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2022 DIGILAW 204 (BOM)

Santosh v. Amruta Santosh Bhalerao

2022-01-19

AVINASH G.GHAROTE

body2022
JUDGMENT Avinash G. Gharote, J. - Hearing was conducted through Video Conferencing and the learned counsels agreed that the audio and visual quality was proper. 2. Heard. 3. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the rival parties. 4. The petition challenges the order dated 28.07.2015, passed by the learned Judicial Magistrate First Class, Court No. 6, Amravati, under Section 23(2) of the Protection of Women From Domestic Violence Act, 2005 (hereinafter to be refereed as the 'D.V. Act'), whereby the applicant No. 1/husband, has been directed to pay Rs. 20,000/- (Rs. Twenty Thousand Only) per month to the wife and Rs. 10,000/- (Rs. Ten Thousand Only) per month to the minor son. This order has been confirmed in appeal by the learned Sessions Court by judgment dated 30.04.2019 by dismissing the appeal. 5. Mr. Dhore, learned counsel for the applicants submits, that the judgment of the learned Judicial Magistrate First Class, Amravati, is an outcome of a result of an intentional suppression practiced by the non-applicant/wife, inasmuch as, though on 20.07.2013 when the complaint under the D.V. Act came to be filed, the non-applicant/wife was permanently residing at Mumbai and was employed with the R.A. Poddar Medical College, Mumbai with effect from 13.05.2013 and was earning sumptuously, no disclosure of this was made by her in the complaint nor was her salary certificate indicating the amount of salary which was drawn by her, placed on record. He submits, that only for the purpose of creating jurisdiction with the learned Judicial Magistrate First Class, Amravati, the residence of the non-applicant/wife, on 20.07.2013, has been shown at Amravati, whereas, since May 2013 and even prior thereto the non-applicant/wife was residing at Mumbai. He further submits, that after the marriage on 09.07.2011, the non-applicant/wife, had shifted to Mumbai, to reside at the matrimonial home, where the applicant No. 1/husband was residing there till 05.06.2013, on which date, a report was lodged by her with Dadar Police Station against the applicants whereupon she had left the matrimonial house and had come to Amravati. He further submits, that after the marriage on 09.07.2011, the non-applicant/wife, had shifted to Mumbai, to reside at the matrimonial home, where the applicant No. 1/husband was residing there till 05.06.2013, on which date, a report was lodged by her with Dadar Police Station against the applicants whereupon she had left the matrimonial house and had come to Amravati. He further submits, that perhaps after instructing her counsel who drafted the compliant at Amravati, she had gone back again to Mumbai to join her services to R.A. Poddar Medical College, Mumbai, where she was employed upon selection by the M.P.S.C., and therefore, as she was a permanent resident of Mumbai, the complaint at her behest filed at Amravati was not maintainable. 6. He further submits, that it was the duty of the non-applicant/wife to have made a full and candid disclosure, regarding her employment and the amount which she was receiving as salary, which could have been taken into consideration by the learned Judicial Magistrate First Class, Amravati, while passing the impugned order granting interim maintenance. He submits, that though a vague statement was made in para 17, that the non-applicant/wife was due to resume her services at Mumbai shortly there was no clear cut disclosure regarding the nature of her services and the emoluments which she was getting on account of such services. He submits, that though the applicants, in their written statement, had specifically stated, that the non-applicant/wife, at the time of filing of the application was residing at Mumbai and was a working as Assistant Professor in R.A. Poddar Medical College, Mumbai, on account of medical leave availed by her during the period 05.06.2013 to 27.08.2013, the complaint came to be filed, in spite of which position, there was no candid disclosure, as to the nature of her services or the emoluments which she was getting at Mumbai. He submits, that though this submission was noted by the learned Judicial Magistrate First Class, Amravati in para 12 of the impugned order, the same was not considered on the ground that there was no prima facie evidence on record about her current working status and about her monthly income, which position has been reiterated in para 16 of the said order, which has resulted in passing of the order by the learned Judicial Magistrate First Class, Amravati, directing payment of interim maintenance of Rs. 20,000/- (Rs. 20,000/- (Rs. Twenty Thousand Only) per month to the non-applicant/wife and Rs. 10,000/- (Rs. Ten Thousand Only) to the son. 7. He further submits, that the learned Sessions Court, Amravati, has also committed the same error, as inspite of having noted in para 13, the contention of the appellants therein, that the respondent/wife was having a Government job and was earning Rs. 60,000/- (Rs. Sixty Thousand Only) per month and the plea that the respondent/wife had not approached the Court with clean hands and the order of interim maintenance was on account of suppression of material fact, the contention was brushed aside, by holding that even otherwise she would be entitled to maintenance. 