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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 5542] Bhuwan Mohan Singh v. Meena others
AIR 2014 SC 28753] Minakshi Gaur v. Chitranjan Gaur another
AIR 2009 SC 13774] Chaturbhuj v. Sita Bai
AIR 2008 SC 5305] Shamima Farooqui v. Shahid Khan
AIR 2015 SC 20256] Saygo Bai v. Cheeru Bajrangi
AIR 2011 SC 155710] 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.)
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