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Yogesh vs Jayshree Yogesh Motiramani

High Court Of Gujarat|24 September, 2013
Rule.
Learned advocate Ms. Shah and Ms. Archana Raval, learned APP waives service of notice of Rule on behalf of respondent Nos. 1 to 3 respectively.
This group of petitions pertains to orders passed by the learned JMFC and Family Court in the matrimonial disputes between the wife and husband and in-laws, and as the facts in all these petitions are identical and challenges are also based upon identical grounds, they were listed together, heard together, and are now being disposed of by this common judgment and order. This group of petitions was heard finally at the request of learned advocates for the parties as the controversy was in narrow compass.
Facts in brief leading to filing this petitions deserve to be set out as under so as to understand the real controversy and the challenge contained therein. For the sake of convenience, it would be most appropriate to set out gist of the challenge and prayers contained therein, which may thereafter follow by the common facts:
Special Criminal Application No. 1173 of 2011:
Special Criminal Application No. 1173 of 2011 is filed by the petitioners, who happened to be opponents in Criminal Misc. Application No. 1953 of 2009 in the Family Court at Ahmedabad. The said petition contains challenge to the order dated 8.10.2010 passed by the Family Court in Criminal Misc. Application No. 1953 of 2009, where under, the Family court, in exercise of powers conferred upon the Court under Section 125(1) of the Cr.P.C. awarded an interim maintenance of RS.5000/- p.m. to respondent no. 2 wife and Rs.2000/- p.m. to the minor child, joined through his mother respondent no. 2 and further ordered that the amount of arrears of maintenance be deposited in the Court within 6 months from the date of order and maintenance amount from the date of order to be deposited in the Court or paid to the applicants. It is also noted by the Court that the interim maintenance of Rs.7000/- passed by the Court below in the suit for restitution of conjugal rights and the interim maintenance passed under Section 24 under the Hindu Marriage Act is to be set off. This order was passed on 8.10.2010. As net result of this order, husband was to pay Rs.7000/-p.m. towards maintenance of wife and child till final disposal of the application and Court while taking note of the fact that identical amount is already ordered under Section 24 of Hindu Marriage Act proceedings, ordered its setting off. Thus, the total liability cast upon the present husband came to Rs.7000/- p.m. so far as this proceeding is concerned. The petitioners have made following prayers in this petition:
PRAYER OF SCR.A NO.1173 OF 2011 (A) that this Honourable Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ order or direction to quash the order dated 8.10.2010 passed below application (exh.3) in Criminal Miscellaneous Application No.1953/209 by the Learned Family Court No.4 at Ahmedabad;
(B) that pending the hearing and final disposal of this petition, the Honourable Court be pleased to stay the operation, implementation and execution of the order dated 8.10.2010 passed below application (exh.3) in Criminal Miscellaneous Application No.1953/2009 by the Learned Family Court No.4 at Ahmedabad;
(C) for costs;
(D) for such other and further relief as the circumstances of case may require.
[2] Criminal Misc. Application No. 14892 of 2011:
Criminal Misc. Application No. 14829 of 2011 in Special Criminal Application No. 1173 of 2011 is filed for seeking appropriate interim relief as could be seen from the prayers, which are set out as under:
PRAYER OF CR.MA NO.14892 OF 2011 (A) that pending hearing and final disposal of Special Criminal Application No.1173/2011, the order dated 8.10.2010 passed by the Learned Family Court in Criminal Miscellaneous Application be stayed;
(B) for costs;
(C) for such further and other reliefs as the circumstances of case may require.
[3] Special Criminal Application No. 1731 of 2012:
Special Criminal Application No. 1731 of 2012 is filed by petitioners, who happened to be opponents in Criminal Misc. Application No. 180 of 2009 pending before the Court of learned Additional Chief Judicial Magistrate, Ahmedabad (Rural) arising out of the provisions of The Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as the PWDVA. for short), praying that the proceedings as well as order dated 1.10.2010 passed by the Court determining interim maintenance and relief to wife and child to the tune of RS.10,000/- p.m. as per the period mentioned there under and from the date of the application and arrears, 10% arrears amount to be paid within one week and rest of the arrears to be paid in four installments of 25% each per month. The application for discharge filed by petitioner nos. 1, 2 and 3 came be dismissed. This order as well as the order passed by the Appellate Court in Criminal Appeal Nos. 61, 62 and 63 of 2010 and 59 of 2010, wherein, the Appellate Court has confirmed the order of interim maintenance as well as rejection of discharge application giving cause to file present petition, with following prayers:
PRAYER OF SCR.A NO.1731 OF 2012 that the Hon ble Court may be pleased to issue appropriate writ and/or order dated 1.10.2010 quashing the proceedings of Criminal Misc. Application No.180/2009 pending before the Court of Third Addl. Chief Judicial Magistrate, Ahmedabad (Rural);
that the Hon ble Court may be pleased to quash the proceedings and order dated 1.10.2010 passed in Criminal Misc. Application No.180/2009 on 1/10/2010 and confirmed by the Appellate Court by dismissing Criminal Appeal Nos.61/2010, 62/2010 and 63/2010; dated 17.12.2011, Fourth Addl. Sessions Judge, A bad (Rural) that the Hon ble Court may be pleased to stay the proceedings of Criminal Misc. Application No.180/2009 pending before the Court of Addl. Chief Judicial Magistrate, Ahmedabad (Rural) at Mirzapur during the pendency of this petition.
iv) that any just and proper order may be passed.
At this stage, it is clarified by husband, party-in-person that this petition is essentially challenging the rejection of discharge application and challenge to the maintenance is contained in separate petition being Special Criminal Application No. 38 of 2012.
