Bombay High Court
Rohit Ravindra Nikam And Anr vs State Of Maharashtra And Anr on 5 March, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:12237
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3717 OF 2022
Rohit Ravindra Nikam and Ors. ... Petitioners.
Versus
State of Maharashtra and Anr. ... Respondents.
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Ms. Sarita Yadav, for the Petitioners.
Ms. Shilpa Gajare, APP for the Respondent-State.
Mr. Pravin G. Pilay, for the Respondent No.2.
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Coram : Sharmila U. Deshmukh, J.
Date : March 05, 2024.
P. C. :
1. By this Petition, the challenge is to the judgment dated 4 th July,
2022 passed by the Appellate Court in Criminal Appeal No.296 of 2022
filed under Section 29 of the Protection of Women from Domestic
Violence Act, 2005 (for short, "DV Act"), dismissing the Appeal and
confirming the order of the Metropolitan Magistrate passed under
Section 23 of the DV Act in CC No.50/DV/2021.
2. The facts of the case are that the Respondent wife filed an
Application under Section 12 of the DV Act seeking protection order
under Section 18 of the DV Act, residence order under Section 19 of
the DV Act, monetary relief under Section 20 of the DV Act and
sa_mandawgad
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compensation under Section 22 of the DV Act.
3. By an Application under Section 23 of the DV Act, interim relief
was sought in terms of the main application. The Metropolitan
Magistrate by order dated 13th May, 2022, allowed the Application and
granted interim maintenance of Rs.30,000/- from the date of the
Application, restrained the Petitioners from dispossessing the
Respondent-wife in any manner from the matrimonial house at Flat
No.204, Arlington-C, Raheja Reflection, Takhur Village, Kandivali (East)
Mumbai and from alienating, disposing and transferring the said
premises. The order of the Metropolitan Magistrate was challenged
by the Petitioner before the Sessions Court which Appeal came to be
rejected.
4. Heard Ms. Sarita Yadav, learned Counsel for the Petitioners,
Ms.Shilpa Gajare, learned APP for the Respondent-State and Mr.Pravin
G. Pilay, learned Counsel for the Respondent No.2.
5. Ms.Yadav, learned counsel for the Petitioners would submit that
in the absence of any relief sought under Section 17 of the DV Act in
the application, Clause Nos.5 and 6 of the order of the Metropolitan
Magistrate restraining the Petitioners from dispossessing the
Respondents from the matrimonial house could not have been
granted. She would submit that the Respondent is not residing in the
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matrimonial house and as such, no relief could have been granted in
respect of the flat which was not belonging to the petitioner-husband.
Assailing the quantum of maintenance granted, she submits that the
Petitioner was drawing a monthly salary about Rs.75,000/- including
incentives paid per quarter and his monthly expenses are in the sum
of Rs.1,03,016/- which included the payment of maintenance to his
mother as per the order dated 7th October, 2021 passed by the Family
Court, Bandra as well as the EMIs for the loans etc. She would further
submit that the Respondent is well educated and is capable of
securing her own employment for sustenance. She would further
submit that the Petitioner's father is bedridden and additional
expenses is required to be incurred. She would submit that an
application seeking modification has been filed under Section 25 of
the DV Act before the Metropolitan Magistrate. Learned Counsel for
the Petitioner has tendered the following decisions:
(i) Rajnesh vs. Neha [MANU/SC/0833/2020].
(ii) Decision of Apex Court passed in Criminal Appeal
No.879 of 2009 (arising out of SLP (Crl.)
No.7503 of 2008) in Bhushan Kumar Meena
vs. Mansi Meen.
(iii) Decision of this Court dated 23rd November, 2022
passed in Aboli alias Yugandhara vs. Tejpal in
Writ Petition No.2668/2021(Aurangabad Bench).
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(iv) Decision of Delhi High Court in Sanjay
Bhardwaj & Ors. vs. The State and Anr. in
Crl.M.C.No.491 of 2009 decided on 27th August,
2010.
6. Per contra, Mr. Pilay, learned counsel appearing for the
Respondent would submit that there is nothing on record to show
that the Respondent was employed. He submits that considering the
bank statements of the Petitioner there are certain regular monthly
cash deposits and other deposits in addition to the salary from ITC and
as such the average monthly income of the Petitioner comes to
around Rs.1,19,159/-. He tenders a chart prepared from the bank
statements which shows the monthly credits on an average of
Rs.1,19,159/-.
7. Considered the submissions and perused the record.
8. For the purpose of grant of any relief under the DV Act, prima
facie case of domestic violence is a sine qua non. The Metropolitan
Magistrate has arrived at a prima facie finding that the Respondent
was subject to physical, verbal, mental, sexual and emotional abuse.
This prima facie finding has been arrived at by considering the
pleadings in the Application and the documents produced to
substantiate the pleadings such as NC's dated 12 th October, 2018 and
11th October, 2018, 26th August, 2019 and the FIR's registered under
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the various Sections of the Indian Penal Code, 1860. The trial Court
also considered that the alleged whatspp chats of the Respondent
wife were annexed as exhibits to the written statement which were
mere conversations and based on the same, allegations of unchastity
were levelled. The Metropolitan Magistrate has thus held that the
Respondent was entitled to protection orders under Section 18 of the
DV Act.
9. Considering the NC's as well as the FIR's which has already come
on record and the pleadings in the written statement which cast
aspersions on the character of the respondent-wife, prima facie case
of economic as well as verbal and emotional abuse is made out.
