Bombay High Court
Sau Ekta W/O Kailas Sao vs Kailas S/O Nanaji Sao on 22 June, 2022
Bench: Avinash G. Gharote
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THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION NO. 233/2019
Ekta Kailas Sao ..Versus...Kailas Nanaji Sao
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. S.D. Umredkar, Advocate h/f Mr. A.S.Thotange, Advocate for the applicant
Mr. D.V.Mahajan, Advocate for respondent.
CORAM : AVINASH G. GHAROTE, J.
DATE : 22/06/2022
1] Heard Mr.Umredkar, learned counsel h/f
Mr.Thotange, learned counsel for the applicant and
Mr.Mahajan, learned counsel for Respondent.
2] The revision challenges the judgment passed by
the learned Sessions Judge, Gadchiroli dated 27.12.2017,
whereby while allowing the appeal, the judgment dated
31.5.2017 passed by the learned Magistrate under the
provisions of Section 12 of the Domestic Violence Act has been
set aside and the application filed by the complainant has
been dismissed.
3] Mr. Umredkar, learned counsel for the applicant
submits that the judgment passed by the learned Magistrate
was a well reasoned one considering all aspects of the matter
and the finding rendered therein that the wife had suffered
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cruelty at the hands of her husband ought not to have been
disturbed by the learned Appellate Court. He further submits
that even otherwise the applicant/wife is entitled to
maintenance from the husband, which has been so granted by
the learned Magistrate at the rate of Rs. 9,000/- per month
and therefore the same ought not to have been interfered with
by the learned Appellate Court. It is therefore submitted that
the impugned judgment of the learned Appellate Court needs
to be quashed and set aside and that of the learned Magistrate
needs to be restored.
4] Mr. Mahajan, learned counsel for the respondent
supports the impugned judgments and contends that the
findings by the learned Magistrate cannot be sustained, as
they were in ignorance of the decree for restitution of conjugal
rights passed by the learned Civil Court in the proceedings
instituted on 28.03.2016 in HMP No. 9/2016 under Section 9
of the H.M. Act. He further submits that the findings rendered
in the subsequent decree passed by the learned Civil Court in
HMP No. 18/2017, dated 23.10.2018, which holds that the
wife had treated the husband cruelly, also needs to be taken
into consideration for the purposes of deciding the present
revision.
5] The date of marriage is 29.5.2015. The applicant
wife hardly resided with the husband for around 3 months
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and left for her parents residence on 15.9.2015. All attempts
made by the husband to bring her back did not prove fruitful.
It has also come on record that when there was a meeting
arranged at the residence of the father of the wife, in the said
meeting the wife had categorically stated that she will act as
per the dictates of her father. Her father thereupon had stated
that he was not sending back his daughter and whenever he
would feel it appropriate, he would consider sending her back.
Thereafter the husband having no other alternative instituted
proceedings under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights, which came to be registered as
HMP No. 9/2016, which was contested by the applicant/wife.
6] The learned Civil Judge, Senior Division,
Gadchiroli, by his judgment dated 23.8.2016 having rendered
the finding upon the evidence laid before him that the
applicant wife had left the company of the husband without
any reasonable ground, allowed the petition and directed the
applicant wife to join the society of the husband within two
months. Neither the said judgment dated 23.8.2016 was
challenged by the applicant wife, nor was any restitution
attempted, considering which the decree dated 23.8.2016
became final including the findings rendered therein.
7] The applicant wife earlier on 26.2.2016 had filed
proceedings under Section 12 of the D.V. Act before the
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learned JMFC, Gadchiroli, who without noticing the judgment
rendered in HMP No. 9/2016 under Section 9 of the H.M. Act
dated 23.8.2016, allowed the application under Section 12 of
the D.V Act on 31.5.2017, holding that there was domestic
violence at the hands of the husband, meted to the applicant-
wife and therefore, directed a restraint order to be issued and
so also granted a maintenance of Rs.9,000/- per month and
Rs.75,000/- as compensation and Rs. 2000/- as costs.
8] The learned Appellate Court noticed that the
judgment in HMP No. 9/2016 was never brought to the notice
of the learned Magistrate in proceedings under Section 12 of
the D.V. Act. It was further found that the judgment in HMP
No. 9/2016 had not been challenged, nor had been complied
with. Over and above that there was not a single complaint by
the applicant wife regarding the alleged harassment claimed
by her, either during the time of approximately three months
for which she resided with the respondent-husband or even
thereafter, when she went to her parents' place and therefore,
the learned Appellate Court holding that there was no
domestic violence whatsoever and any direction under Section
12 of the D.V. Act could only be granted in case there was
domestic violence and since in his considered opinion the
same was not proved, allowed the appeal and dismissed the
complaint filed by the applicant wife.
31revn233.19.odt
9] It is also material to note that in the meantime,
the husband had on 9.3.2017 instituted proceedings under
Section 13 (1)(ia) and 13 (1)(b) of the Hindu Marriage Act
seeking a decree of divorce on the ground of cruelty at the
hands of the wife and desertion. The matter viz HMP No.
18/2017 was contested by the applicant wife. The learned
CJSD, Gadchiroli by his judgment dated 23.10.2018 allowed
the petition and dissolved the marriage between the applicant
and the non-applicant on account of the husband being
treated with cruelty by the wife. The claim for divorce on the
ground of desertion was turned down. A decree under Section
13(1-A) of the H.M. Act was also granted. It is thus apparent
that though the judgment in HMP No. 18/2017 has come later
in point of time, than the impugned judgment by the learned
Sessions Court, which is dated 21.12.2017, the judgment
dated 23.10.2018 in HMP No.18/2017 dissolving the marriage
between the applicant and the non-applicant would be binding
upon them and has to be now taken into consideration for the
purpose of deciding the present application.
10] It is also material to note that the judgment in
HMP No. 18/2017, dated 23.10.2018 has not been appealed
by the applicant wife and thus has attained finality, as a result
of which the findings rendered therein that the wife has
treated the husband with cruelty is now no longer open to
challenge. The factual position which was extant when D.V.
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proceedings No.4/2016 was filed by the applicant wife on
26.2.2016 as well as on 31.5.2017 when the same was
decided, was equally extant, when HMP No.18/2017 was filed
on 9.3.2017 and was decided on 23.10.2018. This being the
position, no court can traverse beyond the findings which have
been rendered by the learned CJSD in HMP No. 18/2017, dt
23.10.2018, which have attained finality.
11] It is thus apparent that the findings as rendered
by the learned Magistrate in D.V. Proceeding No. 4/2016,
dated 31.5.2017 cannot survive in light of what has been held
in HMP No. 18/2017 and therefore, the contention of Mr.
Umredkar, learned counsel for the applicant that in view of the
findings rendered by the learned Magistrate in D.V. procedings
that the wife was treated with cruelty and therefore was
entitled to protection order and resultant maintenance also, in
my considered opinion has rightly been set aside by the
appellate court by the judgment dated 21.12.2017.
I therefore do not see any reason to interfere in the judgment
dated 21.12.2017. There is no merit in the application and the
same is accordingly dismissed. No costs.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:23.06.2022 11:29