[4] Special Criminal Application No. 38 of 2012:
Special Criminal Application No. 38 of 2012 as it is stated hereinabove is preferred by the opponents in Criminal Misc. Application No. 180 of 2008 in the Court of learned JMFC, Ahmedabad (Rural) whereunder, the interim maintenance under application filed on behalf of the respondent wife and minor child came to be allowed and amount of Rs.10000/- p.m. came to be awarded by way of interim maintenance and payment of arrears as it is stated hereinabove.
PRAYER OF SCR.A NO.38 OF 2012 (A) that the Honourable Court be pleased to call for the record and proceedings of Criminal Miscellaneous Application No.180/2009 presently pending before the Court of Learned Fourth Additional Senior Civil Judge, Ahmedabad (Rural);
(B) that the Honourable Court be pleased to quash and set aside the impugned order dated 1.10.2010 passed below application (exh.33) in Criminal Miscellaneous Application No.180/2009 by the Court of Learned Third Additional Senior Civil Judge, Ahmedabad (Rural);
(C)that the Honourable Court be pleased to quash and set aside the impugned order dated 17.12.2011 passed in Criminal Appeal No.59/2010 by the Court of Learned Fourth Additional Sessions Judge, Ahmedabad (Rural);
that during the pendency and final disposal of this petition, the Honourable Court be pleased to stay the operation, implementation and execution of the order dated 1.10.2010 passed below application exh.33 in Criminal Miscellaneous Application No.180/2009 by the Court of Learned Third Additional Senior Civil Judge, Ahmedabad (Rural) and order dated 17.12.2011 passed in Criminal Appeal No.59/2010 by the Court of Fourth Additional Sessions Judge, Ahmedabad (Rural);
(E) that during the pendency and final disposal of this petition, the Honourable Court be pleased to stay the further proceedings of Criminal Miscellaneous Application No.180/2009 presently pending before the Court of Fourth Additional Chief Judicial Magistrate, Ahmedabad (Rural);
(F) for exparte ad-interim relief in terms of paragraphs and (E) above;
(G) for costs;
(H) for such other and further reliefs as the nature and circumstances of case may require.
Thus, so far as Special Criminal Application No. 38 of 2012 and Special Criminal Application No. 1731 of 2012 are filed separately having separate challenge and accordingly, both the matters were dealt with accordingly.
The facts as could be gathered from the petitions deserve to be set out as under to indicate the real controversy.
The petitioner no. 1 and respondent no. 1 are husband and wife and for both of them, this marriage happened to be second innings in life as both had divorced their earlier spouses. The Couple was blessed with child within short span of their married life, who is also joined in these proceedings as respondent no.2, through his mother, respondent no.1. The petitioner no.1 and respondent no. 1 got married on 26.8.2007 at Aryasamaj, Ahmedabad as per Hindu rituals. The petitioner has alleged that respondent No.1 could not adjust in the marriage and in his family, hence on 24.11.2007, which happened to be respondent No.1 s birth date also, both of them moved out of the matrimonial home into separate furnished residence provided by petitioner no.2. In the separate residence also, there were serious difference of opinion, which according to the petitioners created impediment in their smooth marriage life.
It is mentioned in the petition that on or around 17/18.3.2008, the petitioner no. 1 requested the respondent no.1 to visit the matrimonial house for few days on account of holi/dhuleti and as the petitioner no. 1 was required to carry out some work along with his father at their residence. The respondent no. 1 did not agree and therefore, the petitioner had to drop the respondent no. 1 at her parental house on 17.3.2008. The petitioner no. 1 filed Hindu Marriage Petition No. 905 of 2008 before the learned Family Court at Ahmedabad against the respondent seeking restitution of conjugal rights. The respondent no. 1 appeared in the HMP and sought time to file reply on 6.10.2008 and the HMP was adjourned to 12.01.2009. The child the respondent no. 2 was born on 21.10.2008, even the birth of child also could not help the couple in resolving their differences and disputes.
The respondent no. 1 lodged FIR being I.CR. No. 40 of 2009 before Sola Police Station against the petitioner no. 1 and his parents without disclosing the factum of HMP filed by petitioner no.1 for restitution of conjugal rights. The respondent no.1 also initiated proceedings being Criminal Misc. Application No. 180 of 2009 under the Protection of Women from Domestic Violence Act, 2005 before the Court of Learned Additional Senior Civil Judge at Ahmedabad (Rural) on 19.02.2009, without disclosing the fact of filing of HMP in the said proceedings. On 24.08.2009, the respondent no. 1 filed interim maintenance application Exh. 33 claiming maintenance in the sum of Rs.15,000/- p.m. and the petitioners have filed their reply to said application at Exh. 41 on 27.11.2009. The learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural) has passed an order dated 1.10.2010 granting interim maintenance in the sum of Rs.5000/- to the respondent no. 1 and Rs.5000/- in favour of minor child, to be paid till the minor child attains the age of 24 years. The learned Family Court passed interim maintenance order for the total amount of Rs.7000/- p.m. In Criminal Misc. Application No. 1953 of 2009 under Section 125 of Cr.P.C as well as in HMP No. 905 of 2008. The petitioners filed Criminal Appeal No. 59 of 2010 before the Appellate Court challenging the order dated 1.10.2010 passed in Cr.M.A. No. 180 of 2009 and the Appellate Court has upheld the order passed by the trial Court and has modified the order only to the extent that the interim maintenance be paid to the minor child till he attains the age of 18 years.
Thus, these petitions could be bifurcated in sub-groups namely (I) challenging the interim maintenance order and (II) proceedings of Criminal Misc. Application No. 180 of 2009 filed under the D.V. Act challenging the rejection order wherein prayer for discharge was rejected and seeking quashment on the ground of discharge to be granted by the Court.
Learned advocate Shri Shah appearing for petitioners confined his submission in respect of discharge qua petitioner nos. 2 and 3 only. Shri Shah submitted that provisions of D.V. Act read closely would indicate that the stale and time barred claim or alleged claim are not to be revived on the ground of advent of the D.V. Act or else it would work as tremendous hardship and consternation to the in-laws and members of the family.
