Arun S/O Balasaheb Yengure vs Smita Arun Yengure
2017 Latest Caselaw 10040 Bom

                                        (1)                       Cri.WP 1059 of 2016



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD
                                    
                   CRIMINAL WRIT PETITION NO.1059 OF 2016

Arun s/o Balasaheb Yengure
Age: 41 years, Occu.: Contractual,
Worker, Residing presently at M-504,
Dnyaneshwar Housing Society,
Yashwantrao Chavan Nagar,
Satara Road, Pune - 411 043.                             ..Petitioner

              VERSUS

Smita w/o Arun Yengure
Age: 32 years, Occu.: Service,
Residing at c/o.Mr.Sudhir Vasantrao 
Mandavkar, Block No.203, Shree Apartment, 
Sanmitra Colony, Opposite Rokade
Hanuman Temple, Workshop Corner,
Nanded.                                  ..Respondent 

                                 
                               ...
            Advocate for Petitioner : Mr.Hemant Surve
             Advocate for Respondent : Mr.H.V.Tungar
                               ...

                                           CORAM : PRAKASH D.NAIK, J.

RESERVED ON : 30th NOVEMBER, 2017 PRONOUNCED ON : 22nd DECEMBER, 2017

JUDGMENT:-

1) Petitioner is the husband of respondent wife. They

were married on 14.12.2006. The petitioner challenges

(2) Cri.WP 1059 of 2016

the order dated 23.6.2016 passed by the Principal Judge,

Family Court, Aurangabad below Exh.5 in ER Petition

No.355 of 2015.

2) The respondent had preferred an application under

the provisions of the Protection of Women from Domestic

Violence Act, 2005, before the Court of Judicial

Magistrate First Class, Nanded, which was numbered as MCA

No.100 of 2012. The said application was filed on

28.3.2012. The respondent had sought various reliefs

including the relief for share in the property,

protection against domestic violence and maintenance.

There were orders passed by the Court about transfer of

matrimonial matters between the parties to the Family

Court, Aurangabad, by consent of both the parties. The

proceedings were then transferred to the Family Court,

Aurangabad, including the present application.

3) The proceedings under the Protection of Women from

Domestic Violence Act, 2005, were challenged by the

(3) Cri.WP 1059 of 2016

parents of the petitioner before the High Court vide

Criminal Application No.1944 of 2012. This Court vide

order dated 5.2.2013, transferred the proceedings under

the Protection of Women from Domestic Violence Act, 2005

from Judicial Magistrate First Class, Nanded to the

Family Court, Aurangabad and the parties were directed to

appear before the said Court. The family members of the

petitioner have filed an application viz. Criminal

Application No.2226 of 2013, which was decided by order

dated 15.10.2013 wherein the petitioners were directed to

approach the Family Court by preferring an application

and directed the Court to decide whether case is made out

for proceeding against the family members of the

petitioner. The Family Court allowed the said application

and the proceedings against other members of the

petitioner were dropped vide order dated 28.4.2014.

4) Prior to transfer of the proceedings to the Family

Court, the respondent had preferred an application for

exparte interim monetary as well as residential reliefs

(4) Cri.WP 1059 of 2016

and protection order in Miscellaneous Criminal

Application No.100 of 2012. The said application was

allowed and by order dated 3.9.2012, the Court of learned

Judicial Magistrate First Class, Nanded, restrained the

opponents therein from causing the domestic violence to

the applicant wife. The husband was directed to secure

same level of alternate accommodation for the wife or to

pay monthly rent of Rs.3,000/-. The opponents were

restrained from communicating the applicant wife through

any form of communications including personal, oral,

written or telephonic contacts for giving threats to her.

Notice was issued to the husband to show cause as to why

exparte order should not be confirmed.

5) The petitioner appeared in the proceedings. The

petitioner challenged the exparte interim order dated

3.9.2012 by preferring Criminal Revision Application

alongwith an application for condonation of delay. The

said application was numbered as 6819 of 2013. While

deciding the said application, the Court observed that

(5) Cri.WP 1059 of 2016

the appeal would lie to the Court of Sessions, Nanded as

contemplated u/s 29 of the Protection of Women from

Domestic Violence Act, 2005. On perusal of the order

dated 28.2.2014, it appears that the Court had observed

that the proceedings filed by both the sides were

transferred to the Family Court, Aurangabad. The

applicant husband wants to challenge order dated 3.9.2012

passed by the Judicial Magistrate First Class, Nanded.

The application was disposed of with liberty to prefer an

appeal.

6) The petitioner preferred an appeal u/s 29 of the

Protection of Women from Domestic Violence Act, 2005, to

the Court of Sessions. An application for condonation of

delay was also filed. The same was numbered as

Miscellaneous Criminal Application No.13 of 2014. The

said application was not attended by the Advocate for the

petitioner and the same was dismissed by the Court.

