Kaviraj Dattatray Muslonkar vs Rachana Kaviraj Muslonkar And Anr
2017 Latest Caselaw 1830 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CRIMINAL APPELLATE JURISDICTION

          CRIMINAL REVISION APPLICATION NO.50 OF 2017


 KAVIRAJ DATTATRAY MUSLONKAR                                 )...APPLICANT

          V/s.

 RACHANA KAVIRAJ MUSLONKAR & ANR.                            )...RESPONDENTS


 Mr.Arjun Kode, Advocate for the Applicant.

 Mr.H.V.Kenjalkar, Advocate for Respondent No.1.

 Mr.S.V.Gavand, APP for the Respondent - State.


                                 CORAM       :      A. M. BADAR, J.

                                   DATE      :      19th APRIL 2017


 P.C. :


 1                By   this   revision   petition,   the   revision   petitioner   / 

original respondent / husband is challenging the judgment and

order passed in an appeal under Section 29 of the Protection of

Women from Domestic Violence Act, 2005 (for the sake of brevity

D.V.Act) filed by the respondent herein / original applicant / an

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aggrieved person challenging the order passed by the learned

Metropolitan Magistrate on 26th August 2016, rejecting her

application for interim relief filed in C.C.No.51/DV/2015.

2 Facts necessary for deciding the revision petition are

thus:

The respondent herein / an aggrieved person filed an

application under Section 12 of the D.V.Act and along with that

application she filed an application for interim relief praying for

several reliefs by invoking various provisions of the D.V.Act. Out

of those reliefs, relief of maintenance for her daughter and interim

relief for house rent constitutes the subject matter of this revision

petition. The application for interim relief filed in proceedings

under the D.V.Act by the respondent herein / an aggrieved person

came to be opposed by filing reply by the revision petitioner /

husband. After hearing the parties, ultimately, by an order dated

26th August 2016 the learned Metropolitan Magistrate, Mumbai,

was pleased to hold that the application does not prima facie

disclose domestic violence committed by the revision petitioner /

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husband on the respondent herein / an aggrieved person. It is

observed by the learned Metropolitan Magistrate that it is quite

unnatural that the aggrieved person did not file a FIR in the

matter and the ill-treatment appears to be of the sort of usual

wear and tear of the matrimonial relations between the parties. It

is further observed by the learned trial Magistrate that the

aggrieved person before her is doing a job. With such

observations, the application for interim relief came to be rejected.

The said order was carried in appeal by the aggrieved person by

invoking provisions of Section 29 of the D.V.Act. Her appeal came

to be allowed partly by the impugned judgment and order dated

30th November 2016 passed by the learned Additional Sessions

Judge, Mumbai. By the impugned judgment and order passed in

Criminal Appeal No.725 of 2016 the learned Additional Sessions

Judge had set aside the impugned order and directed the revision

petitioner herein / husband to pay Rs.10,000/- towards

maintenance of daughter of the couple as well as an amount of

Rs.10,000/- towards monthly rent from the date of filing of the

proceedings under the D.V.Act.

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 3                I have heard the learned advocate appearing for the 

revision petitioner / husband at sufficient length. He drew my

attention to the fact that after 2011 matrimonial life of the couple

started facing rough weather. He argued that on 21st April 2011

first N.C. was lodged against the revision petitioner / husband in

respect of the incident dated 12 th April 2011 with Nehru Nagar

Police Station alleging abuse and assault by hand. He further

argued that then on 11th September 2013 another N.C. came to

be lodged on the basis of hearsay information received from his

another daughter by father of the aggrieved person. Then,

according to the learned advocate appearing for the revision

petitioner / husband, in a systematic manner the aggrieved person

made complaints to the Senior Police Inspector reflecting her

averments that because of conduct of the revision petitioner /

husband she is not willing to cohabit with him and her daughter is

frightened of her husband and therefore she has decided to take

divorce. Two such reports were pressed in service. With this, it is

argued that it was the aggrieved person who systematically

created evidence and left company of the husband. She was not

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driven out of the house by the revision petitioner / husband. My