Shri Shah relying upon the provisions of Section 28 of the D.V. Act contended that the proceedings under the D.V. Act are to be governed by the provisions of Cr.P.C, 1973 and canvassed submission based thereupon that plain reading of Section 468 of Cr.P.C. would clearly provide for a limitation for institution of the proceedings under the D.V. Act, while elaborating the aforesaid submissions, it was urged that the close reading of various provisions of the D.V. Act couple with reading of Section 468 of Cr.P.C, would persuade this Court to hold that the institution of the proceedings of Criminal Misc. Application No. 180 of 2009 is clearly hit by the provisions of Section 468 of Cr.P.C. so as to render it time barred, on that basis, the proceedings qua the present petitioner nos. 2 and 3 at least are required to be quashed or discharge order should have been made as admittedly the wife and husband left the matrimonial home on 24.11.2007 and proceedings under the D.V. Act came to be lodged thereafter. This being institution of proceeding after the period of limitation, as provided under Section 468 of the Cr.P.C., the petitioner nos. 2 and 3 were entitled to have respite from the proceedings under the D.V. Act as the factum of wife and husband leaving away from the matrimonial home is not disputed in any manner. The counsel relied upon the provisions of Section 32 of D.V. Act and submitted that the plain reading thereof would also further buttress his submission of application or complaint being time barred.
Learned counsel for the petitioners has heavily relied upon the decision of the Supreme Court in case of Inderjit Singh Grewal Vs. State of Punjab, reported in 2012 Cr.L.J, 309, and submitted that the observation of the Supreme Court in para-24 would squarely cover and help the case of the petitioners for quashment of the complaint at least so far as petitioner nos. 2 and 3 are concerned.
Learned counsel for the petitioners has submitted that this contention was specifically taken before the Appellate forum, wherein, the rejection of discharge application was agitated but unfortunately, the Appellate Forum did not appreciate the same, which was disputed by counsel for the respondents that the date of decision of the judgment indicate that it would not have been pressed into service before the trial Court and absence thereof in the order would also indicate that it was not cited before the appellate Court.
Learned counsel appearing for the petitioners thereafter placed reliance upon the decision in case of Varsha Kapoor Vs. UOI & Ors, reported in 2010 Law Suit(Delhi) 1165, and contended that mother in law the petitioner no. 3 being a lady, could not have been impleaded in the proceedings.
Learned counsel appearing for the petitioners thereafter relied upon the decision in case of Hima Chugh Vs. Pritam Ashok Sadaphule & ors reported in 2013 Law Suit (Del) 1253 to support his contention that Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and established her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of their coparcenaries or otherwise, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to share common household. This was submitted in order to bring more emphasis upon the submission that the son and his wife moved out of the matrimonial house way back on 24.11.2007 and that date is not disputed at all.* Learned counsel appearing for the petitioners challenging the DV application and order of interim maintenance submitted that the entire proceedings and complaint did not reveal any cruelty as such to compel the wife to seek relief under D.V. Act. Learned advocate appearing for the petitioners also submitted that extensive reading of the complaint would also indicate that allegations made there under did not constitute so cruel an act to compel the wife to seek separate residence and relief on that basis.
Learned advocate appearing for the petitioners thereafter contended that the Court while passing the order clearly observed that the Court was passing the order without appreciating the evidence on record and the Court did not have any reason for arriving at the conclusion that husband was earning RS.20,000/- per month when the order was being passed. The reliance was placed upon the provisions of the Act namely provisions of Section 23 and it was emphatically submitted that even as per the language employed in the provisions, the Court was under an obligation to record its prima-facie satisfaction qua occurrence of cruelty and domestic violence and there was a likelihood of repetition thereof and for that the Court was under an obligation to appreciate the lack of evidence so far as violence is concerned and lack of evidence so far as income is concerned and therefore, on both the counts the order of interim maintenance is required to be quashed and set aside.
Learned advocate appearing for the petitioners, at this stage submitted that this Court (Coram Anant S. Dave, J.) on 11.01.2012 passed the following order in Special Criminal Application No. 38 of 2012:
Heard learned counsels for the parties.
Apropos to the suggestion of the Court, additional affidavit dated 11.01.2012 is filed by the petitioner No.1 in which it is stated that the petitioners are duty bound to pay Rs.94,533/- by 31.12.2011 and the subject amount is to be paid by installments as stated in para 5 of the additional affidavit.
The above amount is disputed by learned advocate appearing for the private respondents and it is submitted that the amount stated in paragraph Nos. 4 and 5 of the additional affidavit dated 11.01.2012 filed by the petitioners may not be treated to have been accepted by the respondents.
Having heard learned advocates for the parties and considering the facts and circumstances of the case, at this sage, I am inclined to allow the petitioner to pay installments of the amounts, as stated in para 5 of the additional affidavit, subject to further order that may be passed on 03.07.2012 after hearing the parties on merit of the case.
Post the matter on 3rd July, 2012.
In the meanwhile, parties are restrained from initiating further proceedings pursuant to the impugned order.
and this Court (Coram: Rajesh H. Shukla, J.) on 26.07.2012 passed the following order in Special Criminal Application No. 1731 of 2012:
In view of the judgment of the Hon ble Apex Court in case of Inderjit Singh Grewal Vs. State of Punjab & Anr., reported in 2012 Cri.L.J. 309, issue notice to the respondents returnable on 1 6 t h August, 201 2.
Learned APP Ms.A.C. Raval waives service of notice for respondent no.1 State of Gujarat.
Ad-interim relief in terms of Para No.17(iii) till then.
Direct service for respondent no.2.
