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2019 DIGILAW 1802 (BOM)

Pramod Prakash Mulik v. Manisha Pramod Mulik

2019-07-31

S.S.SHINDE

body2019
JUDGMENT : 1. Rule. Rule made returnable forthwith and heard with the consent of parties. 2. By this Writ Petition, the Petitioners challenged the order dated 15/06/2018 (the actual date of order is 12/06/2018), passed by the learned Additional Sessions District Judge, Sangli rejecting the Application below Exhibit 5 in Criminal Appeal No.264 of 2017. By the impugned order, the learned Additional Sessions Judge, Sangli has partly allowed the application filed by the Petitioners for staying the execution of the judgment and order passed by the learned Judicial Magistrate, First Class, Kadegaon in Criminal Misc. Application No.132 of 2015 and, partly stayed the order of the learned Magistrate dated 23/11/2017 to the extent of direction to the Respondent Nos.1 to 6 therein i.e. the Petitioners herein, to pay the amount of compensation of Rs.11,00,000/- to the Respondent No.1 wife and to hand over the gold ornaments of 150 grams and other personal articles and gift articles to Respondent No.1 wife. However, the learned Additional Sessions Judge, refused to stay the said order of the learned Magistrate directing the Petitioners herein to pay monthly maintenance of Rs.9500/- to Respondent No.1 - wife and to hand over custody of son Pravesh to Respondent No.1. 3. The case of the Petitioners in brief can be stated thus :- Petitioner No.1 got married with Respondent No.1 on 18/01/2013. On 10/01/2014 Petitioner No.1 and Respondent No.1 are blessed with a male child by name Pravesh who is now, according to the Petitioners, five and half years old. It is the case of the Petitioners that after delivery of child the nature of Respondent No.1 changed significantly, and Respondent No.1 started quarreling with the Petitioners. It is stated that Respondent No.1 was not taking care of the son and, she started abusing and assaulting as well as detaining the son in bedroom. It is the case of the Petitioners that because of such type of behaviour of Respondent No.1, the Petitioners started medical treatment to Respondent No.1 from their family doctor. They further stated that when Respondent No.1 was diagnosed that, she is suffering from Schizophernia Paraniod, and as the behaviour of Respondent No.l was violent, she was hospitalized as per the advice of the doctors. They further stated that when Respondent No.1 was diagnosed that, she is suffering from Schizophernia Paraniod, and as the behaviour of Respondent No.l was violent, she was hospitalized as per the advice of the doctors. It is stated that somewhere in December 2014, the father of Respondent No.1 took Respondent No.1 and son Pravesh to his native place and, when Petitioner No.1 husband visited the place of the parents of Respondent No.1 to take back Respondent No.1 and the son, the father refused custody of the son. At that time Petitioner No.1 noticed burn injuries on the legs of the child, therefore, he lodged a complaint to concerned Police Station Chinchni Police Station, Sangli. Accordingly the Police handed over the custody of son and Respondent No.1 to Petitioner No.1. Thereafter Respondent No.1 resumed her treatment and admitted in J. J. Hospital from 04/08/2015. The Petitioners stated that, on 11/08/2015 the father of Respondent No.1 forcibly took away Respondent No.1 to his house by taking discharge from the hospital. Thereafter Petitioner No.1 gave a notice to Respondent No.1 through his advocate on 12/08/2015 calling upon Respondent No.1 for cohabitation. It is the case of the Petitioners that, the custody of the child was always with the Petitioners and they were taking care of the son. 4. Thereafter on 17/08/2015 Respondent No.1 filed miscellaneous application being M.A. No.118 of 2015 under the provisions of Section 97 of the Criminal Procedure Code before the learned JMFC Kadegaon for issuing search warrant and seeking custody of child Pravesh from the Petitioners. The Petitioner No.1 has filed his written statement to the said Miscellaneous Application. 