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2019 DIGILAW 649 (BOM)

Dayanand v. Sau. Archana

2019-03-05

T.V.NALAWADE

body2019
JUDGMENT Mr. T.V. Nalawade, J. - The petitions are filed to challenge the decision given by the learned Judicial Magistrate First Class, Aurangabad in Criminal Miscellaneous Application No. 1683 of 2010 decided on 18.06.2011 and also the decision given by the learned Additional Sessions Judge, Aurangabad in Criminal Appeal Nos. 170 of 2011 and 172 of 2011. 2. Both the sides are heard. 3. The proceeding was filed by the respondent Smt. Archana and her two minor sons under the provisions of Protection of Women from Domestic Violence Act, 2005. ( Hereinafter referred to as " D.V. Act") They had claimed the relief of maintenance, the relief of residence order and damages from the husband Dayanand and his relatives including the parents. The matter was contested by the present petitioner husband and his relatives. The proceeding as against the relatives of the husband came to be dismissed, but the learned Judicial Magistrate, First Class, had directed the husband to pay monthly maintenance of Rs. 4,000/to the wife. Direction was also given to pay Rs. 1,000/as rent for house to the wife and direction was given to pay Rs. 30,000/as the damages in respect of the domestic violence, to which the wife was subjected. As maintenance was refused to the two minor issues and as they felt that maintenance granted in favour of the wife was meagre they filed Criminal Appeal No.170 of 2011. The husband filed Criminal Appeal No. 172 of 2011. The Sessions Court has increased the monthly maintenance granted in favour of the wife making it Rs. 6,000/. Relief of maintenance is granted in favour of the two minor issues and the father is directed to pay Rs. 3,000/each to the two minor issues. The amount of damages is increased making it Rs. 1,00,000/. 4. This Court has carefully gone through the evidence given before the learned Judicial Magistrate, First Class. The marriage had taken place on 05.12.2004 and it is case of the husband that wife had left his company in the year 2008 and she had approached Women Redressal Forum, Aurangabad. It is contention that he was always ready and willing to resume the cohabitation, but wife did not return to the matrimonial house. The marriage had taken place on 05.12.2004 and it is case of the husband that wife had left his company in the year 2008 and she had approached Women Redressal Forum, Aurangabad. It is contention that he was always ready and willing to resume the cohabitation, but wife did not return to the matrimonial house. There was contention of both the sides that in the month of October 2008, there was compromise, but again the wife gave complaint against the husband and the relatives and due to her insistence, first crime was registered for the offence punishable under Section 498A of the Indian Penal Code and then the case was filed in the said crime. Then the wife filed proceeding under section 125 of the Code of Criminal Procedure, 1973 before the Family Court, Aurangabad Petition No. E121/ 2009 for granting maintenance of Rs. 10,000/to her and Rs. 5,000/each to the daughter and son. In the said proceeding again compromise took place between present petitioner and respondent s on 17.08.2009 and in that compromise pursis in clause No.2 there is mention that the wife was to complete first Dietitian Course in Mumbai and then she was to return to her matrimonial house at Aurangabad. 5. It is contention of the husband that even after completion of the said course, the wife did not return to matrimonial house and so he was required to issue notice on 12.06.2010. It is contended that as there was insistence from the wife to leave separate from the parents, the husband started living separate from the parents and they started living in separate house from 22.08.2010. It is contention that on 16.10.2010, the wife again left his company and after that, she did not return to matrimonial house. He contended before the Women Redressal Forum that the wife had expressed in October 2010 that she was not ready to return to the matrimonial house. 6. The Domestic Violence proceeding involved in the present matter was filed by the wife in the month of December, 2010. She had claimed maintenance of Rs. 25,000/and she had claimed allowance for separate residence. She had prayed for protection order and she had prayed for damages of Rs. 50 Lakhs. The husband took the aforesaid defences in the matter. 7. The Domestic Violence proceeding involved in the present matter was filed by the wife in the month of December, 2010. She had claimed maintenance of Rs. 25,000/and she had claimed allowance for separate residence. She had prayed for protection order and she had prayed for damages of Rs. 50 Lakhs. The husband took the aforesaid defences in the matter. 7. The learned counsel for the petitioner husband took this Court through the record of oral evidence of the wife and her mother and the evidence given by the husband in rebuttal. 8. The evidence on record shows that the case of the husband is that the wife is the only issue to her rich parents and due to that, she never liked to live with the husband. This case is not probable in nature. She cohabited with the husband and she gave birth to one son and a daughter out of wedlock. The evidence of the mother of the wife shows that there was harassment to Archana and only after approaching the Court by Archana, the husband used to give proposal of compromise and every time, they compromised the matter to settle the dispute. Evidence is given by this lady that due to the compromise, evidence was also not given against the husband in case filed for offence punishable under Section 498A of the Indian Penal Code and the husband came to be acquitted on 04.02.2010. That is a matter of record and the husband is not disputing that the wife had returned to matrimonial house and at least for the period of about two months, there was cohabitation after the disposal of the aforesaid criminal case. 9. The previous maintenance proceeding filed under section 125 of the Code of Criminal Procedure, 1973 