Learned advocate for the petitioners has thereafter relied upon the decision in case of Sanjay Chopra Vs. Shyama Chopra reported in 2001 (4) Supreme 331 and submitted that there cannot be any justification in not setting off the maintenance granted under two provisions namely under Section 125 as well as under Section 24. The two sets of interim maintenance works to be greater hardship upon the petitioner.
Learned advocate for the petitioners also invited this Court s attention to the pleadings that husband was not earning Rs.20,000/- at relevant time, which would have justified grant of maintenance amount. It is submitted that the husband is an Advocate by profession and as he appeared before Courts below as party-in-person and way of argument was held against him so as to arrive at a conclusion qua plausibility of the income and earning which cannot be said to be a valid method for assessing or concluding the earning of the petitioners and said amount of maintenance is also against the evidence produced on record i.e. income tax return produced by the petitioners and therefore, said amount of maintenance is not justified.
It is also submitted that learned JMFC while passing order under D.V. Act observed that the order passed on interim maintenance be also placed on record in the proceedings under Section 125 of Cr.P.C., which is going on in the family Court for its knowledge and it is submitted by both the sides that order was not made available, however, wife put up purshis on 8.10.2010 indicating that maintenance amount of RS.10,000/- is passed i.e. Rs.5000/- each for applicant wife and child and said order was passed on the very day. At this juncture, petitioners submitted that this purshis had naturally not gone into consideration as the order was signed and shown on that very day, which indicated that purshis could not have gone into consideration by the Court while passing the order on 8.10.2010.
Learned advocate appearing for the petitioners has placed heavy reliance upon the income tax return filed by the petitioners and submitted that in light of the income tax return, the Court could not have gone on conjuncture and surmises on the point of income and arrived at imaginary figure of Rs.20,000/- and passed based thereon. Learned advocate appearing for the petitioners also submitted that looking to the records and proceedings available, the conclusion arrived at by the learned Judge qua maintenance is not correct.
Learned advocate for the petitioners invited this Court s attention to the last affidavit filed on 1.7.2013, wherein, it was submitted that till 31st December, 2012, the petitioner was ready and willing to pay Rs.3000/- for both mother and child and from 1.1.2013 onwards, the petitioner was ready and willing to pay Rs.5000/- p.m. towards maintenance.
Learned advocate appearing for the petitioners thereafter contended that grounds urged for challenging maintenance under DV Act would be available with equal force for challenging the awarded under Section 125 of CRPC. As on date, there exists three orders i.e. (i) order passed under Section 24 of the Hindu Marriage Act granting maintenance of Rs.7000/- p.m. for both, (ii) Rs.7000/- granted by the Court under Section 125 of the Cr.P.C. and (iii) Rs.10,000/- by the Court taking D.V. Act proceeding, which come to Rs.24,000/-, out of which, even if one takes the set off order into consideration then also, Rs.17,000/- is payable and he submitted that out of this, looking to his capacity and earning, he is ready and willing to pay Rs.5000/- p.m for wife and son both. This submission is canvassed based upon the earning of the petitioner as well as the fact that the wife is also practicing advocate. It is clarified at this stage that respondent no.1 has started working only from 23.1.2013. It is pleaded that looking to acumen and the expertise, she is capable and competent to earn not less than Rs.10,000/- p.m as she is working in chamber of eminent lady Advocate and therefore, that quantum may also be considered along with petitioner s offer of providing Rs.5000/- every month as maintenance to wife and child.
Learned advocate appearing for the respondents vehemently contended that all the petitions are essentially against the interim orders and when the matters are pending adjudication, both the sides will have ample opportunity to lead evidence and put up their version justifying their respective stands. Therefore, in exercise of the powers under Articles 226 and 227 of the Constitution of India, this Court may not interfere with the orders. The scheme of the Act and pleadings of the parties would indicate that the orders do not deserve any interference.
The learned advocate appearing for the respondents further contended that the Scheme of D.V. Act and even the provisions of Section 125 of the Cr.P.C would unequivocally indicate that the first and foremost requirement is to see to it that the wife in distress and child depending upon wife, may not have to be driven to vagaries and there is immediate relief available to them so that the wife can avoid being exploited at the hands of the in-laws and no one can take advantage of her plight in the context of Indian society. Bearing this aspect in mind, the Court may examine the impugned orders, which would persuade the Court for not interfering with the same.
Learned advocate appearing for respondents invited this Court s attention to the provisions of D.V. Act and contended that the D.V. Act clearly provides for various measures available for registering the grievances of the women and the same cannot be said to be restricted on account of any technical objection like limitation. The clear stand is taken that the concept of time barred proceedings is not found in the scheme of D.V. Act. The Supreme Court s decision cited at bar in case of Inderjit Singh Grewal(supra) would be of no avail to the petitioners hereinabove as the entire reading of the case of Inderjit Singh Grewal (supra) would indicate that there, the case was of gross abuse to say the list of the provision, and the Court therefore, while observing clearly of this aspect, where, the wife s divorce was not annulled and there was an allegation of Domestic violation on behalf of such wife, then, in such a situation, the Supreme Court made observation. Therefore, the respondent advocate submitted that the concept of time limit is required to be viewed in the context of the facts attending the case and in the instant case, if one looks at the development of the events and the fact that the wife had to leave the matrimonial home and reside separately with husband on 24.11.2007 is not an action arising out of volition but the compelling circumstances and unwillingness of parents is the cause which clearly connects the incidents with the cruelty and the cruelty as such is not defined. Besides various provisions of the D.V. Act, would indicate that the act provides protection to the women even if she had left her matrimonial house on account of cruelty and when she was lodging complaint against the respondents, then respondents cannot avoid proceedings on account of women not residing in the house, therefore, emphasis was laid upon the definitions of domestic relationship, domestic violence and shared house hold also.
