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Sau. Kalpna W/O Pankaj Razatkar … vs Pankaj S/O Suadu Razatkar on 22 December, 2017

Cr.WP 1608/15

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.1608/2015

1] Sau.Kalpna w/o Pankaj Rozatkar,
age 31 yrs., occu.household,

2] Dhanjay Pankaj Rozatkar,
age 8 yrs., occu.education,
minor through her mother
petitioner no.1,

Both r/o c/o Laxman Hiraman Wankhede,
Sawada Road, at post Chinawal,
Tq. Raver Dist.Jalgaon.
…Petitioners..

Versus

Pankaj s/o Supadu Rozatkar,
age 35 yrs., occu.service,
r/o Chal No.2, Room No.3,
Om Sai Construction,
Khadakpada, Near Vanshri Apartment,
Kalyan (W) Tq.Kalyan Dist.Thane,
And c/o Head Master, Adgaon Vidya
Mandir, Kom Tq.Bhiwandi Dist.Thane.
…Respondent…

…..
Shri Vinod P. Patil, Advocate for petitioners.
Shri C.K. Shinde, Advocate, Advocate for respondent.
…..

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CORAM: PRAKASH D. NAIK, J.

JUDGMENT RESERVED ON 8.12.2017
JUDGMENT PRONOUNCED ON 22.12.2017

JUDGMENT :

1] Petition is heard for final disposal.

2] The petitioners have challenged the order dated

2.9.2013 passed by the learned Judicial Magistrate, First

Class, Raver Dist.Jalgaon in Criminal Miscellaneous

Application No.78/2010 as well as the judgment and order

dated 30.10.2015 passed by the learned Additional

Sessions Judge, Bhusawal Dist.Jalgaon, in Criminal

Revision Application No.167/2014.

3] The petitioner no.1 is the wife of the

respondent. Their marriage was performed as per Hindu

rites on 2.2.2006. The petitioner no.2 is the son of the

petitioner no.1 and the respondent.

4] The petitioners contend that after the marriage,

the petitioner no.1 joined the matrimonial home and was

residing with the respondent, who is in service as

Teacher. There was ill-treatment and cruelty at the

hands of the respondent and his family members. The

respondent filed HMP No.161/2007 u/s 13(1) of the Hindu

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Marriage Act, 1955 in the Court of Civil Judge, Senior

Division, Kalyan, against the petitioner for divorce.

The respondent also filed Regular Criminal Case

NO.429/2007 in the Court of JMFC, Kalyan, for the

offences punishable u/s 323, 326, 307, 504 and 506 r/w 34

of the Indian Penal Code. The petitioner no.1 was

granted anticipatory bail in the said crime. It is

further contended that the respondent filed Special Civil

Suit No.208/2011 before the Civil Judge, Senior Division

at Jalgaon, for compensation against the petitioners.

The same is pending.

5] The petitioner no.1 filed Miscellaneous

Application No.577/2010 against the respondent u/s 17,

18, 19, 20, 22, 23 and 26 of the Protection of Women from

Domestic Violence Act before JMFC at Raver. The

petitioner no.1 also filed HMP No.197/2011 before the

Civil Judge, Senior Division at Jalgaon u/s 9 of the

Hindu Marriage Act for restitution of conjugal rights.

6] The petitioners submit that the petitioner no.1

is a lady who is unable to maintain herself as well as

her son as the respondent-husband is not paying

maintenance regularly. The respondent is in service. He

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has initiated several proceedings to cause harassment to

the petitioners. The petitioners filed Criminal

Miscellaneous Application No.78/2010l before the JMFC

claiming maintenance u/s 125 of the Cr.P.C. The

respondent resisted the said application by filing say to

the application. The evidence was recorded. After

hearing the parties, the learned JMFC rejected the said

application by order dated 2.9.2013.

7] The petitioners approached the Sessions Court by

preferring Criminal Revision Application No.239/2013,

which was then transferred to Bhusawal and numbered as

Criminal Revision Application No.167/2014. The Sessions

Court vide order dated 30.10.2015 rejected the said

revision application. The petitioners have, therefore,

approached this Court challenging aforesaid orders.

