Tag Archives: Bombay HC

How a #husband hit with 200,000 #per #month #maintenance with #NO #DV proven gets partial #relief from #BombayHC

Interim maintenance and maintenance under DV act, under Sec 125 CRPC, Under sec 24 HMA etc etc are monsters ready to eat any married man fighting matrimonial cases

Here is a classic case where a hapless husband, estranged from wife, still maintaining the son, daughter, paying for children schooling, and even daughter’s education in USA etc etc., is hit with two hundred thousands per month maintenance, even though NOT a iota of DV is proven !!

The family court orders 200,000 per month (yes TWO HUNDRED THOUSANDS PER MONTH) from 2013 till date meaning the arrears itself will run into crores !!

The woman files for execution and wishes to get the fella arrested and thrown in jail (yes ARREST the same father who is paying for the daughter’s education in USA !!)

Finally matter goes to HC where the HC notices that NOT AN IOTA of DV is proven and the family court has NOT considered subsequent events (changes to husband’s earning, company liquidation etc) before granting maintenance

Still HC says pay 25% of arrears from date of order (year 2017) and Rs 25000 per month to the wife for her maintenance and sends matter back to Family court for further adjudication

Case law below

 

 

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 3553 OF 2018

Mr.Prakash Kumar Singhee …Petitioner
Versus
Ms.Amrapali Singhee …Respondent

 

WITH CONTEMPT PETITION NO.459 OF 2017

 

Ms.Amrapali Singhee …Petitioner
Versus
Mr.Prakash Kumar Singhee …Respondent

 

Mrs.Seema Sarnaik for the Petitioner in WP No.3553 of 2018 and for the Respondent in CP No.459 of 2017.

Mr.Abhijit Sarwate for the Respondent in WP No.3553 of 2018 and for the Petitioner in CP No.459 of 2017.

CORAM : SMT.BHARATI H. DANGRE, J.

