Back
2018 Supreme(Bom) 659
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARATI H. DANGRE, J.
Jayashri Samshuddin Talapdar – Applicant
Versus
Samshuddin Karim Talapdar & Another – Respondents
Criminal Revision Application No. 129 of 2017
Decided On : 05-04-2018
For the Applicant :Suhas Inamdar, Advocate
For the Respondents:Shantaram A. Tarale, Advocate, Rajan Saliv, APP.
Headnote:
Criminal Procedure Code,1973 - section 2, 12, 17, 18, 19, 20, 22 and 125 - Domestic Violence Act, 2005 - Section 29 - Pay an amount - Claim maintenance from respondent - Present revision application is filed by applicant wife being aggrieved by order Sessions Court at thereby reversing order passed by Judicial Magistrate First Class Criminal Miscellaneous Application - By said order passed by JMF Can amount maintenance to tune an amount towards rent was directed to be paid to applicant wife - Said order is being assailed by applicant on ground that observations made by Sessions Court based on judgment in case do not take into consideration true construction and interpretation of term domestic relationship” as contemplated Domestic Violence Act – Held, Attempt made part of respondent to bring on record that prior to her first marriage applicant was living in relationship with some other person and had in fact claimed maintenance from said person to tune of no assistance to respondent since merely throwing doubt on character woman like applicant would not make escape liability specifically when he has shared same household with her and treated her like his wife for period of approximately years which fact goes undisputed and has been corroborated by witnesses - In such circumstances parameters laid down in cannot be made applicable to present case in hand - Ultimately nature of relationship between applicant and respondent is question of fact and degree and would have to be looked out from said angle - In subsequent judgment in case of Krishna Hobble Apex Court has reviewed entire position law and considering act that Act is beneficial and affirmative legislation for more effective protection of constitutional rights women and for ensuring that they do not become victims of any domestic violence has given wide interpretation to term Domestic Violence and including within its ambit term economic abuse - Hobble Apex Court observed thus in Para Regard being had to nature of legislation more sensitive approach is expected from courts where Act no relief can be granted it should never be conceived of but before throwing petition at threshold on ground of maintainability there has to be an opposite discussion and thorough deliberation on issues raised - It should be borne in mind that helpless and hapless aggrieved person Act approaches court compelling circumstances - It is duty of court to scrutinize facts from all angles whether plea advanced by respondent to nullify grievance of aggrieved person is really legally sound and correct - principle “justice to cause is equivalent to salt of ocean” should be kept in mind - Court of law is bound to uphold truth which sparkles when justice is done - Before throwing petition at threshold it is obligatory to see that person aggrieved such legislation is not faced with situation of non adjudication for Act as court have stated is beneficial as well as assertively affirmative enactment for realization constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence – Order accordingly
1. The present revision application is filed by the applicant wife being aggrieved by the order of the Sessions Court at Solapur, thereby reversing the order passed by the Judicial Magistrate First Class, Solapur in Criminal Miscellaneous Application No.247 of 2010 dated 23rd July 2012. By the said order passed by the JMFC, an amount of maintenance to the tune of Rs.1,000/- and an amount towards the rent was directed to be paid to the applicant wife. The said order is being assailed by the applicant on the ground that the observations made by the Sessions Court based on the judgment in case of Indra Sarma Vs. V.K.V. Sarma (2013)15 SCC 755) do not take into consideration the true construction and interpretation of the term “domestic relationship” as contemplated under the Domestic Violence Act, 2005. According to the learned counsel, the parameters laid down in the case of D. Velusamy Vs. D. Patchaiammal (2010) 10 SCC 469) have not been applied in true sense and spirit, which has resulted into an erroneous order.
2. In order to appreciate the controversy in hand, it would be necessary to briefly refer to the facts. The petitioner before the Court has moved an application in the Court of Chief Judicial Magistrate under section 2, 12, 17, 18, 19, 20, 22 and 125 of the Code of Criminal Procedure, claiming maintenance from the respondent. The specific case of the applicant before the Court was that she was already married to one Parmeshwar Melage and the marriage was solemnized 20 years back. Out of the said wedlock, two sons and one daughter were born, but from the year 1994, her husband went absconding, and she is not knowing his whereabouts. It is her specific case that the respondent who belongs to Muslim religion is a trader, trading in vegetables, and she was vendor and carrying trading in vegetables to earn her livelihood for herself after she being rendered destitute by her husband, came in contact with him and from the year 1998, she is residing in a joint household along with the respondent. Her specific case before the JMFC was that the relationship between herself and the respondent was akin to a marriage and she was introduced in the society as the wife of the respondent Shamshuddin Talapdar. It is her specific case that she continued to reside with him for last 15 years and she had enjoyed the status of 'wife' from the said respondent. It is also her specific case that there was also sharing in respect of the income and also in respect of the household expenses being incurred by the parties. She also specifically makes a statement that her children use to address the respondent as 'father'. However, subsequently, due to certain differences, she left the residential house of the respondent and started residing separately. At a subsequent point of time, she instituted the proceedings seeking an amount of maintenance and also claiming certain reliefs under Chapter IV under the Domestic Violence Act.
3. In furtherance of the said proceeding, which he initiated, she filed an affidavit before the Court categorically referring to the nature of relationship shared by her with the respondent. She also entered into the witness box, and she was extensively cross-examined by the respondent. She also examined one Baban Bavdankar, a resident of Solapur, who happened to be in contact with the petitioner and respondent and he specifically stated that he was knowing the petitioner and respondent as husband and wife. However, in the cross-examination, he admits that when the parties had approached him for seeking his house on rent, they had informed him that they were husband and wife. Another witness examined by the applicant is Shivaji Shrihari Vyavhare, who is a distant relative of the applicant, was also subjected to extensive cross-examination. One Padmini Namdeo Chavan also came to be examined, who categorically stated that she was knowing the applicant since last 10 years, the applicant and the respondent were residing a
