Bombay High Court
Sau. Kalyani Kapil Jambhule vs Kapil Haridas Jambhule on 11 February, 2021
Bench: V.M. Deshpande
1 REVN20.20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL REVISION APPLICATION NO. 20 OF 2020
APPLICANT : Sau. Kalyani Kapil Jambhule,
Aged 45 years, Occu. Household,
R/o C/o S. T. Hiwarkar,
Plot No. 201, 3rd Floor, Indora,
Kamptee Road, Nagpur, Tah. & Dist. Nagpur.
VERSUS
NON-APPLICANT : Kapil Haridas Jambhule,
Aged 47 years, Occu. Govt. Service,
R/o Near Reddy Godown,
Tah. & Dist. Gadchiroli
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Mr. D. V. Mahajan, Advocate for the applicant.
Mr. Avinash Ramteke, Advocate for the non-applicant.
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CORAM : V. M. DESHPANDE, J.
DATE : FEBRUARY 11, 2021
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of the learned counsel for the parties.
2. Heard Mr. D. V. Mahajan, learned counsel for the
applicant and Mr. Avinash Ramteke, learned counsel for the non-
applicant.
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3. The applicant and the non-applicant were married in
the year 2005. Admittedly, from their wedlock, the couple was
having one daughter and one son and presently their ages are 19
years and 16 years, respectively. It is informed to this Court by both
the learned counsel that the daughter is taking education in
Polytechnic college whereas the son is taking education in 11 th
standard.
4. In the year 2012, the applicant approached to Court of
learned Judicial Magistrate, First Class by filing an application under
Section 12 of the Protection of Women from Domestic Violence Act,
2005 (hereinafter referred to as "the PWDV Act" for the sake of
brevity). Initially it was filed at Gadchiroli since the husband was
residing at Gadchiroli. Later on, it was transferred at Nagpur and
were allotted on the file of learned 24 th Joint Judicial Magistrate,
First Class, which is also a Special Court for trying the cases under
the PWDV Act. The case was registered as Misc. Criminal Case No.
4419/2014. The case was contested by the non-applicant/husband.
The parties entered into the witness box in order to substantiate
their respective case. The learned Magistrate on 07.04.2017 gave
his verdict, thereby allowing the application filed on behalf of the
applicant partly. Apart from other directions, the husband was
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directed to pay an amount of Rs.10,000/- by way of maintenance for
the applicant and for her two children. Also, the husband was
directed to pay Rs.5,000/- by way of rent.
5. The husband was aggrieved by the order and therefore,
he approached the Appellate Court by filing an appeal under
Section 29 of the PWDV Act, 2005, which was registered as Criminal
Appeal No. 118 of 2017. The learned Additional Sessions Judge-9,
Nagpur vide judgment and order dated 22.08.2019 allowed the
appeal and quashed the judgment and order passed by the learned
Magistrate. Perusal of the impugned order of the Appellate Court
would show that the learned Judge was impressed by the decree of
divorce which was granted in favour of the husband by the Family
Court, which was one of the factors for allowing the appeal and also
because the counsel for the wife did not appear on many occasions.
6. Insofar the second aspect is concerned, the learned
Judge ought to have seen that for fault of an Advocate the litigant
should not suffer. The Appellate Court could have taken recourse for
securing attendance of the applicant/wife by issuing fresh notice if
her Advocate was not appearing before the Court. Surely, at least
prima facie, the wife and children cannot be denied the relief of
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maintenance because of the absence of the Advocate. So far as
decree of divorce is concerned, the "aggrieved person" is including
the divorcee, which is the law laid down by the Hon'ble Apex Court
way back in the year 2014 in the case of Juveria Abdul Majid
Patni .vs. Atif Iqbal Mansoori and another, reported in (2014) 10
SCC 736.
7. Mr. Ramteke, learned counsel for the non-applicant/
husband fairly submits that since the counsel for the applicant was
not heard by the learned Appellate Court, the matter can be
remanded back for hearing and disposal of the appeal afresh. He
submits that the husband has not paid the maintenance from the
date of the judgment of the learned trial Court till the appeal is
decided by the Appellate Court on 22.8.2019. Undisputedly, the
non-applicant husband is working as an Engineer in Zilla Parishad
and he is getting emoluments of Rs.70,000/- per month.
8. Since, the appeal filed on behalf of the husband was
allowed by the Appellate Court without giving opportunity of
hearing to the wife and without considering the judgment of the
Hon'ble Apex Court in Juveria Abdul Majid Patni (supra), this matter
can be remanded back to the Appellate Court. Hence, I pass the
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following order :
ORDER
1. The Criminal Revision Application is hereby allowed.
2. The judgment and order passed by learned Additional
Sessions Judge-9, Nagpur in Appeal No. 118 of 2017
dated 22.8.2019, is quashed and set aside.
3. The judgment delivered by the learned 24th Joint
Judicial Magistrate, First Class, (Special Court under
the PWDV Act), Nagpur in Misc. Criminal Case No.
4419/2014 dated 07.04.2017 is restored.
4. The parties to this application are directed to appear
before the learned Additional Sessions Judge-9, Nagpur
on 16.03.2021.
5. The learned Additional Sessions Judge shall decide the
appeal in accordance with law after giving opportunity
of hearing to both, the applicant as well as the non-
applicant.
6. The husband is directed to deposit Rs.1,00,000/- within
a period of four weeks from today in the Court of
learned Additional Sessions Judge-9, Nagpur. The
amount shall be towards maintenance of the wife as
well as children.
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7. The wife shall be entitled to withdraw the said amount
without any undertaking.
8. This amount is towards interim arrangement. The
parties shall be at liberty to claim adjustments, if any
amount of maintenance is already paid by the husband.
9. Learned counsel for both the parties shall extend full
cooperation to the learned Judge of the Appellate Court
for early disposal of the appeal.
10. With this, the revision application is allowed and
disposed of. Rule accordingly. No costs.
V. M. Deshpande, J.
Diwale
Digitally
signed by
Parag Parag Diwale
Date:
Diwale 2021.02.12
17:22:08
+0530