5. It is stated by Respondent No.1 wife in the said M A No. 118 of 2015 that after marriage she went to Mumbai for cohabitation with Petitioner No.1 husband, there her in-laws started ill treating her on miscellaneous reasons and for illegal demand of bullet motorcycle. It is her case that after the birth of son Pravesh, the Petitioners herein started her ill treating by saying that she is a lunatic, and the Petitioners also forcibly gave shocks to her in Gokuldas Tejpal Hospital, Mumbai. She stated that the Petitioners herein forcibly admitted her in J. J. Hospital on 4/8/2015. It is her case that after the birth of son Pravesh, the Petitioners herein started her ill treating by saying that she is a lunatic, and the Petitioners also forcibly gave shocks to her in Gokuldas Tejpal Hospital, Mumbai. She stated that the Petitioners herein forcibly admitted her in J. J. Hospital on 4/8/2015. On information being received from the doctors, the father of Respondent No.1 visited the hospital, and at that time the doctor present informed the father of Respondent No.1 herein, that she is not suffering from any illness and also advised them to take her back. Accordingly discharge was taken and she was taken to the house of the Petitioners. It is her case that at that time, the Petitioners drove away Respondent No.1 and her son Pravesh from their house. Respondent No.1 therefore along with son came to her parents house at village Shelakbav. It is further stated that On 12/08/2015 Petitioner Nos.2 and 3 visited the parent’s house of Respondent No.1 and forcibly took away the son Pravesh to Mumbai. It is her case that the son Pravesh is a sucking child and his custody with Respondent No.1 is essential. It is her case that the Petitioners have forcibly and illegally obtained the custody of the child and there is a danger to the life of the child. 6. Pending the said Miscellaneous Application No.118 of 2015, Petitioner No.1 filed an application being Petition No.D-91 of 2015 under the provisions of Guardians and Wards Act, 1890 before the Family Court, Bandra for custody of child. 7. The learned JMFC, Kadegaon by order dated 03/09/2015 rejected Criminal Misc. Application No.118 of 2015 filed by Respondent No.1 wife under Section 97 of the Criminal Procedure Code for issuing search warrant and for seeking custody of child. The learned JMFC, after considering allegations mentioned in the said application and after perusal of the material on record, came to a conclusion that Applicant i.e. Respondent No.1 did not disclose what is the danger to the health of the minor child and that, the Applicant i.e. Respondent No.1 herein, prima facie failed to make out a case that the minor son Pravesh has been confined by the Opponents i.e. the Petitioners herein which amounts to an offence or there is any danger to the life of the said Child. It appears that the said order dated 03/09/2015 was not challenged by Respondent No.1 herein. 8. Respondent No.1 filed Criminal Misc. Application No.132 of 2015 under the provisions of the Protection of women from Domestic Violence Act, 2005 (for short “Domestic Violence Act”) before the learned JMFC, Kadegaon inter alia praying for protection under Section 18, for accommodation under Section 19, for maintenance under Section 20 and for custody of child under Section 21 and for compensation under Section 22 of the said Act. 9. As stated herein above, the learned JMFC, Kadegaon decided the said Criminal Misc. Application No.132/15 filed by Respondent No.1 wife for the aforesaid reliefs by order dated 23/11/2017. By the said order the learned JMFC directed the husband to pay Rs.9,500/- per month to the wife, and Rs.5,500/- per month to the son along with compensation of Rs.11,00,000/- and also directed to return all the ornaments and other articles to the wife. The learned JMFc has taken a note that wife is highly educated i.e. M. Sc. The learned JMFC also considered the evidence of Respondent No.1 wife and came to a conclusion that the Petitioners herein without any reason ill treated Respondent No.1. The learned JMFC has also gone through the medical papers produced on record. In the case history of Respondent No.1 recorded by the medical officer it is revealed that, Respondent No.1 wife is of a sound mind and healthy woman and needs no medicines. The learned JMFC therefore came to a conclusion that it is clear from the medical papers that Petitioners have unnecessary admitted Respondent No.1 in the hospital. The learned JMFC also came to a conclusion that, as Respondent No.1 is sound minded and healthy, and therefore she can feed the son Pravesh, but only to keep away Respondent No.1 from the son Pravesh, that Petitioners alleged that doctor advised not to feed the son, and as Respondent No.1 fed the son, he was adversely affected and therefore he was required to take in the hospital. Considering all this evidence, the learned JMFC held that though Respondent No.1 wife is sound minded and healthy, the Petitioners tried to keep away son Pravesh from Respondent No.1. It is also held by the learned JMFC that looking to the behaviour of the Petitioners, they have purposely ill treated Respondent