attention is further drawn to the appointment order dated 8 th

September 2015 issued by the employer of the aggrieved person

reflecting her pay package of Rs.15 Lakh per annum apart from

perks and it was argued that this order came on record only when

an application was filed by the husband for issuing summons to

the employer of the aggrieved person. With this, the learned

advocate prayed for quashing and setting aside the impugned

judgment and order. At the same time, on instructions, the

learned advocate appearing for the revision petitioner / husband

stated that the revision petitioner / husband is willing to pay an

amount of Rs.10,000/- towards maintenance of his daughter, who

is in custody of the respondent herein / an aggrieved person.

4 As against this, the learned advocate appearing for the

respondent herein / an aggrieved person drew my attention to

various NCs as well as documents of medical treatment taken by

the aggrieved person showing that because of assault by the

revision petitioner / husband, the respondent / an aggrieved

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person suffered injuries. My attention was drawn to the report of

Samadhan Diagnostic Center as well as Discharge card issued by

Jeevak Hospital to demonstrate that the aggrieved person had

suffered hairline fracture on the mandibular angle of the left side.

It is argued that the aggrieved person had suffered surgical

operation because of assault on her by the revision petitioner /

husband and this constitutes domestic violence and therefore the

impugned judgment and order passed by the appellate court is

correct. The learned advocate further argued that perverse view

was adopted by the learned trial Magistrate in holding that for

establishing domestic violence lodging of the report is a sine-qua-

non.

5 I have carefully considered the rival submissions and

also perused the record made available including the copy interim

application as well as reply filed thereto, documents placed on

record as well as the order passed by the learned trial Magistrate

and the appellate order.

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 6                D.V.Act is a welfare legislation and it is upholding the 

dignity of women in the era of gender equality. It recognizes the

rights granted in Articles 14, 15 and 21 of the Constitution of

India. In the case in hand, the aggrieved person has preferred an

application under Section 12 of the said Act accompanied with an

application for interim relief. Perusal of the said application

shows detail pleadings made by the aggrieved person in order to

substantiate her claim for interim reliefs. This application came to

be replied by the revision petitioner / husband by contending that

he is an unemployed person and he has been rendered jobless

since last seven months and is living basically on his scarce

savings. The revision petitioner / husband has narrated his

expenses and contended that it will be convenient if the aggrieved

person resides in the same flat with their daughter putting

restrictions on him.

7 Undisputedly, the appointment order of the aggrieved

person reflecting her pay package was also a part of the record of

the learned trial Magistrate.

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 8                At   this   stage,   it   is   apposite   to   take   note   of   some 

provisions in the D.V.Act. The term "Domestic Violence" is defined

in Section 3 of the said Act and relevant portion of the said

definition reads thus :

"3. Definition of domestic violence - For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it--

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person."

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Section 23 of the said Act deals with powers of the court to grant

interim and exparte orders. The same reads thus :

"23. Power to grant interim and ex parte orders - (1) In any proceeding before him under this Act, the

Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application

prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."

9 Perusal of provisions of Section 23 as such goes to

show that if the trial Magistrate is satisfied that the application

prima facie discloses that the respondent is committing or has

committed any act of domestic violence, then he may grant an

exparte order in the matter, on the basis of affidavit of the parties.

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It is, thus, clear that commission of an act of domestic violence is

necessary for granting relief and even likelihood of such

commission entitles the aggrieved person for relief under the said

Act. Section 20 of this Act deals with monetary reliefs which

includes maintenance to an aggrieved person as well as her

children.

10 In the case in hand, the learned trial Magistrate

concluded that the aggrieved person is not entitled to interim

relief because she has not prima facie proved commission of

domestic violence to her by the respondent / husband. The

another consideration was she is in employment.

