Dr. Sachin S/O. Sadhuram Wakale vs Dr. Chandarani @ Shejal W/O. ...
2017 Latest Caselaw 8903 Bom

                                    (1)                       901-Cri.WP 1123 of 2017



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

          CRIMINAL WRIT PETITION NO.1123 OF 2017  
                               
.     Dr.Sachin s/o.Sadhuram Wakale
      Age: 36 years, Occu.: Agri.,
      R/o.House No.503/1, Behind Bandhkam
      Bhawan, Opposite Terna Colony,
      Latur, Tq. and Dist. Latur.            ..Petitioner

                       VERSUS

1)    Dr.Sow.Chandarani @ Shejal w/o. Sachin Wakle
      Age: 30 years, Occu.: Medical Practitioner,
      R/o. C/o.Gundiram Satwaji Gaikwad
      Behind Government Rest House,
      Old Nagar Naka, Adarsh Ganesh Nagar,
      Beed, Tq. And Dist.Beed.

2)    Mangesh s/o. Sadhuram Wakale
      (Died on 3.5.2015)

3)    Smt.Shakuntala w/o.Sadhuram Wakale
      Age: 61 years, Occu.: Household,
      R/o.Shivprasad Niwas, Sarodaya
      Colony, Rajiv Gandhi Chowk,
      Behind Bandhkam Bhawan, Old
      Ausa Road, Latur, Tq. and Dist.Latur.  ..Respondents
                             ...
       Advocate for the petitioner : Mr.D.J.Choudhari
        Advocate for respondent No.1 : Mr.S.S.Thombre
                              ...


                                    CORAM :  PRAKASH D.NAIK, J.

DATE : 21.11.2017

(2) 901-Cri.WP 1123 of 2017

ORAL JUDGMENT:-

1) The petitioner seeks to challenge the order passed

by the learned Sessions Court, Beed, dated 18.2.2017 in

Criminal Appeal No.5 of 2014 as well as the Order dated

14.12.2013 passed by the learned Judicial Magistrate

First Class (Court No.9), Beed in Miscellaneous Criminal

Application No.115 of 2013.

2) The respondent No.1 is the wife of the petitioner.

The marriage between the parties was solemnized on

24.6.2010. According to the petitioner, respondent No.1

left the house for no reason. Therefore, the petitioner

issued notice dated 27.10.2012 asking her to cohabit with

him. The said notice was replied on 9.11.2012. She did

not resume cohabitation, hence, the petitioner initiated

proceedings under Section 9 of the Hindu Marriage Act,

1955, for restitution of conjugal rights vide Hindu

Marriage Petition No.45 of 2013. The respondent No.1

appeared in the said matter and preferred application

Exh.No.29/D by virtue of Section 24 of the Hindu Marriage

(3) 901-Cri.WP 1123 of 2017

Act, 1955, seeking the maintenance and other monetary

benefits. The respondent No.1 also filed written

statement to said petition. The learned Civil Judge

(Senior Division), Beed, vide order dated 15.12.2014

granted necessary expenses as well as maintenance of

Rs.9,000/- per month in accordance with Section 24 of the

said Act. The said petition was subsequently dismissed

for default on 13.7.2016.

3) The respondent No.1 filed application bearing No.115

of 2013 under Section 12 of the Protection of Women from

Domestic Violence Act, 2005, seeking various reliefs

against the petitioner. The learned Judicial Magistrate

First Class, Beed vide order dated 14.12.2013 partly

allowed the application preferred by the respondent No.1

and granted maintenance of Rs.5,000/- per month as well

as costs of Rs.2,000/-. The order dated 14.12.2013 was

challenged by the respondent No.1 by preferring Appeal

No.5 of 2014 before the Court of Sessions and prayed for

enhancement of the compensation, maintenance, rent, costs

(4) 901-Cri.WP 1123 of 2017

etc. The learned Sessions Court by order dated 21.4.2015

allowed the said appeal and granted maintenance of

Rs.10,000/- per month w.e.f.28.1.2013 as well Rs.5,000/-

towards medical expenses and Rs.5,000/- towards rent.

The learned Sessions Court also directed the payment of

compensation of Rs.1,00,000/- to be made by the

petitioner to the respondent No.1. The petitioner

challenged the said order on the ground that the same was

passed without affording opportunity of hearing to the

petitioner. The petitioner, therefore, preferred

Criminal Application No.102 of 2016 before this Court.

This Court vide order dated 27.4.2016 remanded the matter

back to the Sessions Court for fresh consideration. The

appeal preferred by the respondent No.1 was heard by the

Sessions Court and vide order dated 18.2.2017, the order

passed by the Judicial Magistrate First Class, Beed,

dated 14.12.2013 was set aside. The petitioner herein

was directed to pay Rs.12,000/- per month towards the

maintenance from the date of application i.e.28.1.2013.

