Kishor S/O Bhaiyajji Sontakke & ... vs Archana W/O Kishor Sontakke
2017 Latest Caselaw 8402 Bom

 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

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

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:

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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.

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.

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

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..