JUDGMENT

SHIVA KIRTI SINGH, J.:–By the impugned judgment and order dated 24.1.2013 the learned Single Judge of High Court of Judicature at Bombay has allowed Criminal Revision Petition No. 79 of 2012 preferred by the respondents by reversing order of learned Sessions Court and restoring that of learned Judicial Magistrate First Class, Miraj passed in Criminal Miscellaneous Application No. 147/2011.

2. The facts relevant for adjudication of relevant issue arising in this appeal lie within a narrow compass. Respondent no. 1 is wife of appellant, respondent no. 2 is unmarried daughter and respondent no. 3 is minor son born out of marriage between the appellant and respondent no. 1. The aforesaid three contesting respondents initiated the present proceedings before the learned Magistrate by preferring an application under Sections 12, 18, 19, 20, 21 and 22 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”). Learned Magistrate noticed the case of rival parties including undisputed facts such as solemnization of the marriage on 27.3.1986 as per Hindu rites. It is the case of contesting respondents/applicants that the appellant has qualification of D. Pharmacy and has a shop named Vijay Medical situated at a favourable location. Since the wife is handicapped by right leg, not only the husband made uncharitable remarks and meted out ill treatment but also neglected her by regularly coming to home late. He also made demands for money which the parents of the wife met from time to time. He defaulted in payment of instalments of a flat situated at Grimar Complex, in the year 2001 and when the concerned bank wanted to seize that property wife’s relation came to their help and paid the loan on transfer of the property in the name of the wife. The wife has alleged that the appellant had a girlfriend whom he subsequently married and from that marriage also he has a son. It is also her case that due to mental and physical abuse, she agreed to file an application for divorce by mutual consent but the appellant did not fulfill the agreed term of paying her Rs. 5,00,000/- as alimony. Hence the application for divorce ultimately got dismissed. The wife claimed for maintenance for herself and children on the ground that the appellant is living with the second wife and although he is earning Rs. 40,000/- from the shop, he is not paying anything towards their maintenance. She claimed Rs. 10,000/- per month as maintenance for herself and same amount for each of her children and also a compensation of Rs. 50,00,000/-.

3. The appellant denied all the allegations. He claimed that he has stopped running his medicine shop and rented it out to another person. He alleged that his wife had negative attitude and therefore she had made his life miserable. He also denied the second marriage and claimed that after the flat was transferred in the name of the wife he was driven out and therefore he is living separately. According to him the wife is capable of maintaining herself and children and the application was filed only to harass him.

4. After considering the case of both the parties and the materials produced by them, the learned Magistrate held that the application filed by the wife was maintainable and she was eligible to claim remedy under the Act because after the rejection of divorce petition, she remained a lawfully wedded wife of appellant. He also held that appellant committed act of domestic violence. The defence of the appellant that he has rented out shop for a meagre amount of Rs 3,000/- to one Rajashri Patil was rejected. The learned Magistrate considered the birth certificate of son of the appellant from the alleged second wife as well as the related circumstances and came to a finding that appellant had performed second marriage, was living with the other woman and was therefore guilty of domestic violence. Ultimately, by way of maintenance the learned Magistrate fixed Rs. 5,000/- per month for the wife