Although an attempt has been sought to submit that those FIRs were
subsequent to the filing of the complaint and could not be considered
what can be inferred is that even after the application under Section
12 was filed, the petitioner-husband continued to subject the wife to
domestic violence which compelled her to file FIRs. It also needs to be
noted that there was NC complaints filed in the year 2018-2019 i.e.
before the filing of the Application under Section 12 of the DV Act. It
is well known that in matrimonial disputes, the filing of police
complaint is a matter of last resort and the parties do not at the first
instance rush to the police stations for filing complaints. As such even
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if there were no police complaints, the Court is expected to come to a
prima facie finding as to the existence of domestic violence on the
basis of the material on record. No infirmity is demonstrable from the
prima facie findings of the Courts on the existence of domestic
violence.
10. The next submission advanced is that the parties were residing
separately and is not entitled to any right in the Flat at Raheja
Reflection. The pleadings in the application indicate that the
Respondent wife is residing in a rented accommodation. The issue is
no longer res integra and has been answered by the Apex Court in the
case of Prabha Tyagi vs Kamlesh Dvi (2022) 8 SCC 90. In view of
Section 17 of the DV Act, the Respondent has a right to reside in the
shared household although she may be residing separately at the time
of filing of the application. The pleadings also indicate that after the
marriage the parties were residing in Flat No.204, Arlington-C, Raheja
Reflection, Takhur Village, Kandivali (East) Mumbai and the premises
constitute shared household within the meaning of Section 2(s) of DV
Act.
11. To assail the prohibitory order of dispossessing the Respondent
from Flat at Raheja Reflection, it is submitted that as there was no
prayer under Section 17 of DV Act, the interim order restraining the
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Petitioner from dispossessing the Respondent from the matrimonial
house could not be granted. Section 12 of DV Act provides that the
application shall be in such form and contain such particulars as may
be prescribed or nearly as possible thereto. Rule 6 of the Protection
of Women from Domestic Violence Rules, 2006 framed under the DV
Act provides for the application to be in Form-II or nearly as possible
thereto and enable the aggrieved person to seek assistance of
Protection Officer in preparing the application. On a holistic reading
of the provisions of DV Act and Rules it is evident that strict rules of
pleading are not applicable to the DV application. If the Trial Court
finds upon consideration of the pleadings that the aggrieved person is
entitled to a relief under the DV Act which it is empowered to grant
and has not been sought, the provisions does not place any embargo
on the Trial Court to grant such a relief. The whole purpose of the DV
Act is to protect the rights of women guaranteed under the
Constitution of India. Whilst doing so, the technical objections on
pleadings cannot create an obstacle in grant of relief. Hence, I am not
inclined to consider the submission that in the absence of seeking
relief under Section 17 of DV Act, no relief could have been granted.
12. Coming now to the issue of maintenance, the Metropolitan
Magistrate has considered that the Respondent had no source of
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income and there was no provision for maintenance made by the
Petitioner. The Metropolitan Magistrate considered the monthly
salary of the Petitioner which was about Rs.52,000/- as per his own
statement and has also taken into consideration that his monthly
expenses are shown of Rs.1,03,016/- and on basis of material on
record granted monthly maintenance of Rs.30,000/-.
13. As far as the income of the Petitioner-husband is concerned, the
statement of monthly income which has been tendered by the learned
counsel for the Respondent and is also found part of the record of the
trial Court shows an average monthly income of Rs.1,19,159/- which is
based on the credits in the bank account. Learned Counsel for the
Petitioner is unable to offer any explanation for the regular deposits
made in the bank account of the Petitioner. The additional income
would also justify the monthly expenses of the Petitioner shown at
Rs.1,03,016/-. As it is the case of the Petitioner that he has to maintain
his parents there is no inflow of funds from his parents and it is not
shown as to how the monthly expenses which far exceed his monthly
income are met. The irresistible conclusion therefore is that apart
from the monthly salary the Petitioner is having an additional source
of income which is suppressed by the Petitioner. Interesting to note
that in the monthly expenses the maintenance granted to the mother
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by the Family Court, Bandra of Rs.30,000/- is shown. It does not
appear that the grant of maintenance to the mother was challenged
by the Petitioner however, the Petitioner has promptly challenged the
maintenance of Rs.30,000/- which was granted to the respondent-
wife. This despite the fact that the Petitioner-husband's father was a
pensioner and is in receipt of pension of almost of Rs.20,000/-. The
additional expenses on account of Petitioner's father's ailment is a
subsequent event and is subject matter of the application for
modification and hence I have refrained from making any observations
in that regard. The fact remains that the Respondent is without any
source of income and is entitled to grant of maintenance.
14. At the stage of grant of interim maintenance, there is an
element of guess work involved and unless it is demonstrated from
the material on record that the monthly maintenance granted is
excessive, no interference is warranted. The evidence is yet to be led
and the Metropolitan Magistrate as well as the Appellate Court has
rightly considered the material on record and granted maintenance of
Rs.30,000/- and has also rightly passed the residence orders. That
apart, the Petitioner has filed an application under Section 25 of
DV Act, which is pending adjudication and the additional expenses
which amounts to a change in circumstances can be considered in
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the said application.
15. There is no quarrel with the proposition of law laid down in the
decisions relied upon by learned Counsel for Petitioner. However
there is no infirmity in the impugned judgment demonstrated as
against the enunciation of law laid down in the said decisions. The
decisions do not assist the case of the Petitioner. Having regard to the
discussion above, there is no merit in the Petition. Petition stands
dismissed.
[Sharmila U. Deshmukh, J.]
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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 14/03/2024 10:21:04
