Bombay High Court
Abhay Arun Daithankar vs Mousami W/O Abhay Daithankar And Others on 10 February, 2025
2025:BHC-AUG:4566
(1) 22 cri wp 1676.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1676 OF 2024
Abhay Arun Daithankar,
Age: 45 years, Occ : Pvt. Service,
R/o Sadguru Nagar, Near
Kalika Devi Temple,
Old Ausa Road, Latur. ... PETITIONER
V/s.
1. Mousami w/o Abhay Daithankar,
Age: Major, Occ : Household,
R/o Jai Niwas behind Sahyadri Hospital,
Near Rajiv Gandhi Chowk, Latur.
2. Aaditya s/o Abhay Daithankar,
Age: 18, Occ : Education,
R/o Parijat behind Sahyadri Hospital,
Near Rajiv Gandhi Chowk, Latur.
3. Arya s/o Abhay Daithankar,
Age: 12, Occ : Education,
Through his mother i.e. Respondent no.1
R/o Parijat behind Sahyadri Hospital,
Near Rajiv Gandhi Chowk, Latur.. ... RESPONDENTS
.....
Dr. R.R. Deshpande h/f. Priyanka Deshpande, Advocate for the Petitioner
Mr. Amol A. Kokad, Advocate for the Respondent No.1.
.....
CORAM : Y.G. KHOBRAGADE, J.
DATE : 10.02.2025
ORAL JUDGMENT:-
1. At the outset it is submitted that considering the matrimonial
dispute between the Petitioner and Respondent No.1, this Court has granted
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sufficient opportunities to both the sides for settlement of dispute between
them despite of same, they have failed to settle the dispute. Irrespective of the
the facts, this Court also intervened and gave understanding by mediating but
both the parties declined to settle the dispute. Therefore, both the parties were
called upon to argue the matter on merit.
2. Rule. Rule made returnable forthwith. With the consent of both
sides, heard finally at the stage of admission.
3. Heard at length Mr. Deshpande, the learned counsel appearing for
the Petitioner and Mr. Kokad, the learned counsel appearing for the
Respondent Nos.1 to 3.
4. By present petition, the Petitioner/Husband has questioned the
legality and validity of orders dated 22.08.2024 passed below Exh.39 and
Exh.46 by the learned Family Judge, Latur, in Petition No. E-239/2021. The
present Petitioner is the Original Non-Applicant and present Respondent Nos.1
to 3 are the Original Applicants in proceeding bearing Petition No.E-239/2021,
filed under Section 125 of the Code of Criminal Procedure, 1973 (for brevity
herein-after to be referred as "Cr.P.C.") The Petitioner is the husband of
Respondent No. 1 and father of the Respondent Nos. 2 & 3. For the sake of
brevity, parties to present petition shall be referred in their original capacity as
Applicants and Non-Applicant.
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5. Brief facts which has given rise to the filing of this petition are
that, on 25.05.2001, marriage of the Petitioner and Respondent No.1 was
solemnized as per the customs and rites prevailing in their society. Out of said
wedlock, they came to be blessed with two children i.e. present Respondent
Nos. 2 & 3. However, due to domestic violence raised at the hands of the Non-
Applicant as narrated in the application u/s 125 of Cr.P.C., the Non-Applicant
No.1 was compelled to stay at her parental house with her children.
6. The Applicants Nos.1 to 3 have instituted a Petition No. E-
239/2021 under Section 125 of the Cr.P.C., and thereby prayed for
maintenance. The Applicants have also filed an application for interim
maintenance. Further the petition is also supported by the Affidavit of Assets
and Liabilities in pursuance of guidelines framed by the Hon'ble Supreme Court
in the case of Rajnesh V/s. Neha and Another; (2021) 2 SCC 324 , the Applicant
No. 1 had file an affidavit of Assets and Liabilities at Exh.6.
7. The learned counsel appearing for the present Petitioner canvassed
that, though the Respondent No.1 filed an affidavit of assets and liabilities,
however, the Respondent No.1 failed to disclose her educational qualification
and left many columns blank therein. Therefore, the Respondent No.1 have
concealed facts of her education in declaration form of assets and liabilities and
furnished false affidavit which amounts to an offence u/s 195 of Indian Penal
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Code, 1860 (for brevity hereinafter to be referred as "IPC"), hence, it is
necessary to take action u/s 340 of Cr.P. C.