7)    The   proceedings   u/s   29   were   numbered   as 





                                     (6)                       Cri.WP 1059 of 2016

Miscellaneous Criminal Application No.13 of 2014. The

same were not attended by the wife. Hence, by order

dated 15.12.2014, the same were dismissed for default by

the Family Court, Aurangabad. The respondent did not

apply for restoration of said application. However, she

claimed monetary action taking aid of interim order. She

also initiated recovery proceedings for alleged

outstanding as per interim order. The said proceedings

were numbered as E.R. No.355 of 2015.

8) The petitioner appeared in the matter. He tendered

objection to recovery proceedings. The objection

petition was filed on the ground that the same was not

not maintainable for want of jurisdiction. The

petitioner also claimed that he was remedy-less as the

proceedings were dismissed for want of prosecution and

that consequential recovery cannot be generated. The

proceedings are primarily of civil nature. The objection

was contested by the respondent. Reply was filed by

respondent opposing the said application. The learned

(7) Cri.WP 1059 of 2016

Family Court vide order dated 23.6.2016 rejected the

objection. Hence, the petitioner has approached this

Court.

9) The learned counsel for the petitioner submits the

objection application preferred by the petitioner was

contemplated under Order XXI Rule 58 of the Code of Civil

Procedure. The execution proceedings were not

maintainable in law. The main application seeking relief

under the Protection of Women From Domestic Violence Act,

was dismissed for default and therefore the interim

order cannot be implemented. In the said circumstances,

the petitioner has remained remedy-less. The proceedings

under the Protection of Women From Domestic Violence Act,

were quasi civil in nature and therefore, the provisions

of Order XXI Rule 58 of the Code of Civil Procedure are

applicable. The Court failed to appreciate that it had

no jurisdiction to entertain the recovery proceedings,

what was transferred was only main application and there

were no orders about transfer of any other rights. On

(8) Cri.WP 1059 of 2016

account of dismissal of the main proceedings, the

respondent lost her right to claim the interim relief.

The interim relief would merge in the final order and

therefore execution does not survive. Though the

provisions of the Protection of Women From Domestic

Violence Act, permits furtherance of proceedings

contemplated under the Code of Criminal Procedure, still

the basic nature of the proceedings cannot be discarded.

The aim of the Act is to provide civil rights to the

aggrieved person. The proceedings are primarily civil in

nature. The petitioner has relied upon the decision of

this Court in the case of Mangesh Sawant Vs. Minal

Vijay Bhosale & Anr. [2012(1) Bom.C.R. (Cri) 458].

10) The learned counsel for the respondent submitted

that there is no substance in the submissions advanced by

the petitioner. The Family Court has rightly rejected

the objection application. The Family Court had

jurisdiction to entertain the application for execution

on account of transfer of the proceedings to the said

(9) Cri.WP 1059 of 2016

Court. The earlier orders passed by the Family Court

merges into the proceedings, which were transferred to

the said Court and therefore, the Court had power to

entertain the execution application. The interim order

was passed by the Court of Judicial Magistrate First

Class on 3.9.2012. The petitioner is not complying the

said order. Hence, the respondent was constrained to

prefer an application for implementation of the order.

The said application is pending since 2015. The

petitioner had preferred an appeal challenging the

order dated 3.9.2012, which has been dismissed for

default. The petitioner did not pursue the said

proceedings. Dismissal of the application preferred by

the respondent for default would not wipe out the order

dated 3.9.2012. It is submitted that the application for

execution was not preferred u/s 12 of the Protection of

Women From Domestic Violence Act. The Judgment relied

upon by the petitioner is delivered in different context.

The Court had considered whether an application u/s 482

would lie challenging the said proceedings u/s 12 of the

( 10 ) Cri.WP 1059 of 2016

Protection of Women From Domestic Violence Act. The

learned counsel placed reliance on the decision of this

Court in the case of Sachin Suresh Bodhale Vs.

Sau.Sushma w/o Sachin Bodhale [2015 All M.R. (Cri.)

3128].

11) I have perused the documents. The respondent had

preferred an application u/s 12 of the Protection of

Women From Domestic Violence Act on 28.3.2012. Interim

order was passed on 30.9.2012. The petitioner has not

complied the said order. The petitioner had preferred an

appeal before the Sessions Court challenging the

aforesaid order. The appeal was dismissed for default.

The petitioner had not pursue the said proceedings. The

proceedings under the Protection of Women From Domestic

Violence Act were transferred to the Family Court by

consent of both the parties. The Court therefore has

power to entertain the application for execution.

Section 28(1) of the Protection of Women From Domestic

Violence Act provides for procedure of implementation of

( 11 ) Cri.WP 1059 of 2016

the order wherein it is categorically stated that all the

proceedings u/s 12, 18, 19, 20, 21, 22 and 23 and offence

u/s 31 shall be governed by the provisions of Code of

Criminal Procedure. The petitioner is avoiding payment

of maintenance. The petitioner has therefore raised

objection to the execution proceedings, which has been

rightly rejected by the Family Court.

