Monthly Archives: January 2017

just filing 4 divorce does NOT save you from 304B (dowry death) case.Only after divorce(decree), U R saved !!

  • Just filing a Divorce does NOT save you from 304B or dowry death case
  • Your are saved from 304B ONLY after your get your divorce (or after 7 years!!)
  • Generally divorce cases will run for a long long time and by they you may be dead !! so think twice

 

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NO interim maintenance 2 qualified (doctor &498a) wife even IF husband can’t prove her earnings! P&H HC

Punjab and Haryana HC denies Interim maintenance to a well qualified doctor wife who files 498a and CrPC 125 cocktail !! Court categorically asserts that “…Everyone has to earn for himself or herself or at least make an effort and would not sit idle…..”

A classic case where a doctor wife is first refused maintenance by the Magistrate court, then on revision before the sessions court she is granted Rs 10000 p.m. and the P & H HC rightfully orders that she IS NOT ELIGIBLE for maintenance as she is a well qualified Physiotherapist doctor !!

The Hon HC orders and we quote “….The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside……”

======================================

In the High Court of Punjab and Haryana at Chandigarh

Criminal Revision No. 2625 of 2014 (O&M)

Date of Decision: 29.09.2016

Monu Songra ….Petitioner

Versus

Pinki ….Respondent

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. Ashish Gupta, Advocate for the petitioner.

Mr. P.K.Ganga, Advocate for the respondent.


ANITA CHAUDHRY, J (ORAL)

The petitioner has assailed the order dated 13.6.2014 passed by the Additional Sessions Judge, Sirsa who allowed interim maintenance of Rs. 10,000/- per month to the wife reversing the order of the Magistrate who had dismissed the application filed under Section 125 Cr.P.C.

The parties were married on 27.11.2010. The husband is a Constable in Rajasthan. There is no child from this marriage. The wife had claimed that she had conceived but it resulted in miscarriage on 1.3.2011. Allegations were made that there were demands of dowry and she was not treated well. She claimed that she was thrown out of the matrimonial home. The petition under Section 125 Cr.P.C. was filed in February 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The Chief Judicial Magistrate vide its order dated 3.10.2013 dismissed the application and the reasons are disclosed in para 8 of the order which reads as under:- “After hearing ld. Counsel for the parties and having gone through record carefully I am of the considered opinion that the application is liable to be dismissed. It is admitted case of the parties that they married to each other. It is also admitted case of the parties that they got strained relations between them. It is also admitted fact that no child was born out this wedlock. It is also admitted fact that criminal case u/s 498-A IPC has been registered against the respondent at the instance of the complainant. It is also admitted case that the petitioner filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 which was dismissed as withdrawn. No doubt there are counter allegations against each other and both the parties are trying to make the other party responsible for disturbing the matrimonial life. But in this application, only one this is to be examined as to whether the petitioner is unable to maintain herself or whether he or she is having any sufficient means of income. The copy of FIR mentioned above clearly shows that the petitioner has categorically stated therein that she is physiotherapist doctor meaning thereby that she is well educated and respondent has categorically stated that she is earning 25,000/- per month. Even this amount may be exaggerated however it can be easily inferred that she might have been earning sufficient income maintain herself.”

Aggrieved by the judgment, a revision was preferred by the wife. The Additional Sessions Judge, Sirsa vide its order dated 13.6.2014 was of the view that even if the wife had a professional degree it would not matter and she would have to gain sufficient experience to earn and there was no allegation that she was working as a doctor in an institute or had opened her own clinic. It allowed the revision and awarded Rs. 10,000/- per month as maintenance.

The petitioner claims that the wife did not want to live with him and she had filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights but later the petition was withdrawn as he had appeared and made a statement that he was willing to keep her at his place of posting but the wife refused to accompany him. It was pleaded that the wife had got an FIR registered against him. It was also pleaded that the petitioner had concealed that she was a Physiotherapist before her marriage and was working and she did not mention this fact in her petition and it was a case of concealment. It was pleaded that his basic salary was Rs. 8550/- per month and after deduction, the carry home salary was 15065/- and the Court below had allowed Rs. 10,000/- taking the major portion of his salary, when he had his old parents to look after.

I have heard submissions of both the sides.

Counsel for the petitioner has placed on record a copy of the judgment dated 30.4.2016 to show that the trial had ended in acquittal. He has placed on record a copy of the FIR where the wife had described herself as a physiotherapist (doctor).