8. The learned counsel for the present Petitioner further canvassed
that, the present Respondent concealed and did not disclose following material
of facts as under:
a) The Original Applicant has completed her Diploma in Medical
Electronics Engineering Polytechnic in the year 2000.
b) The Original Applicant has completed professional course of
Beauty Therapist in the year 2018 from the Astha Skill Development
Center, Latur.
9. Therefore, the present Petitioner has filed Exh.46, an Application
under Section 340 read with Section 195 of the Cr.P.C., and thereby prayed for
initiation of action against the present Respondent No.1/Original Applicant No.
1 for an offence punishable u/Sec. 193, 195 of Cr.P.C. However, the learned
trial Court passed the impugned order dated 22.08.2024, holding that prior to
decision on the application for interim maintenance, the Petitioner has filed
present application and omission of details of educational qualification, that
has no impact on administration of justice, neither it caused any prejudice to
the present Petitioner, hence, rejected the application.
10. The learned counsel appearing for the Petitioner relied on
Judgment dated 07.03.2018 passed by the Co ordinate Bench of this Court at
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Principal Seat in Criminal Application No.728/2017 (Farid Ahmed Qureshi V/s.
State of Maharashtra and Anr.), wherein it is held that, for filing of complaint
under Section 340 read with Section 195(1)(b) of Cr.P.C., for making false
statement before this Court, contrary to the record and for not disclosing true
and correct facts is made out. Therefore, opinion of the Court is that, the
offences as contemplated under Section 193, 196, 199, 200 and 209 of the
I.P.C. appears to have been committed.
11. Further he relied on Judgment dated 30.10.2012 passed by the Co
ordinate Bench of this Court at Principal Seat in Civil Application
No.12382/2016 in Appeal From Order No.102/2011, CPR Manufacturing
Industries Limited V/s. Sergi Transformer Explosion Prevention Technologies
Pvt. Ltd. And Ors.; 2013 All M.R. (1) 153, wherein it is held that, in a
proceeding under Section 340 of the Cr.P.C. only a prima facie opinion is
required to be reached out by the Court and challenge is required to be
established during trial.
12. Per contra, the learned counsel appearing for the Respondents
canvassed that, merely omission about disclosure of educational qualification in
the affidavit of assets and liabilities does not constitute perjury as contemplated
under Section 195 of the I.P.C. It is further canvassed that, keeping some
columns blank in the prescribed form, as per the guidelines laid down in the
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case of Rajnesh cited (supra), it does not warrant initiation of action
contemplated under Section 340 of the Cr.P.C. It is further canvassed that,
merely submitting a declaration form of assets and liabilities on affidavit and
giving declaration stating that, the information disclosed in the affidavit does
not amount to perjury and no offence has been constituted, unless the
declarant enter into witness box and testify the statement made in said
declaration. However, the Petitioner has filed application Exh.46 and prayed
for action under Section 340 of the Cr.P.C., at the primary stage even prior to
decision of application for interim maintenance. Therefore, the learned trial
Court has rightly rejected the application, hence, prayed for dismissal of the
petition.
13. Having regard to the submissions canvassed on behalf of both
sides, I have gone through the petition paper book. It is not in dispute that, on
25.02.2011, the marriage of Petitioner and Respondent No.1 was solemnized
and out of said wedlock, the Respondent Nos.2 and 3 are born. Admittedly, the
Respondents have filed Petition No.E-239/2021 under Section 125 of the
Cr.P.C. and prayed for maintenance against the Petitioner. The Respondents
have filed a separate application for grant of interim maintenance. It is a matter
of record that, the Respondent No.1 filed affidavit disclosing her assets and
liabilities, educational qualification, employment, source of earning as per law
laid down by the Hon'ble Supreme Court in case of Rajnesh cited (supra).
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14. On the face of the record, it prima facie appears that, the
Respondent No.1 filed assets and liabilities affidavit at Exh.6 but she has not
disclosed her educational qualification and some columns are left blank may be
due to lack of knowledge or for want of information or due to non
understanding of the information. In column no.(f) of the affidavit, the
Respondent No.1 disclosed the name of the employer as Abhay Arun
Daikthankar i.e. Petitioner, who is the Husband of the Respondent No.1 and
shown his profession as Teacher and monthly income of Rs.80,000/-.