11 In the statutory appeal filed by the aggrieved person,

all these aspects are required to be reconsidered by the learned

appellate court which is required to undertake exercise of

appreciation of pleading and other material on record to record

correct finding of fact. Bare perusal of the impugned judgment

and order of the appellate court goes to show how these aspects

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were considered by the learned appellate court. To hold that

domestic violence is prima facie proved, findings of the learned

appellate court can be found in the following portion of paragraph

17 of the impugned judgment and order :

"17. ..................................................................... Prima facie the grievance is that all the acts about the behaviour of respondent no.1 in particular manner attracts the provisions of the said Act. So, considering the definition of The Protection of Women From Domestic Violence Act, 2005, I hold that prima facie it attracts the said provision. So far as the grievance raised by respondent no.1, regarding absence of proof is concerned, it can be taken care of while considering the application on merits. So though the Ld. Lower Court has held that there was no incident of domestic violence act, one cannot easily accept the same. So, I did not agree with the said conclusion drawn by the Ld. Lower Court."

12 It is also interesting to note how the learned appellate

court, which is a fact finding court, has concluded about the

maintenance of the daughter so also the quantum of monetary

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rent. For this purpose, relevant portion of paragraph 18 and

paragraph 19 needs reproduction :

"18..................................................................... But prima facie it shows that both are earning in the field of advertisement but by considering the expenses of Rs.82,000/- per month of respondent no.1, Ld.Advocate Mr.Kenjalkar has frankly submitted to grant Rs.10,000/- for maintenance of daughter and Rs.20,000/- for rent. But, Ld. Advocate Mr.Kode has submitted that respondent no.1 is ready to pay Rs.12,000/- per month in toto."

"19. So far as the claim of maintenance is concerned, at this stage it is restricted only to the daughter and considering her age of six years, I hold it proper to accept the submissions advanced by Ld.

Advocate Mr.Kode to ask respondent no.1 to pay Rs.10,000/- towards the maintenance of the daughter but regarding the claim of the shelter is concerned, it is the case of the appellant that she required to pay Rs.30,000/- per month towards the rent. Moreover, she required to pay deposit of Rs.1.50 lacs, but, considering the dispute between the parties and when they are well aware about the difficulty which they required to face in the absence

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of backing of each other, it is expected from them that they should curtail their expenses. So, keeping in mind the same and considering the income of both the sides, I hold that though Ld. Advocate Mr.Kode has agreed to pay Rs.12,000/- towards the maintenance and rent but that would be very less amount. Inspite of that it would be proper to grant Rs.10,000/- for the same i.e. to consider the amount of Rs.10,000/- per month towards the maintenance of the daughter and Rs.10,000/- per month towards the rent to appellant and her daughter till disposal of the original proceedings."

13 Perusal of the entire judgment and order of the

appellate court goes to show that it has not touched the pleadings

of parties and other material on record. The same is not referred

to in the impugned judgment and order nor the same is evaluated

in order to record finding of fact in respect of proof of the

domestic violence and entitlement, if any, and quantum of

maintenance for the daughter and monthly rent. What was done

is recording submission of learned advocates of both parties and

concluding its finding on the basis of surmises and conjunctures,

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rather than basing finding on material available on the record.

From perusal of observations and findings recorded by the learned

appellate court it is clear that the learned appellate court has not

cared to look into the pleadings and documentary evidence

adduced by the parties while deciding the statutory appeal, by

which rejection of an application for interim relief under the

D.V.Act came to be challenged by the aggrieved person. It is seen

that a short cut method came to be adopted by the learned

appellate court in disposing the statutory appeal wherein the

claim was supported by detailed pleadings and voluminous

documents and opposed by affidavit in reply as well as documents

showing employment of the aggrieved person. It is, thus, clear

that, the impugned judgment and order is totally perverse and

therefore, cannot be sustained. Hence, the order :

          i)      The revision petition is allowed.

          ii)     The   impugned  judgment  and   order   passed  by the 

learned Additional Sessions Judge, Mumbai, on 30 th

November 2016 in Criminal Appeal No.725 of 2016

between the parties is quashed and set aside.

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iii)The Criminal Appeal bearing No.725 of 2016 is

remanded for deciding it afresh, to the Sessions

court, Mumbai, with a direction that the same be

decided within a period of two months from the

date of communication of this order.

                                           (A. M. BADAR, J.)




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