The petitioner herein was also directed to pay Rs.6,000/-

(5) 901-Cri.WP 1123 of 2017

per month towards medical expenses and Rs.6,000/- towards

house rent as well as Rs.1,00,000/- towards compensation

to the respondent No.1. It was further directed that

amount of Rs.3,00,000/- deposited by the petitioner be

adjusted towards his liability of arrears of maintenance.

4) In view of the order dated 18.2.2017 as well as the

order dated 14.12.2013 passed by the Courts below, the

petitioner has preferred this petition challenging the

said orders.

5) The learned counsel for the petitioner submitted

that while granting the maintenance of Rs.12,000/- per

month and Rs.6,000/- towards medical expenses as well as

Rs.6,000/- towards house rent and compensation, the

Courts below have committed an error. The Courts have

not appreciated the material on record and erroneously

came to the conclusion that the petitioner is liable to

pay the compensation. It is submitted that there was no

justification for granting the medical expenses to the

(6) 901-Cri.WP 1123 of 2017

respondent No.1 as directed by the Sessions Court in the

absence of any material on record justifying the said

direction. It is submitted that the petitioner is not in

service and the evidence placed on record in that regard

was not considered by the Court in proper perspective.

The Court fails to take into consideration the actual

income of the petitioner and an exorbitant maintenance

was awarded. It is also contended that the petitioner

had genuine difficulty for not adducing evidence before

the lower Court. It is submitted that there is no

justification for enhancing the maintenance awarded by

the First Court, although the petitioner also seeks to

challenge the order of maintenance etc., passed by the

First Court. It is submitted that in the proceedings

initiated before the Civil Judge, Senior Division, Beed

in Hindu Marriage Petition No.45 of 2014 has already

granted maintenance of Rs.9,000/- per month to the

respondent No.1 and there was no reason to again grant

maintenance to her in the present proceeding.

                                     (7)                      901-Cri.WP 1123 of 2017


6)    It is further submitted that the provisions of the 

Protection of Women from Domestic Violence Act, 2005, are

not applicable to the petitioner and therefore, the Trial

Court ought not to have entertained the said complaint

and thereby ought not to have granted the maintenance.

The Trial Court and the Appellate Court have thereby

committed manifest error in passing the said orders.

There are no cogent reasons for enhancing maintenance.

The quantum of maintenance awarded by the Appellate Court

as well as the Trial Court is not supported by by

evidence. It is submitted that the petitioner did not

get opportunity to cross-examine the witness before the

First Court and therefore, findings recorded by the said

Court are contrary to law. The Appellate Court has

granted maintenance of Rs.12,000/- per month without

appreciating the fact that there was no evidence to

enhance the said maintenance. The contention of the

petitioner that the First Court itself ought not to have

granted maintenance was not considered by the Appellate

Court and on the contrary, Appellate Court proceeded to

(8) 901-Cri.WP 1123 of 2017

enhance the maintenance. It is therefore, submitted that

the impugned orders passed by the Courts below are

perverse and the same are required to be set aside.

7) The learned counsel for the respondent No.1

submitted that there is no reason to interfere in the

order passed by the learned Sessions Court. It is

submitted that the Court has taken into consideration the

material, which was placed on record and has thereafter,

enhanced the maintenance and passed order by deciding the

appeal preferred by respondent No.1. It is submitted

that the First Court had considered the aspect of the

maintenance and came to the conclusion that the

respondent No.1 is entitled for maintenance and thereby

awarded the maintenance and other amounts as stipulated

in the said order. The respondent No.1 was aggrieved by

the quantum of maintenance as well as the other amounts

awarded by the Trial Court. The said factor is

considered by the Appellate Court and has came to the

conclusion that the maintenance awarded by the First

(9) 901-Cri.WP 1123 of 2017

Court is meager amount and it requires to be enhanced.

The Appellate Court has applied its mind to the documents

on record and the findings given by the Trial Court and

by assigning cogent reasons set aside the order passed by

the First Court to the extent of enhancing the

maintenance and the other amounts awarded by the Trial

Court. The respondent is entitled for the maintenance of

Rs.12,000/- per month as well as the medical expenses,

house rent and the compensation for the harassment and

mental torture caused to the respondent No.1 by the

petitioner husband. It is therefore, submitted that the

petition is devoid of substance and the same be

dismissed.

8) I have perused the impugned orders. The Trial Court

while passing order dated 14.12.2013 has awarded

maintenance of Rs.5,000/- as well as expenses of

Rs.2,000/-. The Trial Court had come to the conclusion

that the respondent No.1 is entitled for the maintenance.

The Court has also taken into consideration the

( 10 ) 901-Cri.WP 1123 of 2017

submissions advanced by the petitioner's counsel that the

petitioner could not cross-examine the applicant-

complainant in the proceedings before the Trial Court.

