[Cites 16, Cited by 0]
Bombay High Court
Aaryl Gerwin Arthur Dsa vs State Of Maharashtra And Ors on 4 December, 2025
2025:BHC-AS:53134
31
REVN.99.2024final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 99 OF 2024
Aaryl Gerwin Arthur D'Sa }
Age: 37 years, Occ: Self Employed }
Adult Indian Inhabitant of }
Residing at : 401, Vasant Krupa, }
Gaodevi Road, Near Poisur Depot, }
Kandiwali (W) Mumbai 400 067 } ...Applicant
(Org. Respondent No.1)
Versus
1. State of Maharashtra }
through the Public Prosecutor, PWD }
Building, Opp. High Court, Mumbai. }
2. Renee Aaryl D'Sa }
Age: 36 years, Occ: Service Residing }
at D/301, Janki Niwas, Pathanwadi, }
Malad (E), Mumbai 400 097. } ...Respondent
Ms. Chermaine Bocarro a/w Adv Mr. Satyadev Sharma i/b Mr.
Vivek Sharma, for the Applicant.
Mr. Ravish Mishra, for Respondent No. 2.
Dr. Dhanalakshmi Krishnaiyar, APP, for Respondent No.1-State.
CORAM : MANJUSHA DESHPANDE, J.
RESERVED ON : 20th NOVEMBER 2025.
PRONOUNCED ON : 4th DECEMBER 2025.
Judgment:
1. Rule, Rule made returnable forthwith. Heard finally with the
RUSHIKESH
consent of the parties.
VISHNU
PATIL
19:25:22 +0530 04th December 2025
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2. This Criminal Revision Application arises out of the order dated
08.02.2023 passed below Interim application in CC
No.215/DV/2021 by the Metropolitan Magistrate, 67th Court,
Borivali, Mumbai, partly allowing the application filed by the
Respondent No. 2 herein, directing the Revision Applicant to pay
monthly maintenance of Rs.10,000/- to the Respondent and
Rs.5,000/- to her son, namely, Avior from the date of filing of
application till disposal of the main Application. Further an
amount of Rs.10,000/- Per Month, has been granted towards rent
for separate accommodation and Rs.10,000/- Per Month towards
educational expenses for their son- Avior. This order was assailed
in Criminal Appeal No. 73 of 2023, before the Court of Sessions
at Dindoshi (Borivali Division), Goregaon, Mumbai, which is
dismissed, vide order dated 28.08.2023, Hence this Criminal
Revision Application under section 401 of the Cr.P.C, 1973.
3. The Applicant-husband has restricted his challenge to the extent
of the orders directing him to pay maintenance of Rs.10,000/- to
Respondent-wife and Rs.10,000/- as rent for her separate
accommodation in this Criminal Revision Application.
4. The brief facts leading to filing of the Application under Section
12 of the Protection of Women under the Domestic Violence Act,
2005 (for short "POWDV Act, 2005) in nutshell, are that, the
parties were married on 05.01.2014. The Applicant-husband was
working in Merchant Navy, when they got married. The
Respondent-wife is also holding qualifications of B.Com, MBA
(Finance) and Inter CA. She was also working when they were
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married. A son, namely, Avoir was born on 25.09.2016, after that
in order to look after the son, the Respondent-wife has resigned
and is a homemaker ever since. It is alleged that, the Respondent-
wife is suffering from mental depression, Schizophrenia, Distress
etc. The parties did not have a smooth married life; the
Applicant-husband was often on the ship, due to his work.
Whenever he was available, they used to reside together. Even
during their stay there was constant disharmony between the
parties. It is alleged by the Respondent-wife that the Applicant-
husband left the Respondent on the pretext that he would be
joining the ship, for his duty. However, due to beginning of
COVID-19 pandemic his ship did not sail and he stayed back,
residing with his parents. Ever since he is residing with his
parents and he has avoided the Respondent-wife. He has left the
Respondent and her child without making any provision for them.
Due to various incidents of physical and mental torture during
their stay together and his eventual desertion lead to the filing of
D.V. complaint by the Respondent-Wife.
5. During the pendency of the D.V. complaint, the Respondent-wife
filed interim application in March 2021, claiming various reliefs
such as maintenance, accommodation, expenses of child, and
protection order, invoking section 17, 19, 20 of the POWDV act.
It was opposed by the Applicant-husband by filing his reply. Both
parties have filed Affidavit of Assets and Liabilities, based on it
the impugned order dated 08.02.2023 and 28.08.2023 have been
passed, which are subject matter of the present Revision
Application.
