Nilesh Yohan Tambe And Others vs Sunita Nilesh Tambe
2022 Latest Caselaw 7450 Bom

                                  1                  Cri.Rev.Appln.100-18.odt


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

            CRIMINAL REVISION APPLICATION NO.100 OF 2018

     1.      Nilesh Yohan Tambe,
             Age : 35 years, Occu. Labour,

     2.      Yohan S/o Gangadhar Tambe,
             Age : 64 years, Occu. Retired,

     3.      Padma Yohan Tambe,
             Age : 52 years, Occu. Household,

     4.      Deepa @ Dipti Yohan Tambe,
             Age : 30 years, Occu. Household,

             All R/o Kedgaon, Tq. Ahmednagar,
             District Ahmednagar.                   ... Applicants.

                      Versus

     Sunita Nilesh Tambe,
     Age : 33 years, Occu. Household,
     R/o. C/o. Usha Bhingardive,
     Savedi, Gavthan, Savedi,
     Taluka & District Ahmednagar.                  ... Respondent

                                      ...
                Advocate for Applicants : Mr. Awasarmol Rahul.
                 Advocate for Respondent : Mr. More Abhijit S.
                                      ...

                                CORAM :       S. G. MEHARE, J.

RESERVED ON : 13.07.2022 PRONOUNCED ON : 01.08.2022

ORDER :-

1. The husband and in-laws of the respondent have

preferred the revision under Section 397 of the Criminal

2 Cri.Rev.Appln.100-18.odt

Procedure Code against the order granting maintenance passed

by the learned Judicial Magistrate First Class (7 th Court),

Ahmednagar, dated 08.11.2016 in Miscellaneous Criminal

Application No.1082 of 2014 and the judgment and order

passed by the learned Additional Sessions Judge, Ahmednagar

in Criminal Appeal No.215 of 2016 dated 19.01.2018.

2. The facts of the case, in brief, are that applicant No.1

married to respondent on 14.09.2012 as per the Christian rites

and customs. After the marriage, the respondent went to

cohabit with her husband in the family of her in-laws. After

some days, the applicants started harassing the respondent

because her parents paid less dowry in the marriage. Sufficient

gift articles were given to the applicants for the marriage, but

they were not satisfied. They were harassing her to bring

Rs.1,00,000/- from her parents. She has given the specific

incidents of driving her away from the house. She tolerated the

ill-treatments with the hope that a day would come in her life

and everything would be settled. The report was also lodged

with the Woman Cell, but the dispute could not be settled. The

applicants drove her away on 04.05.2013. Applicant No.1 has

also filed a proceeding for divorce under Section 10(a) of the

Divorce Act. In that proceeding, it was agreed that the

3 Cri.Rev.Appln.100-18.odt

applicant would pay one-time maintenance of Rs.1,00,000/-,

but he did not pay.

3. Applicant No.1 does the business of making doors and

windows and fixing glass. He earns Rs.25,000/- to Rs.30,000/-

per month. Her father-in-law is a retired Government servant.

He also gets a monthly pension of Rs.25,000/- to Rs.30,000/-.

The applicants have committed domestic violence. She is not

able to maintain herself. Therefore, she filed an application

under the Protecting of women from Domestic Violence Act

2005 (Domestic violence act, for short) and claimed the

maintenance of Rs.10,000/- per month from all the applicants.

4. Applicants have a defence that the allegations of

harassment for dowry are false. The applicant went to her

house on 16.09.2012, but she did not return for eight (8) days.

Her mother-in-law went to fetch her, but she quarreled with

them on the ground that a blessing ring was not given to her

after marriage. She used to stay with her mother, saying that

she was unwell. Thereafter, she again came to the house of the

applicants. But she was searching for reasons to go to her

mother. She was avoiding the applicants. She was saying that

she did not want to stay with them. Nobody should obstruct

her from going to her mother, and if anybody forced her to stay

4 Cri.Rev.Appln.100-18.odt

with them, she would kill herself. Lastly, on 10.12.2012, she

left home without intimating anybody. The applicant went to

fetch her back on 07.12.2012, but she refused to cohabit. She

has deserted the applicants. Therefore, her application is liable

to be dismissed.

5. Appreciating the evidence, the learned Magistrate held

that the present applicants had committed domestic violence

against the respondent, and she is entitled to the monthly

maintenance of Rs.3,000/-. The order of the learned

Magistrate was impugned before the learned Sessions Judge.

Learned Sessions Judge, appreciating the evidence, dismissed

the appeal preferred by the present applicants.

6. Learned counsel for the applicants has vehemently

argued that both the Court of learned Magistrate and learned

Sessions Judge misinterpreted the term 'Domestic Violence'.

Evidence is not properly appreciated. Both the impugned

orders are erroneous and improper. Therefore, the revision

application is liable to be allowed.

7. Per contra, the learned counsel for the respondent has

vehemently argued that both the Courts have correctly

appreciated the evidence and granted the reasonable quantum

5 Cri.Rev.Appln.100-18.odt

of maintenance. Therefore, the present petition is liable to be

dismissed.

8. Learned counsel for the respondent relied on the

following cases :

(i) Krishna Bhattacharjee Vs. Sarathi Choudhury and another, (2016) 2 Supreme Court Cases 705.

(ii) Sau. Aruna Vs. Omprakash, 2021 SCC Online Bom 1292.

(iii) Mohammad Zuber Farooqi Vs. State of Maharashtra, 2019 SCC Online Bom 2295.

(iv) Laxmi Bai Patel Vs. Shyam Kumar Patel, 2002(2) HLR 695.

9. Relying on the above case laws, he has tried to

convince this Court that the maintenance granted to the

applicant was appropriate.

10. Learned counsel for the applicant has raised an objection

that the application under the Domestic Violence Act cannot be

considered since she was residing separate and a divorce

proceeding was filed.

11. The record reveals that the respondent filed the

proceedings under the Domestic Violence Act when the divorce

petition was pending. At that time, their relations subsist. The

6 Cri.Rev.Appln.100-18.odt

Hon'ble Apex Court, in the case of Krishna Bhattacharjee (supra)

held that the 'Domestic Violence' is a continuing offence.

Therefore, it cannot be said that a petition filed after two years

of judicial separation is not barred by limitation. Here in the

present case, the facts are altogether different. The respondent

had filed the petition under the Domestic Violence Act. There

was no judicial order of separation. Therefore, this Court does

not find substance in the objection raised by the applicants that

the application is barred by limitation.

12. The quantum is to be decided on the basis of the income

and living standard of the husband. The Court also consider

the responsibilities of the husband. Applicant No.1 has

admitted the business he does. However, he has come up with

the case that he has no income as alleged. However, it is come

on record that applicant No.1 was paying Rs.4,500/- per

month to his helper. It is also not in dispute that petitioner

No.2 is a pensioner. Obviously, he has to maintain his wife. The

applicant/husband has no other responsibility. Therefore,

considering the inflation of the day and sky rocketing prices of

daily needs, the maintenance of Rs.3,000/- per month appears

not improper. The applicants have no material to point out

7 Cri.Rev.Appln.100-18.odt

before the Court that the order granting maintenance to the

respondent is erroneous, improper and incorrect.

13. For the above reasons, this Court does not find any

substance in the present revision application.

14. Hence, the revision application stands dismissed.

(S. G. MEHARE, J.) ...

vmk/-