any relief has been obtained by the
aggrieved person in any proceedings other than a
proceeding under this Act, she shall be bound to
inform the Magistrate of the grant of such relief.

This clause provides that any relief available
under the proposed legislation may also be
sought in any legal proceeding before a civil
Court, family Court or a criminal Court and that
any relief which may be granted under the
proposed legislation may be sought for in
addition to and alongwith reliefs sought for in a
suit or legal proceeding before a civil or criminal
Court. Sub-clause (3) lays down that the
aggrieved person shall be bound to inform the
Magistrate of the reliefs obtained by her in any
proceeding other than proceedings under the
proposed legislation."

7. The learned Counsel for Petitioner submits that in
the present proceeding though the Family Court passed
order of maintenance of Rs.12,000/- per month on

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21.11.2014, the learned Magistrate failed and neglected
to consider the same at the time of passing the order
dated 06.05.2016 directing petitioner to pay further sum
of Rs.15,000/- per month to son. He submits that if both
the matters are heard together then, there is no question
of any conflicts of the interest of both the parties.

8. The learned Counsel for Petitioner submits that the
application filed by the Respondent No.2 wife being case
No.10/DV/2015 under Section 12 of Protection of Women
from SectionDomestic Violence Act, 2005 before the Magistrate
27th Court at Mulund, Mumbai to be transferred to the
Family Court, Bandra Mumbai for hearing and final
disposal on its own merits. He submits that our High
Court in the matter of Sandip Mrinmoy Chakraboarty

Vs. Reshita Sandip Chakrabarty Ors. 2019(1)

Bombay Case Report (Criminal) 297 held that in such

cases, the matter pending before the Magistrate Court,
under the Protection of Women from SectionDomestic Violence
Act, 2005 can be transferred for hearing alongwith the
matter pending before the Family Court. Paragraph
Nos.13 to 15 of this Authority read thus:

"13. Coming to the present controversy which this
Court is called upon to deal with viz. Relief that is
sought for transfer of proceedings pending on the file

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of the learned Judicial Magistrate First Class at
Cantonment Court, Pune to the Family Court at
Pune, the apprehension expressed by the learned
counsel for the respondents that the Family Court is
not clothed with the powers as the one which is
conferred on the Magistrate under Section 23 of the
Domestic Violence Act, 2005 is misconceived and
since it is already noted above that the Family Court
which acts as a Civil Court and since it is vested with
all powers of Civil Court which includes specific
provision to pass interim orders, the said
apprehension can be dispelled and it is to be noted
that the Family Court is competent not only to deal
with the application preferred under Section 12 and
specifically in the light of the orders conferred by
Section 26 of the Domestic Violence Act, 2005 the
relief available under Section 18, Section19, Section20, Section21 and Section22
can be sought in proceeding before the Family Court
and the Family Court being a Civil Court is
empowered to exercise all the powers of the Civil
Court which would include a power to grant interim
and ex-parte orders."

"14. A perusal of the proceeding involved in this lis
would reveal that no doubt there are certain distinct
reliefs claimed in two proceedings. It is not the case
of the learned counsel for the petitioner to curb the
progress of the proceedings or to curtail some of the
reliefs, which are sought by the respondents. It is his
submission that these two proceedings, in order to
avoid decision which will adversely affect either of
the parties, could be clubbed together and dealt with
by the same Court and it is for the Family Court
which is empowered to deal with the said proceedings
in the manner which would serve the interest of
justice and the interest of parties in a better manner.
The prayer of the learned counsel for the petitioner is

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not to deprive the petitioner of any of the reliefs
which she has sought in the Domestic Violence
proceedings, but his only claim is that it can be
decided before the Family Court effectively and since
both the proceedings are instituted by the wife, the
Family Court may direct the parties to lead common
evidence in support of the overlapping reliefs which
are sought and it is always open for the Family Court
to deal with the other issues independently."

"15. I find sufficient substance in the said
contention of the learned counsel for the petitioner
and in the backdrop of the scheme of Enactments
which has been discussed above, there is no iota of
doubt in my mind that the reliefs sought before the
learned Magistrate in the Domestic Violence
proceedings can be effectively tried and granted by
the Family Court. Further it is settled position of
law that the Court which is competent to grant a
final relief is also competent to grant an interim
relief so as to protect the subject matter of the
proceedings before it."

9. On the basis of this submissions and the law
declared by our High Court in the matter of Sandip
Mrinmoy Chakraboarty (supra), the learned counsel for
the petitioner submits that the application filed by the
respondent wife under the SectionD.V. Act to be transferred to
the Family Court, at Bandra, Mumbai for hearing and
final disposal on its own merits. He further submits that
liberty may be granted to the petitioner to make
appropriate application for deciding the maintenance

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before the Family Court after considering both the orders
i.e. order passed by the Family Court as well as order
passed by the learned Magistrate.

10. The learned counsel for the petitioner submits that
as the order passed by this Court, they deposited the
maintenance charges. He submits that, out of that, sum
of Rs.6,65,500/- is lying in the registry of this Court. He
submits that the said amount to be transferred to the
Family Court at Bandra, Mumbai directing the registry of
that Court to deposit in fixed deposit of any Nationalized
Bank initially for the period of one year and same to be
continued till the decision of the matter and / or order
passed by the Family Court.

11. On the other hand, Geeta Maruti Dhotre the
respondent No.2 party as person vehemently opposed to
present Writ Petition as well as criminal Revision
Application. She submits that the learned Magistrate
after considering evidence on record rightly held that the
minor child is entitled maintenance charges of Rs.15,000/-
per month. She submits that in her application under the
SectionD.V. Act, she had disclosed the pendency of the matter
before the Family Court, about the application for
maintenance charge. After considering, all these facts,
the learned Magistrate held that the minor child is

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entitled to maintain charges @ of Rs.15,000/- per month.
She further submits that there is no question of
transferring the matter from the Court of learned
Magistrate, Mulund to the Family Court, at Bandra,
Mumbai. She submits that it will become difficult for her
to engage another advocate for Family Court to defend

her case.