The Trial Court, however, has observed that the

petitioner-husband could not avail of the said

opportunity of cross-examination inspite of several

opportunities given to him and therefore the grievance

made by the petitioner husband is not tenable in law. It

is pertinent to note that the petitioner has also made

similar grievance in respect of earlier order passed by

the Appellate Court, which was set aside by this Court

and matter was remanded to the Appellate Court for

considering the appeal afresh.

9) I do not find any infirmity in the observations made

by the Trial Court with regard to the fact that the

petitioner husband was given opportunities to defend

himself as well as the fact that the respondent No.1 is

entitled for the maintenance and other benefits as stated

in the order. However, the quantum of maintenance awarded

( 11 ) 901-Cri.WP 1123 of 2017

by the Trial Court is not justifiable and therefore, the

Appellate Court has rightly enhanced the same. The

Sessions Court while deciding the appeal preferred by the

respondent No.1 has observed that the petitioner herein

had appeared before the Trial Court and filed the written

statement but failed to lead any evidence and had not

availed the opportunity to contest the application. The

Sessions Court has taken into consideration the Roznama

of the Trial Court, which depicts that inspite of

opportunities given to the petitioner-husband, he did not

cross-examine the complainant. The Trial Court has

therefore proceeded on the basis of evidence, which was

available on record and after hearing both the parties,

had decided the matter. The Appellate Court has observed

that the Trial Court had recorded the findings in

paragraphs 6 and 7 with regards to the financial status

of the parties and that prima-facie case of domestic

violence was made out by the appellant-wife before the

Trial Court. The Appellate Court considered all the

aspects including the material on record and passed the

( 12 ) 901-Cri.WP 1123 of 2017

order dated 18.2.2017. However, as far as the medical

expenses of Rs.6,000/- per month awarded by the Appellate

Court, it has been observed that the respondent no.1 had

claimed different reliefs under Section 20 of the

Protection of Women from Domestic Violence Act, 2005,

from the petitioner to the tune of Rs.8,10,000/-

including maintenance, medical expenses and compensation.

The Trial Court had considered the above claims of the

respondent No.1 while granting reliefs. It is pertinent

to note that the Trial Court did not consider the relief

of grant of medical expenses. From the record and the

reasoning given by the Sessions Court and the findings of

the Sessions Court while deciding the appeal, it is not

clear on to what count the medical expenses are being

provided to the tune of Rs.6,000/- per month to the

respondent No.1 There is nothing to indicate that the

respondent No.1 is ailing and requires the medical

expenses as claimed by her before the First Court and

which is considered by the Appellate Court. I do not

find any evidence to support the said claim and there is

( 13 ) 901-Cri.WP 1123 of 2017

no cogent reason assigned by the Appellate Court to award

medical expenses to the tune of Rs.6,000/- per month to

the respondent no.1. However, as far as other benefits

granted to the respondent no.1 vide order dated

18.2.2017, I do not find any reason to interfere in the

same. The Sessions Court has taken into consideration,

the observations made by the Trial Court, the material on

record and has awarded the maintenance of Rs.12,000/- per

month as well as the house rent of Rs.6,000/- and

compensation of Rs.1,00,000/-. The Appellate Court has

also considered the fact that the amount of Rs.3,00,000/-

deposited by the petitioner herein be adjusted towards

his liability of arrears of maintenance.

10) In the aforesaid circumstances, the order of the

Sessions Court is required to be confirmed except the

amount of Rs.6,000/- towards medical expenses awarded by

the Appellate Court, is required to be set aside.

11) In the circumstances and for the reasons stated

( 14 ) 901-Cri.WP 1123 of 2017

herein above, the petition is disposed of by passing the

following order:-

ORDER

(I) Criminal Writ petition No.1123 of 2017 is partly allowed.

(II) The impugned order dated 18.2.2017, passed by the Additional Sessions Judge, Beed, granting maintenance of Rs.12,000/- per month to the respondent No.1 from the date of application i.e. 28.1.2013 and Rs.6,000/- per month towards house rent as well as compensation of Rs.1,00,000/- is hereby confirmed.

(III) The said order dated 18.2.2017, passed by the Sessions Court to the extent of granting medical expenses of Rs.6,000/- per month to the respondent no.1 is set aside.

 


                                                     [PRAKASH D.NAIK, J.]





                                      ( 15 )                     901-Cri.WP 1123 of 2017



LATER ON

At this stage, the learned counsel for the

petitioner submits that this order may be stayed for a

period of eight weeks as the petitioner intends to

challenge the order before the higher Court. Considering

the issues involved in this petition which includes

maintenance awarded to the respondent No.1, the prayer

made by the petitioner cannot be granted. Hence, request

for stay of the order is rejected.

[PRAKASH D.NAIK, J.] SPT/901-Cri.WP 1123 of 2017