In this connection one can refer to the judgment delivered by this Court in Vishal Damodar Patil ..vs.. Vishakha Vishal Patil; 2008 (6) AIR Bom R 297 wherein it is observed that there is no need to file separate application for interim relief under Section 23 of the said Act. The only requirement is to hear the parties concerned. In the present case, the learned trial Judge has undoubtedly heard the applicant as well as non applicant and has passed an interim order. To that extent, in the absence of regular application for interim maintenance, passing of order dated 07.04.2008 cannot be faulted with.
5. The point as regards calling of the report from the Protection Officer or Service Provider is concerned one will have to interpret provisions of Section 5
12 of the Act and the said interpretation has to be in favour of the person, who is in need of maintenance and in particular interim maintenance. Report from the Protection Officer or Service Provider has to be gathered and it would assist the Court for the purposes of doing complete justice in the matter. At the same time, it is expected that the trial Court has to pass an interim order as early as possible. If the trial Court, who is required to pass an interim order, keeps on waiting to get the report of the Protection Officer or Service Provider, it would entail the delay and the idea of considering the case of a needy person at the interim stage will be actually defeated. Therefore, I am inclined to observe that it is not necessary in each and every case to obtain a report from the Protection Officer or Service Provider to decide application for interim relief. If on the basis of record before the Court, the Court is in a position to arrive at a just and proper conclusion, it will be open for the Court to do so and decide the matter accordingly. In the present case, the applicant had filed reply to the application filed by non applicants and, therefore, necessary material was before the learned trial Judge to decide the question whether interim relief should be granted. The record has been considered and order has been passed.
Bombay High Court
Nandkishor S/O Damodar ... vs May Include A Relief For Issuance ... on 5 August, 2009
Bench: R.Y. Ganoo
1. Rule. Rule returnable forthwith. Mr. Bhattad, Advocate waives notice for non applicants. In the facts and circumstances of the case, the matter is taken up for final hearing forthwith.
2. The non applicant filed an application under Section 23 of the Protection of Women from Domestic violence Act, 2005 (hereinafter referred to as the 'said Act') in the Court of learned Chief Judicial Magistrate, Amravati (hereinafter referred to as learned 'trial Judge') for appropriate reliefs and in 2
particular getting some money towards maintenance. The learned trial Judge passed an order on 07.04.2008 in the said proceedings namely Misc. Criminal Case No. 365/2007 and directed the applicant to pay a sum of Rs. 1200/- per month by way of maintenance to non applicant no. 1-Kavita and a sum of Rs. 600/- per month by way of maintenance to son Atharva-non applicant no.2. The said order was challenged by the applicant in the District Court by way of Criminal Appeal and the learned Ad hoc Additional Sessions Judge-5, Amravati (hereinafter referred as Additional District Judge) by judgment and order dated 12.06.2008, dismissed the said appeal. Hence, the present criminal application is filed.
3. It was argued by learned Advocate Mr. Chawre, that order dated 07.04.2008 passed by learned trial Judge was without calling for report from the Protection Officer or Service Provider. He has drawn my attention to the provisions of Section 12 of the said Act which is as follows:- "12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such
application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1)
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may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of
domestic violence committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained int he Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of
hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. (5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing." According to him, no order under this Act can be passed in the absence of report from the Protection Office or Service Provider and that is how the impugned order is illegal. As against this, the learned Advocate Mr. Bhattad 4
had submitted that since the proceedings were initiated by non applicants directly, there was no need to obtain such a report.
4. In order to test submissions advance by learned Advocate for the applicant, one will have to consider the nature of order, which was passed by learned trial Judge and perusal of the same would clearly go to show that order dated 07.04.2008 directed the payment of maintenance is interim order. This is being stated on account of use of the term "from 07.04.2008 till the decision of the main application" in the operative part of order dated 07.04.2008. The learned Additional District Judge has dismissed the appeal and, therefore, it is clear that order dated 07.04.2008 is an interim order. In this connection one can refer to the judgment delivered by this Court in Vishal Damodar Patil ..vs.. Vishakha Vishal Patil; 2008 (6) AIR Bom R 297 wherein it is observed that there is no need to file separate application for interim relief under Section 23 of the said Act. The only requirement is to hear the parties concerned. In the present case, the learned trial Judge has undoubtedly heard the applicant as well as non applicant and has passed an interim order. To that extent, in the absence of regular application for interim maintenance, passing of order dated 07.04.2008 cannot be faulted with.