RESERVED ON : 23rd MARCH 2018

PRONOUNCED ON : 4th MAY 2018

JUDGMENT :-

  1. 1. The present Writ Petition is filed by the petitioner- husband, challenging order passed by the Family Court, Pune below Exh.20 in Petition B. No.2/2013, thereby directing the petitioner to pay maintenance of Rs.2 lakhs to the wife under Section 20 of the Protection of Women from Domestic Violence Act, 2005 from the date of application till the decision of the petition.
  2. 2. Contempt Petition No.459 of 2017 is taken out by the wife alleging non-compliance of the said order passed by the Family Court and praying for appropriate directions to the husband to comply with the said order. https://bit.ly/2I7a9tP
  3. 3. The brief chronology of the facts leading to the filing of present petitions is culled out below. The petitioner and respondent were married on 11.07.1997 as per Hindu rites and Customs. At the relevant time the petitioner was living in Houston, Texas, USA and the parties resided there till 2004. Out of the said wedlock, two children were born on 15.11.1998 and 20.01.2004. At present the daughter is studying in USA and the son is staying with the wife. The case of the petitioner-husband is that the respondent-wife lost interest in married life and she took away the children from their joint custody. The respondent-wife instituted the Petition B No.2/2013 invoking Section 34, 37(2), 38 and 39 of the Specific Relief Act before the Family Court, Pune. In the said proceedings, the respondent-wife https://bit.ly/2I7a9tP prayed for a restrain order against the husband removing son Aryaman from the custody of the petitioner-husband and also from meeting his son Aryaman out of Pune. Exh.5 came to be filed in the said Court praying for temporary injunction and the Family Court-I, Pune on 24.01.2013 issued temporary injunction against husband directing not to remove child from the custody of the wife until further orders.
  4. 4. The respondent-wife preferred an application Exh-20 in the said petition under Section 20 of the Protection of Domestic Violence Act praying for monetary relief of Rs.5 lakhs per month and for reimbursement of school fees of son Aryaman to the tune of Rs.50,000/-. In the said application preferred under Section 20 of the Domestic Violence Act, the wife alleged that she is entitled for maintenance of Rs.5 lakhs per month by taking into consideration the life style to which she is accustomed to and in the backdrop of the earning capacity of the husband. The said application came to be opposed by the petitioner by https://bit.ly/2I7a9tP filing a reply wherein it was contended that the proceedings under the Domestic Violence Act cannot be extended to a woman who earns tax free dividend of Rs.4 lakhs per annum and who has investment in her bank to fetch her interest of around 70 thousand per annum. In the said reply the petitioner-husband categorically stated that he was catering to the needs of the wife and children and always arranging for their lodging and boarding and all other miscellaneous expenses.
  5. 5. On consideration of the said application, the impugned order came to be passed by the Family Court. The Judge Family Court dealt with the objection that the application under Section 20 of the Domestic Violence Act cannot be instituted in the proceedings filed under the Specific Relief Act and the Court also recorded the submission of the petitioner that the preliminary requirement of Domestic Violence has not been proved and in such circumstances such an application cannot be entertained.
  6. 6. The impugned order proceeds on a footing that the petitioner is a President of “Shiv Vani Oil and Gas Exploration Services Limited” and draws a salary of Rs.15 lakhs per month with perks worth Rs. 5 lakh. The Court observe that the husband is in charge of the said company but he has failed to produce any documents reflecting his income, but the wife had produced on record copy of her bank statement. The Family Court would take note of the bank statement as well as Income Tax returns of the wife for the year 2013-2014, 2014-2015, 2015-2016 and 2016-2017. The Court considered the income shown as against these years and recorded a finding that the income of the wife for the year 2015- 2016 is Rs.17,46,878/- whereas for the year 2016-2017 it is reflected as zero. The Court did not find favour with the explanation tendered by the wife that her mother is joint holder of the account where huge amount has been credited and that she deals in stock broking and therefore the entries are reflected in her https://bit.ly/2I7a9tP account. The Court recorded, a finding that the said explanation is not acceptable at all. However, taking into consideration the fact that it is responsibility of the husband to maintain his wife and children, the Court awarded maintenance to the tune of Rs.2 lakhs per month, in the backdrop of the earning capacity of the husband as per the contention of the wife.
  7. 7. In support of the petitioner learned counsel Mrs.Seema Sarnaik would submit that the Family Court has failed to take into consideration the relevant aspects of the matter and that the order passed by the Trial Court is prima facie erroneous. She would submit that by virtue of Section 20 of the Domestic Violence Act, while disposing of an application Sub-Section-1 of Section-12 the Magistrate may direct payment of monetary relief to meet the expenses incurred and loss suffered by the “aggrieved person” as a result of Domestic Violence. Advocate Mrs.Sarnaik would submit that the prereqsite of the grant of such a relief is an application preferred under Section-12 of the said Act by the “aggrieved person”. She would invite https://bit.ly/2I7a9tP attention of the Court to the definite meaning assigned to the term “aggrieved person” under Section- 2(a) of the Act to mean a woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. She would also submit that the domestic violence has a specific meaning assigned to in Section-3 of the Act and would include any Act, omission or commission or conduct of the respondent as specified in Clause (a) to (d) of Section-3. She would submit that the application is devoid of such pleadings attributing domestic violence and thus in absence of domestic violence being attributed and demonstrated, an application under Section-12 cannot be entertained and no relief can be granted under Section-20 of the said Act in the nature of the monetary relief. She would also submit that the proceedings were filed by the wife under the provisions of the Specific Relief Act seeking a restrain order and in that proceedings the application Exh.-20 came to be filed which is not maintainable. She would also assail the order impugned on the ground that the Family Court has not taken into consideration the earnings of the husband. The petitioner has tendered an affidavit before this Court on 19th March 2018, bringing on record certain documents which include an order passed by the High Court of Delhi on 28th in a Company Petition by which the Company of the petitioner is placed under the control of the Official Liquidator in the form of provisional liquidator and direction is issued to the company and its directors from alienating, encumbering and parting with the possession of the assets of the company without the leave of the Court. According to Mrs.Sarnaik the company “Shiv Vani Oil and Gas Exploration Services Limited” is thus under liquidation and in these circumstances it is difficult for the petitioner to pay the amount of maintenance as ordered by this Court. The affidavit further proceeds to state that the petitioner is catering to the Educational expenses of the daughter who is studying in USA by obtain a loan and he is also bearing the educational expenses of his son who is studying in standard VIII.
  8. 8. Per contra learned counsel Advocate Shri.Sarwate appearing for respondent-wife would invite attention of this Hon’ble Court to the application filed by his client under order 21 Rule 41 of the Civil Procedure Code praying for disclosure of the details of the assets of the judgment debtor in light of the order passed by the Family Court. He would submit that on 30.01.2018 the Family Court has passed the following order on Exh.5. “Perused application. No say filed by J.D. Perused authority relied by D.H.D.H. Wants to JD should disclose his assets which are required for the execution of decree as DH is not aware of his assets J.D. Did not file Say. As per O.21, R.41 of the CPC, JD can be directed to disclose his assets. It is necessary to execute the decree. Hence, JD is directed to give details of assets as mentioned in para (4)(a) to (z) of the application on the next date.”
  9. 9. He would further invite attention of this Court to subsequent order passed by 07.03.2018 by the Family Court, Pune to the following effect :- “Perused application. Heard Ld. Advocate for DH. Today JD is present before the court but he did not comply the order of the court below Exh.5. So also JD did not deposit any decretal amount in court. There is no stay to the proceedings. DH pressed for sending the JD to jail. However, in my opinion last opportunity is to be given to the JD. Hence JD is directed to deposit 25% of decretal amount in court on or before 20.03.2018 and if he fails, he will be sent to jail. JD to note and strictly comply the order.
  10. 10. Learned counsel Shri.Sarwate would submit that the impugned order passed by the Family Court needs to be upheld since it is based on the earning capacity of the husband and since the wife is entitled to maintain same standard of living as the husband, and no fault can be found with the impugned order. He would submit that the wife is not having any source of livelihood and as such the award of maintenance of Rs.2 lakhs is just and proper to meet the requirements of the wife. Advocate Mr.Sarwate would also submit that he is constrained to file Contempt Petition No.459 of 2017 since the husband has failed to act in terms of the impugned order, thereby driving the wife to a stage of destitution.
