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Sunil S/O. Badrinath Chopde And … vs The State Of Maharashtra And Anr on 9 July, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION 1315 OF 2017

(1) Sunil s/o Badrinath Chopde
Age 28 years, Occ-Agricultural Labour

(2) Badrinath s/o Manikrao Chopde
Aged 57 years, Occu.Agriculture

(3) Anil s/o Badrinath Chopde
Aged 32 years, Occu.Agri

(4) Subhadrabai w/o Badrinath Chopde
Aged 52 years, Occupation Agriculture,

(5) Jijabai w/o Anil Chopde
Aged 27 years, Occu : Agriculture

All residing at village Karajgaon,
Taluka and District Aurangabad. .. PETITIONERS
(Orig.Non-Applicants)
Versus

(1)The State of Maharashtra
Copy to be served through
The Public Prosecutor,
High Court at Aurangabad

(2)Sou.Shakuntala w/o Sunil Chopde
Aged 24 years, Occu.Household,
R/o. Gadhe Jalgaon, Taluka and
District Aurangabad. .. RESPONDENTS
—–
Mr.Imale Ramesh, Advocate for petitioners.
Mrs.V.S.Chaudhari,APP for Respondent 1.
Mrs.Pooja Langhe Adv. For respondent no.2.

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—–
CRIMINAL WRIT PETITION NO.1316/2017

Sunil s/o Badrinath Chopde
Aged 28 years, Occu.Agricultural Labour,
Residing at village Karajgaon
Taluka and District Aurangabad. .. PETITIONER
[Orig.Non-Applicant]
VERSUS

1]The State of Maharashtra
Copy to be served through
The Public Prosecutor,
High Court at Aurangabad

2]Sou.Shakuntala w/o Sunil Chopde
Aged 24 years, Occu.Household
R/o Gadhe Jalgaon, Taluka and
District Aurangabad. .. RESPONDENT
[Orig.Applicant]


Mr.Imale Ramesh, Advocate for petitioner.
Mrs.V.S.Chaudhari,APP for Respondent 1.
Mrs.Pooja Langhe Adv. For respondent no.2.

CORAM : MANGESH S. PATIL, J.

RESERVED ON : 05/06/2018.
PRONOUNCED ON :09/07/2018.

JUDGMENT :

These are the Writ Petitions by husband against his wife
who has been able to secure an order of maintenance under
Section 12 of the Protection of Women from Domestic Violence
Act 2005 (hereinafter referred to as
D.V. Act) as well as the right

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to share household and also an order of maintenance under
Section 125 of the Code of Criminal Procedure. Both these
proceedings were tried and decided by the learned Magistrate
separately but by the judgment and order passed on the same
day. To avoid repetition, both the Writ Petitions have been
heard together and are being disposed of by this common
judgment.

2] For avoiding confusion the parties are hereinafter referred
to as husband and wife.

3] Shorn of unnecessary details, the facts leading to the filing
of these Writ Petitions are to the effect that the wife filed
Miscellaneous Criminal Application No.1071/2013 under
Section 12 of the D.V.Act inter alia alleging that she was ill
treated by the husband, parents in laws, brother in law and the
sister in law on account of their demand for a dowry. She
alleged that she was beaten and thereafter she lodged complaint
with police and thus she alleged that she was being neglected.
She then alleged that the husband and the in laws have
agriculture land and they have been earning Rs.10 lakhs every
year from agriculture produce. Besides she alleged that they
were having a grocery shop and were earning Rs.25,000/- p.m.
She also alleged that the husband, his father and brother have
also been dealing in properties and have been earning Rs.2 lakh
p.m. from that occupation. She therefore, claimed maintenance
at the rate of Rs.15,000/- p.m.

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4] She also alleged that she was staying in two rooms in the
house of the in laws which constituted a shared household and
also claimed that she may be allowed to continue to occupy
those two rooms. It is to be noted that this application was filed
on 2/5/2013.

5] The wife then preferred Miscellaneous Criminal
Application No.1215/2013 on 28/5/2013 against the husband
seeking maintenance under
Section 125 of the Cr.P.C. repeating
the very same allegations in respect of the property of the
husband and his income. She claimed a maintenance at the rate
of Rs.3000/- per month.

6] The husband and the other in laws opposed both these
proceedings. They flatly denied that they had made unlawful
demand for money or to have subjected the wife to ill treatment.
They also denied that she was being neglected. They also denied
that she was occupying two rooms from their house property and
thus prayed to reject the applications.

7] After conducting necessary hearing, the learned Judicial
Magistrate by the separate orders passed on the same day i.e.
16/2/2015 allowed the application filed under
Section 12 of the
D.V.Act and directed the husband, the father in law and the
brother in law to pay Rs.2000/- p.m. to her. Her right to the two
rooms in the shared household was also recognized and a
direction was given to allow her to occupy these two rooms and

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preventing the in laws from obstructing her occupation therein.
She was awarded Rs.10,000/- towards compensation and costs.