8] The learned Advocate for the petitioners

submitted that the Courts have committed an error in

rejecting the claim of the petitioners. The Sessions

Court has also erroneously dismissed the revision

application. The petitioners are having no source of

income and are neglected by the respondent-husband. The

petitioner no.1 has filed a petition for restitution of

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conjugal rights, which shows that the husband refused to

maintain the petitioners. It is further submitted that

the respondent-husband has filed proceedings for divorce,

which shows that he has neglected the petitioners. The

Courts below have erroneously relied upon the matters

relating to compromise. It is true that there was a

settlement between the parties before the Court and the

amount of Rs.3,00,000/- was paid to the petitioners by

respondent-husband and, therefore, the joint Purshis was

submitted and the proceedings were withdrawn since the

husband did not take steps to withdraw the criminal

proceedings filed by him at Kalyan. The settlement could

not be arrived at. The other reason for cancellation of

settlement is that the respondent is not willing to take

responsibility of the petitioner no.2. In the

circumstances, both the proceedings were withdrawn by the

parties. The conclusion arrived at by the trial Court

that the petitioner no.1 is able to maintain herself

being in service is perverse and without any evidence on

record. There is no documentary evidence for coming to

the conclusion that the petitioner no.1 is in service.

The Courts below have not taken into consideration the

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fact that the petitioner no.2 is minor and is taking

education in English medium school. Both the Courts lost

sight of the fact that the petitioner no.1 has to incur

expenses towards fees and donations in the schools. The

learned counsel for the petitioners, therefore, submitted

that the orders passed by the Courts below may be set

aside.

9] The learned counsel for the petitioners relied

upon the following decisions of the Supreme Court :-

1] Sunita Kachwaha others v. Anil Kachwaha
AIR 2015 SC 554

2] Bhuwan Mohan Singh v. Meena others
AIR 2014 SC 2875

3] Minakshi Gaur v. Chitranjan Gaur another
AIR 2009 SC 1377

4] Chaturbhuj v. Sita Bai
AIR 2008 SC 530

5] Shamima Farooqui v. Shahid Khan
AIR 2015 SC 2025

6] Saygo Bai v. Cheeru Bajrangi
AIR 2011 SC 1557

10] The petitioner no.1 has filed affidavit in reply

and additional affidavit in reply dated 26.11.2017

stating that the petitioner no.1 is employed as Assistant

Teacher in Vardhaman English Medium School, Jalgaon, and

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is serving in the said school. It is also stated that

the petitioner no.1 is receiving Rs.5,000/- per month

regularly from the respondent as per the order passed by

JMFC, Raver, in domestic violence proceedings. The said

averments about employment were denied by the petitioner

no.1 by filing affidavit in rejoinder dated 6.12.2017.

The petitioner also stated that the respondent is earning

salary of Rs.49,792/-. The salary certificate is annexed

to the petition.

11] The learned counsel for the respondent submitted

that the petitioners are not entitled for maintenance.

The trial Court and the Sessions Court have taken into

consideration the evidence on record and have passed

well reasoned orders, which do not require interference.

It is submitted that the petitioner no.1 had filed

compromise proceedings and thereafter she has backed out

from the said proceedings. The wife had agreed for

settlement and thereafter did not support the settlement.

The parties had filed petition for divorce by mutual

consent. In the divorce petition, it was stated that

both the parties agreeable for dissolution of marriage by

mutual consent and on accepting the permanent alimony,

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the petitioner no.1 – wife has given up her rights in

respect of the property. It is submitted that the amount

of Rs.3,00,000/- was paid to the petitioners by the

respondent. It is apparent from the record that the

amount of Rs.3,00,000/- was deposited by the petitioners

in this Court by Demand Draft issued in favour of the

Registrar, High Court, Bench at Aurangabad.

12] The learned counsel for the respondent submits

that the learned JMFC has dismissed the application u/s

125 of the Cr.P.C. on the ground that the harassment by

the husband and in-laws was not proved.