  11. 11. With the assistance of the learned counsel for the parties I have perused the material placed on record and also perused the impugned order. The impugned order is passed on an application filed by the wife invoking Section-20 of the Domestic Violence in Petition No.B-2/2013 filed by the wife seeking a relief under the provisions of the Specific Relief Act. Though Mrs.Sarnaik had vehemently argued on the maintainability of the said application, on perusal of the provisions of The Protection of Women from Domestic Violence Act, 2005, https://bit.ly/2I7a9tP it is apparent that the Act has been enacted to provide more effective protection of rights of women guaranteed under the Constitution of India, being victims of violence of any kind occurring in the family and the provisions therein would have to be construed in the backdrop of the object with which the statute is enacted. Section-26 of the said Act provides for relief in other suits and legal proceedings. The said section contemplates that any relief available under Section 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before the Civil Court, Family Court and a Criminal Court affecting the aggrieved person and the respondent whether such proceedings was initiated before or after the commencement of this Act. Sub-section-2 of Section-26 further provides that any such relief may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceedings before a Civil or Criminal Court. Thus, by virtue of the Section-26, any relief available under the Domestic Violence Act can also be sought in any legal proceedings before any Civil Court, Family Court or Criminal Court. The wife had instituted proceedings under the Specific Relief Act before the Family Court, Pune and the said proceedings are pending. She filed application Exh.20 in that petition namely petition B-2/2013 and sought to relief of grant of maintenance or the monetary relief contemplated under Section-20 of the said Act. In light of Section-26 of the Domestic Violence Act, 2005, the objection raised by Mrs.Sarnaik cannot be entertained. However, at the same time it is to be noted that the reliefs mentioned under Section 12 are available to “Aggrieved person” and the reliefs which may be availed by invoking Section 17, 18, 19, 20, 21 and 22 are dependent on one important aspect namely the said relief is available to an “aggrieved person” who alleges to have been subjected to any act of domestic violence by the respondent. The object of D.V. Act 2005, being to protect the rights of women who are offended by the act of domestic violence committed by the respondent which may include any adult male person or with whom the aggrieved person is in domestic relationship. The term Domestic Violence has been given a specific connotation under Section 3 of the Act and any act, omission and commission or conduct of the respondent shall constitute domestic violence in case it :– (a) harms or injuries or endangers the health, safety, life, limp or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or https://bit.ly/2I7a9tP (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any lawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injuries or causes harm, whether physical or mental, to the aggrieved person.
  12. 12. Thus, in order to claim relief under Section-12 of the Act which permits an “aggrieved person” to present an application to the magistrate seeking one or more reliefs under the Act, levelling the allegations of Domestic Violence. Thus, the reliefs contemplated under the Act are thus available to an aggrieved person who alleges that she is or has been in domestic relationship with the respondent and was subjected to any Act of Domestic Violence by the respondent. Allegation about the commission of a Domestic Violence Act is prerequisite for the magistrate or Court of competent jurisdiction to exercise the https://bit.ly/2I7a9tP powers under the Protection from Women from Domestic Violence Act, 2005, and grant of any reliefs contemplated under the Act.
  13. 13. Perusal of the application filed by the wife claiming maintenance would reveal that apart from making the allegations that the husband is well off and earning a huge amount and the wife is left with no source of livelihood, not a single averment has been made as to any act of domestic violence which would have brought the applicant wife under the category of “aggrieved person” who would have been entitled for the benefits flowing under Section-12 including to the benefits under Section-20 of the D.V. Act 2005. The applicant in the application preferred on 16 th February 2013 do not give a single instance of domestic violence and the application has been simply preferred under the caption as an application under Section-20 of the D.V. Act 2005 praying for following reliefs. “(a) The maintenance or the monetary reliefs provided U/sec.20 of the Domestic Violence Act be granted. (b) Monetary relief of Rs.5 lac per month be granted from the date of this Application. (c) Reimbursement of School Fee for son Aryamaan be granted to the Petitioner to the tune of Rs.50,000/- incurred as on today. (d) The Respondent be called upon to produce his bank statements from all the banks for the last 3 years more specially from Jan 1, 2010.” (e) Any other just and equitable order may kindly be passed.”
  14. 14. Learned counsel Mrs.Sarnaik is perfectly justified in submitting that the provisions under the said enactment cannot be invoked unless the party alleges an act of domestic violence and approach the Court in the capacity as an “aggrieved person”. https://bit.ly/2I7a9tP Though the application filed by the applicant can be entertained in the pending proceedings under the Specific Relief Act, while entertaining an application which is filed Sub-section-1 of Section- 12, it is imperative that the person approaching the Court is an “aggrieved person”. Though the Family Court in the impugned order has noted the submissions advanced on behalf of the petitioner-husband that the preliminary requirement of the domestic violence has not been proved by the petitioner and therefore application is not maintainable, the Family Court did not pay any heed to the said submission and rather proceeded to decide the matter on its own merits. The Court has merely noted that as per provision of Section-20 of the D.V. Act aggrieved by had claimed monetary relief for herself and her children however, a whether the applicant is an “aggrieved person” has not at all been considered by the Family Court. Though the Act of Domestic Violence would be established after rendering evidence before the Court, at least the Court prima facie must be satisfied that the person approaching is as an “aggrieved person”. It is not every person who can invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family. The Court has refused to consider the said aspect of the matter.
  15. 15. The impugned order takes into consideration the potential of the husband to earn the amount as claimed by the wife and concludes that he is fetching a salary of Rs.15 lakhs and perks of Rs.5 lakhs per month. Though the Court expressed doubt with the wife’s earning and has recorded that the wife has filed her Income Tax return showing her income from 2014 to 2017 and the Court has recorded, that the explanation given the wife that per year 2016-2017 her income is zero, is unacceptable. The Family Court has also perused the bank statement of the wife and has recorded that the there are various deposits to her account and the Court has found the explanation offered by the wife that her mother is carrying out the business of stock broking from her account to be evasive. The Court has also noted that though the contention of the wife is that she is not doing any business but the documents reflected that she had huge investments and she has income from shares. However, considering the moral responsibility of the husband to maintain the wife and children, the Court has arrived at conclusion that the petitioner must pay maintenance to the wife.
  16. 16. The approach of the Family Court is grossly erroneous. The amount of maintenance has to be fixed by striking a balance between the earning capacity of the husband and need of the wife and the children. No doubt a husband is under obligation to maintain his spouse and children, however, as regards the quantum of maintenance, the Court will have to award the said amount, based on the material placed before it and though some guess work is permissible, the Court cannot completely act on the basis of its own assumption https://bit.ly/2I7a9tP and surmises. Learned Counsel Mrs.Sarnaik has placed before this Court an order of the Delhi High Court in a company petition reflecting that the “Shiv Vani Oil and Gas Exploration Services Limited” of which the petitioner is owner has gone into liquidation and he has resigned from the said company by tendering his resignation on 01.06.2013. The aspect is important factor which is to be considered in order to have an estimation of the earning capacity of the husband, since the specific contention of the wife is that he is also the owner of other subsidiary companies. That may be true, however, there should be some material placed before the Court to demonstrate that he is also stake holder in some other companies. The petitioner is catering to the education of the children and he expresses no difficultly to continue to do so. He finances the daughter, who is taking eduction in USA and he is also catering to the need of the other child. It is no doubt true that wife is entitled for dignified amount so as to maintain herself according to the standards which she is accustomed to. The parties appear to be belonging to affluent background and she is entitled for same standard of living as the husband. What is the present capacity and status of the husband at the time of passing of the order granting award of maintenance must be looked into. The application was filed in the year 2013 whereas the impugned order is passed in 2017 and several events occurred in between two dates, which must be necessarily weighed by the Court while deciding the said application. This is however not done by the Family Court, Pune and it has awarded an amount of Rs.2 lakhs per month to the petitioner-wife without even bothering to take into consideration whether the wife is an “aggrieved person”. In the application the wife has prayed for an amount of Rs.5 lakhs for herself and reimbursement of school fee of her son. https://bit.ly/2I7a9tP The husband has undertaken that he would continue to pay the fees of the son. However, as far as the maintenance of the wife is concerned the Family Court has grossly erred in granting the said amount without consideration of the relevant aspects of the matter as highlighted above. The said order thus cannot be sustained and the matter needs to be remanded back to the Family Court for due consideration in light of the observations made above. Both the parties are permitted to tender appropriate material before the Family Court so as to justify the claim of the maintenance by wife and the capability of the husband to pay such maintenance. However, it is noted though the order is passed on 23.01.2017 directing the husband to pay the maintenance amount from the date of application, the husband has not been paid any amount till date. In the execution proceedings filed before the Family Court, the Family Court has already issued a direction of deposit 25% of decretal amount in the Court and or before 20.03.2018 otherwise the husband is directed to be sent to jail. This order was passed on 17.02.2018. The husband has failed to deposit any amount in terms of the order passed by Family Court by the impugned order. Since this Court is of the opinion the matter needs to be remanded so as to the decide the entitlement of maintenance of the wife under Section-20 of the D.V.Act, the petitioner-husband is directed to deposit an amount of Rs.25% of the amount of the maintenance in terms of the directions of Judge family Court, by calculating the said amount from the date of the order i.e. 23.01.2017 https://bit.ly/2I7a9tP . The said amount is directed to be deposited before the Family Court within a period four weeks from date of this order. The Family Court would then reconsider the matter, on such deposit being made by the petitioner-husband and would also consider the application preferred by the wife for withdrawal of such amount.
  17. 17. The Family Court is directed to reconsider the application for maintenance within a period of three months from the date of the deposit of the amount by the petitioner-husband in the Family Court. The said amount would be then adjusted towards the quantum of maintenance which the family Court would award on its reconsideration. During the pendency of the proceedings before the Family Court on its remand, the petitioner-husband would pay an amount of Rs.25,000/- per month to the wife towards her maintenance, till the Family Court decides the mater. The petitioner is also directed to bear the educational expenses of the son and would commit no default in payment of his school fees.