12. The party in person further submits that even the
Family Court after considering the evidence on record

rightly directed petitioner to pay sum of Rs.12,000/- per
month and also to reimburse the medical as well as
education charges. She submits that petitioner failed and
neglected to reimburse medical and education charges of
minor son for last seven and half years. Therefore the
petitioner to be directed to reimburse the said amount on
submitting documentary proof to that effect. She further
submits that if matter is transferred from one Court to

another Court, same may affect her right. Therefore,
there is no question of allowing the petitioners
application to that effect.

13. Respondent No.2 party in person, further submits
that the sum of Rs.6,65,500/- lying in the registry of this
Court, may be permitted her, to withdraw the same for

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the welfare of child / son. She submits that it is very
difficult for her to maintain herself as well as her child.
She submits that, she has to spend for education as well
as medical expenses of the child. Therefore in the
interest of justice Hon'ble Court be pleased to permit her
to withdraw the said amount of Rs.6,65,500/-.

14. I heard both the parties.

15. Learned counsel for petitioner made a statement
that, he received instructions from Petitioner not to press
any other prayers in the Writ Petition except transfer of
SectionD.V. Act matter to the Family Court at Bandra, Mumbai.
Liberty to be granted to the petitioner to make
appropriate application before the Family Court for all
these prayers. He further submits that petitioner will
continue to pay maintenance of the child at the rate of
Rs.15000/- per month from the Month of August, 2019
including education and medical expenses of the minor
child on actual basis.

16. It is to be noted that the issue involved in both the
matters are similar. Both the parties are required to lead
evidence on same point, if both the matters are heard by
same court then it is convenient to both the parties. Not
only that the possibility of conflicting orders cannot be

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over ruled.

17. In view of the above mentioned facts, it is necessary
to set aside order passed by the learned Additional
Sessions Judge, Mumbai in Criminal Appeal No.611 of
2016 dismissing the Petitioner's husband's appeal as

well as the order passed by the trial court. Liberty

granted to the Petitioner to make appropriate application
before the Family Court for the same cause of action with
liberty to Respondent - wife to oppose the same by filing
Affidavit-in-reply, if any. The Family Court to decide
that Application on its own merits without being
influenced by the order passed by this Court, in the
present matter.

18. Considering the statement made by advocate for
petitioner and as the law laid down by High Court in the
matter of Sandip Mrinmoy Chakraboarty (supra). I am of
the opinion that the petitioner has made out the case for
transferring the petition No.10/DV/2015 filed by the
respondent wife before the learned Metropolitan
Magistrate, 27 Court, Mulund, to the Family Court at
Bandra, Mumbai for hearing and final disposal alongwith
the Marriage Petition No. A-889 of 2012 filed by the
respondent wife for divorce. I am also satisfied that the

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sum of Rs.6,65,500/- which is deposited by the petitioner
in registry of this Court is required to be transferred to
the Family Court at Bandra Mumbai in the account of
Marriage Petition No. A-889 of 2012 directing Family
Court to deposit the same in fixed deposit of any
Nationalized Bank initially for a period of one year and
same to be continued till further orders from the Family
Court itself.

19. Liberty can be granted to the respondent No.2 wife
to make appropriate application before the Family Court
for withdraw of the said amount of Rs.6,65,500/- and that
to be decided on its own merits. Hence following order.

a) C.C. No.10/DV/2015 filed by respondent No.2
wife Geeta Kishore Mundakel under Sections 12,
Section18, Section19, Section20 and Section22 of the Protection of Women
from SectionDomestic Violence Act, 2005 in the Court of
learned Metropolitan Magistrate, 27 Court at
Mulund, Mumbai is transferred to the Family
Court at Bandra, Mumbai for hearing and final
disposal on its own merits alongwith the
Marriage Petition No. A-889 of 2012 filed by wife
under Section 13(1) (ia) (ib) of the SectionHindu
Marriage Act, 1955 for divorce.

Basavraj G. Patil                                                         14/16

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b) All pending applications in C.C. No.10/DV/2015

before learned Metropolitan Magistrate, 27
Court at Mulund stands transferred to the
Family Court at Bandra, Mumbai.

c) Liberty granted to both the parties to make
appropriate applications for deciding a monthly
maintenance and that to be decided by the
Family Court on its own merits.

d) The order passed by the Additional Sessions
Judge, Mumbai in Criminal Appeal No.611 of 2016
is set aside along with the order dated 06.05.2016
passed by 27th Metropolitan Magistrate Court,
Mulund, with liberty to Respondent No.2 - Wife to
file appropriate application before the Family
Court for the same cause of action which shall be
decided on its own merits.

e) Registry of this Court is directed to transfer of
sum of Rs.6,65,500/- with accrued interest if any
to Family Court, Bandra in the account of Hindu
Marriage Petition No. A-889 of 2012
immediately.

f) Liberty granted to the respondent wife Geeta

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Maruti Dhotre to make appropriate application
before the Family Court for withdrawal of sum of
Rs.6,65,500/- and that to be decided on its own
merits after hearing both the parties.

g) Petitioner husband is directed to pay sum of
Rs.15000/- by way of maintenance on or before
10th of each month to the child from the Month
of August, 2019 and also to pay all the
expenses of child towards medical and
education on production of original receipts till
further orders from Family Court, Bandra,
Mumbai.

h) All contentions of both the parties are kept open.

i) Both the matters are disposed of accordingly.

      j)    No Order as to costs.

(K.K.TATED, J.)

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