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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Indira Jain, J.
Gautam S/o Jairam Gavai – Applicant
Versus
Sau. Ragini W/o Gautam Gavai – Respondent
Criminal Application (APL) Nos. 664 of 2011 with 229 of 2015
Decided On : 20-01-2017
Family Court has held that `R` was not the legally weded wife of `G` and proceeded to consider the application under Section 125 of the Code of Criminal Procedure under Section 26 of the Family Courts Act and awarded maintenance to her.
It is apparent that the Court would not be empowered to grant the relief unless sought. In the present case, it appears that at the time of delivering judgment, the Court suo motu considered the application under Section 26 of the Domestic Violence Act thereby clearly denying an opportunity to non- applicant to meet with the same. It was obligatory on the part of the Family Court to hear the non-applicant before awarding maintenance under Section 26 of the Domestic Violence Act. Since the Family Court failed for the same and since the applicant/present non-applicant failed to establish that she entered into domestic relationship or she was legally married to non-applicant, she was not entitled to relief of maintenance either under Section 125 of the Code of Criminal Procedure or under the provisions of the Domestic Violence Act.
Protection of Women from Domestic Violence Act, 2005 - Section 2(f)-Domestic relationship.-A married woman cannot enter into a domestic relationship as mentioned in Section 2(f) of Act.
To attract the provisions of Domestic Violence Act, applicant must not only to show existence of live- in-relationship with the non-applicant which is akin to a marriage visible from the fact that applicant and non-applicant are living together as husband and wife but also should show that they are otherwise legally qualified to marry.
A woman, who is married, cannot enter into a domestic relationship as contemplated under Section 2(f) of the Domestic Violence Act, and even if, she is successful in establishing a long standing relationship with the man, she would not be entitled to protection under the provisions of the Domestic Violence Act.
Protection of Women from Domestic Violence Act, 2005 - Section 26-Criminal Procedure Code, 1973, Section 125-Grant of maintenance.-Court, not empowered to grant relief of maintenance suo motu considering application under Section 26 of Act.
The Court would not be empowered to grant the relief unless sought. In the present case, the Court suo motu considered the application under Section 26 of the Domestic Violence Act thereby clearly denying an opportunity to non-applicant to meet with the same.
It was obligatory on the part of the Family Court to hear the non-applicant before awarding maintenance under Section 26 of the Domestic Violence Act. Since the Family Court failed for the same and since the applicant/present non-applicant failed to establish that she entered into domestic relationship or she was legally married to non-applicant, she was not entitled to relief of maintenance either under Section 125 of the Code of Criminal Procedure or under the provisions of the Domestic Violence Act.
Indira Jain, J.
1. By these applications under Section 482 of the Code of Criminal Procedure, applicant has assailed the judgment and order of the Family Court, Akola in Petition No. E-82/2010 passed on 21.10.2011, order dated 31.12.2014 passed by the Judicial Magistrate, First Class, Akola in Miscellaneous Criminal Case No. 949/2010 and order dated 18.3.2015 passed by the Adhoc Additional Sessions Judge, Akola in Criminal Appeal No. 11/2015.
2. Heard the learned counsel for the parties. Since common questions of facts and law arise in these two applications, they are disposed of by common judgment.
3. The facts giving rise to the applications may be stated, in brief, as under:
Respondent no. 1 claiming herself to be the wife of applicant, filed an application under Section 125 of the Code of Criminal Procedure before the Family Court, Akola. She pleaded that she was married to applicant Gautam Gawai on 11.5.1997. They have two sons Vaibhav and Nipun born out of the said wedlock. According to respondent Ragini, till Diwali 2009, they led happy married life. After Diwali-2009, quarrel between respondent and applicant started and applicant used to treat her as maid servant. He started harassing her and ultimately left the house, not to return forever. She made efforts to find out his whereabouts. She was not successful and so she informed about the same to the Superintendent of Police. According to respondent, both the children were studying in English Medium School. She was unable to maintain herself. She, therefore, claimed maintenance for herself and the children.
4. Applicant appeared in the proceedings and contested the same. He denied marriage between him and respondent Ragini. According to applicant, he was married to Suvarna on 9.5.1990. The couple were blessed with three children. Marriage between applicant and Suvarna still subsists. Further submission is that respondent is a legally wedded wife of one Shamrao Bhopaji Ambhore and her marriage was solemnized on 01.03.1995 under the provisions of the Special Marriage Act. He contended that on false grounds, application for maintenance came to be filed and prayed to reject the same.
5. On appreciation of evidence, Family Court came to the conclusion that Ragini was not the legally wedded wife of Gautam Gawai. However, keeping in view the object of the provisions relating to maintenance, the learned Judge thought it appropriate to consider the prayer for maintenance under Section 26 of the Family Courts Act and awarded maintenance at the rate of Rs. 1500/- per month to the applicant. It is this order which is the subject matter of Criminal Application No. 664/2011.
6. In another proceeding, respondent presented an application under the provisions of the Protection of Women from Domestic Violence Act, 2005 (In short "Domestic Violence Act") claiming relief of protection order, monetary relief and compensation. This application was presented almost on the same grounds on which an application under Section 125 of the Code of Criminal Procedure was filed by her. Considering the evidence, the learned Judicial Magistrate, First Class, partly allowed the application and granted maintenance at the rate of Rs. 2000/- per month to the applicant under Section 20 of the Domestic Violence Act. The order was carried in appeal before the District Court, Akola. Applicant preferred an application seeking stay to the judgment and order passed in Misc. Criminal Case No. 949/2010. Vide order dated 18.3.2015, the learned Adhoc Additional Sessions Judge, Akola allowed the application and stayed the impugned judgment, subject to condition of depositing 50% of the outstanding amount within one month from the date of order, with further condition that non-compliance of the same, would result into automatic end to the stay order. The order passed by the learned Judicial Magistrate, First Class and the order on Exh.5 passed by the learned Adhoc Additional Sessions Judge are the subject matter of
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