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6. Ms Chermaine Bocarro, learned counsel for the Applicant at the
outset would submit that the Applicant has partially challenged
the order dated 08.02.2023, only to the extent of the directions
given to make payment of maintenance of Rs.10,000/- to
Respondent No. 2-wife and payment of Rs. 10,000/- towards rent
for accommodation. This aspect, which is part of his pleadings,
has been totally lost sight of by the learned Sessions Judge, and
has proceeded to decide the Appeal as if the entire order is under
challenge.
7. It is further contended that the Affidavit of Assets and Liabilities
does not disclose the true and correct picture of the assets of
Respondent No. 2. According to her, the Respondent-wife is
educated and well qualified, her qualification itself are indicative
of her capacity to earn. She has worked with reputed
organisation like Mumbai Metro Rail Corporation from
26.10.2015 to 31.7.2017 under her maiden name, Renee Robert
Rodrigues. Even prior thereto, from April 2011 till January 2015,
she has worked with Morgan Stanley. Relying on the WhatApp
chat it is claimed by Applicant in his affidavit that she is
employed with Genmart Generic Pvt. Ltd. since 01.07.2020.
Hence according to the Applicant, on the background of the fact
that Respondent-wife is already employed, the grant of
Rs.10,000/- per month towards her maintenance by the
Metropolitan Magistrate is not justifiable.
8. As regards to the grant of Rs.10,000/- per month towards rent for
accommodation is concerned, it is submitted that the address
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given by the Respondent-wife in her Affidavit of Assets and
Liabilities is of her parental home i.e. D-301, Janaki Niwas,
Pathanwadi, Malad East, Mumbai, which is owned by her father.
According to the Applicant, whenever he was not sailing, they
have stayed together at 401 Vasant Krupa CHSL, Near poisur
Depot, Kandiwali (West), and whenever he was away the
Respondent was staying at her parent's House. Even presently,
according to her own pleadings, the Respondent is residing with
her parents. Therefore, grant of Rs.10,000/- towards the separate
accommodation charges is not justifiable.
9. It is alleged by the Applicant that, the Respondent-wife has given
false declaration in her Affidavit of Assets and Liabilities, where
she has suppressed certain vital information. She has also
suppressed her history of depressive disorder/schizophrenia and
that she is on medication under the Medical Supervision of
Psychiatrist. The fact of her mental health issue was not disclosed
by the Respondent-wife and her parents before marriage. The
Applicant has alleged that the mental condition of Respondent
deteriorated post her delivery. She began imagining and fearing
that some harm had befallen on their minor son. She also had
suicidal thoughts, hence he was of the opinion that it was unsafe
for the Respondent-wife to be left alone with their minor son in
the house. She had anger bouts and rage issues too.
10. The learned counsel further submits that, the Applicant had
taken care of all the expenses by either making bank transfers or
leaving cash when he was on the ship. He had also opened a
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joint account with the Respondent-wife in State Bank of India viz
Bank Account No.37072495359. The Applicant has been
regularly depositing maintenance and expenses in the said joint
account. The extracts of the amount deposited on various dates
from 18.03.2016 to 01.06.2022 has been reproduced in the
affidavit itself, which amounts to Rs.12,53,750/-. It is contended
by him that the Respondent-wife has liquidated an amount of
Rs.9,80,000/- from their joint account and transferred it to an
unknown person just 12 days prior to the first notice sent by her
lawyer. It is further submitted that without being satisfied that
the Applicant has committed domestic violence, the order
impugned came to be passed. It is thus bad in law and liable to
be set aside.
11. It is the contention of the learned counsel for the applicant
that the learned Metropolitan Magistrate has not appropriately
considered the Affidavit of Assets and Liabilities filed by the
respective parties, There is a clear averment about the
qualifications of the Respondent-wife. In his affidavit he has
categorically mentioned the various establishments under which
the Respondent-wife had worked. Hence, she is capable to earn
her livelihood.
12. Similarly he has also demonstrated that he was working as
Senior Customer Service Associate in a Private company. Even
that employment was discontinued because of this persistent
backache, and he has joined Tele Performance Pvt Ltd where he is
drawing a meager salary of Rs. 24.240/- per month, He is
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therefore not in a position to carve out a separate allowance
towards maintenance for the Respondent-wife. The important
fact that the Respondent-wife is qualified and capable of earning,
has been totally lost sight of by both the Courts below.
13. He further submits that as far as grant of Rs.10,000/-
towards separate accommodation is concerned, even that amount
ought not to have been granted since the Respondent is
admittedly residing with her parents. He therefore submits that
orders passed by the Court below to the extent of grant of
maintenance of Rs.10,000/- towards maintenance to the
Respondent and Rs.10,000/- towards the separate
accommodation requires interference by this court.
