Judgment 1 CWP234.09(J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.234 OF 2009
1. Kishor s/o Bhaiyajji Sontakke, ...PETITIONERS
Aged 40 years, Occ. Nil.
2. Bhaiyajji Bajirao Sontakke,
Aged about 70 years, Occ. Pensioner.
Both resident of Ward No.9, Near Iron Bridge,
Sindi (Railway), Tq. Seloo,
District Wardha.
--Versus ---
1. Archana w/o Kishor Sontakke ...RESPONDENT
Aged about 33 years, Occ. Serving in Bank,
R/o C/o Dnyaneshwarrao Warbhe,
Opp. Office of Municipal Council,
Sindi (Railway), Tq. Seloo, District Wardha
and her office address Kalmana Market
Urban Credit Cooperative Society Ltd.,
Nagpur, Branch Ganesh Peth, Nagpur.
--------------------------------------------------------------------------------------------------
Shri Sameer Sohoni, Advocate for petitioners.
Ms. T.H.Udeshi, Advocate (appointed) for R-sole.
--------------------------------------------------------------------------------------------------
CORAM : SMT. REVATI MOHITE DERE,J.
DATED : 3rd NOVEMBER, 2017 ORAL JUDGMENT By this petition, the petitioners have impugned clause 3 of the judgment and order dated 03.05.2008 passed by the learned ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:13:53 ::: Judgment 2 CWP234.09(J).odt Judicial Magistrate, First Class, Seloo, District Wardha, which was confirmed by the learned 2nd Ad hoc Additional Sessions Judge, Wardha, vide judgment and order dated 19.03.2009.
2. The facts giving rise to the filing of the present petition can be summarised as under :
The petitioner no.1 got married to the respondent on 10.06.2006. It appears that on 19.07.2016, the respondent left her matrimonial home. Even during the period between 10.06.2006 and 19.07.2006, the respondent had been to her parents house on and off. On 14.09.2006, the respondent lodged a complaint as against the petitioners with the Mahila Takrar Niwaran Kendra, Wardha. On 27.09.2006 the statement of the respondent was recorded, wherein she stated that it was a household dispute between her and the petitioner no.1, as a result of which, she was residing with her parents and that she wanted a divorce from the petitioner no.1. On 07.10.2007, the respondent filed an application (registered as Misc. Criminal Application No.335/2007) under Domestic Violence Act, 2005, in the Court of learned Judicial Magistrate First Class, Seloo, District Wardha. The petitioners opposed the said application and filed their reply. The learned Judicial Magistrate, First Class, Seloo, vide judgment and order dated 03.05.2008 was pleased to allow the application of the ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:13:53 ::: Judgment 3 CWP234.09(J).odt respondent and was pleased to pass an order under Section 18 of the Protection of Women from Domestic Violence Act, 2005. The learned Magistrate also directed the petitioner no.1 to pay maintenance of Rs.2,000/- per month to the respondent and also directed the petitioners to return the Stridhan and articles and also directed them to pay the respondent a sum of Rs.20,000/- towards damages. The order passed by the Trial Court is reproduced hereinunder:
1- izfri{k daz- 1 yk izfrcaf/kr dj.;kr ;srs dh R;kus fQ;kZnhpk dks.kR;kgh izdkjs f'kohxkG dj.ks] pkfj=~;koj f'karksMs mMfo.ks] fuank dj.ks] vieku dj.ks rlsp frP;k oMhykaps ?kjh Qksuo:u f'kohxkG o bR;knh xSjizdkj ;kiklqu o fQ;kZnhP;k ?kjkHkksorh Qs&;k o bR;knh xSjd`R; d:u =kl ns.ks ckcr lnj laj{k.k dye 18 vUo;s ns.;kr ;sr vkgs-
2- dye 20 vUo;s izfri{k Ø- 1 us fQ;kZnhyk :-
[email protected]& ¼nksu gtkj½ njekg iksVxh |koh vtZ nk[ky
rkj[ksiklwu-
3- dye 22 iz e k.ks iz f ri{k Ø- 1 o 2 ;ka u
fQ;kZ n hps ] vkna u o L=h/ku ;kn hiz e k.ks 1 efgU;kps
vkr ijr djko k-
4- izfri{kkuh fQ;kZnhps yXukr ykxysyk [kpZ :-
::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:13:53 :::
Judgment 4 CWP234.09(J).odt
[email protected]& ¼ohl gtkj½ QDr uqdlku HkjikbZ Eg.kqu 1 efgU;kps vkr n;kos-
3. Aggrieved by the said judgment and order dated 03.05.2008, passed by the trial Court, the petitioners preferred an appeal being D. V. Appeal No.76/2008, under Section 29 of the Domestic Violence Act, before the Sessions Court, Wardha. The learned Ad hoc Additional Sessions Judge, Wardha, vide judgment and order dated 19.03.2009 partly allowed the said appeal, inasmuch as, the order of the Trial Court awarding maintenance and damages came to be quashed and set aside. The Appellate Court was, however, pleased to confirm the order passed by the trial Court under Sections 18 and 22 of the Domestic Violence Act, 2005 i.e. clause 1 and 3 of the order. Aggrieved by the order passed by the Appellate Court, inasmuch as it confirms the order passed by the trial Court under Sections 18 and 22 of the Domestic Violence Act, 2005, the petitioners have filed the aforesaid writ petition.