The submission on behalf of the petitioner was that the wife had deserted the husband and she did not want to go and live in Rajasthan and she herself withdrew the petition and it was a case of concealment of fact. It was urged that the wife had done her diploma in Physiotherapy after her 12th class and thereafter had completed her Graduation sometime in 3 of 5 2007 and the marriage took place in 2010 and the wife was working even before marriage and the Revisional Court assumed that it would take a number of years for her to settle in her profession. It was urged that the Court did not consider the fact that there was an admission that she was a Physiotherapist and this information was given by her at the time of lodging of the FIR in September 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The submission, on the other hand, was that the respondent was not earning and the husband is under a duty to provide for the wife.

The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside.

Before parting with the order, it is necessary to mention that the petition filed in 2013 has still not been decided. The litigation can really corrode human relationship and it is the duty of the Court to curtail it. There is no need to hurry but procrastination should not be manifest. The Courts should be in complete control over the proceedings and should not permit the lis to be prolonged and if either party is delaying the proceedings, necessary steps should be taken.

The petition is allowed. Order dated 13.6.2014 passed by the Additional Sessions Judge, is set aside.

Nothing contained in this order shall be taken as an opinion on merits. The trial Court would independently decide the case on the basis of the evidence that shall be adduced by the parties.

(ANITA CHAUDHRY)
JUDGE

September 29, 2016

Gurpreet


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


the more you pay the “Legal Terrorist” , the more “Legal Terror” grows !!

  • When a guy thinks of ONLY his own father, mother, brother etc & “settles” in lakhs or crores, paying to end a criminal case he feeds the sharks that will come hunting for the NEXT MALE. Period.
  • the more you pay the child kidnapper, the more stronger and greedy he becomes and comes for your brother’s, sister’s, cousin’s kid. the more you pay the more you are watering this “terrorist” ecosystem
  • The institutionalized anti male system in India, the unwritten ‘Pay to quash” system has thrived precisely on this “ransom” money.
  • This “Oh a few lakhs only” ransom is the building block for the Rs.4000 or Rs. 5000 crore p.a. male extortion Industry
  • It is one thing to amicably settle with the wife and end matters BEFORE Criminal cases… I have nothing against it. IMHO a decent parting of ways is good / advisable if you can’t live together.
  • Also, paying for one’s own child, or for the kid’s welfare, is our duty (joint or single can be argued). The kid did nothing wrong to the parent (in most cases). I generally encourage fathers to be liberal while paying the child / for the child…..
  • But it is an entirely different thing to pay a #fakeCase #FakeCriminalCase filing woman to get out easily and “move on” …
  • the more you feed fire, the more it grows
    ~~~~~
    this post is more to explain why we shouldn’t pay rather than point fingers or criticize…. There is enough criticism and complaint already ..but we need to think and evolve collectively …..there is NO other way

No Sec 125 maintenance for woman already getting ALIMONY – delhi HC 

IN THE HIGH COURT OF DELHI AT NEW DELHI

Crl. Rev. P. 726/2010 & Crl. M.A. 17479/2011

Reserved on: 8th August, 2011

Decided on: 4th November, 2011

ANITA ….. Petitioner

Through: Mr. Ratnesh Bansal, Advocate

versus

RATI RAM CHAUHAN ….. Respondents

Through: Mr. Shailender Dahiya, Advocate with Respondent in person.

Coram:

HON’BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J.

  1. By this petition the Petitioner seeks quashing of the Judgment dated 10th September, 2010 passed in case number 95/2010 by the learned Additional Principal Judge dismissing the application of the Petitioner seeking maintenance from the Respondent under Section 125 Cr. P. C.
  2. Briefly the facts are that the marriage between the parties was solemnized on 23rd February, 1996. The Petitioner claims that the Respondent and his family members were not satisfied with the dowry articles presented at the time of marriage. They started ill treating her and raised a demand of Rs. 1 Lac and a car. On 17th April, 1996 the Respondent, his father and sister pushed her down from the roof of the matrimonial home resulting in serious injuries to the Complainant. She was then removed by the neighbors to Gupta Nursing Home. The nursing home however did not admit her and referred her instead to Mata Chanan Devi Hospital. On 27th April, 1996 the Petitioner was discharged from Mata Chanan Devi Hospital and since then she has been staying in her parental home. After about 17-20 months, the Petitioner lodged a complaint with the police for the said incident and a case FIR No. 34/98 was registered under Section 498A/307/406/34 IPC. In the said trial the Respondent and his family members were acquitted by the learned Additional Session Judge. The Respondent in May, 1998 filed a petition for dissolution of marriage on the ground of cruelty and the marriage was dissolved by learned District Session Judge vide Judgment and decree dated 26th May, 2007. Vide this Judgment, the Petitioner was granted Rs. 3,000/- per month as alimony. There is however an appeal pending in this court filed by the Petitioner vide Mat. App. 46/2007. The Petitioner claims that after her injury, she is unable to move and the Respondent has not made any provision for her medical treatment or maintenance and is refusing to maintain her without any sufficient cause. Hence the present petition.