Writ Petition is partly allowed. Impugned order dated 23.01.2017 passed by Family Court, Pune is quashed and set aside. Matter is remanded to Family Court, Pune for reconsideration and the same is directed to be decided in three months.

(SMT.BHARATI H. DANGRE, J.)

 

Woman must temporarily #reside at place of filing plaint. She can’t go to a new place to CREATE #Jurisdiction. #DV #BombayHC

Woman must temporarily reside at place of filing plaint – Jurisdiction in Domestic Violence

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

Criminal Revision Application No. 146 of 2017

Applicants :

1) Prashant son of ManmohanjiLaddha, aged about 36 years, Occ: Business

2) Smt Leelabai wd/o Manmohanji Laddha, aged Major, Occ: Household

Both residents of In front of Mayor’s Bungalow,University Road, AmravatiVersus

Respondents:

1) Sau Madhuri w/o PrashantLaddha, aged about 34 years, Occ: Household

2) Ku Vidhi d/o Prashant Laddha, aged about 9 years, Occ: Student

3) Ku Ekta d/o Prashant Laddha, aged about3 years, Student Respondents no. 2 and 3 being minor, through respondent no. 1 natural guardian-mother

All residents of c/oShri Satyanarayan Champalal Taori, Near Hotel Harmony, Gandhibag, Nagpur At present, c/o Suresh Madhukar Rathi, Hardware Shop, Main Road, Ward No. 9, Saunsar, District Chindwara, MPShri R. D. Wakode,

Advocate for applicants Shri B. N. Mohta,

Advocate for respondents

Coram : S. B. Shukre, J

Dated : 6th April 2018

Oral Judgment

1. Heard learned counsel for the parties. Admit. Heard forthwith by consent of parties.

2. This revision application questions the legality and correctness of the order dated 27.10.2016 passed by the learned Principal District Judge, Nagpur in Criminal Appeal No. 297 of 2015, upsetting the order dated 28.10.2014 passed by the learned Judicial Magistrate, FC, Nagpur in Misc. Criminal Application No. 3538 of 2014. The learned Magistrate has held that the Court at Nagpur has no jurisdiction to try the petitionunder Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, the “D.V. Act”).

3. Shri Wakode, learned counsel for the applicants submits that the impugned orderis patently illegal and perverse and whereasShri Mohta, learned counsel for the respondents submits that it is perfectly legal and proper. Shri Mohta submits that inany case, the learned Magistrate could not have dismissed the petition on the preliminary objection, without giving any opportunity to the parties to lead evidence. In support, he places his reliance upon the cases of Vijay Sudhakar Patil v. Asha Vijay Patil reported in 2015 (1) Mh. L. J. 431; Ramesh a/o Mohanlal Bhgutada, Advocate& anr v. State of Maharashtra reported in 2011 (6) Mh. L. J. 167 and Vikas Rastogee v. State of U. P. & anr reported in II (2014) DMC 470 (All).