13] The Sessions Court then rejected the revision

application preferred by the petitioners. The learned

counsel for the respondent submitted that the petitioner

no.1 used to quarrel on petty grounds. She has attempted

to commit murder of the respondent on 17.12.2006 by

pressing his neck in the night hours. The complaint was

lodged with the Police u/s 307 of the Indian Penal Code,

which is pending. She again made an attempt of

committing murder of the respondent on 6.2.2007. She

then left the matrimonial house and started residing with

her parents since 7.2.2007.

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14] It is submitted by the learned counsel for the

respondent that the respondent had filed HMP No.161/2007

in the Court of Civil Judge, Senior Division for divorce,

which was transferred to the Court at Jalgaon. The

petitioner no1. has filed a false case vide RCC

No.73/2008 for offence punishable u/s 498-A, 323, 504,

506 r/w 34 of the Indian Penal Code. The respondent and

his family members were acquitted in the said case. The

petitioner no.1 has also filed the petition for

restitution of conjugal rights. The parties have decided

to settle the issues. However, subsequently the

petitioners did not show interest in the settlement. It

is, therefore, submitted that considering the aforesaid

aspects, the petition be dismissed. The learned counsel

for the respondent relied upon a decision in the case of

Smt.Mamta Jaiswal v. Rajesh Jaiswal delivered by Madhya

Pradesh High Court reported in II (2000) DMC 170.

15] The petitioners had preferred an application u/s

125 of the Cr.P.C. before the Court of JMFC, Raver, on

19.7.2010, which was numbered as Criminal Miscellaneous

Application No.78/2010. In the said application, the

petitioner no.1 has given instances of harassment caused

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to the petitioner no.1 by the respondent after the

marriage. In the said application, it was also stated

that a child was born after the said wedlock. She

further stated that the respondent is employed as a

Teacher in Vidya Mandir School, Adgaon and earning salary

of Rs.20,000/- per month. He is also earning from other

sources. The father of the respondent is also employed

and the respondent is having the house at Shahapur, which

is owned by his family. The petitioner no.1 is residing

at her parental home from 7.2.2007. It was further

stated that the respondent had lodged a false complaint

of attempt to commit murder against the petitioner no.1.

He also filed HMP No.161/2007 before the Court of Civil

Judge, Senior Division, which is pending. It was further

stated that the petitioners had preferred an application

for maintenance in the said proceedings. It was stated

that the petitioner no.o2 is studying in the school and

expenses are required to be incurred for his education.

The petitioners prayed for maintenance of Rs.2,000/- per

month from the date of the application. The said

application was preferred on 19.7.2010. Both the parties

tendered evidence in the said proceedings. The learned

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Magistrate vide order dated 2.9.2013 rejected the said

application. While rejecting the application, it was

observed that the proceedings are pending between the

parties. The respondent was tried for the offence u/s

498-A of the Indian Penal Code, which has resulted in

acquittal. The respondent has filed the complaint

against the petitioner no.o1 for offence u/s 307, 323,

326 of the Indian Penal Code. IT was further stated that

the petitioner no.1 – wife has also initiated proceedings

under the Domestic Violence Act on 7.8.,2010. The trial

Court, however, rejected the application on the ground

that the petitioner no.1 was employed as Teacher and she

is well educated, has completed education and is capable

of getting employment. The son is getting interim

maintenance in the sum of Rs.1,000/- and, therefore, the

application preferred by the petitioners deserves to be

rejected.

16] The observation made by the trial Court appears

to be contrary to law and evidence on record. In

paragraph no.18, the trial Court has analyzed the

evidence of the petitioner no.1. The petitioner no.1’s

contention was reproduced in the said paragraph. The

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petitioner had stated that she had given up her

employment in the circumstances narrated therein. The

respondent – husband is employed as Teacher and earning

salary of Rs.20,000/- per month. He is also earning

through other sources of income. There are no other

dependents on the respondent and it is his responsibility

to take care of the petitioner no.1 and the son. He is

financially sound. The Court further observed that the

petitioner no.1 was employed as Teacher and she is well

educated and being capable of getting job, she is not

entitled for maintenance. Surprisingly, the observations

made in paragraph no.18 with regard to the grounds for

maintenance made by the petitioners were not discarded in

any manner. The trial Court has not expressed any reason

for not accepting the case of the petitioners. The only

reason, which appears for rejecting maintenance, is that

the petitioner no.1 was employed as Teacher and being

educated person is eligible to get employment. The

reasons assigned by the trial Court appear to be absurd

and contrary to the material on record. The grounds

raised by the respondent that there are several

proceedings pending and that the petitioners had agreed

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for compromise, are no grounds for refusing maintenance

to the petitioners.

