Bombay High Court
Tejpal Vilas Dongre vs Komal W/O Tejpal Dongre And Another on 10 March, 2025
2025:BHC-AUG:7146
19Cri.WP1296-23.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
19 CRIMINAL WRIT PETITION NO. 1296 OF 2023
Tejpal S/o Vilas Dongre,
Age: 28 years, Occu. Business,
R/o. Ganesh Nagar, Thoratwadi,
tq & Dist. Beed. ....PETITIONER
VERSUS
1. Komal W/o Tejpal Dongre,
Age: 28 years, Occu: Housewife.
2. Tejpurva D/o Tejpal Dongre,
Age: 6 years, Occu: Education,
U/G of her mother ie., Respondent No.1,
R/o. Near New Mandha, Bamanwadi,
Tq & Dist.-Beed. ....RESPONDENTS
....
Mr. Datta A. Madake, Advocate for the Petitioner
Mr. Gautam J. Pahilwan, Advocate for the Respondents
....
CORAM : Y. G. KHOBRAGADE, J.
DATE : 10.03.2025
ORAL JUDGMENT:-
1. In view of order dated 09.07.2024, the Mediator
furnished mediation failure report. It is taken on record and marked
as Exhibit "X" for identification.
2. Rule. Rule made returnable forthwith. With consent of
both the sides heard finally at the stage of admission.
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3. By the present Petition, the Petitioner takes exception to the
order dated 12.08.2023 passed by the learned Sessions Judge, Beed
below Exh.17 in Criminal Appeal No.33 of 2023, thereby issued warrant
of arrest against the petitioner.
4. The Petitioner is the husband of Respondent No.1 and the
Respondent No.2 is their minor child.
5. On face of record it appears that, the Respondents were
instituted a proceeding under Section 12 of the Protection of Women
from Domestic Violence Act alleging that on 22.07.2015, the marriage
between the present Petitioner and the Respondent No.1 was solemnized
as per the customs and rites prevailing in their society. Out of their
matrimonial relations they blessed with one child i.e., Respondent No.2.
The Respondent no. 1 alleged that her husband Petitioner raised
domestic violence against her provided u/s 3 of the D.V. Act. On
13.03.2023, the learned Judicial Magistrate First Class passed the
Judgment and directed the present Petitioner-husband to pay Rs.5,000/-
to the Respondent No.1 and Rs.2,000/- to the Respondent No.2 towards
maintenance from the date of filing of the Application i.e., 12.12.2017.
It is further directed the petitioner to pay compensation of Rs.50,000/-
and Rs.5,000/- towards the litigation cost to the Respondent no. 1 wife.
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6. Being aggrieved by said Judgment, the Petitioner-husband
filed Criminal Appeal No.33 of 2023 under Section 23 of the D.V. Act as
well Exh.4 an application for stay to the effect and operation of the
judgment and order dated 13.03.2023 passed in Misc. Criminal
Application No.1523 of 2017. The Petitioner filed Exh.13 Pursis stating
that, he is ready to deposit remaining amount of maintenance till
31.07.2023 and to deposit maintenance amount of Rs.5,000/- per
month from the day of filing of pursis.
7. On 02.05.2023, the learned Appellate Court passed an order
below Exh.4 which reads as under:
:ORDER:
1) In terms of pursis Exh.13 application Exh.04 is allowed as
follows:
i) Appellant to clear outstanding amount on or before 31 st
July 2023.
ii) Appellant shall pay Rs.5,000/- per month to the
respondent no.1 from 1st May, 2023 till disposal of the
appeal.
2) Inform the learned trial court accordingly.
3) Application Exh.04 disposed off.
8. On 07.08.2023, the Respondents are filed Exh.17
application and prayed for issuance of warrant for outstanding amount
of Rs.3,17,000/-. On 12.08.2023, the learned Appellate Sessions Court
passed the order below Exh.17 and issued warrant of arrest against the
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Petitioner, hence, this petition.
