Anand S/O Babanrao Chafle vs Sangita W/O Anand Chafle And ...
2022 Latest Caselaw 12994 Bom

                                             18 cr.wp 631.22.odt..odt
                                                    1/7



     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH, NAGPUR.

        CRIMINAL WRIT PETITION NO.631 OF 2022

1.        Anand s/o Babanrao Chafle,
          Aged 40 years, Occu: Agriculture
          R/o. Gandhi Nagar, Chikhali,
          Tq. Chikhali and District- Buldhana ... PETITIONER


                          // VERSUS //

1.        Sau. Sangita w/o Anand Chafle,
          Age - 40 years, Occ- Private,

2.        Vyankatesh s/o Anand Chafle,
          Age - 12 years, Occ.
          Education, (Non-applicant No.2
          is minor so represented by
          natural guardian mother i.e.
          Non-applicant No.1.

          Both Resident of Flat No.303,
          DSD City Mall, Madhukosh
          Building, Dalal Lay-out,
          Buldhana, District -Buldhana ...      RESPONDENTS


Shri Mahesh Rai, Advocate for the petitioner.
Shri A.J. Thakkar, Advocate with Shri S.A. Thakkar, Advocate for
the respondent Nos. 1 and 2.
____________________________________________________



CORAM : G. A. SANAP, J.

DATE:- 14/12/2022 18 cr.wp 631.22.odt..odt

ORAL JUDGMENT

1. Rule. Rule made returnable forthwith. Heard finally

by consent of the parties.

2. In this Criminal Writ Petition challenge is raised to the

order dated 30.09.2019 passed by the learned Additional Sessions

Judge, Khamgaon in P.W.D.V. Appeal No.1/2018, whereby the

learned Additional Sessions Judge was pleased to reject the appeal

and confirm the order dated 16.01.2018 passed by the learned

Judicial Magistrate, First Class, Jalgaon Jamod directing the

petitioner to pay a sum of Rs.6,000/- p.m. to the respondent No.1

and Rs.3,000/- p.m. to the respondent No.2 and pay Rs.2,000/-

p.m. towards the rent.

3. In this petition, it is the contention of the petitioner

that interim maintenance quantified by the learned Magistrate is

excessive and exorbitant. The order suffers from the virus of

unreasonableness. The facts placed on record were not taken into

consideration. According to the petitioner, the order is passed 18 cr.wp 631.22.odt..odt

without application of mind and therefore, the same is required to

be quashed and set aside.

4. I have heard learned Advocates for the parties and

perused the record and proceedings.

5. During pendency of the proceedings under the

Protection of Women from Domestic Violence Act, 2005

(for short the D.V.Act) bearing P.W.D.V.A.No.23/2017, the

respondents made an application (Exh.7) seeking direction to the

petitioner as per the provisions of Section 23 of the D.V. Act.

Learned Magistrate took into consideration the material placed on

record and on the basis of said material quantified the interim

maintenance. Learned Magistrate as well as learned Additional

Sessions Judge have taken into consideration the material viz-a-viz

the income of the petitioner, their position in the society and the

fact that the wife and son have no independent source of income,

while quantifying the interim maintenance.

18 cr.wp 631.22.odt..odt

6. Grievance is made in this proceedings that the

petitioner has no source of income and therefore, he could not

have been directed to pay such an excessive and exorbitant

amount as an interim maintenance. An attempt has also been

made to point out that wife is residing in the flat owned by the

petitioner and therefore, the amount of Rs.2,000/- p.m. granted

under the head of rent was not at all justified. In my view, this

submission is nothing but a feeble attempt to divert the attention

of the Court from the main issue.

7. On going through the reply filed by the petitioner in

the D.V.Act proceedings as well as his memo of appeal, it is seen

that there is no pleading at all on this point. If the wife, on the

date of the decision of the application at Exh. 7, was residing in

the flat owned by the petitioner, then it was the duty of the

petitioner to plead this fact by providing the necessary particulars

of his property. It is to be noted that without pleading the basic

facts an argument is sought to be made. In my view without the

support of the pleading of the basic facts, an attempt to raise the

edifice is nothing but short of feeble attempt to wriggle out of the 18 cr.wp 631.22.odt..odt

order of interim maintenance.

8. I have minutely perused the order passed by learned

Judicial Magistrate First Class, Jalgaon Jamod dated 16.01.2018

and the order dated 30.09.2019 passed in Appeal by learned

Additional Sessions Judge, Khamgaon. On going through the

orders, I am convinced that no error or mistake has been

committed. The perusal of the orders would show that both the

Courts below have recorded a finding on prima-facie

consideration of the available material that the wife was subjected

to domestic violence.

9. In the facts and circumstances, I am of the view that

no interference is warranted in the well reasoned judgment passed

by learned Additional Sessions Judge, confirming the order of

learned Magistrate.

10. It is to be noted that at the stage of hearing, the parties

would get an opportunity to lead the evidence. The petitioner

would be at liberty to place his oral and documentary evidence on 18 cr.wp 631.22.odt..odt

record to rebut the case of the wife. He would be entitled to place

on record the evidence with regard to the stay of the wife in the

flat owned by him. The maintenance quantified at the interim

stage, if considered in the backdrop of evidence placed on record

and admitted facts, by no stretch of imagination could be said to

be excessive and exorbitant. Learned Additional Sessions Judge

has taken all the facts into consideration. It is to be noted that

considering the present price index/sky-rocketing cost of living,

the interim maintenance, in my view, is reasonable. Therefore, the

challenge to the order on all these grounds cannot be sustained.

11. The Criminal Writ Petition stands dismissed.

12. Learned Advocate for the petitioner at this stage has

made a grievance that the wife is reluctant to lead the evidence. It

is pointed out that she is not attending the Court. It is further

pointed out that the matter is ripe for hearing before the learned

Magistrate. It is made clear by taking note of this submission that

the learned Magistrate shall see that no unwarranted indulgence is

granted to the parties.

18 cr.wp 631.22.odt..odt

13. Learned Magistrate in view of the above statement is

requested to dispose of the matter expeditiously.

Rule stands discharged.

JUDGE

manisha

Signed By:MANISHA ALOK SHEWALE

Signing Date:15.12.2022 18:37