Learned advocate appearing for the respondent relied upon the decision of Supreme Court in case of Vanka Radhamanohari (Smt.) Vs. Vanka Ventakta Reddy and others, reported in (1993) 3 SCC 4 and submitted that matrimonial offenses relating to cruelty of husband on wife are in the nature of continuing offences to which bar of S.468 cannot be applied in the interest of justice. In the said case, it was urged that wife had left the matrimonial house way back in the year 1985 and filed complaint in the year 1990 alleging maltreatment, torture and harassment for dowry by her husband and mother-in-law and remarriage by husband in the year 1990, the provisions of Section 498A and 494 of IPC were invoked, the Court observed that bar of limitation Section 468 in taking cognizance would not be available to defeat the proceedings and therefore, relying upon this judgment, it was submitted that proposition of law as propounded would very aptly available in the instant case also. At this juncture, learned advocate for the petitioners submitted that this judgment is in respect of offences lodged under Section 498A and therefore, analogy cannot be drawn on the basis of this judgment under the proceedings under the D.V. Act.
Learned advocate appearing for respondents relying upon the decisions of Division Bench of this Court in case of BIPIN PRATAPRAI BHATT & 4 Vs. UNION OF INDIA & 2, rendered in Special Civil Application No. 7858 of 2010 decided on 23.08.2010 and in support of her submission, special emphasis was lead in para-7 that scheme of D.V. Act essentially provides for relief given to woman under the Domestic relationship from those, who are perpetrating cruelty and this cannot be prescribed as penal provision and therefore, an attempt to introduce bar like limitation etc. is of no avail and therefore, impugned orders deserve to be sustained.
Learned advocate appearing for the respondents relying upon the decision of Bombay High Court in case of MANGESH SAWANT VS. MINAL VIJAY BHOSALE AND ANR., reported in 2012 Cr.L.J. p.1413 and submitted that even Bombay High Court has observed that proceedings under the D.V. Act (2005) are not criminal proceedings so as to permitting invocation of power of the Court of quashment under Section 482 of the Cr.P.C.
Learned advocate appearing for the respondents relying upon the decision in case of NITAL HARSHADBHAI PATEL & 1 Vs. STATE OF GUJARAT & 1, in Criminal Misc. Application No. 6465 of 2010 decided on 22/24/3.2011 as well as the decision of the Supreme Court in case of V.D.
BHANOT Vs. SAVITA BHANOT, reported in 2012 (1) GLH 688, contended that the continuous residing with respondent in the same shared house hold is not condition precedent to maintain action against the respondent under the provisions of the D.V. Act and therefore, it would not be open to the petitioners to submit that the provisions of D.V. Act would not be attributed so far as the petitioner nos. 2 and 3 are concerned only on account of the lady leaving the matrimonial home one and few months before the complaint was filed. This proposition sought to be canvassed on behalf of the petitioners is squarely covered by the Supreme Court decision in case of V.D. Bhanot (supra).
The reliance is also placed upon the decision of the Bombay High Court in case of MAROTI DEWAJI LANDE VS. SAU. GANGUBHAI MAROTI LANDE AND ANR., and reported in 2012 Cr.L.J. p-87, in support of her submission that even woman was in a domestic relationship in past also can bring in action, invoke the provisions of D.V. Act.
Learned advocate appearing for respondents thereafter contended that the interim maintenance awarded by the Court under Section 125 of Cr.P.C. and under the provisions of D.V. Act cannot be said to be conflicting with each other as the Legislature has in its wisdom clearly provided that there could be an order under both the provisions and rather, D.V. Act has provided further protection in the form that the living standard to which wife is accustomed, is required to be borne in mind while ordering the maintenance. These are the factors which may persuade this Court in not interfering with the orders passed by the Court and dismiss the petitions.
This Court has heard learned advocates for the parties and perused the papers appended thereto and orders impugned. Before adverting to the rival contentions of the learned advocates for the parties, it would be most appropriate to set out few indisputable aspect namely;
(i) The marriage between the petitioner no. 1 and respondent no.1 was solemnized on 26.8.2007 and right after marriage, the respondent no. 1 and all the petitioners lived together in shared house hold till 24.11.2007. When the wife i.e. respondent no. 1 and husband petitioner no. 1 started living in a separate premises, immediately prior to the separation from the matrimonial home, an incident occurred, where under, the wife was required to be admitted in the hospital and as per certificate of Doctor, which is produced at Page-109, the cause of admission to be Hypoglycemia and acute anxiety. After discharge, the respondent no. 1 was residing jointly with joint family in the shared house hold till 23.11.2009. Thus proximity between the time of wife s hospitalization and couple s moving out of the matrimonial home assumes significance and needs proper appreciation.
(ii) The respondent no.1 has narrated in her application made under D.V. Act, various acts attributable to all the petitioners covering the period when she was residing in the shared house hold and period when she was residing along with husband in separate flat.
The petitioner no. 1 left the respondent no. 1 wife at her parental home on 18.3.2008. The wife has alleged that it was under pretext that he had some job work to be performed at his father s place and therefore, only for few days she was requested to reside with her parents. This act of separation though said to have been on account of different version by both the parties, remained as it is and the pregnant wife gave birth to a child on 21.10.2008.
The petitioner No.1 filed Hindu Marriage Petition No. 905 of 2008 before the learned Family Court at Ahmedabad against the respondent seeking restitution of conjugal rights on 19.8.2008. This was first legal action in the life of couple against each other initiated by the husband, dimming scope of reconciliations.
The respondent no. 1 lodged FIR being I.CR. No. 40 of 2009 before Sola Police Station against the petitioner no. 1 and his parents which has culminated into a criminal case pending at the stage of leading evidence by the prosecution.
The respondent no.1 initiated proceedings being Criminal Misc. Application No. 180 of 2009 under the Protection of Women from Domestic Violence Act, 2005 before the Court of Learned Additional Senior Civil Judge an JMFC AT Ahmedabad (Rural) on 19.02.2009.