  3. The learned Counsel for Petitioner contends that the learned Additional Principal Judge in the impugned Judgment has placed great reliance on the fact that the Respondent and his family members have been acquitted by the learned Additional Session Judge. According to him this acquittal was not binding on the family court and therefore the maintenance application should have been decided on its own merits de- hors the findings of the learned Additional Sessions Judge in the criminal trial.

  4. It is stated that as per Section 125 Cr. P. C if a person with sufficient means neglects or refuses to maintain his wife then he is liable to pay her maintenance. Learned Counsel states that the learned Additional Principal Judge failed to appreciate the fact that during trial the Respondent admitted his liability to maintain the Petitioner but had not shown any intention to take the Petitioner back to the matrimonial home.

  5. Learned Counsel for Petitioner further states that the Petitioner has appealed against the Judgment dated 26th May, 2007 passed by the learned Additional Session Judge dissolving her marriage which is still pending in this Court. Under these circumstances the alimony of Rs. 3,000/- per month granted to the Petitioner in the divorce proceedings should have been disregarded by the learned Additional Principal Judge while deciding the petition for maintenance.

  6. Learned Counsel for Respondent on the other hand contends that the Respondent had never neglected to maintain the Petitioner. On the 17th April 1996, the Petitioner slipped from the stairs when the Petitioner and his father were not at home. The entire medical expenses were borne by the Respondent. The Respondent being a Government employee is entitled to all the facilities of medical treatment under CGHS and had repeatedly asked the Petitioner to get treated at any CGHS hospital. But all she did was demand money in lieu of medical expenses, trying to cause the Respondent wrongful loss. The Petitioner was never meted with cruelty. It is the Petitioner who has deserted the Respondent as she was not interested in maintaining the relations.

  7. I have heard learned Counsels for the parties. While adjudicating any issue it is the responsibility of the Judge to consider all the facts and circumstances. Proceedings under Section 125 CrPC are summons trial proceedings. The Court is justified on relying upon the findings of the competent Court in a criminal trial for the offences alleged and regarding cruelty by the matrimonial Court. In Inderjit Kaur vs. Union of India (1990) 1 SCC 344 it was held that, that Section 125 CrPC provides a speedy remedy against starvation of the civil liabilities of the parties, the order made thereunder is tentative and is subject to final determination of the rights in civil court. Further in Teja Singh vs. Chhoto 1981Crl. L.J. 1467 (Punjab & Haryana) while dealing with a similar issue it was held that even if an order granting maintenance had been passed in favour of the wife and if thereafter a decision between the parties is rendered by the civil court which has a bearing on the question which came up for consideration earlier before the Court dealing with the petition under Section 125 of the Code of Criminal Procedure, it has to give effect to the civil court order by cancelling the order granting maintenance if such is the import of the judgment of the civil court. In case of Sri Jasholal Agrawala @ Jain vs. Smt. Puspabati Agrawala, 1994 Crl.LJ 185 the High Court of Orissa it was held that it has to be taken as an accepted principle that the finding of the civil court in a matrimonial proceeding is binding on the criminal court and the criminal court is not entitled to question the correctness or validity of the civil court decision.

  8. The learned Additional Principal Judge was therefore justified in relying on the fact that the learned Additional District Judge by Judgment dated 26th May, 2007 had dissolved the marriage of the parties on the ground of cruelty by the Petitioner and had the Respondent actually been harassing or neglecting the Petitioner then he would have never succeeded in the divorce petition. The fact that the Respondent allowed bed ridden Petitioner to go to her parental home so that she could be looked after by her mother was also found to be convincing since the Respondent had no female member in his family.

