Bombay High Court
Pitambar S/O Maroti Bodele vs State Of Maharashtra, Through ... on 14 November, 2017
Bench: R.P. Mohite-Dere
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.
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
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
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
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
