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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 362 OF 2017
Vijay S/o Maruti Gaikwad, Aged 41 PETITIONER
Years, Occupation Service, Resident
of Puntamba, Taluka Rahata,
District Ahmednagar
V E R S U S
1 Sau. Savita Vijay Gaikwad, Aged 35 RESPONDENTS
Years, Occupation Service
2 Sunny Vijay Gaikwad, Aged 12 Years,
Occupation Education, Minor, under
guardianship of real mother i.e.
respondent No.1
Both resident of C/o. Zumbarlal
Rakhmaji Jadhav, R.D. Type Chal
No.24, Room No.2, Shivajinagar,
Rahuri Factory, Taluka Rahuri,
District Ahmednagar
Mr. N.C. Garud, Advocate for the Petitioner
Mr. Vivek V. Tarde, Advocate for the Respondents
CORAM : T.V. NALAWADE, J.
DATE : 13th DECEMBER, 2017
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ORAL JUDGMENT :
This petition is filed to challenge the
decision in Criminal Appeal No. 01 of 2016 which was
pending before the Court of learned Additional
Sessions Judge, Kopargaon and also to challenge the
decision in Criminal M.A. No. 123 of 2014 which was
pending before the Court of Judicial Magistrate, First
Class, Rahata, which was filed by the present
respondents against the present petitioner under the
provisions of Protection of Women From Domestic
Violence Act, 2005. In that proceeding, learned
Judicial Magistrate directed the present petitioner
and his relatives to make payment of Rs.1,000/-
towards rent of the house, Rs.2,000/- towards
maintenance of wife and Rs.1,000/- towards maintenance
of minor issue. The direction was also given to pay
Rs.50,000/- to respondents as compensation. This order
was challenged by filing the appeal. In the Appeal,
learned Sessions Court maintained the order made as
against the present petitioner as it is, but the order
as against relatives of petitioner has been set aside
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by the Sessions Court.
2. The submissions made by the learned counsel
for the petitioner show that, in the past, proceedings
under Section 125 of Cr.P.C. was filed by the
respondent-wife as against the petitioner-husband, and
in that proceedings, the present petitioner had
admitted the relationship between them, and due to
that, the maintenance order is made under section 125
of Cr.P.C. against the present petitioner. Learned
counsel for the petitioner submitted that due to order
of learned Magistrate, the petitioner is required to
pay around Rs.7,000/- per month and he cannot afford
to make such payment to the respondents. Learned
counsel for the petitioner submits that the petitioner
is required to maintain his old parents, his wife and
two years born child from wife Anita. It is also
contended that he is required to maintain his sisters
and also the family members of his brother. The
contention of the present petitioner that respondent
No.1 is not his wife is not acceptable and that
contention was not made in the proceedings filed under
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Section 125 of Cr.P.C. and that order has become
final. It is not in dispute that respondent No.2 is
born to respondent No.1 from petitioner. In view of
this, there is no need to go into more details of this
contention.
3. The contention made for the petitioner that
the amount of maintenance awarded to the respondents
is exorbitant, has no force. The submissions made and
record show that at the relevant time the petitioner-
husband was getting salary of more than Rs.30,000/-
per month and after that there is revision of pay due
to 7th pay-commission. Now, the husband must be getting
Rs.40,000/- per month. Therefore, it can be said that
respondent No.1-wife who is entitled to around
Rs.8,000/- per month is not getting more amount than
the capacity of petitioner.
4. Another submission was made by the learned
counsel for the petitioner that Protection of Women
From Domestic Violence Act came in force in the year
2005 and respondent No.1-wife had admitted that she
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was living separate from the husband since the year
2003, and so, the provisions of said Act cannot be
applied to the present case. In view of definition of
“domestic relationship” given in Section 2 of the Act
and also the other provisions of the Act, in which it
is mentioned that it is required to be proved that he
was in such relationship at any point of time and they
lived together, aforesaid submissions of the
petitioner-husband cannot be considered. There is no
force in the submission on legal point.
5. Another submission was made by the learned
counsel for the petitioner that the petitioner is
acquitted in the criminal case which was filed against
him for offence punishable under Section 498-A of the
Indian Penal Code by respondent-wife and, therefore,
it cannot be said that he had treated the respondent-
wife with cruelty. This submission is not acceptable.
The offence is required to be proved beyond reasonable
doubt. Therefore, there is no force in these
submissions.
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6. Learned counsel for the petitioner submitted
that the learned Judicial Magistrate had not called
the report of Protection Officer and that is required
in law under Sections 8, 9 and 12 of the Protection of
Women From Domestic Violence Act, 2005. It is
submitted that in provision like Section 12 of the
Act, the word “shall” is used and so unless and until
the report is called, the order cannot be made. This
submission is also unacceptable. The provisions of
Sections 8, 9 and 12 of the Act are enabling
provisions and they are made for the benefit of victim
like the wife. The provisions of Section 12 of Act
show that if the Protection Officer has discharged his
duty after approaching by wife and he submits report,
that report needs to be considered under Section 12 of
the Act. That does not mean that in each case the wife
should approach the officer first and only after that,
she can go to the Court. If the matter is before the
Court and the wife preferred not to approach the
Protection Officer, the Court is not bound to call the
report of Protection Officer. Thus, there is no force
in this submission also.
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7. In view of these circumstances and the
discussion made above, this Court holds that it is not
possible to interfere in the decision given by the
Magistrate and in the Appeal. In the result, petition
stands dismissed.
( T.V. NALAWADE, J. )
SRM/13/12/17
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