  9. It is relevant to note that the Petitioner in her statement has admitted before doctor in the Hospital that she had slipped from the stairs on the day of incident. The Petitioner has not placed anything on record to show that there was any pressure from the side of Respondent on her to give that statement. Further, the father of the Petitioner in his statement before Court admitted that when he visited his daughter in the Hospital she did not tell him anything. From a perusal of the statements of witnesses, it is clear that the claim of the Petitioner that Respondents failed to maintain her and willfully neglected her is not substantiated.

  10. As per the record the Respondent had filed the medical bills of Mata Chanan Devi Hospital as evidence of making payment of the same. The father of the Petitioner in his explanation for the bills being in possession of the Respondent had stated that the respondent had stolen the bills from him. But this story is completely contradictory to his other statement wherein he had said that the Respondent never visited the Petitioner in the hospital or thereafter. Thus the Respondent had no occasion to commit the theft of the bills from the Petitioner or her father. Therefore it can be safely held that the Respondent bore the expenses of the Petitioner’s treatment in the hospital and he was not negligent in his responsibilities towards the Petitioner.

  11. The Petitioner has not been able to adduce any evidence to support her contention of being neglected by the Respondent. Moreover there is no explanation rendered by the Petitioner as to why she did not inform her neighbour or any other person who allegedly removed her to the nursing home that she was thrown by the Respondent or his father. Further the fact that the Complaint under Sections 498A, 406, 307 & 34 IPC was filed by the Petitioner after about 17-20 months of the incident shows that the same was an after thought. The Respondent on the other hand has adduced evidence to show that he had not neglected to maintain the Petitioner and is even paying Rs. 3,000/- per month regularly as directed by the learned Additional District Judge vide the Judgment dated 26th May, 2007.

  12. Learned Additional Principal Judge has considered all the relevant issues and scrutinize the matter. I do not find any infirmity in the Judgment dated 10th September, 2010.

The revision petition and the application are accordingly dismissed.

(MUKTA GUPTA) JUDGE NOVEMBER 04, 2011

Married woman can’t file S125, DV, 125 on second fella / lover boy !! Mumbai HC

A woman married to one Shamrao Bhopaji Ambhore files DV and CrPC 125 cases on another man by name Gautam Jairam Gawai claiming she was living together with the second fella and also begot two children. On appreciation of evidence, Family Court came to the conclusion that Ragini was not the legally wedded wife of Gautam Jairam Gawai (the second fella !!)  But the courts still award maintenance to that woman !!

The non-applicant (accused !!) fella goes on appeal to the Hon Bombay HC

The Hon Bombay HC appreciates the facts of the case and declares “…Needless to state that 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. ….”

The maintenance ordered to the woman is completely dismissed !!

Since the parentage of the children is also NOT clear, the accused / second fella is fully absolved of liabilities

================================================

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

CRIMINAL APPLICATION [APL] NO.664 OF 2011

Gautam s/o Jairam Gavai,
Aged 47 years,
Occupation-Service,
R/o. Washim Bypass, Akola,
Tahsil and District-Akola. .. PETITIONER/
APPLICANT

.. Versus ..

1] Sau. Ragini alleged w/o Gautam,
Gavai, Aged – Major,
Occupation-Service,
R/o. Kamla Nagar, Washim
By pass Road, Akola,
Tahsil and District-Akola.

2] Vaibhav Gautam Gavai

3] Nipun Gautam Gavai
All resident of C/o. Raginin Gautam
Gavai, R/o. Kamla Nagar, Washim
By pass Road, Akola,
Tahsil and District-Akola. .. RESPONDENTS

……….
Shri Rahul Dhande, Advocate for petitioner/applicant,
Shri A. Malnas, Advocate for respondents.
……….

WITH
CRIMINAL APPLICATION [APL] NO.229 OF 2015

Gautam Jairam Gawai,
Aged about 46, Occupation-Service,
Resident at Shivar, Akola,
presently residing at Sidharth Wadi,
Bye-pass Road, Akola,
Old City, Akola. .. APPLICANT

.. Versus ..

1] Ragini Gautam Gawai w/o Shamrao
Ambhore, Aged about 34,
Occupation-Service,
Residing at Kamla Nagar,
Washim Bye Pass, Akola,
Tahsil and District-Akola,
Police Station Old City, Akola.

2] The State of Maharashtra, through
its District General Police, Akola. .. RESPONDENTS

ig ……….

Shri Rahul Dhande, Advocate for applicant,
Shri A. Malnas, Advocate holding for Shri A.J. Mirza, Advocate for respondent no.1,
Shri M.J. Khan, A.P.P. for respondent no.2.
……….