4. The learned Magistrate while allowing theapplication vide order dated 28.10.2015 hasgiven elaborate reasons to support the finding about the non-maintainability of the petition under the D. V. Act while holding that he had no territorial jurisdiction to try the petition under Section 12 of the D.V. Act. Learned Magistrate has taken into consideration the admissions given by the non-applicant no. 1 in her application filed under Section 125 Cr. P. C. (Criminal Application No. 62 of 2014) before the Court at Saunsar, the admissions given by the non-applicant no. 1 in the First Information Report lodged by her against the applicants on 8.12.2014 at Police Station, Saunsar and the other facts which are matter of record and not in dispute. These facts show that non- applicant no. 1 has admitted just about one month before filing of the application on 20.10.2014 and also two months thereafter that she has been residing at her parental place at Saunsar since August 2014.

5. Learned Magistrate has also noted the fact that although non- applicant no. 1 showed her address in Section 12 of the D. V. Act petition as c/o Shri Satyanarayan Champalal Taori, near Hotel Harmony, Gandhibag, Nagpur, she did not file even an affidavit of Satyanarayan Taori to show that she is a temporary resident of Nagpur. In the application under Section 12 of the D.V. Act, there is only a passing reference made by the respondent that she along with her children has been residing presently at Nagpur in the house of her brother on the address mentioned in the cause title. This application has been filed on 20.10.2014. But, just a month before, she filed application under Section 125 Cr. P. C. before the Saunsar Court wherein she asserted that she was residing at Saunsar since August 2014. Even in the First Information Report that was lodged by her on 8.12.2014, about one and half months after Section 12 D. V. Act application at Police Station, Saunsar, the non- applicant no. 1 stated that she has been residing at Saunsar. Not only this, but in her evidence recorded in the proceedings under Section 125 Cr. P. C. before the Saunsar Court subsequent to the filing of the present application also, the non-applicant no. 1 admitted that she was residing at Saunsar. In the backdrop of these admissions, it was necessary for the non-applicant no. 1 to have clarified as to when did she leave Saunsar and come to Nagpur for residing atNagpur temporarily. She also needed to have stated the relevant dates in this regard. If some of the admissions pertainedto a period which was after filing of this application, an affidavit of brother, giving relevant details placed on record by the applicant would have gone a long way to clarify her stand in the matter. But, she did not file on record the affidavit of her brotherSatyanarayan Taori.

6. Learned counsel for the non-applicants submits that the non- applicant no. 1 was never called upon to lead any evidence in this regard. I must say, nothing prevented non-applicant to at least file on record an affidavit giving her explanation/clarification in the matter. It is not enough for non-applicant no. 1 to just make a bald statement, as she has in her application, that presently, she has been residing at Nagpur in the house of her brother when she admits in other proceedings that she resides at Saunsar. She could have boostedher statement of her Nagpur residence by something relevant or at least an affidavit ofSatyanarayan Taori. But, she did not submit any such additional material or affidavit before the Court. These facts have been duly taken note of by learned Magistrate when he passed the order dismissing application under Section 12 of the D. V. Act.

7. But these facts, relevant as they are, havebeen completely ignored by the learned Principal District Judge. The learned Principal District Judge has also not considered the reasons given by the learned Magistrate in the order passed by her. It is the requirement of Section 27 of the D. V. Act that in order to confer territorialjurisdiction upon a Judicial Magistrate, FirstClass, there has to be at least a temporary residence within the territorial jurisdiction of his Court. The admissions given by non-applicant no. 1 could show that she was all the while residing at Saunsar and coupled with that fact, she has failed to explain as to how and in what manner, she assumed her temporary residence at Nagpur. The learned Principal District Judge, however, reasoned that pursuing of some cases at Nagpur itself amounted to temporary residence at Nagpur, which is fallacious to say the least. Pursuing of some cases from a place cannot be equated with temporary residence at that place. Temporary residence requires residence at a place on continuing basis in pursuit of some activity or want or need which may be economic, educational, financial, cultural, social and the like which comes to an end when the goal or purpose is achieved. The period or such residence would vary depending upon the purpose for which it is taken. But, such residence cannot be a residence created just to conferterritorial jurisdiction upon a Magistrate of aplace or otherwise, it would be easy for a woman well equipped with resources to go to a far away place, set up a temporary residence there just to file a case and file a case to get the pleasure of seeing husband or person in domestic relationship being put to travails of long travels and high expenses. So, to my mind, in the context of Section 27 of the D. V. Act, temporary residence means a residence set up or acquired in the ordinary course of human affairs and is not a residence set up with anintention to file a case and confer jurisdiction upon the magistrate. This is the meaning, plainly and naturally, conveyed by combined reading of key words used in Section 27 of the D. V. Act, which are “resides or carries on business or is employed”.

8. In the cases relied upon by learned counsel for the non- applicants, it has been held that the preliminary objection regarding lack of territorial jurisdiction cannot be decided unless the parties are called upon to place on record evidence. There can be no doubt about the principle enunciated by these cases. But, this is not the case wherein the learned Magistrate has dismissed the application without there being on record proved facts. Ultimately, proof of facts is all that matters and facts can be proved by admissions, just as they can be by oral evidence. Here, facts stood proved because of admissions, though there was no oral evidence led by the parties. It appears to me that not tendering of oral evidence was the choice of the parties. Learned Magistrate has also noted the fact that the non-applicant no. 1 did not submit any affidavit of her brother in support of her claim that she was temporarily residing at Nagpur, thereby indicating an opportunity already available was wasted by her. Therefore, I do not think that any assistance could be sought by the learned counsel for the respondents from the cases cited before me.

9. In the facts and circumstances noted above, I am of the view that the impugned order is manifestly illegal and perverse and the order of the learned Magistrate is legal and correct calling for no interference therein.10. In the result, the application is allowed. The impugned order is quashed and set aside and the order of learned Magistrate is confirmed. Liberty is, however, granted to file fresh application under Section 12 of the D. V. Act before the proper forum.

