Bombay High Court
Prashant S/O Prakash Maggidwar ... vs Sau. Ashwini W/O Prashant ... on 9 September, 2015
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 3 of 2015
1. Prashant son of Prakash
Maggidwar,
aged 29 years,
occupation - Educated Unemployed,
2. Pravin son of Prakash Maggidwar,
aged 23 years,
occupation - Private Service,
3. Prakash son of Pandharinath
Maggidwar,
aged 65 years,
4. Sau. Vijaya wife of Prakash
Maggidwar,
aged 59 years,
all residents of Sahyog Nagar,
Chaitanya Nagar,
Main Road, Nanded,
at Present - Wadi,
Nanded,
Tq. & Distt. Nanded. ..... Petitioners.
Versus
1. Sau. Ashwini wife of Prashant
Maggidwar,
aged 24 years,
occupation - Household &
Lady Tailor,
resident of Mukutban,
Tq. Zari Jamni,
Distt. Yavatmal.
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2. The State of Maharashtra,
through the Ministry of Home
Affairs,
Mantralaya, Mumbai. ..... Respondents.
*****
Mr. P. V. Kulkarni, Adv., for the petitioners.
Mr. H.N. Bhondge, Adv., for respondent no.1.
Mr. P.V. Bhoyar, Addl. Public Prosecutor for respondent no.2.
*****
CORAM : V. M. DESHPANDE, J.
Date : 09th Sept., 2015.
ORAL JUDGMENT:
01. Rule. Rule is made returnable forthwith. Learned Adv. Mr.
H.N. Bhondge waives service for respondent no.1, and learned APP Mr.
P.V. Bhoyar, for respondent no.2. Heard learned counsel for the rival
parties. By consent of rival parties, this Criminal Writ Petition is taken
up for final hearing and disposed of by this Judgment and Order.
02. Challenge in the present Writ Petition is to the concurrent
orders passed by learned Judicial Magistrate First Class, Zari Jamni,
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Distt. Yavatmal, in Misc. Criminal Case No. 14 of 2013 together with
the Judgment and Order passed by the learned Ad Hoc Additional
Sessions Judge, Kelapur, in Criminal Appeal No. 11 of 2014, dated 4th
December, 2014.
03. Respondent No.1 is the legally wedded wife of petitioner
no.1. Their marriage took place on 22nd November, 2010 and it is still
in subsistence.
She filed an application under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 [hereinafter referred to as
"the Act" for brevity] against the petitioners. The same was registered
as Misc. Criminal Case No. 14 of 2013. By filing the said complaint,
respondent-wife claimed following reliefs against the petitioners:-
"[a] The Non-applicants should not commit any
domestic violence against the applicant.
[b] The Non-applicants should not obstruct the
applicant to stay in the flat owned by them at
Nanded and during her stay, the applicant should
not be driven away.
[c] The applicant should be paid
maintenance/financial assistance at the rate of
Rs. 7,000/- per month."
The application filed by the wife under Section 12 of the Act
was contested by the petitioners.
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04. In order to support her claim, the wife entered the witness
box and also examined her witness Vishwas, her brother.
In spite of the sufficient opportunity, the petitioners failed to
enter the witness box.
05. After evaluation of pleadings and available evidence on
record, the learned Trial Magistrate reached to the conclusion that the
petitioners have committed domestic violence against the wife. The
learned Trial Magistrate also reached to the conclusion that she is
having a right to stay in the flat at Nanded and she should not be
evicted from the said flat. Though the wife claimed Rs. 7,000/- for her
maintenance, the learned Trial Judge granted maintenance at the rate
of Rs. 3,000/- per month.
06. The petitioners were aggrieved by the verdict that was
handed down to them by the learned trial Magistrate. To test the
correctness of such verdict, they preferred an appeal, i.e., Criminal
Appeal No. 11 of 2014. The same was made over to the file of Ad Hoc
Additional Sessions Judge, Kelapur. After hearing the parties to the
appeal, on 4th December, 2014, the learned Lower Appellate Court
confirmed the Judgment and Order passed by the learned Magistrate
by dismissing the appeal. Hence the present Writ Petition.
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07. Learned counsel for the petitioner Mr. P.V. Kulkarni
challenged the order of the Magistrate in granting entitlement of
residence in a flat at Nanded to the respondent - wife. The entire
submission of the learned counsel for the petitioner was restricted only
to the said relief granted in favour of the respondent-wife.
The learned counsel for the petitioner challenged such order
in favour of the respondent-wife on the ground that the flat at Nanded
is already rented out by the petitioner to one Shri Arun Deshmukh and
he is in possession thereof and he has also filed a civil suit in respect
of the same against the petitioner no.1 and the present respondent
no.1 - wife. He has also invited my attention to the copy of the plaint
filed by said tenant Mr. Arun Deshmukh which is instituted in the Court
of Civil Judge [Senior Division], Nanded, bearing Regular Civil Suit No.
510 of 2014. He also submitted that the said flat is not owned by
petitioner no.1, but it belongs to petitioner no.4 - Sau. Vijaya wife of
Prakash Maggidwar. Therefore, he submitted that the impugned order
needs interference.
08. In my view, the submissions as advanced by the learned
counsel for and on behalf of the petitioner are highly misplaced and
contrary to the record.
The submission of the learned counsel that the flat at
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Nanded belongs to petitioner no.4 alone cannot be accepted.
Petitioner no.4 - Vijaya is the mother of petitioner no.1 and is, thus,
the mother-in-law of the respondent no.1 - wife.
In para 4 of the Written Statement, so far as the flat and
house are concerned, following is the pleading of petitioners:-
"Flat and house are rope ties of joint family."
Thus, the petitioners themselves have admitted through
their pleadings that the flat at Nanded is a joint family property.
09. In so far as the induction of a tenant and Regular Civil Suit
No. 510 of 2014 filed by the said tenant is concerned, it is to be noted
that the learned Trial Court passed an order on 28th March, 2014,
whereas the suit for perpetual injunction by said tenant Arun
Deshmukh is filed on 14th December, 2014. Thus, the said suit is filed
after the order was passed by the learned Magistrate against the
petitioners.
The Written Statement in domestic violence proceedings
was passed by the petitioners on 20th December, 2013. In the suit
filed on behalf of the tenant, it is alleged that on 1st August, 2013, the
petitioner no.1 executed a Rent-Deed. Thus, the alleged Rent Deed is
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prior to the date of filing of the Written Statement dated 20th
December, 2013. In spite of the same, the Written Statement is
conspicuous by its absence in respect of having any reference either to
the said Rent Deed or that the flat is rented out to said Arun
Deshmukh.
Further, the law will take its own course in so far as Regular
concerned.
Civil Suit No. 510 of 2014 filed by the tenant Arun Deshmukh is
However, surely, in the aforesaid state of affairs as
observed on perusal of the record, the right of residence, which is
concurrently granted by the courts below in favour of the respondent
no.1 - wife, cannot be defeated on such a suit filed by a third person.
10. The upshot of the aforesaid discussion leads me to pass the
following order:-
ORDER
Criminal Writ Petition No. 3 of 2015 is dismissed. No costs.
Rule is discharged.
Judge
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