CORAM : KUM. INDIRA JAIN, J.

DATED : JANUARY 20, 2017.

ORAL JUDGMENT

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. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

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 Criminal Application No.229/2015.

7] Learned counsel Shri Dhande submits that marriage between applicant and respondent is in dispute. Family Court has categorically held that there was no legal marriage between applicant and respondent. He submits that respondent could not establish dissolution of marriage in accordance with the law and in such circumstances, respondent was not entitled for maintenance under Section 125 of the Code of Criminal Procedure.

8] Regarding protection under the Domestic Violence Act, learned counsel submitted that domestic relationship between applicant and respondent is not established and in the absence of proof of domestic relationship, respondent was not entitled to any protection under the provisions of the Domestic Violence Act. In support of the submissions, learned counsel placed reliance on the decisions of the Hon’ble Supreme Court in D. Velusamy .vs. D. Patchaiammal (2010 (10) SCC 469 and of this Court in the case of Shri Ambadas Gangadhar Shetye .vs. Malabai Ambadas Shetye and another (2013 BCI 535). Reliance is also placed on the judgment dated 27.1.2015 passed by this Court in Criminal Writ Petition No.773/2014. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

9] Per contra, learned counsel for respondent strongly supports the order impugned in both the applications. It is submitted that strict proof of legal marriage is not required in the proceeding under Section 125 of the Code of Criminal Procedure and so far as the protection under the Domestic Violence Act is concerned, this is an admitted fact that for a long long years, applicant and respondent resided together and they have two children out of the said relationship. The learned counsel submits that in such a situation no interference is required in extra-ordinary jurisdiction and prays to reject the applications.

10] With the assistance of the learned counsel for the parties, this court has gone through the reasons recorded by the learned Judge of the Family Court, learned Judicial Magistrate, First Class and the learned Adhoc Additional Sessions Judge. Needless to state that 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. The cases referred by the learned counsel for applicant reiterate the well settled propositions of law in this regard.

11] In the case on hand, so far as the domestic relationship between applicant and respondent is concerned, applicant could not establish the same as required under Section 2 (f) of the Domestic Violence Act. Though she states that her previous marriage with Shamrao Ambhore was dissolved by a deed of dissolution, she could not prove the said deed of dissolution in accordance with the law. Once respondent admits her marriage with Shamrao Ambhore in the year 1995, it was for her to prove that after dissolution of the said marriage, she married to non-applicant or enter into domestic relationship with non-applicant. In the absence of proof regarding dissolution of first marriage of respondent Ragini, the courts below committed serious error in holding that she entered into domestic relationship with the non-applicant whose first marriage with Suvarna was also in existence on 11.5.1997.

12] As stated above, Family Court has held that Ragini was not the legally wedded wife of Gautam Gawai 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. The provisions of Section 26 of the Protection of Women from Domestic Violence Act, 2005 read thus – 26. Relief in other suits and legal proceedings :- (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. From the careful reading of the above said provisions, 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 deniying 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.

13] So far as maintenance to minors is concerned, it can be seen from the municipal record that name of father of Vaibhav was initially shown as Sanjay and later on tried to be rectified as Gautam. Regarding Nipun, there is no convincing evidence to show that he was born to respondent from applicant. Exh.28 is considered as a letter by applicant to S.D.P.O. and reliance is placed on the admissions therein. On cursory look at Exh.28, it can be seen that on 1.1.2010, S.D.P.O. recorded statement of applicant in the course of enquiry. Applicant has not admitted the statement. In the absence of unequivocal admission on the part of applicant Gautam and for want of legal proof, reliance could not have been placed on contents of Exh.28 to fasten paternity of children on him.

14] In the above circumstances, this court finds that the case of the respondent is completely out of purview of the provisions of Section 125 of the Code of Criminal Procedure and the provisions of Domestic Violence Act. As impugned orders suffer from material legal infirmities, interference in extra-ordinary jurisdiction is warranted. Hence, the following order. (1) Criminal Application (APL) No.664/2011 is allowed The impugned order dated 21.10.2011 in Petition No.E.82/2010 passed by the Family Court, Akola is quashed and set aside. Rule is made absolute in the aforesaid terms. (2) Criminal Application (APL) No.229/2015 is allowed. Rule is made absolute in terms of prayer clauses (a)-(i), (ii) and (iii). No order as to costs.

(Kum. Indira Jain, J.)

Gulande, PA


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