S . B. Shukre, J joshi

just like “her body, her choice”, now we have “her alimony her choice” :-) :-)

A Hon. HC has ordered a MARRIED woman that she can claim maintenance from the live in fella as well !!

We know that Indian women can always claim maintenance from their father, from the son or from legally wedded, husband

But now they can choose !!

We really thank the society and system for affording women this choice 🙂 🙂

For those interested in case law / news paper report etc please check my earlier post on this blog / twitter feed !!

 

wife who deserted husband in 1992 tries to contest divorce decree but looses completely !!

 

Marriage in 1992, Parties have stayed together hardly for a few months. Wife ridicules and ill treats husband as she is more qualified than him. She also leaves him and goes away to parental home. Husband wins divorce in lower court, but wife contests the case which comes up for decision in march 2017 !! Wife loses the case (in March 2017). It is NOT know if wife has gone on further appeal !!


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

 

FAMILY COURT APPEAL No.86 OF 2014

 

Vaishali w/o. Rajesh Barde,
Aged : Adult,
R/o. C/o. Shri Hiwarkar,
E.W.S. Colony, New Somwaripeth,
Nagpur. : APPELLANT

…VERSUS…

Rahesh s/o. Harihar Barde,
Aged 41 years,
Occupation : School Teacher,
R/o. C/o. Samajsewa Vidyalaya,
Wadhona, Tah. Nagbhid,
Distt. Chandrapur. : RESPONDENT

 


Ms. Muley, Advocate for the Petitioner.
Shri Dongre, Advocate for the Respondent.


CORAM : SMT. VASANTI A. NAIK AND V.M.DESHPANDE, JJ.
DATE : 1 st MARCH, 2017.

ORAL JUDGMENT : (PER : Smt. Vasanti A. Naik, J.)

By this family court appeal, the appellant challenges the judgment of the Family Court, dated 17.04.2008 allowing a petition filed by the respondent for a decree of divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion.

The marriage of the parties was solemnized on 27.07.1992 at Nagpur as per Hindu rites and customs. The appellant and the respondent started residing at village Sawargaon where, the respondent- husband was working as a teacher. It is the case of the husband in the petition filed by him for a decree of divorce on the ground of cruelty and desertion that the appellant-wife was more qualified than him and, therefore, she always felt that the respondent-husband was not a proper match for her. It is pleaded by the husband in the petition that the wife did not have a desire to live with the husband in Sawargaon. It is pleaded that the wife used to pick up quarrel with the husband time and again and used to abuse him in filthy language. It is pleaded that the husband always tried to adjust and ensure that there was harmony in the house but, the wife always quarreled and tried to lower the image of the husband in the society. It is pleaded that the wife did not have any intention to perform the matrimonial duties and she used to leave the matrimonial home at odd times. It is stated that due to such behaviour of the wife, the husband had to suffer great mental agony. It is pleaded that in the first Diwali after the marriage, the wife left the house of the husband without informing him and returned to the house on the day of Laxmipujan. It is pleaded that the acts on the part of the wife amounted to cruelty and the husband is entitled to a decree of divorce on the ground of cruelty. The husband pleaded that he was also entitled to a decree of divorce on the ground of desertion. It is pleaded that the wife had left the matrimonial house sometime in May 1994 without any just or reasonable excuse and she was staying away from the husband for about 11 years, till the petition was filed. It is pleaded by the husband that the wife had flatly refused to come to Bramhapuri where his parents resided. It is pleaded that the husband took several steps to bring back the wife to the matrimonial home, but the wife did not oblige. It is pleaded that the wife and her parents had informed the husband that she was not ready to cohabit with the husband in the matrimonial home and the marriage between the parties should be dissolved. The husband sought a decree of divorce on the ground of cruelty and desertion.

The wife filed the written statement and denied the claim of the husband. The wife denied that she had treated the husband with cruelty. The wife denied that she illtreated the husband because she was highly educated. The wife denied that she had no desire to live with the parents at Bramhapuri. The wife denied that she had left the husband without any just or reasonable excuse. The wife also denied that she used to leave the matrimonial house time and again without any rhyme or reason without informing the husband. The wife denied all the adverse allegations that were levelled against her by the husband. In the specific pleadings, the wife pleaded that the allegations levelled against the wife by the husband only showed the normal wear and tear in the matrimonial home. It is pleaded that the allegations levelled by the husband against the wife, even if held to be proved could not amount to cruelty. It is pleaded that the husband was always suspecting the wife’s character and the said act on the part of the husband caused severe mental agony to the wife. The wife pleaded that an irretrievable break irretrievably brake down of a marriage is not a ground for granting a decree of divorce under the Hindu Marriage Act. The wife pleaded that the husband has not pointed out that the wife had a desire to live separately from the husband. The wife sought for the dismissal of the petition.

The wife had filed a separate petition against the husband under Section 18 of the Hindu Adoption and Maintenance Act for grant of maintenance. Both the petitions, the one filed by the husband for the decree of divorce and the other filed by the wife for maintenance were tried together by the Family Court and while partly allowing the petition filed by the wife for maintenance, the Family Court allowed the petition filed by the husband for a decree of divorce on the ground of cruelty and desertion. The judgment of the Family Court, so far as it grants a decree of divorce in favour of the husband is challenged by the wife in this family court appeal.

Ms. Muley, the learned counsel for the appellant-husband submitted that the Family Court could not have granted a decree of divorce in favour of the husband. It is stated that the Family Court was not justified in holding that the wife was not desirous of residing with the husband and she had consented for a decree of divorce by mutual consent, by accepting a sum of Rs.3/- lakhs. It is submitted that the allegations levelled by the husband against the wife would at the most be considered to be the acts showing the normal wear and tear in a matrimonial house and the said allegations, even if they are held to be proved, cannot result in holding that the wife had treated the husband with cruelty. It is submitted that a decree of divorce could not have been passed in favour of the husband on the ground of desertion, as there is evidence on record to show that after the wife left the matrimonial house in May 1994, she had tried to join the company of the husband by returning to the matrimonial home in July 1994. It is submitted that neither is the factum of desertion proved, nor is the factum of ‘animus deserendi’ proved in this case. The learned counsel submitted that the petition filed by the husband for a decree of divorce was liable to be dismissed.