14. Mr. Ravish Mishra, learned counsel for the Respondent-
wife has vehemently opposed the submissions and the reliefs
prayed by the Applicant-husband. It is submitted that the
Applicant-husband is working in the Merchant Navy with a
handsome salary. It is his duty to maintain the Respondent and
their young child. Since beginning of their marriage the applicant
has neglected and refused to maintain the Respondent-wife. Upon
insistence of the applicant they had decided to have a child, but
after the birth of their son, the Respondent was constrained to
resign, since she was not in a position to cope with the dual
responsibility of pressure of work as well as nurturing a baby.
Since 2017, she is not employed and therefore she does not have
any independent source of income. She has accordingly filed her
Affidavit of Assets and Liabilities, wherein she has claimed that
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her monthly expenses, inclusive of rent, household, medical bills,
transportation are to the extent of Rs.60,000/- and the expenses
of the child are Rs.30,000/- per month. As such she has claimed
an amount of Rs.1,00,000/- per month towards maintenance for
herself and their young child Avior.
15. It is further claimed that, apart from his income from
employment, the Applicant has various properties in Mumbai,
Nashik, Lonawala and Pune. The applicant has also joint
accounts with his parents in four banks, details of which are given
by her. During the pendency of the application, the applicant has
disputed the contents of the Affidavit of Assets and Liabilities
filed by the Respondent and has filed an application under
Section 28(2) of POWDV Act, 2005, invoking Section 91 of Cr.P.C.
r/w Order 11 Rule 14 of CPC, seeking directions to the Applicant
to produce relevant documents about employment and
qualification of the Respondent, her finances and the details of
the five bank accounts which are mentioned in the application
along with the medical expenses and documents. The Respondent
has filed her rejoinder to the affidavit in reply to the application
under Section 23 of POWDV Act, 2005, wherein she has
categorically mentioned that she has accounts, both in her
married as well as maiden name, out of which, some of them
have become non-operational, as they were the salary accounts
during her employment with various establishments.
16. The learned counsel for the Respondent-wife has drawn
my attention to the statement of account of the savings account
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of the applicant in Bharat Co-operative Bank (Mumbai) Ltd.,
which discloses regular entries of deposits of similar amounts
made on one and the same day which is repeated in cycles. The
said amounts are ranging from Rs.300/- to Rs.2000/-. There are
number of transactions on one particular date, which shows
deposits of various amounts. It is contended that the applicant
has withdrawn an amount of Rs.25,602/-, Rs.15,361/-,
Rs.52,600/- and Rs.1,12,240/- from the very account, and paid it
to the builder for purchasing a flat as reflected in the bank
statement. The applicant on one hand has purchased a flat, and
at the same time he is claiming that he does not have sufficient
income for the maintenance of the Respondent-wife and their
child.
17. Thus, according to the learned counsel for the Respondent-
wife, the applicant has not come before this Court with clean
hands. It is contended that since the Applicant-husband has
deserted the Respondent-wife and their child without making any
provision for them, constraining her to reside with her parents
and borrow from them for her sustenance, has been disclosed by
her in her Affidavit of Assets and Liabilities. The learned counsel
for the Respondent also relies on the bank account of the
Applicant jointly held by him in the Kotak Mahindra Bank with
his father, which shows withdrawal of considerable amounts from
the said account ranging between Rs.25,000/-, to Rs.7,00,000/-
on various occasions. It is thus evident that the Applicant-
husband is having means and resources to maintain the
Respondent-wife, Yet he has neglected and refused to maintain
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them, therefore, the order passed by both the Courts does not
deserve any interference.
18. I have heard the respective parties. After hearing the
parties and going through the papers placed on record, it is
evident that the Respondent-wife has filed complaint under
Section 12 of the POWDV Act, 2005, and pending the complaint
she has filed interim application for certain reliefs for her
sustenance including separate accommodation. In her
application, she has prayed for protection orders under Section
18 of the D.V Act, alongwith Rs.1,00,000 Per Month towards
maintenance for herself and her child as provided under Section
20; to pay the school fees of the child as and when necessary and
provide shelter for the residential purpose or in the alternate to
pay monthly rent of Rs.60,000/- per month and pass necessary
orders under Section 19 of the Act. Both the parties have relied
on the averments made by them in the application as well as
Affidavit of Assets and Liabilities along with the bank statements.
