Bombay High Court
Ambadas S/O. Mahadeo Pawade vs Sau. Kusum W/O. Ambadas Pawade on 1 July, 2022
Bench: V. G. Joshi
Judgment apl270.18
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] No. 270/2018.
Ambadas s/o Mahadeo Pawade,
Aged about 67 years, Occupation
Pensioner, resident of Tukum, Tadoba Road,
Chandrapur, Tahsil and
District Chandrapur. ... APPLICANT.
VERSUS
Sau. Kusum w/o Ambadas Pawade,
Aged Major, Occupation -
Household, resident of Nehru Nagar,
Mul Road, Chandrapur,
Tahsil and District Chandrapur. ... NON-APPLICANT.
---------------------------------
Mr. A.S. Shukla, Advocate h/f. Shri R.L.Khapre, Senior Advocate for
the Applicant
None for the Non-applicant - Served.
----------------------------------
CORAM : VINAY JOSHI, J.
DATE : JULY 01, 2022.
ORAL JUDGMENT :
Heard Shri Shukla, learned Counsel appearing on behalf
Rgd. RAKESH GANESHLAL DHURIYA
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Judgment apl270.18
of the applicant. The non-applicant though served has chosen not to
appear in the matter.
2. The applicant - husband is assailing the order dated
31.01.2015 passed by the Judicial Magistrate First Class, Chandrapur
in Misc. Criminal Application No.103/2014, which came to be
confirmed by the Appellate Court i.e. the Sessions Judge,
Chandrapur in Criminal Appeal No.26/2015 vide order dated
31.01.2018.
3. The applicant has challenged the very maintainability of
the proceedings filed by the non-applicant / wife in terms of Section
12 of the Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as "the D.V. Act" for short). The applicants'
urge for dismissal of the application filed by the non-applicant/ wife
was turned down by the Magistrate, as well as the Appellate Court,
and therefore, this Application.
4. The non-applicant/wife has preferred an application
under Section 12 of the D.V. Act claiming following reliefs :
"a] That, the non-applicant no.1 may
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Judgment apl270.18
kindly be directed to pay the half of
amount after retiring to the
applicant by way of lump-sum
maintenance amount.
b] That, the non-applicant no.2 may
kindly be directed to deposit the
whole amount as shown above in
this case and not to disburse to the
non-applicant no.1.
To this effect interim exparte order
may kindly be passed.
c] Compensation as claim of
Rs.1,00,000/- may kindly be given to
the applicant, And
d] such other suitable direction may
kindly be given if this Hon'ble Court
deems fit."
5. The applicant has challenged the maintainability of the
said proceeding on two counts namely - the application does not
discloses the act of domestic violence and secondly, the application is
not maintainable for inordinate delay. Besides that it is canvassed
that the relief which is sought is not tenable under the D.V.Act.
Rgd. RAKESH GANESHLAL DHURIYA
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Judgment apl270.18
6. Bare perusal of the application [Criminal Case
No.103/2014], discloses that the couple married prior to 45 years
from the date of filing of the said application. After few years, there
was matrimonial discord and some where in the year 2004, the
couple separated. The non-applicant / wife has approached to the
Magistrate for grant of maintenance in terms of Section 125 of the
Code of Criminal Procedure vide Criminal Application No.82/2005,
which was allowed in the year 2012. Revision against the said order
was dismissed. It is averred by the non-applicant that the applicant -
husband is serving as a loader with the Western Coalfields Limited.
He is about to retire in the month of December, 2014 and would get
retiral benefits soon. The non-applicant/wife alleged that since the
applicant has not made suitable arrangement for her residence and
not provided the amount for her survival, she is entitled for 50% of
the retiral benefits. The entire tenor of the application in
unequivocal terms speaks that the very purport of the application is a
simplicitor claim for retiral benefits. It is to be remembered that the
non-applicant/wife had claimed said relief under the provisions of
Domestic Violence Act. Even if the relief claim is termed as
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Judgment apl270.18
monetary one, in view of Section 20 of the D.V. Act, monetary reliefs
can be granted to the aggrieved person on the premise of domestic
violence. Perusal of the original application no where specifies the
instances of harassment, barring general and vague allegations.