12) The respondent in her application for execution of

the interim order has stated that the husband had not

complied the order of maintenance. It is also stated

that the application u/s 12 of the Protection of Women

From Domestic Violence Act, was dismissed for default on

15.12.2014. She had preferred restoration petition,

which was registered as Criminal Miscellaneous

Application No.36 of 2015, which was withdrawn with

permission of the Court. Liberty was granted to prefer

fresh application. The husband was a mute spectator to

the order dated 3.9.2012. His appeal was dismissed for

default. The proceedings were transferred by consent of

( 12 ) Cri.WP 1059 of 2016

both the parties in the application preferred by the

husband. The husband could not get any relief from the

High Court. He is reluctant to pay maintenance. It was

therefore, prayed that the husband be directed to pay

maintenance amount. The Family Court decided the

objection petition preferred by the petitioner. The said

application was filed on 21.3.2016. The respondent

opposed the same on the ground that it is misconceived.

The provisions of Code of Civil Procedure are not

applicable to the execution under the Protection of Women

From Domestic Violence Act. The execution of maintenance

order is required to be considered in accordance with

provisions of Code of Criminal Procedure and not Code of

Civil Procedure. Thus, it is apparent that the execution

was qua the order of maintenance. The Family Court

rejected the objection petition vide order dated

23.6.2016. The Court has also considered the objection

regarding jurisdiction of the said Court in entertaining

the said application. The Court observed that though the

application under the provisions of the Protection of

( 13 ) Cri.WP 1059 of 2016

Women From Domestic Violence Act was filed at Nanded, the

same was transferred to the Family Court by the High

Court. The application was dismissed for default on

15.12.2014. As the matter was transferred to the said

Court, it has jurisdiction to execute the order passed in

the said matter. Although the main application was

dismissed, the applicant wife is entitled to recover the

arrears of interim maintenance till the date of

dismissal. The contention of the petitioner that on

account of dismissal of the main application, the claim

of interim maintenance gets frustrated, was rejected. It

was further observed that the execution orders passed

under the Protection of Women From Domestic Violence Act,

are guided by the Code of Criminal Procedure and not Code

of Civil Procedure.

13) I do not find any infirmity in the order passed by

the Family Court. The proceedings under the Protection

of Women From Domestic Violence Act, were transferred by

this Court to the Family Court. The earlier order dated

( 14 ) Cri.WP 1059 of 2016

3.9.2012 merges into the proceedings, which were

transferred to the Family Court. Thus, the said Court

had jurisdiction to entertain the said application. The

sole intention of the applicant appears to avoid the

payment of maintenance and therefore he tried to

challenge execution proceedings. The respondent is not

precluded from executing the interim order dated 3.9.2012

although the main application was dismissed. The

Judgment relied upon by the petitioner is not applicable

in the present proceedings. In the case Sachin Bhodhale

(supra), this Court has observed that, the learned

Magistrate has to follow the procedure laid down under

the Code of Criminal Procedure for recovery of

maintenance either final order, interim. Sub-Section 2 of

Section 28 of the Protection of Women From Domestic

Violence Act, can be placed into service when there is no

provision available for implementing a particular order

passed under the said Act. The procedure laid down u/s

125(3) of the Code of Criminal Procedure for getting

compliance of the order passed by the Magistrate u/s 125

( 15 ) Cri.WP 1059 of 2016

of the Code of Criminal Procedure will have to be

followed for executing the order passed by the Magistrate

u/s 20 of the Protection of Women From Domestic Violence

Act. It is further observed that the reliefs available

u/s 125(1)(a) of the Code of Criminal Procedure are

analogous to reliefs available u/s 20 of the Protection

of Women From Domestic Violence Act. The procedure for

getting compliance of the orders passed u/s 125(1) of the

Code of Criminal Procedure is available under the Code of

Criminal Procedure.

14) The learned counsel for the petitioner, however,

submitted that the said authority has been reversed. The

authority also pertains to Section 20 and the present

case is concerned with Section 23 of the Protection of

Women From Domestic Violence Act. It is pertinent to

note that Section 23 is in relation to power to grant

interim and exparte order under Section 18, 19, 20, 21

and 22 of the said Act. Therefore, the interim order is

passed in accordance with law for granting maintenance

( 16 ) Cri.WP 1059 of 2016

u/s 20 of the said Act. Without going through the

observations made by this Court in the aforesaid

decision, for the reasons stated herein above, the order

passed by the Family Court deserves to be confirmed and

there is no substance in the submissions advanced by the

petitioner. In view of the above, the petition deserves

to be dismissed. Hence, I pass the following order:-

ORDER

(I) Criminal Writ Petition No.1059 of 2016 is dismissed.

(II) The petition stands disposed of.

[PRAKASH D.NAIK, J.] SPT/Cri.WP 1059 of 2016