Shri Dongre, the learned counsel for the respondent-husband has supported the judgment of the Family Court. It is submitted that the Family Court has considered the evidence of the parties in detail and has held that the wife had treated the husband with cruelty and that she had deserted him. It is submitted that there was ample evidence on record to show that the wife was having a superiority complex and she always used to quarrel with the husband, as she was more educated than him. It is submitted that the husband had clearly stated in his cross-examination on the suggestion made on behalf of the wife that the wife had pointed out a spelling mistake made by the husband and had admonished him that being educated he should not have committed such a mistake. It is stated that the husband had stated in his evidence, especially in his cross-examination that the wife used to taunt the husband because he was less educated than the wife. It is stated that the husband had stated in his cross-examination that he has stated in his affidavit about the behavior of the wife that lowered his image in the society. It is stated that the husband admitted that the wife had demanded divorce on payment of an amount. It is stated that the suggestion given on behalf of the wife to the husband in his cross-examination and the answers of the husband thereto would clearly prove that the wife was treating the husband with cruelty. It is submitted that the Family Court has rightly held that the wife had left the company of the husband without any just or reasonable excuse. It is submitted that the Family Court has rightly held that the wife had deserted the husband and the husband was not responsible for the separation. It is submitted that there is nothing on record to show that the husband had driven the wife out of the house and that he had not taken any steps for residing together. The learned J-fca86.14.odt 7/14 counsel sought for the dismissal of the Family Court Appeal.

It appears on a perusal of the original record and proceedings and on hearing the learned counsel for the parties, that the following points arise for determination in this family court appeal :

i) Whether the husband proves that the wife has treated him with cruelty ?

ii) Whether the husband proves that the wife has deserted him without any just or reasonable excuse ?

iii) Whether the husband is entitled to a decree of divorce ?

iv) What order ?

The pleadings of the parties are narrated in detail in the earlier part of the judgment. The husband had entered into the witness box and had reiterated the facts stated by him in his pleadings in regard to the nature of the wife. He had stated that she used to leave the house without any rhyme or reason without informing the husband. The husband had also stated in his evidence that the wife did not like to reside in Bramhapuri along with his parents and that on the first Diwali she had left the house without informing him and had returned on the day of Laxmipujan. It is stated by the husband that the wife always used to taunt him because she had secured the degrees of M.Com., M.A. and M. Phil. and the husband was not as educated as her. The husband stated that time and again the wife used to quarrel with the husband and sometimes the neighbours had to intervene and this conduct on the part J-fca86.14.odt 8/14 of the wife has lowered his image in the society. The husband narrated all the other facts pleaded by him in his petition in his examination in chief. The husband was cross-examined on behalf of the wife. The cross- examination of the husband is very material. In fact, the suggestions given on behalf of the wife to the husband proves the case of the husband that the wife had treated him with cruelty. The husband has admitted in his cross-examination that the wife was more qualified than him and that once she had pointed out a spelling mistake and had scolded him that he should not have committed such a mistake, being educated. The husband admitted in his cross-examination that there were certain instances which made him believe that the wife was not ready to live with him. The husband stated in his cross-examination that he had stated in his affidavit about the wife’s behavior which resulted in lowering his image in the society. The husband admitted in his cross- examination that Laxmipujan falls on 3rd or 4th day of Diwali festival and the wife had left the matrimonial home on Diwali without informing him and had returned on the day of Laxmipujan. The husband admitted in his cross-examination that he did not know where the wife had gone on the day of Diwali. The husband admitted that he had no knowledge about the plan of the wife to leave the matrimonial home in May 1994. The husband admitted that the wife had demanded divorce on payment of amount. The husband stated that he had stated about the fact in respect of demand of money by the wife in his affidavit.