9. No doubt, on 06.09.2023, this Court issued notice to the
Respondent-wife and granted stay in terms of prayer clause-E on
conditions that, the Petitioner shown readiness to deposit amount of
Rs.1,25,000/-within a period of two weeks. Accordingly, the Petitioner
deposited amount of Rs.1,25,000/- before the Appellate Court in
Criminal Appeal No.33 of 2023. The fact of deposit of said amount not
denied by the Respondent.
10. Needless to say that, as per the Judgment dated 13.03.2023
passed by the learned Judicial Magistrate First Class in Misc. Cri.
Application No.1523 of 2017, the petitioner is under obligation to pay
total amount of Rs.7,000/- per month to the Respondent Nos. 1 & 2
from the date of application i.e. from 12.12.2017 till passing of this
order i.e. for 86 months, which comes to Rs. 6,02,200/- ( Rs. 7,000/- X
86 months). The petitioner-husband deposited Rs. 1,25,000/- towards
arrears of maintenance before the learned Appellate Court.
11. Needless to say that, though the Petitioner has filed Cri.
Appeal No.33 of 2023 challenging the Judgment dated 13.03.2023,
however, as on today, said Judgment is neither modified nor stayed by
the learned Appellate Court. Therefore, the Petitioner-husband is under
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obligation to comply with the judgment passed by the learned
Magistrate. The Petitioner-husband appears to be bodily able person,
therefore, contention raised by the Petitioner that, he has no source of
income cannot be considered.
12. Section 28 of the DV Act provides that all the proceedings
under the DV Act shall cover under Code of Criminal Procedure. Sub-
Section 2 of Section 28 of the DV Act provides that, the Judicial
Magistrate shall apply own procedure for disposal of an application
under Section 12 or under Sub-Section 2 of Section 23 of the Act.
Section 128 of the Cr.P.C., provides for enforcement of order of
maintenance.
13. Indeed, the Respondent-wife has already filed proceeding
bearing Misc. Cri. Appln No.537 of 2023 under Section 128 of Cr.P.C.,
for execution of Judgment dated 13.03.2023 passed by the learned
JMFC in DV proceeding.
14. In case-in-hand, on 02.05.2023, the learned Additional
Sessions Judge, Beed passed the order holding that, the Appellant-
husband has to clear outstanding amount on or before 31.07.2023 and
shall pay Rs.5,000/- per month to the Respondent No.1 from 01.05.2023
till disposal of the Appeal.
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15. It is a matter of record that, on 07.08.2023, the
Respondent-wife filed Exh.17 and prayed for issuance of warrant for
recovery of arrears of maintenance of Rs.3,17,000/- against the
Petitioner-husband. However, the learned counsel appearing for the
Respondent fails to point out under what provisions of Cr.P.C., the
application for issuance of arrest warrant against the petitioner is
maintainable. On 12.08.2023, the learned Additional Sessions Judge
passed the impugned order below Exh.17 in Cri. Appeal No.33 of 2023
and issued warrant of arrest against the petitioner without recording
any reason but only passed the order and issued Warrant of Arrest.
Therefore, impugned order is illegal, bad in law, hence, needs to be
quashed and set aside.
16. Needless to say that, the Appellate Court under Section 29
of the D.V. Act is not the executing Court. Since, the learned Appellate
Court has passed the conditional order on 02.05.2023. Therefore, it is
necessary on part of the Respondent-wife to file appropriate application
in the proceeding initiated under Section 128 of the Cr.P.C.. Since, the
learned Sessions Court is not empowered to execute the Judgment and
order passed under Sec. 12 of the D. V. Act, therefore, to my mind,
impugned order of issuance of arrest warrant against the petitioner is
not sustainable in eyes of law, hence, it is liable to be quashed and set
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aside. Accordingly, the impugned order dated 12.08.2023 of issuance of
arrest warrant as against the petitioner is quashed and set aside.
Accordingly, rule is discharged. No order as to costs.
[ Y. G. KHOBRAGADE, J. ]
HRJadhav
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