8] The learned Magistrate also simultaneously allowed the
application under
Section 125 of the Cr.P.C. and directed the
husband to pay Rs.1500/- p.m. to the wife.

9] The husband, his father and his brother carried the order
passed under the D.V.Act in Criminal Appeal No.31/2015 under
Section 29 of the D.V.Act, but the Appeal was dismissed.
Similarly the husband also preferred Criminal Revision
Application No.60/2015 impugning the order passed under
Section 125 of the Cr.P.C. However, even the revision was
dismissed. Hence these Writ Petitions by the husband and his
relatives.

10] It is also important to note that the wife also filed a
Regular Civil Suit No.797/2013 on 28/8/2013 against the
husband and father in law under Section 18 of the Hindu
Adoption and
Maintenance Act which was decreed by the
judgment and order dated 28/11/2015 wherein the husband
was directed to pay her Rs.2000/- per month towards
maintenance and further created a charge over the property of
the family bearing land Gat no.65.

11] The learned advocate for the husband and the relations
vehemently submitted that though the wife is entitled in law to

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invoke as many remedies available to her as possible, however,
simultaneously, she cannot be allowed to derive such a relief to
which she is not ultimately entitled to. He would submit that the
wife has simultaneously resorted to the provisions under
Section
12 of the D.V.Act,
Section 125 of the Cr.P.C. as well as Section
18 of the Hindu Adoption and
Maintenance Act and has secured
orders of maintenance in all these proceedings which in
aggregate turns out to be Rs.5500/- p.m. More importantly, the
learned Judges while deciding these proceedings have not taken
into account the maintenance awarded in a previous proceeding.
In fact the self same Magistrate has awarded maintenance at the
rate of Rs.2000/- p.m. under the D.V.Act and Rs.1500/- p.m.
under
Section 125 of the Cr.P.C. by the orders pronounced on
the same day but without referring to the quantum of
maintenance being awarded in the other proceedings. The
learned advocate would therefore, submit that the wife is being
awarded a maintenance disproportionate to her need as well as
the income of her husband. Since the orders are separate, now
the husband has become liable to pay maintenance
disproportionate to his income. Therefore, now that the matters
have reached this Court, the amount of maintenance awarded to
the wife may be rationalised based on the evidence to a figure
commensurate with the need of the wife and the income of the
husband.

12] As far as the order directing the wife to share the two
rooms from the household is concerned, the learned advocate for

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the husband would submit that both the Courts below have
erred in appreciating the fact that the household is in fact only a
building comprising of a ground floor and an upper floor totally
comprising of four rooms. As per the direction of this Court, an
assessment record of the house property is also referred to, to
point out that it is a property, the total area of which comprises
of 357 Sq.ft., whereas the wife has been allowed to occupy two
rooms which would literally make the husband and his relations
who are five in number to occupy the balance two rooms only.
Therefore, even this direction is not legal and proper particularly
when the wife even according to her own case has not been
staying in the house since the year 2013 and has been staying
with her parents.

13] The learned advocate for the wife strongly opposes both
these Writ Petitions. He would point out that there are consistent
findings of facts of the two Courts below and therefore, this
Court while exercising the writ jurisdiction is not expected to
reappreciate it and to arrive at some independent conclusion. He
would submit that the Courts below have recorded a finding
after correct appreciation of evidence. The observations and the
conclusions are plausible. The evidence brought on the record
by the wife clearly demonstrates that the shared household in
fact consists of three storeys wherein there is a shop on the
ground floor and the residence on the upper two floors. The
property is indeed a shared household within the meaning of
D.V.Act. Even if the property stands in the name of the father in

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law, still it would not seize to be a shared household. She had
lastly resided and cohabited with the husband and his relations
in the same property and therefore she is entitled to share it. He
would further point out that irrespective of the fact that the
orders of maintenance have been passed long back, the
maintenance was not paid which had fallen in huge arrears and
even she was not allowed to occupy the shared household. No
error has been committed by the Courts below and the Writ
Petitions may be dismissed.

14] I have carefully perused the impugned orders and the
papers with the able assistance of the learned advocates of both
the sides. It is trite that when a law creates a right in favour of
an individual and also makes a provision to enforce it, no fault
can be found with the wife in invoking her such right under
different Statutes. Therefore as far as maintainability of these
different proceedings under
Section 12 of the D.V. Act, Section
125 of the Cr.P.C. and Section 18 of the Hindu Adoption and
Maintenance Act are concerned, no fault can be found in lodging
these proceedings and claiming maintenance.