On 24.08.2009, the respondent no. 1 filed interim maintenance application Exh. 33 claiming maintenance in the sum of Rs.15,000/- p.m.
The learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural) has passed an order dated 1.10.2010 granting interim maintenance in the sum of Rs.5000/- to the respondent no. 1 and Rs.5000/- in favour of minor child.
The learned Family Court passed interim maintenance order for the total amount of Rs.7000/- p.m. in Criminal Misc. Application No. 1953 of 2009 under Section 125 of Cr.P.C as well as in HMP No. 905 of 2008.
The petitioners filed Criminal Appeal No. 59 of 2010 before the Appellate Court challenging the order dated 1.10.2010 passed in Cr.M.A. No. 180 of 2009 and the Appellate Court upheld the order passed by the trial Court and has modified the order only to the extent that the interim maintenance be paid to the minor child till he attains the age of 18 years.
Thus the first order in point of time for maintenance is passed on 10.1.2010 under D.V. Act and this order came to be passed in Criminal Misc. Application No. 180 of 2009 awarding Rs.10000/- towards maintenance of wife and child both i.e. Rs.5000 for wife and Rs.5000/- for child and on 8.10.2010, two orders came to be passed in Criminal Misc. Application No. 1953 of 2009 and Section 24 Application in HMP No. 905 of 2008, wherein, Rs.7000/- in total came to be awarded, which was said to be Rs.2000/- for child and Rs.5000/- for wife and it was said to be set off against the order made under Section 24 in HMP proceedings. Thus, the total amount came to be awarded was Rs.24,000/- and as it is stated hereinabove, all these amount have been awarded from the respective dates of the applications.
The parties are not disputing that the outstanding amount of arrears as on date is Rs.5,54,000/- and the payment is not made as per the understanding of the petitioner no. 1 on account of the order passed by this Court.
It is pertinent to note here that as per the application of respondent no.1 wife, her prayer for maintenance was Rs.15,000/- p.m and alternative accommodation of 2 BHK home or Rs.7500/- p.m by way of rent and so far as proceedings under Section 125 is concerned, the wife has prayed for Rs.15,000/-. This was sought to be highlighted by learned advocate for the petitioners to indicate that maintenance as such prayed for is only Rs.15,000/- and when there was no opportunity looking to order passed by the Court under D.V. Act and order passed by the Family Court under Section 125, then, Section 125 proceedings should have been guided and appropriate orders should have been made bearing in mind completely the awarded money of maintenance under the D.V. Act.
Against the aforesaid backdrop of indisputable aspect in the matter, the Court is to examine rival contentions of learned advocates for the parties.
(I) The Court proposes to examine the first contention qua challenge to the order of discharge and quashment of the proceedings under the D.V. Act on account of the grounds mentioned in the memo of petition, which indicates the ground of limitation as pleaded. The Court is of the view that looking to the provisions of D.V. Act and decisions cited at bar, the ground assumes consideration only in light of the pleadings and prayers made in the application. It would be therefore necessary for the Court to closely examine the application under the D.V. Act. The application under D.V. Act indicates that the respondent no. 1 has invoked the provisions of Sections 18, 19, 20, 21 and 22 of the D.V. Act, meaning thereby, the relief is sought qua protection orders under Section 18, residence orders i.e. alternative accommodation or rent in lieu thereof under Section 19, monetary reliefs under Section 20, compensation orders under Section 21, compensation orders under Section 22, in short, almost all the reliefs that could be legitimately asked for, has been asked and there is also reference of Stridhan and apprehension qua the same.
(II) The perusal of the application in its totality along with the prayers made there under, indicate that the respondent no.1 wife has made averments in respect of she being tormented from the dates when she was residing along with all the petitioners and the version of tormenting spill over to her separate residence with the petitioner no.1. Therefore, when such kind of averments and allegations are made, a question arises as to whether the bar of limitation contemplated under Section 468 of the Cr.P.C could be invoked to evade the proceedings under the Act. The submission on behalf of the petitioners especially the petitioner nos. 2 and 3 on the strength of the provisions of Section 468 read with Section 28 deserve to be examined closely as it is sought to be supported by the observations of the Supreme Court and therefore, it would be most appropriate to set out the provisions of Section 468 of Cr.P.C and Sections 28 and 32 of the D.V. Act:
Section 468 of Cr.P.C reads as under:
Bar to taking cognizance after lapse of the period of limitation:
- (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment:] Section 28 of D.V. Act reads as under:
Section 28: Procedure:
(1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
Nothing in sub-section(1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
Section 32: Cognizance and proof:
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.
Upon the sole testimony of the aggrieved person, the Court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.
Thus, on the plain reading of these three provisions, an attempt was made to indicate that the action if complained off after the period envisaged under Section 468, then, it would be time barred and in support of this submission, heavy reliance is placed upon the decision in case of Inderjit Singh Grewal (supra). The Supreme Court has observed as under in para-24:
para-24:
Submission made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006, which make the provisions of Cr.P.C. applicable and stand forfeited by the judgments of this court in Japani Sahoo V. Chandra Sekhar Mohanty, AIR 2007 SC 2762 (2007 AIR SCW 4998); and Noida Entrepreneurs Association V. Noida & Ors. (2011) 6 SCC 508.
Now, it would be most appropriate to advert to the facts as they were prevalent in the case of Inderjit Singh Grewal (Supra) in order to appreciate the submission canvassed on behalf of the petitioners. As could be seen from the narration in para-4, the appellant therein had married respondent no. 2 on 23.9.1998 and out of wedlock, one child was born. On account of the difference, they decided to get divorce and hence filed HMA Case No. 168 of 1999 from the District Court, Ludhiana under Section 13-B of the Hindu Marriage Act, 1955 for dissolution of marriage by mutual consent. In the said proceedings, the statements of appellant and respondent No.2 were recorded on 19.9.2007 and proceedings were adjourned for a period of more than six months to enable them to ponder over the difference. The parties again appeared before the Court on 20.3.2008 and again their statements came to be recorded of affirming their decision to separate with each other and accordingly, the Judge passed an order dissolving the marriage on 20.3.2008.