19. After taking into consideration the rival submissions, the
learned Metropolitan Magistrate, 67th Court of Borivali has
allowed the application filed by the Respondent by granting
maintenance of Rs.10,000/- and Rs.5,000/- respectively, to the
Respondent and their child with a direction to pay Rs.10,000/-
towards rent for separate accommodation and Rs.10,000/-
towards education charges of their son Avoir. Rest of the claims of
the Respondent have not been considered by the trial Court. The
order dated 08.02.2023 was assailed before the Sessions Court at
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Dindoshi, Borivali by the Applicant by challenging it only to the
extent of maintenance of Rs.10,000/- granted to the Respondent
and Rs.10,000/- granted towards the separate accommodation,
which has been rejected by the Sessions Court.
20. Both the Courts have come to the conclusion that from the
contents of the application, a prima facie case of domestic
violence is made out by the respondent. Section 23 of the
POWDV, Act 2005 grants discretionary powers to the Magistrate
to grant relief in favor of the applicant after being satisfied that
the application prima facie discloses commission of 'Domestic
Violence'. It empowers the Magistrate to pass order under
Sections 18, 19, 20, 21 and 22 against the Respondent. Thus, it is
incumbent upon the Magistrate to record his satisfaction from the
contents of the application that there is prima facie case of
domestic violence made out by the applicant.
21. 'Domestic violence' has been defined under Section 3 of the
Act which is not limited only to the extent of physical abuse or
sexual abuse but it also includes economic abuse, whereby there
is deprivation of economic or financial resource to which the
aggrieved person is entitled under any law. A wider meaning is
given to the definition of Domestic Violence in Section 3 of the
Act. Section 3 of the act is reproduced hereunder which reads
thus:
"3. Definition of domestic violence: For the
purposes of this Act, any act, omission or commission
or conduct of the respondent shall constitute
domestic violence in case it--
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(a) harms or injures or endangers the health,
safety, life, limb or well-being, whether mental or
physical, of the aggrieved person or tends to do
so and includes causing physical abuse, sexual
abuse, verbal and emotional abuse and economic
abuse; or
(b) harasses, harms, injures or endangers the
aggrieved person with a view to coerce her or
any other person related to her to meet any
unlawful demand for any dowry or other
property or valuable security; or
(c) has the effect of threatening the aggrieved
person or any person related to her by any
conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether
physical or mental, to the aggrieved person."
22. The Respondent has made categorical averment in her
application that the applicant has all the resources, but he has left
her alone with her child without making any provision for them,
during the difficult times of COVID-19 pandemic. In fact he has
left the house under the pretext of joining the ship for his duties,
but it turned out that he did not join at all. On the contrary he
avoided the company of the Respondent and resided with his
parents. During the Pandemic, the Respondent who is not
employed and has no source of income, was forced to survive, by
borrowing from her parents which certainly comes within the
sweep of definition of 'Economic Abuse'. Apart from allegations of
economic abuse there are other allegations of neglect and
avoidance against the Applicant.
23. Since the order passed by the Metropolitan Magistrate has
been challenged by the applicant only to the extent of
maintenance granted to the Respondent and the allowance
which is directed to be paid towards residence. The challenge in
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the Writ Petition is also restricted to that extent. So far as the first
ground is concerned, according to the applicant, the Respondent
is educated and qualified lady, who has a capacity to earn and is
actually earning hence she should not have been granted any
maintenance at all by both the Courts below. It is not in dispute
that an educated and competent women, earning sufficiently is
not entitled for grant of interim maintenance. The very object of
grant of interim maintenance is sustenance of the applicant
during the litigation between the parties, if she is unable to
maintain herself, At the same time the non-applicant has
sufficient means and capacity to support the applicant. In the
present case the Respondent herself has made a categorical
averment, that though she was employed regularly with various
establishments, prior to her marriage and for some time even
after her marriage, however after the birth of their child, she
could not continue her work and was constrained to resign.
Therefore presently she has no work and no source of income.
She is managing her life by borrowing from her father and
residing with her parents as well. Though Applicant claims that
respondent is employed, he has not substantiated his claim by
any supporting documents. Therefore it is very much evident that
presently the Respondent is not employed. It also needs to be
appreciated that there are averments made by the applicant that
the Respondent is suffering from depression and Schizophrenia,
which requires continuous medication and it is not advisable for
the Respondent to live alone with their child without being
monitored.
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24. Hence, on such background I do not find that the learned
Magistrate has committed any error by granting maintenance of
Rs. 10,000/- to the Respondent, which in fact is a very reasonable
amount.