15] However, when it is a matter of maintenance being
claimed under three different Statutes and when the quantum
of maintenance is to be determined on the parameters which
are broadly the same, viz. ability of the wife to maintain herself,
her income, if any and income of the husband etc., the
maintenance awarded in one proceeding would certainly have a

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bearing on the maintenance to be awarded in the subsequent
proceeding. The income of the husband which is relevant in all
these proceedings, would be constant. Therefore, irrespective of
the fact that a wife is entitled to invoke as many remedies as
possible for claiming maintenance, the maintenance awarded in
the earlier proceeding will necessarily have to be taken into
account while determining the quantum of maintenance in a
subsequent proceeding. It cannot be comprehended that by
making available such several remedies under different Statutes,
the Legislature was intending that a wife should get some
additional maintenance. The wife cannot be allowed to take
advantage of such proceeding to claim a maintenance
disproportionate to the income of the husband. It is bound to
remain constant in all these proceedings.

16] This is precisely where as has been rightly pointed out by
the learned advocate for the husband, the learned Magistrate as
well as the learned Additional Sessions Judge seem to have
fallen in error. The learned Magistrate who has decided the
proceeding under
Section 12 of the D.V.Act as well as the
proceeding under
Section 125 of the Cr.P.C. by the judgment
and order pronounced on the same day, has arrived at different
figures for awarding compensation but ignoring or without
taking into account the maintenance being awarded in the other
proceeding. Similarly the learned Additional Sessions Judge has
erred in deciding the Criminal Appeal and the Criminal Revision
arising from such orders of the Magistrate independently

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ignoring the maintenance that was being awarded in the other
proceeding. Interestingly, even the same Additional Sessions
Judge has decided these two proceedings by separate orders
passed on the same day.

17] Apart from these two proceedings, even the wife has
obtained a decree under Section 18 of the Hindu Adoption and
Maintenance Act wherein an amount of Rs.2000/- p.m. has been
directed to be paid to her by way of maintenance. It is apparent
duplication and something more has been sought to be
recovered by way of maintenance by resorting to three different
proceedings. I do not intend to blame the wife but the fact
remains that by such three different orders, an aggregate
maintenance of Rs.5500/- p.m. has been saddled upon the
husband. She cannot be allowed to do so.

18] It is trite that in the matters of maintenance the decree of a
Civil Court eclipses the orders of maintenance awarded under
the Criminal Statutes. Taking into account the evidence and the
fact of passing of such three different orders of maintenance
though the wife cannot be prevented from executing all these
orders, a direction needs to be given to appropriate the money
recovered by her towards the maintenance awarded to her which
is aggregate should not exceed Rs.2000/- p.m. In my considered
view, therefore, though no illegality can be found in passing of
the orders of maintenance under
Section 12 of the D.V.Act and
Section 125 of the Cr.P.C. those being the orders of the Criminal

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Courts those should sub-serve the order of maintenance passed
in the Civil Suit. In these circumstances, I find no hesitation in
observing that the wife would be entitled to a maintenance of
Rs.2000/- p.m. in aggregate i.e. irrespective of the order which
she chooses to enforce.

19] As far as the dispute regarding shared household is
concerned, both the Courts below, based on evidence have
recorded a concurrent finding that the structure consists of three
storys wherein there is a shop on the ground floor and there are
in all four rooms on the upper floors. Admittedly, she was
cohabiting with the husband in the same household. However,
taking into account the fact that the husband and his relations
comprise of he himself, both his parents, his brother and the wife
of the brother i.e. five members in all, it would certainly cause
hardship to them if they are asked to share half of the house
with the wife. Without going into the aspect as to how many
floors are there in the house, the evidence reads that there are
four rooms in all, out of which by the impugned order, the wife
is to get right to occupy two rooms. In my considered view, this
fact has been clearly ignored by the learned Magistrate as well as
the learned Additional Sessions Judge. It certainly has a
bearing. Though wife would be entitled to share a household,
taking into account the number of family members, it would
certainly be improper to allow the wife to occupy two out of four
rooms. To this extent, in my considered view, a direction needs
to be given by modifying the impugned order and allowing the

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wife to occupy only one room in the shared household.

20] The Writ Petitions are partly allowed in following terms :

The impugned orders stand modified to the effect :

(i) That the wife shall be entitled to occupy
only one room from the shared household.

(ii) That the wife shall be entitled to a
maintenance of only Rs.2000/- p.m., irrespective of
whether she chooses to recover this maintenance in
execution of any of the three orders; one based under
Section 12 of the D.V.Act or under Section 125 of the
Cr.P.C. or under Section 18 of the Hindu Adoption and
Maintenance Act.

(iii) Rest of the directions in the impugned
orders stand confirmed.

(MANGESH S. PATIL,J.)
umg/

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