Having given anxious consideration to the relevant facts and materials
and on careful perusal of orders passed by learned Magistrate, Sessions Court
and the High Court and appreciating those orders in the light of the
submissions advanced before us, we have no hesitation in affirming the views
of the High Court. The unsuccessful divorce proceedings cannot adversely
affect the maintainability of application filed by the contesting respondents
under the Act.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 320 OF 2016
[Arising out of S.L.P.(Crl.)No.4188 of 2013]
Prakash Nagardas Dubal-Shaha .
Sou. Meena Prakash Dubal Shah & Ors.
Date : 22/04/2016
1. By the impugned judgment and order dated 24.1.2013 the learned Single
Judge of High Court of Judicature at Bombay has allowed Criminal Revision
Petition No. 79 of 2012 preferred by the respondents by reversing order of
learned Sessions Court and restoring that of learned Judicial Magistrate First
Class, Miraj passed in Criminal Miscellaneous Application No. 147/2011.
2. The facts relevant for adjudication of relevant issue arising in this appeal
lie within a narrow compass. Respondent no. 1 is wife of appellant, respondent
no. 2 is unmarried daughter and respondent no. 3 is minor son born out of
marriage between the appellant and respondent no. 1. The aforesaid three
contesting respondents initiated the present proceedings before the learned
Magistrate by preferring an application under Sections 12, 18, 19, 20, 21 and
22 of Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as “the Act”). Learned Magistrate noticed the case of rival parties
including undisputed facts such as solemnization of the marriage on
27.3.1986 as per Hindu rites. It is the case of contesting
respondents/applicants that the appellant has qualification of D. Pharmacy
and has a shop named Vijay Medical situated at a favourable location. Since
the wife is handicapped by right leg, not only the husband made uncharitable
remarks and meted out ill treatment but also neglected her by regularly
coming to home late. He also made demands for money which the parents of
the wife met from time to time. He defaulted in payment of instalments of a flat
situated at Grimar Complex, in the year 2001 and when the concerned bank
wanted to seize that property wife’s relation came to their help and paid the
loan on transfer of the property in the name of the wife. The wife has alleged
that the appellant had a girlfriend whom he subsequently married and from
that marriage also he has a son. It is also her case that due to mental and
physical abuse, she agreed to file an application for divorce by mutual consent
but the appellant did not fulfill the agreed term of paying her Rs. 5,00,000/- as
alimony. Hence the application for divorce ultimately got dismissed. The wife
claimed for maintenance for herself and children on the ground that the
appellant is living with the second wife and although he is earning Rs.
40,000/- from the shop, he is not paying anything towards their maintenance.
She claimed Rs. 10,000/- per month as maintenance for herself and same
amount for each of her children and also a compensation of Rs. 50,00,000/-.
3. The appellant denied all the allegations. He claimed that he has stopped
running his medicine shop and rented it out to another person. He alleged that
his wife had negative attitude and therefore she had made his life miserable.
He also denied the second marriage and claimed that after the flat was
transferred in the name of the wife he was driven out and therefore he is living
separately. According to him the wife is capable of maintaining herself and
children and the application was filed only to harass him.
4. After considering the case of both the parties and the materials produced
by them, the learned Magistrate held that the application filed by the wife was
maintainable and she was eligible to claim remedy under the Act because after
the rejection of divorce petition, she remained a lawfully wedded wife of
appellant. He also held that appellant committed act of domestic violence. The
defence of the appellant that he has rented out shop for a meagre amount of
Rs 3,000/- to one Rajashri Patil was rejected. The learned Magistrate
considered the birth certificate of son of the appellant from the alleged second
wife as well as the related circumstances and came to a finding that appellant
had performed second marriage, was living with the other woman and was
therefore guilty of domestic violence. Ultimately, by way of maintenance the
learned Magistrate fixed Rs. 5,000/- per month for the wife, same amount for
the daughter and Rs. 4,000/- for the minor son. Some education cost was also
allowed in favour of two children from the date of final disposal of the case but
maintenance was allowed from the date of filing of the application.
5. The appellant preferred Criminal Appeal No. 335 of 2011 before the
Additional Sessions Judge, Sangli who allowed the same by order dated
13.1.2012 mainly on the ground that since the husband wife had initiated
divorce proceedings at an earlier point of time, the Protection of Women from
Domestic Violence Act which came into force only later in 2005 was wrongly
invoked by the wife and her application was not maintainable. This reasoning
of the Sessions Court was not accepted by the High Court which has noted the
fact that the divorce proceeding did not result in divorce and hence the marital
relationship continued and in view of second marriage by the husband, cruelty
on the wife stood established. Such act would constitute mental domestic
violence and hence the wife was entitled to seek maintenance.
6. Having given anxious consideration to the relevant facts and materials
and on careful perusal of orders passed by learned Magistrate, Sessions Court
and the High Court and appreciating those orders in the light of the
submissions advanced before us, we have no hesitation in affirming the views
of the High Court. The unsuccessful divorce proceedings cannot adversely
affect the maintainability of application filed by the contesting respondents
under the Act. Even on merits of other issues the views taken by the learned
Magistrate are cogent and supported by relevant materials. Hence the High
Court rightly interfered with the order of the Sessions Court and confirmed
that of the learned Magistrate. We therefore find no good reasons to interfere.
The appeal is therefore dismissed.
............................................J.
[DIPAK MISRA]
............................................J.
[SHIVA KIRTI SINGH]
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