Gajanan S/o Parashram Rathod vs Surekha Gajanan Rathod

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 41

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S. G. MEHARE, J.
Gajanan S/o Parashram Rathod – Appellant
Versus
Surekha Gajanan Rathod – Respondent
Criminal Revision Application No.290 of 2018
Decided on : 24-01-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Sachin S. Deshmukh.
For the Respondent: Mr. Amol B. Chalak.

Headnote:
Criminal Procedure Code, 1973 – Section 125 – Protection of Women from Domestic Violence Act, 2005 – Section 18, 20, 22, 12, 36 – Offence Punishable – Quashing First Information Report – Domestic incident report – Application to Magistrate – Act not in derogation of any other law – If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him – Whether domestic violence was committed are not fall under shadow of doubt and accordingly held that there was no domestic violence against applicant and refused relief to petitioner under D.V. Act – Held, Law is well settled that person aggrieved may take recourse under various Laws if right exists – Since maintenance is allowed under Section 125 of Cr.P.C., Law does not bar person entitled to claim relief under D.V. Act – Section 36 of D.V. Act provides that D.V. Act is not in derogation of any other law – It is an additional provision of Law not affecting other provisions of Law available for similar relief – Inquiry under D.V. Act is independent and has an object to provide for more effective protection of rights of a woman who are victims of violence of any kind occurring within family and for matters connected therewith or incidental thereto - Since proceeding under D.V. Act is independent, ratio laid down in case would not assist applicant – Court is of view that impugned order is free from flaws, legally correct and proper – Application stands dismissed.

JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by consent of the parties.

2. The applicant/husband has preferred this criminal revision application against the order of the learned Additional Sessions Judge, Basmathnagar passed in Criminal Appeal No.3 of 2014, dated 26.07.2018.

3. The 'petitioner' would be referred to as the 'respondent' and the 'respondent' would be referred to as the 'applicant' hereinafter.

4. The applicant got married respondent on 09.05.2007. However, their marital relations turned bitter. Therefore, a customary divorce was executed on 01.02.2012, accepting the lumpsum alimony of Rs.1,75,000/-. Then, the respondent/husband filed a divorce petition on 17.04.2012 on the ground of cruelty. The petitioner/wife filed an application under the Protection of Women from Domestic Violence Act, 2005 (for short "D.V. Act"), before the learned Judicial Magistrate First Class, Aundha Nagnath, on 14.08.2012, i.e. after the divorce petition of respondent. The learned Judicial Magistrate, therefore, recorded the reasons whether the domestic violence was committed are not fall under the shadow of doubt and accordingly held that there was no domestic violence against the applicant and refused the relief to the petitioner under D.V. Act.

5. Dissatisfied with the order of the learned Magistrate, the applicant had preferred an appeal before the Additional Sessions Judge, Basmathnagar.

6. Analyzing the various provisions of the D.V.Act, the learned Additional Sessions Judge arrived at the conclusion that there was domestic violence and allowed the appeal granting the relief of providing adequate rented accommodation. Till accommodation, the respondent was directed to pay Rs.1500/- towards the rent. The maintenance of Rs.3,500/- per month was also awarded. The lump sum amount of alimony received at the time of the customary divorce was directed to be adjusted towards the arrears of maintenance.

7. Heard the learned counsel for the applicant and the learned counsel for the respondent at length.

8. Learned counsel for the respondent has vehemently argued that since the domestic relationship did not exist on the day of filing the application, the applicant is not entitled to any relief under D.V.Act. He also argued that the divorcee is not entitled to claim the reliefs as the applicant claimed. Since 02.02.2012, she has been residing with her parents. During the pendency of her application, the Civil Court granted a decree of divorce. Therefore, the relationship between them did not exist. He would also argue that once the wife accepted the lumpsum alimony through the customary divorce, she was not entitled to maintenance under Section 125 of the Cr.P.C.

9. To bolster his argument, he relied on the cases of (i) Inderjit Singh Grewal Vs. State of Punjab and another, Criminal Appeal No.1635 of 2011 (Arising out of SLP (Cri.) No.7787 of 2010) SC, dated 23.08.2011, (ii) Criminal Writ Petition No.259 of 2009, Jayesh Uttamrao Khairnar and others Vs. State of Maharashtra and others, Bombay High Court, Aurangabad Bench, decided on 07.09.2009, (iii) Criminal Writ Petition No.1014 of 2017, Anita W/o Anand Tambe, Vs. Anand S/o Eknath Tambe, Bombay High Court, Nagpur Bench decided on 28.02.2018, (iv) Criminal Revision Application (Rev.) No.121 of 2018, Smt. Sadhana W/o Hemant Walwatkar Vs. Hemant Shalikramji Walwatkar, decided by this Court at Nagpur Bench on 18.04.2019. He also relied on the case of Vitthal Hiraji Jadhav Vs. Harnabai Vitthal Jadhav and another, 2003 (2) Bombay C.R. (Cri.) 1455. Based on the above case laws and facts, he prayed to allow the criminal revision application and set aside the impugned order.

10. Per contra, the learned counsel for the applicant vehemently argued that the domestic relation subsisted on the date of filing the application. The customary divorce was not valid. Domestic violence was committed against the victim. The domestic violence report of the Protection Officer was available to the lear

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