The wife thereafter, filed a complaint before Senior Superintendent of Police, Ludhiana against the appellant on 4.5.2009 invoking provisions of D.V. Act inter-alia alleging that the decree of divorce was obtained by sham transaction and even after getting divorce both of them had been living together as husband and wife. She was forced to leave the matrimonial home. Thus, she prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry who submitted his report on 4.5.2009 to the effect that the parties had been living separately after divorce and no case was made out against the appellant. However, he suggested for legal opinion in the matter. Accordingly, the legal opinion dated 2.6.2009 was sought, wherein, it was opined that the parties had obtained the divorce decree by mutual consent and the allegations made by respondent no. 2 against the appellant were false and baseless and the purpose of filing the complaint was only to harass the appellant. Thereafter, the respondent no. 2 filed a complaint under the D.V. Act 2005 on 12.6.2009 and in the meantime, the respondent no. 2 also filed Civil Suit on 17.7.2009 in the Court of Civil Judge (Senior Division), Ludhiana, seeking declaration that the judgment and decree dated 20.3.2008 i.e. decree of divorce, was null and void as it had been obtained by fraud. The said suit was pending. The respondent no. 2 also filed application dated 17.12.2009 under Guardians and Wards Act, 1890 for grant of custody and guardianship of the minor child, which was also pending. The respondent no. 2 had also filed on 11.02.2010 a FIR under Sections 406, 498A, 376, 120-B of the Indian Penal Code, 1860 against the appellant and his mother and sister.
In the backdrop of aforesaid facts, the Supreme Court while quashing the complaint under the D.V. Act, made observations which have been stated hereinabove and which have been heavily relied upon by the advocate for the petitioners for supporting the submission that so far petitioner nos. 2 and 3 are concerned, the complaint was time barred. This Court is of the view that the complaint is whether time barred or not is a question of evidence also and which can be established only after the evidences in this behalf is lead. In the present case, no elaborate evidences have been led by parties nor has the court gone into it for passing the interim maintenance orders and at the time the question of complaint qua petitioner nos. 2 and 3 being time barred was not articulately raised. However, fact remains to be noted that so far as the wife and husband leaving the matrimonial home on 24.11.2007 is concerned, it cannot be said that it needs any more evidences and if that date is to be accepted to be a correct date and undisputed date, then, the proposition qua the petition being time barred qua petitioner nos. 2 and 3 appears to be more attractive but unfortunately, this Court is unable to accept that proposition on the ground that the concept of time bar is essentially required to be looked into from the angle of prayers made and in the present case, the question of application being time barred or not will assumes significance only from the pleading of prayer and allegations. The question of time barred though has not been very articulately said in terms but one need not lose sight of the fact that the many gnawing questions will have to be answered before holding that the action is time barred and such question can only be decided when the evidences is led and in the instant case, the question is sought to be pressed into service at the beginning of the case, where the Court has also opined that it was not going to other evidence at this stage. This Court, in view of the observations of the Apex Court, need not go into the elaborate discussion qua in what circumstances and how the question of time bar could be pressed into service. Though on a plain reading of section couple with the decisions cited at bar, would indicate that the nature of relief claimed in divorce proceedings, which is by and large of Civil nature and therefore, the question of time bar may arises only when there is an attempt to bring in fact of punishment on account of any breach of any order. The Court hastened to add here that this question need not be elaborated at this stage but suffice it to say that the observation of Supreme Court qua applicability of the Cr.P.C. are required to be seen from the facts of each case and facts in which the Supreme Court has observed, are different than the facts of present case and therefore, without elaborately dwelling on this aspect, suffice it to say that Court at this stage is not inclined to unequivocally hold that petition is time barred qua petitioner nos. 2 and 3. The same is though not concluded could be agitated at relevant time on the strength of the evidences available, in light of the prayers, incidence of violence alleged against the parents, and on question as to whether moving out of the matrimonial house on 24.11.2008 could be said to be ceasing to be in shared household in the true sense of the definition or was it only a temporary arrangement not amounting to snapping domesticity between the parties.
At this stage, the opponents have taken a stand that the moving into separate residential accommodation on 24.11.2007 cannot be said to be a separation or exit from the shared house hold as sought to be made out by learned advocate for the petitioners. The reliance is placed upon the averments made in para-4(iii) of the reply filed by the opponent no. 1 before the proceedings in Criminal Misc. Application No. 180 of 2009, which is set out as under:
(iii) The opponent no.1 states that sometime after marriage the applicant also showed a desire to separate from the joint family and leave the matrimonial house. The opponent no.1 s family after much deliberations succumbed to the pressure of the applicant. Accordingly the applicant and the opponent no.1 were provided with a separate flat with a hope that the egoistic behaviour of the applicant and opponent no.1 would again join the joint family. The applicant and the opponent no.1 started living separately from 24.11.2007. Even thereafter the applicant continued to show her attitude of superiority complex and time and again threatened of committing suicide on petty issues.
At this stage, learned advocate for the petitioners submitted that the say of wife as per her own application may also be considered and learned advocate for petitioners invited this Court s attention to page-38 in the memo of Special Criminal Application No. 1731 of 2012 and said that the vernacular could be translated thus:
24.11.2007 Father-in-law and husband and thereafter, myself and Yogesh started residing at 11/132 Pooja Flat, Ambawadi from 24.11.2007. Even at that place, Yogesh would at the instance of his mother and father leave her alone on every Saturday to Monday under the pretext of having some typing work to be done with his father. He would simply not bother for me during such interregnum period of 3 days.
