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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.1636 OF 2019

Satish S/o Kondarao Deshmukh,

Age : 33 years, Occu.: Unemployed,

R/o. N9 K 69/6, Pavan Nagar, HUDCO,

Aurangabad

… Petitioner

Versus

1.

Deepali W/o Satish Deshmukh

Age : 31 years, Occu.: Govt. Service,

2.

Shubhanit S/o Satish Deshmukh

Age : 6 years (Minor), Occu. Education,

U/g. Deepali W/o Satish Deshmukh

(Mother)

Both R/o. At present

C/o. Jagannath Jagadale,

Plot No. 48, Aaisaheb Nagar,

Pisadevi Road, Harsul, Aurangabad

… Respondents

.…

Mr. Fulchand R. Tandale, Advocate for the Petitioner

Mr. Hemant S. Surve, Advocate for Respondent Nos.1 and 2

….

CORAM : SHRIKANT D. KULKARNI, J.

RESERVED ON : 12 AUGUST, 2022

PRONOUNCED ON : 25 AUGUST, 2022

ORAL JUDGMENT :-

.

The petitioner by invoking the writ jurisdiction, has

challenged the order passed by the Additional Sessions

Judge-6, Aurangabad in PWDV Appeal No. 176 of 2017 dated

31.08.2019.

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2.

The factual scenario giving rise to this petition in brief

is as under.

3.

The marriage between the petitioner and respondent

No.1 was solemnized on 02.03.2012. Out of wedlock, son

Shubhanit is born. At the time of pregnancy, respondent No.1

Deepali went to her paternal house. She came back to the

matrimonial house after delivery, but was not allowed to stay

in the matrimonial house. The matrimonial discord began in

the month of December, 2014. Respondent No.1/wife filed a

petition for restitution of conjugal rights on 23.03.2015. The

petitioner/husband filed divorce petition. Respondent No.1

Deepali filed proceedings under the provisions of the

Protection of Women from Domestic Violence Act, 2005

(hereinafter referred to as “the D.V. Act” for the sake of

convenience) and sought interim maintenance. The learned

Judicial Magistrate, First Class, Aurangabad was pleased to

reject the application for interim maintenance. Feeling

aggrieved thereby, respondent No.1 Deepali filed an appeal

under the D.V. Act. The learned Additional Sessions Judge-6,

Aurangabad was pleased to partly allow the appeal and

directed to the petitioner to pay interim maintenance @

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7,000/- per month towards his contribution to the

maintenance and education expenses of applicant No.2 from

the date of filing of application dated 04.03.2017.

4.

Heard Mr. F.R. Tandale, learned counsel for the

petitioner and Mr. Hemant Surve, learned counsel for

respondent Nos. 1 and 2.

5.

Mr. Tandale, learned counsel for the petitioner

vehemently submitted that the learned Magistrate after

taking into consideration the facts of the case and documents

on record was pleased to reject the application for interim

maintenance. It is observed by the learned Magistrate that

respondent No.1 Deepali is serving as a teacher and drawing

salary, which is sufficient to maintain herself and her son. He

submitted that the learned Additional Sessions Judge has

committed an error in reversing the findings. The petitioner

is now jobless. His financial position is not strong to pay

interim maintenance of Rs.7,000/- per month towards his

contribution for the maintenance and education expenses of

his son.

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6.

Mr. Tandale, learned counsel for the petitioner invited

my attention to the documents regarding poor financial

condition of the petitioner. He submitted that the petitioner

has resigned from the Cipla Pharmaceutical Company Ltd.

Aurangabad due to matrimonial dispute and now serving in

one medical shop. This aspect is completely overlooked by

the learned Additional Sessions Judge. The impugned order

of interim maintenance passed by the Additional Sessions

Judge is bad in law and liable to be dismissed.

7.

Mr. Tandale submitted that there is no finding

whether respondent No.1 was subjected to domestic violence