No.1. Considering all this evidence, the learned JMFC held that though Respondent No.1 wife is sound minded and healthy, the Petitioners tried to keep away son Pravesh from Respondent No.1. It is also held by the learned JMFC that looking to the behaviour of the Petitioners, they have purposely ill treated Respondent No.1. In so far as custody of son Pravesh is concerned, the learned JMFC in its order observed that Petitioners have taken forcible custody of the son and as the court did not interfere in the same, the custody of the son was continued with the Petitioners. The learned JMFC, after considering the evidence and material on record, came to a conclusion that till the decision of the higher Court, the custody of the son is required to be handed over to Respondent No.1. As indicated herein above, the learned JMFC, therefore, by order dated 23/11/2017 allowed Misc. Application No.132 of 2015 filed by Respondent No.1 wife under the Domestic Violence Act, and directed Petitioner No.1 husband to hand over custody of son Pravesh to Respondent No.1 wife within 15 days from the date of the said order, and also directed the petitioner to pay Rs.11,00,000/- as compensation to Respondent No.1, and also directed to pay maintenance as stated herein above. 10. Being aggrieved by the said order dated 23/11/2017 passed by the learned JMFC, the Petitioners preferred an Appeal being Criminal Appeal No.264 of 2017 on the ground that the granting custody of child to Respondent No.1 is against the principle of natural justice and the trial court has not considered the ingredient of the Section 21 of the Domestic Violence Act. The lower court has also failed to consider the welfare of the child. The Appellate Court by the impugned order dated 12/06/2018 did not deem it appropriate to interfere with the directions given by the Lower Court regarding paying the maintenance of Rs.9500/- and handing over custody of son Pravesh to Respondent No.1 wife. However by the impugned order the Appellate Court stayed the order of the Lower Court to the extent of paying the amount of compensation of Rs.11,00,000/- and handing over the gold ornaments etc. However by the impugned order the Appellate Court stayed the order of the Lower Court to the extent of paying the amount of compensation of Rs.11,00,000/- and handing over the gold ornaments etc. The Appellate Court has held that the order dated 23/11/2017 appears to have been passed by the Lower Court under Section 21 of the Domestic Violence Act, and the said section empowers the Magistrate to pass orders regarding interim custody of child to the aggrieved person. The Appellate Court observed that the said section does not state any thing about deciding the point of custody on merits, and the said section itself is enacted to provide for interim custody of a child. 11. It is required to be noted that Respondent No.1 wife has filed Misc. Civil Application No.7 of 2016 under Section 24 of the Code of Civil Procedure, thereby praying that Custody Petition No.D-91 of 2015 filed by Petitioner No.1 husband before Family Court, Mumbai be heard along with Civil Misc. Application No.291 of 2015 by the District Court, at Sangli. A learned Single Judge of this Court (Coram : G S Kulkarni, J) by order dated 22/04/2016 transferred the Petition from District Court, Sangli to the Family Court Bandra. It appears that the said proceedings are still pending. 12. I heard the learned counsel for the parties. With their able assistance, perused the grounds taken in the Writ Petition, annexures thereto and the reasons assigned in the impugned judgments and orders. The learned counsel for the Petitioners submits that the custody granted by the Courts below is against the principles of natural justice. It is submitted that the Courts below did not consider the welfare of the child. It is also submitted that the applications under the provisions of Guardians and Wards Act, 1890 are pending before the Family Court, Bandra and therefore pending the disposal of the said application, the Trial Court or the Appellate Court has no jurisdiction to pass the impugned order as it amounts to an interfering the jurisdiction of the Family Court. It is submitted that the applications before the Family Court are filed earlier in point of time, and therefore, by passing the impugned order the Appellate Court has exceeded the jurisdiction. She submitted that in the mater of custody, interest and welfare of the minor is of prime important than the rights of the parties seeking custody. It is submitted that the applications before the Family Court are filed earlier in point of time, and therefore, by