8. Mr. Dhore, learned counsel for the applicants, therefore submits, that the non-applicant/wife, has failed in her bounden duty to the Court in making a disclosure of the fact that she was employed as an Assistant Professor with R.A. Poddar Medical College, Mumbai, and the nature and extent of her earnings and also the fact that she was not a permanent residence of Amravati but was a permanent resident of Mumbai, considering which, the proceedings under the D.V. Act, could not have entertained by the Court at Amravati, and therefore, the very assumption of jurisdiction by the Court at Amravati, was incorrect. He therefore submits, that on account of this suppression, the orders of the Courts' below cannot be sustained, as they do not consider this aspect in their proper perspective. 9. Mr. Dhengale, learned counsel for the non-applicant/wife submits, that though the complaint does not disclose specifically the employment of the non-applicant/wife with the R.A. Poddar Medical College, Mumbai as an Assistant Professor, however, by inviting my attention to para 17 of the complaint and the statement, that the applicant/wife is due to resume her services at Mumbai shortly, he submits, that there was a disclosure. Further reliance is placed upon Annexure-C, a complaint made by the applicant/wife, at Police Station Raja Peth on 02.07.2013, which according to him, discloses the fact of the non-applicant/wife being permanently employed with R.A. Poddar Medical College, Mumbai. He therefore submits, that the aforesaid disclosure was sufficient and nothing more was required to be done by the non-applicant/wife. Further reliance is placed upon Annexure-C, a complaint made by the applicant/wife, at Police Station Raja Peth on 02.07.2013, which according to him, discloses the fact of the non-applicant/wife being permanently employed with R.A. Poddar Medical College, Mumbai. He therefore submits, that the aforesaid disclosure was sufficient and nothing more was required to be done by the non-applicant/wife. He further submits, that though the learned Judicial Magistrate First Class, Amravati, had refused to consider the contention of the applicant No. 1/husband regarding the employment of the wife, with R.A. Poddar Medical College, Mumbai and the emolument received by her on the ground, that there was no evidence on record prima-facie about the current working status of the non-applicant/wife or her monthly income, the learned Sessions Court, Amravati, has considered the same for which my attention is invited to para 13 of the judgment of the learned Sessions Court, Amravati. He therefore submits, that there is no failure on part of the non-applicant/wife, to make a disclosure as he required by law and even if the position, is not directly placed on record, indirectly it was alluded to, which would suffice the requirement of law. He further submits, that the details of the employment of non-applicant/wife and the emoluments which she was getting were placed by the applicants on record of the Judicial Magistrate First Class, Amravati, however the same was subsequent to the passing of the order by the learned Judicial Magistrate First Class, Amravati, which was passed on 28.07.2015 and the application for placing the document on record came to be filed on 05.12.2015. He further submits, that the learned Sessions Court, Amravati was equally aware of this position which would be evident from para 13 of the judgment of the learned Sessions Court, Amravati, and therefore submits, that the impugned orders need no interference. 10. Insofar as the contention, that the non-applicant/wife was not a resident of Amravati, but was a permanent resident of Mumbai, and therefore, the Court at Amravati lacked necessary jurisdiction to entertain the complaint, it would be material to note, that the applicants, in para 26 of the reply before the learned Judicial Magistrate First Class, Amravati, had specifically raised this issue. The order of the learned Judicial Magistrate First Class, Amravati, however does not indicate, the consideration of this plea and any finding thereupon, what is recorded, is merely the claim of the non-applicant/wife, that she is residing at Amravati with her parents, as is evident from para 11 of the order of the learned Judicial Magistrate First Class, Amravati. There is no discussion whatsoever regarding the averment made in para 26 of the reply of the applicants, in the background of Annexure-D, the allotment letter, whereby a Government quarter was allotted to the non-applicant/wife in Mumbai in the month of December 2013, which at least would have indicated the position about her employment and her residence, in order to consider and determine the said plea. The appellate order is equally silent about this issue. 