There are no specific statements to suggest that she was subjected to
domestic violence at any point of time or during a particular period.
7. Notably the couple separated some where in the year
2004, whilst the non-applicant/wife had applied to the Magistrate in
the year 2014 i.e. after a period of 10 years. Though the period of
limitation in terms of Section 468 of the Code would not apply,
however, the application should be filed within a reasonable period.
What amounts to 'reasonable period' is a matter of fact. It reveals
that though the wife has applied for maintenance in the year 2005,
for next 9 years, she has not invoked the provisions of the D.V. Act.
8. The learned Counsel for the applicant would submit that
filing of the application after several years would amount to gross
abuse of the process of Court. He relied on the decisions of this
Court in cases of - [1]Anita Anand Tambe .vrs. Anand Eknath Tambe
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Judgment apl270.18
- 2018 SCC Online Bom 298; [2] Rekha Balasaheb Patil .vrs.
Smt.Durgawati Shridhar Patil and others - 2018 SCC Online Bom
2740; [3] Y.Kunjanppan and another .vrs. Chitralekha Tarachand
Anandi and others - 2011 All MR (Cri) 3212 and [4] Kishor
Shrirampant Kale .vrs. Sou. Shalini Kishor Kale and others - 2010 All
MR (Cri) 1386, to contend that this Court in similar circumstances by
taking note that the grievance was put after several years, held that
such belated action under the D.V. Act is not maintainable.
9. Perusal of the entire application loudly conveys that only
because the applicant - husband was to get some retiral benefits,
the application was moved. The non-applicant/lady has not claimed
any other reliefs which are available under the D.V. Act, but,
concentrated for claiming the retiral benefits. Certainly invocation of
provisions of D.V.Act is not the forum where she can lay her claim
for retiral benefits of her husband. There is no justification for a long
gap of 10 years for raising the grievance about domestic violence.
Apart from that, the contents of the application are quite vague and
does not specify any instances which can be termed as an act of
domestic violence.
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Judgment apl270.18
10. It is brought to the notice of the Court that the non-
applicant/wife has also filed one Regular Civil Suit No.224/2014
claiming the relief of injunction from disbursement of the retiral
benefits. It is informed that the said suit was dismissed in default on
11.03.2016. Suffice to say that the entitlement of wife for retiral
benefits during life time of the husband is a matter of concern, which
has to be adjudicated in appropriate proceedings before proper
forum, but, certainly not under the provisions of the D.V. Act.
11. Admittedly the Magistrate has awarded maintenance in
terms of Section 125 of the Code @ Rs.2000/- per month, which was
confirmed by the Revisional Court. The applicant / husband has
challenged the order passed in revision by filing Criminal Application
(APL) No.271/2018, in which the learned Counsel for the applicant
today sought withdrawal and accordingly the said Criminal
Application was disposed of. As a result, the order of maintenance
awarded in terms of Section 125 of the Code has attained finality. It
is always open for a lady to seek for alteration, if the circumstances
warrants so.
Rgd. RAKESH GANESHLAL DHURIYA
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Judgment apl270.18
12. Having regard to the fact that the original application is
vague, aimed with the relief which is not contemplated under the
D.V. Act and as there was inordinate, unexplained delay, its
continuation would amount to abuse of the process of Court. In view
of that the Criminal Application deserves to be allowed, and is
accordingly allowed.
The impugned order dated 31.01.2018 passed in Criminal
Appeal No.26/2015 by the Additional Sessions Judge, Chandrapur is
hereby quashed and set aside. The D.V. proceedings namely
Criminal Case No.103/2014 pending before the trial Court stands
dismissed.
JUDGE
Rgd. RAKESH GANESHLAL DHURIYA
05.07.2022 10:45