passing the impugned order the Appellate Court has exceeded the jurisdiction. She submitted that in the mater of custody, interest and welfare of the minor is of prime important than the rights of the parties seeking custody. She submits that the Courts below did not properly consider the medical papers/medical report produced by the Petitioners in respect of the mental condition and the treatment of Respondent No.1 wife. It is submitted that the application under Section 97 of the Cr.PC. filed by the wife has been rejected by the learned Magistrate. Once said application was rejected, another application under section 21 of the Domestic Violence Act, was not maintainable. The learned counsel for the Petitioners submitted that the Appellate Court did not consider the ingredients of Section 21 of the Domestic Violence Act, which provides about temporary custody of a child and makes it clear that under the provision of this Act, the JMFC has no power to grant custody permanently. In support of aforesaid contention learned counsel placed reliance upon the unreported judgment of the High Court of Bombay, Bench at Aurangabad in Criminal Revision Application No.133 of 2014 (Sham @ Navnath Vasantrao Kumbhakarna and ors. v/s. Sau Yogita w/o Sham Kumbhakarna and anr.) decided on 03rd July 2018. It is submitted that, the trial Court while granting monetary relief erred in believing the contention of the Respondent wife about income/earning of the Petitioner as stated by Respondent wife, without undertaking an exercise of finding out the specific income of the Petitioner. It is further submitted that the findings of the lower court regarding compensation, maintenance and monetary reliefs are based on surmises and conjuncture, and are against the justice, equity and basic provisions of Domestic Violence Act. Learned counsel submits that, welfare of child is of paramount importance, age of the child is 5 ½ years, and he is admitted in the school at Mumbai, and taking education. Learned counsel invites attention of this Court to the pleadings and grounds taken in the petition and written notes of arguments and prays that this Petition may be allowed. 13. Learned counsel invites attention of this Court to the pleadings and grounds taken in the petition and written notes of arguments and prays that this Petition may be allowed. 13. On the other hand, the learned counsel for Respondent No.1 wife submitted that, both the Courts below have rightly directed to hand over the custody of son Pravesh to Respondent No.1 wife as the son is still on breast feeding and is in need of his mother for well being, and therefore an application was filed for interim custody of the son. It is submitted that the Petitioners did not provide anything to Respondent No.1 and therefore she is entitled to get certain maintenance for her livelihood. It is submitted that, respondent wife has no source of income and she is not working therefore, the court has rightly awarded maintenance. It is submitted that though the proceedings are pending before the Family Court, Mumbai, the Courts below have jurisdiction to grant interim custody of the son to Respondent No.1. Learned counsel invites attention of this Court to concurrent findings of facts recorded by the Courts below and submits that, an interim custody of child is granted and not permanent as alleged by the petitioners. An application under Section 97 Cr.PC. was for different purpose and filling of such application can not be construed as bar for filing the application under Section 21 of the Act. Both the Courts below held that, respondent wife is neither suffering from any ailment nor require treatment as it is evident from the medical papers placed on record with affidavit in reply. He therefore submitted that the Petitions needs no consideration. 14. It is pertinent to mention at this stage that the case of the Petitioners revolves around the behaviour and illness of Respondent No.1 wife, whereas Respondent No.1 – wife alleged that Petitioner No.1 husband and her in laws started ill treating her on miscellaneous reasons and for illegal demand of bullet motorcycle. It is also alleged by Respondent No.1 that after the birth of son Pravesh, the Petitioners herein started her ill treating by saying that she is a lunatic, forcibly gave shocks to her in Gokuldas Tejpal Hospital, Mumbai for no reason and she was forcibly admitted in J. J. Hospital. It is also alleged by Respondent No.1 that after the birth of son Pravesh, the Petitioners herein started her ill treating by saying that she is a lunatic, forcibly gave shocks to her in Gokuldas Tejpal Hospital, Mumbai for no reason