11. Insofar as, the plea regarding non disclosure is concerned, in my considered opinion, it is necessary that each and every litigant should be honest with the Court and make a full disclosure of all the relevant and material facts as well as the documents which have bearing upon the matter in issue. The employment of the non-applicant/wife, with the R.A. Poddar Medical College, Mumbai, in my considered opinion, was a fact, which was material for the non-applicant/wife to have placed on record by way of specific averment, alongwith the said document. That however is lacking in the present matter, as is apparent from the complaint, for there is only a vague allegation in para 17, the end of which contains a one line statement that the non-applicant/wife was due to resume her services at Mumbai shortly and a reference to a complaint was made on 02.07.2013 at Police Station Rajapeth, Amravati in para 20, copy of which was marked as Annexure-C which according to the learned counsel for the non-applicant/wife contained the averment regarding her employment. In my considered opinion, these averments, fall short of a requirement of a full and candid disclosure, as is required by law to be made by every litigant, who approaches the Court seeking relief. In my considered opinion, it was necessary for the non-applicant/wife to have specifically stated the nature of her services at Mumbai, the amount of salary which she was getting and the date from which she was employed, in her complaint itself. That has however not been done. 12. In my considered opinion, it was necessary for the non-applicant/wife to have specifically stated the nature of her services at Mumbai, the amount of salary which she was getting and the date from which she was employed, in her complaint itself. That has however not been done. 12. Even if these averments, in paras 17 & 20 of the complaint, as claimed by Mr. Dhengale, learned counsel for the non-applicant, are to be considered as a disclosure, then the Courts below totally failed to take into consideration the factum of her employment, as admitted by the non-applicant/wife herself, on which ground also the impugned orders cannot be sustained. In fact, the order by the learned Judicial Magistrate First Class, Amravati, though in para 12 records the plea, that the non-applicant/wife was working and was having a well furnished quarter for her residence, the plea is rejected on the ground that there was no prima-facie evidence on record about her current working status and her monthly income, which would be in ignorance in averment of the complaint where the non-applicant/wife has admitted that she was due to resume her services at Mumbai. A similar finding has rendered in para 16, that there was no prima-facie evidence to show the current working status of non-applicant/wife and about her income from the same. In my considered opinion, the above findings by the learned Judicial Magistrate First Class, Amravati, clearly indicate, non application of mind to the position on record. The learned Judicial Magistrate First Class, Amravati, could have ensured that the relevant documents, ought to have been produced by the non-applicant/wife herself, considering her averment in para 17 of her complaint, that also has not been done. Even if there was no full and candid disclosure on part of the non-applicant/wife and the learned Sessions Court, Amravati, though notes the argument in para 13, however, there is no appropriate consideration of the same as the plea, has merely been brushed aside. In my considered opinion, the impugned orders, for the above reasons insofar as, they grant interim maintenance to the non-applicant/wife, cannot be sustained and the same are hereby quashed and set-aside. The matter is remanded back to learned Judicial Magistrate First Class, Amravati, to redetermine afresh, the application seeking interim maintenance by the non-applicant/wife, as well as the plea of jurisdiction as raised. The matter is remanded back to learned Judicial Magistrate First Class, Amravati, to redetermine afresh, the application seeking interim maintenance by the non-applicant/wife, as well as the plea of jurisdiction as raised. The applicant No. 1 as well as the non-applicant/wife would be well advised to place their recent salary certificate on record on the file of learned Judicial Magistrate First Class, Amravati, in order to enable the learned Judicial Magistrate First Class, Amravati, to effectively decide the matter in issue. 13. The application is partly allowed in the above terms with no order as to costs. 14. It is made clear, that the impugned orders, insofar as, they grant of maintenance of Rs. 10,000/- (Rs. Ten Thousand Only) to the son Bhargav, are maintained as he would anyhow be entitled to maintenance, from his father and the applicant No. 1 shall be bound and liable to pay the same. 15. Rule accordingly. No costs.