was also withdrawn by the wife. These circumstances certainly are not in favour of the husband. The record produced by the husband shows that he had approached the Police against the wife and her relatives. He had informed on 24.10.2010 that wife had made false allegations against him that he had withdrawn the amount from her Account by using A.T.M Card and then she had left the matrimonial house and after that, her relatives had come to him and had given threat of life. He had informed on 24.10.2010 that wife had made false allegations against him that he had withdrawn the amount from her Account by using A.T.M Card and then she had left the matrimonial house and after that, her relatives had come to him and had given threat of life. The wife had also approached the Police after the last incident and she had informed that the husband had started harassing her after resumption of cohabitation and when she had questioned the act of taking Rs. 10,000/, he had replied that it was necessary for her to give money as he was required to spend on them. She had made specific allegations that after giving severe beating, she and her issues were driven out of the matrimonial house. Thus, the allegations of ill-treatment were made, but she did not insist for registration of one more crime for the offence punishable under Section 498A of the Indian Penal Code. Due to these circumstances, wife expressed before police that she would not like to return to the matrimonial house again. 10. The learned counsel for the husband submitted that the particulars of Domestic Violence Act are not given and so it was not proper on the part of the Magistrate to make the order against the husband. There is no force in this submission. In the evidence, all the aforesaid incidents are mentioned by the wife and there are circumstances showing that every time, she withdrew the complaint and proceeding and returned back to the matrimonial house. She fairly admitted that after the second compromise which took place in between petitioner and husband in proceeding No. E121/ 2009 before Family Court, Aurangabad, she went to Mumbai for taking training for the course of Dietitian, but that circumstance cannot help the husband in any way, as the wife was adding to her qualification and that would have helped their family. 11. The wife and her mother have given evidence on the income source of the husband and their evidence shows that the husband is working in the Homeopathic College as Lecturer. He is running a Clinic and he has income from the agriculture also. Wife has denied that she has any source of income. There is specific evidence that in the family of the father of the husband, there is agricultural land of more than 10 Acres. He is running a Clinic and he has income from the agriculture also. Wife has denied that she has any source of income. There is specific evidence that in the family of the father of the husband, there is agricultural land of more than 10 Acres. The Principal of his college is examined and said Principal Mr. Kulkarni has given evidence that monthly salary of the husband is Rs. 31,000/and he is working as Associate Professor. 12. The husband has only given evidence of rebuttal nature in respect of the aforesaid evidence given on domestic violence. The reason given by wife of ill-treatment like demand of money by husband is denied by the husband by contending that she is the only issue to her parents and her parents are having some properties. In examination-in chief, he did not give any evidence on the source of his income. In the cross-examination, he admitted that he has purchased one shop but he has denied that he was running his Clinic there. Only in the cross-examination, he admitted that he gets monthly salary of Rs. 31,000/. He has admitted that some receipts were prepared by him which might have been issued by his Clinic. He was practicing Homeopathic Medicine. In the reply, he had contended that he was getting only Rs. 10,000/as salary income and he had contended that he was required to maintain his parents. As against that contention, there is evidence of aforesaid nature. 13. The husband has examined his father Narayan Rao. His evidence shows that they own house. They own agricultural land and he is a Pensioner. His another son has completed M.B.B.S Course. Narayan Rao is getting monthly pension of Rs. 7,000/, but no record of pension is produced. He admitted that there is well in his land and the land ad-measures 10 Acres, but nothing is produced to show the income from the agricultural land. 14. This evidence is sufficient to infer that the monthly income of the husband is more than Rs. 10,000/. He must be practicing Homeopathic Medicine and there is no responsibility on him to maintain his parents. All these circumstances are considered by the Sessions Court. Due to order made by the Sessions Court, the husband is now required to pay monthly maintenance of Rs. 12,000/. 10,000/. He must be practicing Homeopathic Medicine and there is no responsibility on him to maintain his parents. All these circumstances are considered by the Sessions Court. Due to order made by the Sessions Court, the husband is now required to pay monthly maintenance of Rs. 12,000/. Considering his approximate monthly income mentioned above, it can be said that the maintenance granted against the husband is not on higher side. Similarly, the amount of Rs. 3,000/granted for rent is also not on higher side. 15. There is one more circumstance in the present matter. There is record referred by the executing Court which is application given by the husband dated 24.01.2017 to the Sessions Court. He had made allegations of corruption against everybody before the Sessions Court. 16. When this circumstance was brought to notice of the learned counsel for the husband, the learned counsel submitted that the husband ought not to have given such application and this Court can treat the said application as withdrawn. Due to all these circumstances, this Court holds that it is not possible to interfere in the order made by the learned Additional Sessions Judge. In the result, both the petitions stand dismissed.