and she was forcibly admitted in J. J. Hospital. Respondent No.1 wife has specifically stated that, when her father visited the hospital, at that time the doctor present there informed her father that, she is not suffering from any illness and also advised them to take her back. It is also specifically stated by Respondent No.1 that, the Petitioners drove away her and her son Pravesh from their house and therefore they came to her parents house. Thereafter Petitioner Nos.2 and 3 visited her parent’s house and forcibly took away her son Pravesh to Mumbai, It is therefore alleged that the Petitioners have forcibly and illegally obtained the custody of the child and there is a danger to the life of the child. 15. This matter revolves around the custody of child. As mentioned herein above, it is contended by Respondent No.1 before the Courts below that, the child Pravesh is a sucking child and needs breast feeding. It is required to be noted that the Miscellaneous Application filed by Respondent No.1 – wife under Section 97 of the Cr.PC for issuing search warrant and custody of her son Pravesh from the Petitioners came to be rejected by the learned JMFC, Kadegaon on 03/09/2015. Pending the said Miscellaneous Application Petitioner No.1 filed an application being Petition No.D-91 of 2015 under the provisions of Guardians and Wards Act, 1890 before the Family Court, Bandra for custody of child, which is pending. Thereafter Respondent No.1 filed Criminal Misc. Application No.132 of 2015 under the provisions of Domestic Violence Act, 2005 before the learned JMFC, Kadegaon inter alia praying for protection, accommodation, maintenance and custody of child and also for compensation. 16. In the context of the submission of the Petitioners that, since the application filed by Respondent No.1 under Section 97 of the Criminal Procedure Code has been rejected, and therefore the application filed by Respondent No.1 under Section 21 of the Domestic Violence Act was not maintainable; to appreciate the said contention it would be apt to deal with the scope and purport of Section 97 of the Criminal Procedure Code, and Section 21 of the Domestic Violence Act. Section 97 of the Criminal Procedure Code provides search for persons wrongfully confined. Section 97 of Criminal Procedure reads thus :- 97. Search for persons wrongfully confined. If any District Magistrate, Sub- divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search- warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper. From the reading of aforesaid Section 97 clearly discloses that the power under the said Section could only be exercised by the Magistrate if a person is confined and, such confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search for the person so confined. In the present case, initially the custody of the child and Respondent No.1 has been handed over to Petitioner No.1 husband by the police on the complaint being made by him, and since then the child is in his custody. The application under Section 97 of Cr.P.C filed by Respondent No.1 wife for issuing search warrant and for custody which was rejected by the learned Magistrate on the ground that, the provision of Section 97 does not get attract in the present case, as the basic ingredient for attracting the said Section is that a person is confined, under such circumstances that the confinement amounts to an offence. Section 21 of the Domestic Violence Act deals with custody orders, which reads thus :- 21. Custody orders.—Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent. Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit. On a plain reading of Section 21 and the language employed therein it can be said that the Court may, at any stage of hearing of the application for protection order or for any other relief under this Act, grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify if necessary the arrangements for visit of such child or children by the father. The proviso to Section 21 stipulates that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interest of child or children, the Magistrate shall refuse to allow such visit. 