25. As regards the challenge to grant of Rs.10,000/- towards
rent for separate accommodation, it is the stand of the
Respondent-wife that she is residing with her parents at Malad
(East), Mumbai, in the house owned by her father, as she cannot
afford a separate residence. Out of sheer necessity, the
respondent is constrained to reside with her parents. Hence
having prima facie formed opinion that there is a 'Domestic
Violence' by the petitioner it is well within the power of the
Magistrate to pass an order directing the respondent to secure
same level of alternate accommodation for the aggrieved person
as enjoyed by her in the shared household or to pay rent for the
same, if the circumstance so require. In the present case the
applicant himself in his reply affidavit, has categorically stated
that when he was not on ship, the respondent and their minor
son used to reside with him at Vasant Krupa CHSL, Kandiwali
(West), Mumbai. The said flat was owned jointly by his mother
and his aunt. He has also stated that whenever they used to stay
together on the given address, he bore all the expenses. Thus it is
evident that the applicant was residing with the respondent at
kandivali (West) when he was not on the ship. Therefore the
respondent is entitled for the same level of alternate
accommodation as enjoyed by her in her 'shared household' or in
the alternative she is entitled for the rent of the similar
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accommodation. Section 19 of the POWDV act empowers the
magistrate to pass residence order. The relevant portion of
Section 19 is reproduced hereunder which read thus:
19. Residence orders: (1) While disposing of an application under
sub-section (1) of section12, the Magistrate may, on being
satisfied that domestic violence has taken place, pass a residence
order--
(a) restraining the respondent from dispossessing or in any
other manner disturbing the possession of the aggrieved
person from the shared household, whether or not the
respondent has a legal or equitable interest in the shared
household;
(b)....
(c)....
(d)....
(e)....
(f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her
in the shared household or to pay rent for the same, if the
circumstances so require
Section 19(1)(f) empowers the court to pass order for separate
accommodation or rent as claimed by the Respondent. Even section 23
of the act empowers the Magistrate to grant interim and ex-parte order,
as it deems just and proper. Upon being satisfied that the application
prima facie discloses commission of Domestic Violence, the Magistrate is
empowered to pass appropriate orders in favour of aggrieved person
under section 18, 19, 20, 21 as well as 22 of the Act, against the
Respondent. Accordingly, the learned magistrate has passed an order
granting reasonable amount of Rs. 10,000/- for separate
accommodation in favour of the respondent.
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26. The reliefs claimed by the respondent, have been granted
by the Magistrate upon recording his satisfaction that prima facie,
the respondent herein makes out the case of 'domestic violence'.
27. The applicant is challenging the orders passed by both the
Courts in the Revisional jurisdiction of this Court invoking Section
401 of the Code of criminal Procedure, 1973. The powers of this
Court in its Revisional jurisdiction are limited and it cannot re-
appreciate the evidence. Usually the Revisional jurisdiction is
exercised by the Court, when a question of law is raised by either
of the parties. Mere appreciation of evidence resulting in a
particular finding, when two possible views are available, does
not confer power on the Revisional Court to take a different view
in the matter. There has to be a perversity or arbitrariness in the
findings recorded, which necessitates interference by the
Revisional Court. The powers of the court in its Revisional
jurisdiction has been considered at great length in the reported
judgment of Janata Dal vs. HS Chowdhary1. The relevant
paragraph is reproduced herein under which reads thus:
"130. The object of the revisional jurisdiction
under Section 401 is to confer power upon
superior criminal Courts - a kind of paternal or
supervisory jurisdiction - in order to correct
miscarriage of justice arising from misconception
of law, irregularity of procedure, neglect of proper
precaution or apparent harshness of treatment
which has resulted on the one hand, or on the
other hand in some undeserved hardship to
individuals. The controlling power of the High
Court is discretionary and it must be exercised in
the interest of justice with regard to all facts and
circumstances of each particular case, anxious
1. (1992) 4 SCC 305
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attention being given to the said facts and
circumstances which vary greatly from case to case.
"
28. The order passed by the Metropolitan Magistrate has been
challenged by the Applicant only to the extent of the maintenance
granted in favour of the Respondent and the allowance directed
to be paid towards rent. The learned Magistrate, after satisfying
himself about the prima facie case of 'Domestic Violence' and
finding that the refusal to maintain the Respondent amounted to
economic abuse, has passed the order. The Applicant could not
prove that the Respondent was employed gainfully. Hence, the
prima facie findings recorded by the Magistrate have not been
interfered with by the Appellate Court.
29. Thus I do not find that there is any perversity or illegality,
resulting into undeserved hardship to the applicant hence in view
of the limited powers of interference conferred by section 401 of
Cr.P.C, there is no scope for interfering in the impugned orders. As
such the Criminal Revision Application fails.
30. Rule is discharged.
[MANJUSHA DESHPANDE, J.]
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