15. The Respondent No.1 also furnished declaration stating that, the
information which has been given in the Affidavit of Assets and Liabilities are
true and correct and in case the statement made in the affidavit is found
incorrect, it would certainly constitute an offence under Section 199 read with
Section 191 and 193 of the I.P.C. punishable with imprisonment up to 7 years
and fine and also punishable under Section 209 with imprisonment up to 2
years and fine. So also, the Respondent No.1 verified the contents of the
affidavit of assets and liabilities.
16. The Petitioner filed Exh. 46, an Application and prayed for action
u/s 340 of Cr.P.C., for the offence u/s 195 of IPC, alleging that, the
Respondent-Wife filed an affidavit pertaining to assets and liabilities by not
disclosing her educational qualification and kept some columns blank, hence,
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she has committed perjury because the Respondent No.1 has completed
Diploma in Medical Electronics Engineering from Women's Polytechnic Latur in
the year of 2005 and she has completed professional course of Beauty Therapist
in the year 2018 from the Astha Skill Development Center, Latur.
17. On 22.08.2024, the learned Family Court passed the impugned
order below Exh.46 considering various case laws cited therein and held that,
Section 340 of the Cr.P.C., mandates preliminary enquiry and an opportunity of
hearing to the Accused before a complaint under Section 195 of the Cr.P.C. is
necessary. It is further held that, as per the ratio laid down in case of Dr.
Santosh V/s. Amita; 2019 (3) Mh.L.J. 189 , it is explicit that even the Court
comes to the conclusion that, offence is made out but the Court is not bound to
make complaint regarding the commission of offence and said course will be
adopted only if the Court thinks fit that it is expedient in the interest of justice
to do so and not in every case. And non-disclosure of educational qualification
in the assets and liabilities which does not make impact on the administration
of justice and no prejudice is caused to the present Petitioner.
18. Chapter XI of the I.P.C. provides prosecution for false evidence and
other offences against public justice. Section 340 of the Cr.P.C. provides perjury
in cases for the offences under Section 195. Needless to say that, merely the
Respondent No.1 did not disclose her educational qualification it does not ipso
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facto attract Section 340 of the Cr.PC. and no prosecution can be launched
under Section 195, 191, 199 of the I.P.C. It is not the case of Petitioner that,
though the Respondent No.1 is drawing regular income but she has suppressed
said fact and made false statement on oath. On perusal of Exh.46, it does not
appear that, the Respondent No.1 has submitted false information with an
intention to claim maintenance against the Petitioner. Therefore, to my mind
no action is required to be taken under Section 340 of the Cr.P.C. Further,
merely non-disclosure of educational qualification in the form of enclosure of
assets and liabilities does not affect the administration of justice. Therefore, I
do find that, the findings recorded by the learned Family Court are just and
proper and no interference is called at the hands of this court.
19. The Petitioner also challenged the order dated 22.08.2024 passed
below Ex.39. Needless to say that, the Petitioner has filed Exh.39 an application
for issuance of direction to file documents mentioned in Annexure-1 attached
with the application vide Section 91 of the Cr.P.C. On 22.08.2024, the learned
Family Court passed the impugned order holding that, the Respondent No.1/
Original Applicant has already filed requisite documents along with Exh.42.
The Respondent No.1 filed other documents i.e. Account of Statements of
Vishwakarma Mahila Bachat Gat, Spurti Mahila Bachat Gaut, which shows that,
the Respondent No.1 does not hold account. Therefore, impugned order dated
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28.02.2024 passed below Exh.39 is just and proper and no interference is
called at the hands of this Court.
20. In view of above discussion, the Writ Petition is dismissed. Rule is
discharged.
21. Needless to say that, the Respondent/Wife filed a Petition No. E-
239/2021 and prayed for maintenance for herself and her minor children. The
application for interim maintenance is still pending. However, the Petitioner
dragged the Respondent-Wife to this Court and compelled her to avail service
of the legal practitioner and shifted financial burden on the shoulder of
Respondent No.1 for making payment of fees to the legal practitioner. The
Respondent-Wife has no source of income and due to filing of this petition, the
Respondents are facing delay in getting justice. Therefore, considering the fact
that the Respondents are struggling for their survival and to meet bread and
butter but they are compelled to incur expenses towards litigation charges.
Therefore, to overcome from such exigencies, it would be just and proper to
direct the Petitioner to pay Rs.20,000/- towards litigation charges to the
Respondents within a period of 15 days from today, failing which said amount
shall be recovered from the Petitioner towards arrears of maintenance charges.
[Y.G. KHOBRAGADE, J.]
mub