17. Mandate of Section 97 of the Criminal Procedure Code, and the mandate laid down under Section 21 of the Domestic Violence Act are totally different. Section 97 of the Cr. P C would be applicable only when custody of the child with the Petitioners is unlawful, and Section 21 of the Domestic Violence Act is applicable when an aggrieved person, in the present case Respondent No.1 herein, prefers an application for custody and, the Magistrate may grant temporary custody to the aggrieved person, in the present case Respondent No.1 herein. With reference the facts of the present case, it is pertinent to mention at this stage that the son Pravesh, who is, according to Respondent No.1, a sucking child, is in custody of Petitioner No.1. He is in need of his mother for well being. The learned Magistrate, in paragraph 18 of the order dated 23/11/2017, has specifically held that till the decision of higher Court, it is necessary to hand over the custody of the child to Respondent No.1 mother. It means that directing to hand over custody to Respondent No.1 by the learned Magistrate is temporary, and not permanent as alleged by the petitioners. It is pertinent to mention at this stage that the approach of the Court should be practicable to work out the modalities in practical manner in evolving the process whereby the child suffers minimum trauma. It means that directing to hand over custody to Respondent No.1 by the learned Magistrate is temporary, and not permanent as alleged by the petitioners. It is pertinent to mention at this stage that the approach of the Court should be practicable to work out the modalities in practical manner in evolving the process whereby the child suffers minimum trauma. The paramount consideration is welfare of child and that the father could not be faced to seek remedy either under the Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, as it would lead to multiplicity of litigation. In the facts of this case, Respondent No.1 wife is highly qualified i.e. M.Sc in Computer application and petitioner husband is police constable doing the job of driver on police vehicle. During the course of hearing learned counsel for Respondent No.1 wife made a statement that, she will take school admission of child in the school at Karad. It is also submitted that, the wife is not working and is highly educated would be in a position to devote full time for welfare of child. On the contrary, petitioner husband working as driver on police vehicle may not be in a position to devote time for child. There is also uncertainty of working hours since he is working in police department. 18. It seems that though by order dated 13/12/2017 the learned Magistrate granted stay to the impugned judgment and order subject to depositing 60% maintenance amount by the Petitioners, the Petitioners did not deposit the said amount. 19. Considering the material on record and also considering the provisions of Section 21 of Domestic Violence Act, the learned Magistrate directed the Petitioners herein to hand over the custody of son Pravesh to Respondent No.1 herein within fifteen days from the date of passing the said order i.e. 23/11/2017. Section 21 of the said Act clearly empowers the Magistrate to grant temporary/interim custody of a child to aggrieved person i.e. Respondent No.1 herein. The learned Additional Sessions Judge did not deem it appropriate to interfere with the directions given by the learned Magistrate regarding monthly maintenance and handing over custody of son Pravesh to Respondent No.1 herein. There are concurrent findings of facts recorded by Courts below. Those findings are not perverse and view taken by the Courts below is reasonable and plausible. 20. There are concurrent findings of facts recorded by Courts below. Those findings are not perverse and view taken by the Courts below is reasonable and plausible. 20. In so far as the directions given by both the Courts below to the Petitioners to pay maintenance of Rs.9500/- per month to Respondent No. 1, are concerned, both the Courts below have properly considered the income of the Petitioners, and the fact that Respondent No.1 is not earning. On this aspect, the findings recorded by both the Courts are in consonance with the material placed on record, and the view taken by both the Courts below is reasonable and plausible. 21. In that view of the matter, the impugned orders passed by the Courts below did not require any interference at the hands of this Court in its writ jurisdiction. No case is made out. The Writ Petition is accordingly rejected. Rule stands discharged. The Petitioners shall hand over custody of son Pravesh to Respondent No.1 as directed by the learned Judicial Magistrate, First Class, Kadegaon. At this state learned counsel appearing for the petitioner prays for continuation of an ad-interim relief which is in force till today. The prayer is vehemently opposed by the learned counsel appearing for the Ist respondent. However, in the interest of justice ad-interim relief which is in force till today, shall continue to operate for two weeks from the actual uploading of the judgment and order as the High Court website.