Thus, even in separate flat, the husband was staying three days with his parents and four days with wife.
The learned counsel for the respondents has thus contended that ground of time bar would not be available in this proceeding and reliance is placed upon the decision of the Supreme Court in case of V.D. Bhanot (supra) reported in 2012 (1) GLH 688, wherein the Supreme Court has in a judgment delivered after judgment of the Apex Court in case of Inderjit Singh Garewal (supra), held that Section 12, Section 18, Section 19 and Section 20 could bring in action under D.V. Act even if the woman was not residing with husband and parents and even before advent of PWDV Act. The conduct of the parties even prior to the coming to the aforesaid Act can be taken into consideration while passing the order under Sections 18, 19 and 20 of D.V. Act and as observed by the Apex Court, it was urged that present petitions deserve to be dismissed and the ground of quashment of order of discharge even qua petitioner nos. 2 and 3 cannot be continuance by the Court.
The Court is of the view that as it is reiterated hereinabove, the prayers as well as allegations and averments made in the application and invocation of aforesaid sections and prayers made thereunder, would persuade this Court to hold that violence, which is though basically subject matter of evidence, prima-facie calls for examination and therefore, the finding recorded by the trial Court is correct and is not required any interference. Of course, this being an observation which may not ultimately influence the final outcome of the matter, which is to be decided after giving full opportunity to both the sides. Having concluded that there is no requirement or petitioners are not required to be exempted from discharge on account of discharge application are not to be said to be not wrongly rejected.
So far as deciding the aforesaid question on merit is concerned, it hardly requires any discussion as the Court is of the view that aforesaid discussion would cover the aspect on merits also.
This brings the Court to consider the aspect of income and order passed for maintenance. The provisions of D.V. Act in unequivocal terms provide for existence of two orders and two sets of maintenance. However, it is required to be observed that in a given case, whether adequacy of the maintenance amount is gnawing question, then, a different consideration would weigh and those consideration are required to be borne in mind while exercising the aspect of maintenance. In the instant case also, the fact remains to be noted that factors pleaded are the factors of income of the husband only, as it is reflected in the income tax returns but it cannot be gainsaid that the aspect of income as considered by the Court is of course based upon its assessment from the evidence of the parties. This Court, in case of Anup Vinod Vidhani Vs. State of Gujarat & one, in Criminal Misc. Application No. 563 of 2010 decided on 29.1.2010, held that documents in form of income tax return are never be treated as conclusive proof and therefore, all the circumstances attending are to be looked into. The petitioner is also not incorrect in contending that the court did not elaborately relied upon the evidences of income but one fact needs to be noted is that the petitioner husband is practicing advocate and his practice and filing etc could have been pleaded for or against income determination but court is free to take into considerations the common knowledge about standard of fees charged by advocates with this standing. The fact remained to be noted that the insistence of respondent wife upon the petitioner husband for production of documents in form of his bank accounts and affidavit to the effect that how many bank accounts he is holding etc are not heeded by the petitioner husband, in short petitioner husband has also not lead any positive evidence except filing returns to support of his contention. In such situation court would not be incorrect in taking into considerations, what is obvious and pass appropriate order for maintenance. In the instant case, the marriage span is 6 years and existence of child to be reared by the wife is factors, which cannot be brushed aside. The Court is of the view that the factors with regard to capacity to earn and ostensible income leads the Court to come to the conclusion that the order of the family court needs no modifications, the maintenance amount of Rs.7000/- p.m. be paid as ordered and the amount of Rs.10,000/- as per order under D.V. Act is required to be reduced only by Rs.3000/- for striking balance and hence now as per the reduction petitioner would liable to pay Rs.7000/- to wife and child under the proceedings of D.V. Act, which would make total liability to the tune of Rs.14000/- p.m. Thus petitioner has to pay Rs.14000/- p.m. to respondents by way of maintenance under the proceedings in question. It is clarified that this amount will not be final amount in any manner. It would be open for the wife to move the Court under the provisions of D.V. Act for seeking further monetary relief for meeting her requirement of residence if circumstances so warrant and that time this order would not be construed as any impediment in way of granting such relief. Hence, now instead of paying total amount of Rs.17,000/- p.m. towards maintenance, the petitioner is directed to pay total amount of Rs.14,000/- p.m. to respondents.
In view of aforesaid, the petitions are disposed of. Rule made absolute to aforesaid extent. Interim relief granted earlier stands vacated.
At this stage, learned advocate appearing for the petitioners seek extension of stay of proceedings of Criminal Misc. Application No. 180 of 2009 qua it being conducted and not qua the payment of liability of arrears and future recurring. The petitioner no.1 is also present in person before the Court and he submits that stay is sought only qua further proceedings of Criminal Misc. Application No. 180 of 2009 and this stay even if it is extended, is only for enabling the petitioner no. 1 to approach the higher forum and it may not be construed as stay of his liability to pay the maintenance as ordered till he obtains order from the Higher Forum. In other words, the execution application that may be filed by respondent wife, may not be considered to be stayed on account of this order and they may be permitted to proceed in accordance with law. This request is vehemently opposed by learned counsel for the respondents on the ground that staying of the proceedings of Criminal Misc. Application No. 180 of 2009 would amount to granting premium to his recalcitrant attitude and the wife and child is to suffer more and will be hie and dry for these long time without any maintenance.
The Court is of the view that the stay only qua criminal proceedings in form of Criminal Misc. Application No. 180 of 2009 is required to be extended till 20.11.2013. This may not be construed as stay against any recovery application or any proceeding for recovering the maintenance amount as ordered and even party-in-person - the petitioner no.1 has agreed to this effect.
Registry is directed to keep copy of this judgment in each matter.
(S.R.BRAHMBHATT, J.) pallav Page 40 of 40
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Judges
  • S R Brahmbhatt