Mandabai W/O Nivrutti Magar vs Nivrutti Namdev Magar And Others
2023 Latest Caselaw 4184 Bom

                                   1                            RA-114-22.odt



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


       CRIMINAL REVISION APPLICATION NO. 114 OF 2022

Mandabai w/o. Nivrutti Magar,
Age 48 years, Occu. Nil,
R/o. Near Muktaaai High School,
behind NMC Colony, Vaijapur,
Taluka Vaijapur, District Aurangabad              ..      Applicant

                 Versus

1.      Nivrutti s/o. Namdev Magar,
        Age 63 years, Occu. Retired,

2.      Bhimabai Nivrutti Magar,
        Age 53 years, Occu. Household,

        Both R/o. Jivan Ganga Society,
        Vaijapur, Taluka Vaijapur,
        District Aurangabad

3.      The State of Maharashtra                  ..      Respondents


Mr. V. H. Pathade, Advocate for Applicant;
Mr. S. G. Bobade, Advocate for Respondents No.1 and 2;
Mr. S. b. Narwade, A.P.P. for Respondent No.3/State


                               CORAM :    S. G. MEHARE, J.

                               Reserved on   : 03.04.2023
                               Pronounced on : 25.04.2023

JUDGMENT

1. Rule. Rule made returnable forthwith. By consent of the

parties, heard finally.

2. The petitioner/wife has preferred this revision against the

judgment and order of the learned Additional Sessions Judge,

2 RA-114-22.odt

Court No.2, Vaijapur, District Aurangabad, in PWDVA Appeal No.10

of 2019, dated 28.01.2022.

3. It was not in dispute that the petitioner is not a divorcee.

Her first husband with children abandoned them. She has a case

she resided with her children with the respondent for fifteen years,

and they were in a domestic relationship. The respondent caused

her domestic violence. Hence she had filed a petition for

maintenance under Section 12 of the Protection of Women from

Domestic Violence Act, 2005 (in short, "D.V.Act").

4. Appreciating the evidence and relying upon the case of

Jayshri Samshuddin Talapdar Vs. Samshuddin Karim

Talapdar and another, 2018 All MR (Cri) 2305, the learned

Judicial Magistrate, had allowed the petition and granted the

maintenance to the petitioner. However, the learned Additional

Sessions Judge, Vaijapur, heavily relying on the case of

D.Velusamy Vs. D.Patchaiammal, (2010) 10 SCC 469, held

that the petitioner was not in a domestic relationship with the

respondent in the nature of marriage; hence, not entitled to the

relief under the D.V.Act.

5. The sole question to determine is, whether the parameters

laid down in the case of D.Velusamy (supra) would attract and

the ratio laid down by the Bombay High Court in the case of

Jayashri (supra) is inapplicable and distinguishable on facts.

3 RA-114-22.odt

6. The learned Additional Sessions Judge, Vaijapur, did not

disturb the evidence produced by the parties. The petitioner had

proved that for the last 15 years, she, along with her children, was

residing with the respondent portraying themselves as husband

and wife.

7. The facts of the case of Jayshri (supra) and the case in hand

were mostly identical. However, the learned Additional Sessions

Judge distinguished the ratio of the case of Jayshri (supra),

observing that in the case at hand, the first husband of the

applicant is alive, and the husband, in the case of Jayshri, was

disappeared. Only on such trifle change, in fact, the learned

additional sessions Judge set aside the judgment of the learned

Magistrate.

8. The Bombay High Court, in the case of Jayshri (supra)

discussed the ratio laid down in the case of D.Velusamy (supra)

and observed that the victim was entitled to relief under the

D.V.Act.

9. Appreciating the evidence and the facts of the case, which

are identical to the case of Jayshri (supra). The Court has no

reason to differ from the view taken in Jayshri's (supra) case. It is

squarely applicable to the case at hand. However, the Additional

Sessions Judge, Vaijapur, erroneously held that the ratio of Jayshri

(supra) is not applicable to the case at hand.

4 RA-114-22.odt

10. Examining the impugned judgments and the orders, the

Court is of the view that the applicant had proved that there was

domestic relationship between the applicant and the respondent

No.1 and she was a aggrieved person. Therefore, the impugned

judgment and order warrants interference. In the result, the

petitioner succeeds. Hence, the following order:-

ORDER

i) Criminal revision application is allowed.

ii) The impugned judgment and order of the learned Additional Sessions Judge, Court No.2, Vaijapur, District Aurangabad, in PWDVA Appeal No.10 of 2019, dated 28.01.2022 stands quashed and set aside.

iii) The order of learned Judicial Magistrate First Class, Court No.3, Vaijapur, District Aurangabad, in Criminal Miscellaneous Application No.278 of 2014, dated 22.04.2019, stands restored.

iv) R & P be returned to the learned Judicial Magistrate First Class, Court No.3, Vaijapur, District Aurangabad.

v)      Rule made absolute in above terms.




                                            ( S. G. MEHARE )
                                                   JUDGE

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