4. Heard Shri Sohoni, learned counsel for the petitioners and Ms T.H.Udeshi, learned Advocate (appointed) for the respondent. Perused the papers including the evidence led by the respondent in the trial Court.
::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:13:53 :::
Judgment 5 CWP234.09(J).odt
5. Shri Sohoni, learned counsel for the petitioners, on the instructions of the petitioners states, that during the pendency of this petition, the petitioners learnt that the respondent had performed third marriage and had moved to Gujrat, and, therefore, does not press for any relief, insofar as the order passed under Section 18 of the Domestic Violence Act, is concerned. As far as the appellate Court's order confirming the trial Court's order, passed under Section 22 of the Domestic Violence Act, directing the petitioners to return respondent's Stridhan and other articles is concerned, learned counsel for the petitioners states, that there is absolutely no material on record to show that the petitioners had retained the Stridhan articles and gifts of the respondent. Ms. Udeshi, learned counsel appointed for the respondent has also not been able to show/point out from the material/evidence available on record, that the petitioners had retained the Stridhan and gifts articles which were given to the respondent, at the time of her marriage.
6. In view of the aforesaid, I am dealing only with the directions given by the Trial Court in clause 3 of its order, directing the petitioners to return the respondent's Stridhan & articles, which order was confirmed in appeal.
::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:13:53 :::
Judgment 6 CWP234.09(J).odt
7. It is pertinent to note, that in the complaint dated 14.09.2006 lodged by the respondent with the Police Inspector, Mahila Takrar Niwaran Kendra, Wardha, the respondent has stated that 30 grams gold and articles worth Rs.13,000/-were given to her by her father at the time of marriage. There is no reference in the said complaint dated 14.09.2006 that the said articles, which were given to the respondent by her father at the time of her marriage, were retained and not handed over to her, by the petitioners. Similarly, the complaint lodged under the Domestic Violence Act, 2005 also does not reflect that the Stridhan and articles were given to the respondent at the time of her marriage, were retained by the petitioners. Even in her evidence/examination-in-chief, the respondent has only stated that she was given gold articles and certain gifts by her father at the time of her marriage, however, there is no mention that the said articles were with the petitioners and that, they failed to return the same to her. Both the lower Courts, i.e. the trial Court as well as the appellate Court, have lost sight of the said fact and presumed that the said articles were with the petitioners, in the absence of any material or cogent evidence to suggest the same. Thus, the said orders, passed by the Trial Court under Section 22 of the Domestic Violence Act as well as the order passed by the Appellate Court, confirming the same in Appeal, cannot be sustained in law and accordingly will have to be quashed and set ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:13:53 ::: Judgment 7 CWP234.09(J).odt aside to that extent.
7. Accordingly, the petition is partly allowed on the following terms:
(I) Clause 3 of the impugned order dated 03.05.2008 passed by the Trial Court, under Section 22 of the Domestic Violence Act, 2005, and confirmed in Appeal by the Appellate Court vide order dated 19.03.2009, are quashed and set aside to that extent.
Rule is made absolute in aforesaid terms.
8. This court records its appreciation for the efforts taken by Ms. T.H.Udheshi, learned counsel (appointed) for the respondent in assisting the Court.
All parties to act on the authenticated copy of this judgment.
JUDGE J.Andurkar..
::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:13:53 :::