5. The point as regards calling of the report from the Protection Officer or Service Provider is concerned one will have to interpret provisions of Section 5
12 of the Act and the said interpretation has to be in favour of the person, who is in need of maintenance and in particular interim maintenance. Report from the Protection Officer or Service Provider has to be gathered and it would assist the Court for the purposes of doing complete justice in the matter. At the same time, it is expected that the trial Court has to pass an interim order as early as possible. If the trial Court, who is required to pass an interim order, keeps on waiting to get the report of the Protection Officer or Service Provider, it would entail the delay and the idea of considering the case of a needy person at the interim stage will be actually defeated. Therefore, I am inclined to observe that it is not necessary in each and every case to obtain a report from the Protection Officer or Service Provider to decide application for interim relief. If on the basis of record before the Court, the Court is in a position to arrive at a just and proper conclusion, it will be open for the Court to do so and decide the matter accordingly. In the present case, the applicant had filed reply to the application filed by non applicants and, therefore, necessary material was before the learned trial Judge to decide the question whether interim relief should be granted. The record has been considered and order has been passed.
6. In view of above discussion, the argument advanced by Mr. Chawre, learned Advocate for applicant, as regard obtaining report from the Protection Officer or Service Provider cannot be accepted. Needless to mention that at the time of disposing of the application at final hearing, the trial Judge will have to comply with the provisions of Section 12 of the said Act. 6
7. The learned trial Judge has fixed the maintenance at the rate of Rs. 1200/- per month for non applicant no.1-wife and Rs. 600/- per month for the son-respondent no. 2. It has been the stand of the non applicants that the applicant is carrying on a business in the name and style as 'Nandan Cement Gruha Udyog' as well as 'Atharva S.T.D.' at Moti Nagar, Amravati. It is also claimed that the applicant does a business of daily collection in 'Samrudhi Pat Sanstha' and thus he earns a sum of Rs. 25,000/- per month. As against this, the applicant has come out with a case that he is working with a contractor as Labour and earns Rs. 50/- per day as and when the work is available and his monthly income is not more than Rs. 1,000/-. However, it is difficult to accept that he has been working with a contractor as labour. It was necessary for him to name the contractor and the designation held by him. The stand of the applicant that he earns daily wages of Rs. 50/- per day, cannot be believed and it also cannot be said that his monthly income is not more than Rs. 1000/-. If this is so, it is difficult for the applicant himself to sustain on day-to-day basis and it has not been stated by the applicant whether he seeks assistance of some other person for the purpose of meeting both the ends for himself alone. The stand taken by the applicant appears to be unjust and contrary to the facts. This aspect of matter of suppression of material facts has been rightly considered by learned trial Judge and in my view, he has rightly fixed a reasonable figures of Rs. 1200/- per month and Rs. 600/- per month respectively keeping in view the needs of non applicant no. 1 as lady and non applicant no. 2, 7
who is undertaking education. In my view, the learned trial Judge and the learned Additional District Judge have taken correct view of the matter and have fixed the figure of maintenance properly.
8. Before this Court, the learned Advocate for the applicant attempted to produce an information collected by him under the Right to Information Act wherein it is mentioned that respondent no. 1 works in the institution by name Krushi Vidhnyan Kentra, Selsura, Taluka Deoli, District Wardha in the name and style as ku. Kavita V. Ingale, as Junior Stenographer and earns a sum of Rs. 8000/- per month. Perusal of the impugned order, would go to show that this aspect was not made over to the learned trial Judge by documentary evidence and that is how the said aspect has not been considered by the learned trial Judge. Hence, the stand of the applicant that respondent no. 1 is gainfully employed and earns Rs. 8000/- per month prima facie could not have been accepted. Hence, the said stand cannot be considered while deciding correctness of the order passed by learned trial Judge as well as learned Additional Sessions Judge. Needless to mention that if the applicant has any material to make an application for modification of the order already granted, he would be able to do so by applying for modification of the order.
9. Keeping in view the aforesaid observations, following order is passed.
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(a) Rule discharged.
(b) Order passed passed by learned Chief Judicial Magistrate referred to above and confirmed by learned Additional Sessions Judge referred to above is confirmed. No interference is required thereto.
(c) If the applicant wants to apply for modification of order dated 07.04.2008, he is free to do so provided provisions of the said Act do permit him to file such an application.
(d) Keeping in view the fact that the application pertains to the year 2008, it would be appropriate to direct the learned Chief Judicial Magistrate, Amravati to hear and dispose of this application on merits as expeditiously as possible.
(e) After aforesaid order is passed, learned Advocate invited my attention to the order passed on 25.03.2009 passed by this Court by which non applicant no. 1 was permitted to withdraw the Rs. 18,000/- by furnishing an undertaking that she will redeposit the money along with interest, if she loses in this matter. Now as this application is dismissed, the non applicant is absolved from the undertaking given by her pursuant to the order dated 25.03.2009. JUDGE
kahale
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