17] The Sessions Court has also reiterated the

reasons assigned by the trial Court. The Sessions Court

ought to have appreciated the material on record and

should have considered the relief sought by the

petitioners. On perusal of the order passed by the

Sessions Court, it appears that the Sessions Court has

also observed that it was not in dispute that the husband

was Teacher and he had sufficient means. The petitioners

had to prove that the husband neglected or refused to

maintain them. The trial Court opined that the husband

is getting salary of Rs.20,000/- per month. The

harassment by husband and in-laws was not proved. As per

the demand of the wife, husband arranged for separate

residence. The Magistrate found that the husband did not

refuse or neglect the petitioners. The Court observed

that it cannot be forgotten that the petitioners had

received Rs.3,00,000/- for grant of divorce by mutual

consent. It was, therefore, observed that ignoring the

subsequent events, the order passed by the Magistrate is

legal and proper and it does not require any

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interference.

18] In the case of Saygo Bai v. Cheeru Bajrangi

(supra), the Supreme Court has observed that the wife and

children thrown out of the house were entitled for

maintenance.

19] In the case of Shamima Farooqui v. Shahid Khan

(supra), the Supreme Court observed that object of

Section 125 of the Cr.P.C. is amelioration of financial

status of wife so that she can sustain herself.

Sustenance cannot mean mere survival.

20] The other decisions relied upon by the

petitioners are also dealing with the right of wife in

claiming maintenance.

21] The respondent has relied upon the decision of

Madhya Pradesh High Court in the case of Smt.Mamta

Jaiswal v. Rajesh Jaiswal (supra). In the said decision,

it was observed that the wife was well qualified woman

possessing qualification. Earlier she was serving in the

college. It impliedly means that she was possessing

sufficient experience. It is difficult to believe that

in spite of sufficient efforts made by her, she was

unable to get employment. The respondent submits that

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in the present case also, both the Courts have considered

the said aspect.

22] Admittedly, there is no evidence to show that

the petitioner no.1 was employed in the school from the

date of filing the application. The order cannot be

based on inferences or conjectures. It appears that the

petitioner no.1 is getting maintenance of Rs.5,000/- per

month in domestic violence proceedings. The petitioner

no.1 has stated that due to alleged settlement, the Hindu

marriage petition has been disposed of. The interim

maintenance granted in that matter is also insufficient.

In the circumstances, the impugned orders passed by both

the Courts below are required to be quashed and set

aside. In the application u/s 125 of the Cr.P.C., the

petitioner no.1 had claimed Rs.1,000/- each per month.

The said application was filed on 19.7.2010. Hence, I

pass the following order.

O R D E R

a] The impugned order dated 2.9.2013 passed by

learned Judicial Magistrate, First Class, Raver,

in Criminal Miscellaneous Application No.78/2010

and the judgment and order dated 30.10.2015

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passed by learned Additional Sessions Judge,

Bhusawal, in Criminal Revision Application

No.167/2014 are quashed and set aside.

b] The application preferred by the

petitioners before the Court of learned JMFC,

Raver, vide Criminal Miscellaneous Application

No.78/2010 u/s 125 of the Cr.P.C. is allowed.

c] The respondent is directed to pay

maintenance in the sum of Rs.1,000/- per month

each to the petitioner nos.1 and 2 from the date

of the application.

d] The respondent is also directed to pay

Rs.10,000/- towards expenses incurred by the

petitioners.

e] The writ petition is disposed of

accordingly.

(PRAKASH D. NAIK, J.)

ndk/crwp160815.doc

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