1411WP928.14-Judgment 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 928 OF 2014
PETITIONER :- Shri. Pitambar s/o Maroti Bodele, Aged
about 50 years, Occ.: Service, R/o
Kannamwar Nagar, Ward No.17, Near
Reliance Tower, Chamorshi Road,
Gadchiroli, Distt. Gadchiroli.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, Through Police
Station Officer, Gadchiroli.
2. Sau.Gayatri w/o Pitambar Bodele, Aged
about 42 years, Occ.: Service, R/o
Kannamwar Nagar, Ward No.17, Behind
Radhye Building, Chamorshi Road,
Gadchiroli, Distt. Gadchiroli.
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Mr. V.S. Kukday, counsel for the petitioner.
Mr. Shyam Bissa, A.P.P.for the respondent No.1.
Mr. S.A.Anthony, counsel for the respondent No.2.
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CORAM : SMT.REVATI MOHITE DERE, J.
DATED : 14.11.2017 O R A L J U D G M E N T Heard learned counsel for the parties.
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1411WP928.14-Judgment 2/5
2. By this petition, the petitioner has impugned the order dated 18/06/2013, passed by the learned Joint Civil Judge (Jr.Divn.), Gadchiroli below Exhibit-5, directing the petitioner to pay his and respondent No.2's, two sons, a sum Rs.5,000/- per month each, as well as the judgment and order dated 16/09/2014 passed by the learned Sessions Judge, Gadchiroli, by which the order dated 18/06/2013 was confirmed and the petitioner's appeal was dismissed.
3. Learned counsel for the petitioner submits, that the complaint filed by the respondent No.2 under the Domestic Violence Act was not maintainable. He submits, that both the lower Courts have clearly erred in awarding maintenance to his and respondent No.2's, two sons, since they were not a party to the complaint filed by the respondent No.2 under the DV Act. He further submits, that one of the sons has completed his engineering and has secured a job in the Irrigation Department, in 2014. He further submits, that the complaint does not disclose any cause of action i.e. any domestic violence against the petitioner.
4. Learned counsel for the respondent No.2 opposes the petition. He submits, that at no point of time, either in the Trial Court or in the Appellate Court, the petitioner had raised the issue of ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:26 ::: 1411WP928.14-Judgment 3/5 maintainability of the complaint filed by the respondent No.2 under the DV Act nor had the petitioner questioned the grant of maintenance to his two sons on the premise, that they were not a party to the said proceedings. He submits, that for the first time, the said grounds are sought to be raised in this petition. He further submits, that although the petitioner's and respondent No.2's elder son had secured a job in the Irrigation Department in November, 2014, he had quit his job and is preparing for the M.P.S.C. Exams.
5. Perused the papers. Admittedly, both the grounds i.e. maintainability of the complaint under the DV Act and the question, whether both the sons of respondent No.2 were entitled to maintenance, as they were not party to the proceedings, were not raised before the Trial Court as well as the Appellate Court. It is also a matter of record, that when the interim order was passed in the year 2013, both the sons of the petitioner and the respondent No.2 were studying. According to the learned counsel for the petitioner, his elder son is in the employment of the Irrigation Department, since 2014 till date. The said submission is refuted by the learned counsel for the respondent No.2.
6. Considering that the two grounds were not urged or ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:26 ::: 1411WP928.14-Judgment 4/5 argued before both the lower Courts, it would be appropriate to relegate the parties to the Trial Court, to enable the Trial Court to decide the same. If an application is filed by the petitioner raising the said issues, the Trial Court to decide the same. As far as the maintenance awarded to the elder son is concerned, it is always open for the petitioner to file an appropriate application before the Trial Court and bring the same to the notice of the Trial Court and seek modification of the order granting maintenance. If such an application is filed, the Trial Court shall pass appropriate orders on the same, after hearing the parties. All contentions raised by the parties are kept open.
7. Learned counsel for the petitioner on the instructions of the petitioner, who is present in the Court today, does not dispute his responsibility and liability towards his younger son, who is studying, and agrees to clear the arrears of maintenance awarded to him and states that he will continue to pay, till the applications, which he intends to file, are decided and also agrees to pay the arrears of maintenance to the elder son till November, 2014.
The said statement made by the petitioner is accepted. Learned counsel for the petitioner on the instructions of the petitioner further submits, that the petitioner undertakes to deposit a sum of Rs.30,000/- per month in the Trial Court on the 5 th of every month, starting from 05/12/2017 till the entire arrears of maintenance ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:26 ::: 1411WP928.14-Judgment 5/5 are cleared by him i.e. from the date of the application till date. The petitioner, in addition also undertakes to deposit Rs.5,000/- every month towards the maintenance of his younger son till his application (on maintainability of complaint) is decided by the Family Court. Statement of the petitioner accepted.
8. If no application seeking modification is filed by the petitioner as aforesaid, the petitioner shall continue to pay the maintenance awarded even to the elder son from November, 2014 till date.
9. As and when the amounts are deposited by the petitioner, the respondent No.2 will be at liberty to withdraw the same.
Rule is made absolute in the aforesaid terms. No order as to costs.
10. All the parties to act upon the authenticate copy of this order.
JUDGE KHUNTE ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:36:26 :::