It is apparent from the cross-examination of the husband that for a petty matter, where the husband committed a spelling mistake, the wife took the husband to task in the early days of marriage and told him that he should not have committed such a mistake, when he was educated. The parties had resided together for not more than four months. Within a short period of four months a normal wife may not even open up to tell her husband that he has committed a mistake and that he should never commit it again. It is apparent that within a short stay of about four months with the husband in the matrimonial home during which period, she had left him time and again and had gone to her parents, she had admonished the husband for a trifle spelling mistake. The husband had stated in his cross-examination that the wife used to taunt him because he was less educated. This suggestion should not have come from the side of the wife to the husband in his cross-examination. The husband had also stated in his cross-examination that the wife had tried to lower his image in the society and that she had left the house on the first day of Diwali without informing him and returned to the house on the day of Laxmipujan. The husband had stated in his cross-examination that he was not aware about the plan of the wife to leave the matrimonial house in May 1994. The husband also stated in his cross-examination that the wife had demanded divorce on payment of J-fca86.14.odt 10/14 amount. This fact is fortified by a consent divorce petition filed by the parties in the Family Court. The husband and the wife had agreed that the husband would pay a sum of Rs.3/- lakhs to the wife as full and final settlement and that the marriage between them would be dissolved. After filing the petition in the Court, the Family Court has noted that when the parties were called for recording the statement in respect of consent divorce, the wife had backed out. It is apparent from the cross- examination of the husband that the wife had demanded divorce from the husband on payment of amount and it appears that the wife was not ready to accept the amount of Rs.3/- lakhs as she desired some more amount when the matter was settled and a consent decree was to be passed by the Court. The husband had not only examined himself but had also examined his uncle Shri Keshav Mandavgade. This witness had clearly stated in his examination in chief that whenever the husband asked the wife to come along with him to his parents at Bramhapuri, she refused to accompany him. It is stated that without informing the husband, the wife used to go to Nagpur to her parental home from Sawargaon, when the husband was out of the house on his duties. Shri Keshav has stated in the examination in chief that when he had asked the wife not to behave in such a fashion, the wife said that the husband and his family members are not dignified people and they are not much educated. The witness stated in his evidence that the wife told him that she did not get a matrimonial house as per her desire and she had married the husband only with a view to please her parents. The witness stated that the wife had admitted that because she was not happy in the matrimonial home, she used to leave the house and go to her parental house at Nagpur. The witness also stated in his evidence that the wife told him that she was ready to sever the matrimonial relationship, but the amount spent by her father on the marriage should be returned to her. Though, this witness was cross-examined on behalf of the wife, there is no cross-examination on the aforesaid facts stated by him in his examination in chief. In the absence of any cross-examination on the material evidence tendered by Shri Keshav Mandavgade, the facts stated by him in his examination in chief remain unchallenged and the husband is successful in proving his case that the wife had treated him with cruelty on the basis of his evidence as also the evidence of Shri Keshav Mandavgade. It is also notable that though the wife had not pleaded in her written statement that she had found a photograph of a woman in a religious book and the husband had snatched the said photograph from her and that he had an affair with the said lady, the wife went on to make the aforesaid statements in her examination in chief. The Family Court rightly held that levelling serious allegations on the character of a party and failing to prove the same would tantamount to cruelty. The wife has stated in the evidence, though there are no pleadings in that regard, that when the wife had enquired about the photograph of a woman in a religious book of the husband, the husband had started torturing and beating her mercilessly. If the husband had filed the petition eleven years after the separation of the parties and if this incident had really occurred, the wife would have, in the first place pleaded these facts in her written statement. The wife, however, did not do so. Levelling serious allegations against the husband’s character without pleading and proving the same, if considered along with the other acts on the part of the wife would tantamount to cruelty. The Family Court held and rightly so that the wife had deserted the husband without any just or reasonable excuse. The parties were residing separately for more than eleven years before the husband filed the petition for a decree of divorce. The parties had resided together only for four months and there was a separation period of eleven years when the petition was filed. The Family Court, therefore, held on an appreciation of the evidence on record that the husband did not drive away the wife from the matrimonial home, as pleaded by her and the wife had left the company of the husband without any just or reasonable excuse. The Family Court held that it was apparent from the evidence of the parties that there was no intention on the part of the wife to join the company of the husband. The case of the wife that she returned to the matrimonial home with a view to reside with the husband cannot be believed.

Though the wife had issued a legal notice to the husband for claiming maintenance, the wife did not ask the husband to reside along with her. The wife had also not filed any proceedings for restitution of conjugal rights. If the wife really desired to live with the husband she would have surely filed a petition for restitution of conjugal rights while filing a petition for maintenance. The Family Court has rightly held that the wife started living separately from the husband on her own without any reasonable excuse and she was not ready to resume cohabitation. After having held that the husband had not driven the wife away from the house and that she was responsible for the separation, the Family Court held that the husband was entitled to a decree of divorce on the ground of desertion. We find that the Family Court has rightly appreciated the evidence of the parties to grant a decree of divorce in favour of the husband. We find that the wife was interested in securing money from the husband and was not interested in residing with the husband. The aforesaid position could be fortified by the consent terms that were signed by the parties and presented in the Family Court. The wife then refused to compromise the matter with a view to ensure that the husband pays some more amount. In the circumstances of the case, it cannot be said that the Family Court was not justified in granting a decree of divorce in favour of the husband.

As the judgment of the Family Court is just and proper, the family court appeal is dismissed with no order as to costs.

JUDGE JUDGE

Hon HC is very concerned that wife’s getting ONLY 84 LAKHS from 498a quash & settlement. ONLY 84 lakhs !

Hon HC says it repeatedly checked with the wife before she agreed to take ONLY 84 lakhs …… before quasing 498a etc cocktail !!

By the way, she filed a 498a cocktail to get the settlement done !!


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.1260 OF 2017
1. Nipul Chandravadan Panchal,
Age 40 years, Occ: Architect

2. Mrs. Neela Chandravadan Panchal,
Age 63 years, Occ: Housewife

3. Chandravadan Panchal,
Age 70 years, Occ: No

Residing at 302, Mary Anne Heights, 3rd Road, GPS III, Opp: Cafe-Coffee Day,
Santacruz (East), Mumbai-400 055. …. Petitioners

– Versus –

1. The State of Maharashtra

2. Mrs. Vaishali Nipul Panchal,
Age 36 years, Occ: Service,
R/a Room No.7, Building No.1,
Kangra Bhavan, 232, Dr. Anny
Besent Road, Opp: Potdaar
Hospital, Warli, Mumbai. …. Respondents
Mr. P.R. Yadav i/by Ms Priyanka Dubey for the Petitioners.
Dr. F.R. Shaikh, APP, for the Respondent-State.
Mr. D.V. Saroj for Respondent No.2.
CORAM: S.C. DHARMADHIKARI & PRAKASH D. NAIK, JJ.

DATE : APRIL 07, 2017 ORAL JUDGMENT

(Per Shri S.C. DHARMADHIKARI, J.) :

 

  1. 1. Rule. The respondents waive service. By consent, rule is made returnable forthwith and the petition is taken up for final disposal.
  2. 2. The complainant Vaishali is present in Court. She admits that on 4-6-2015 her statement was recorded by the concerned police station, namely, Vakola Police Station, Mumbai and an FIR was registered. The FIR No.254/2015 alleges offences punishable under Sections 498A, 406, 341, 504, 323 and 34 of the Indian Penal Code.
  3. 3. A request is made by the accused including the husband of the respondent/original complainant to quash this FIR.
  4. 4. The only contention raised in support of this petition is that, this is a fall out of a matrimonial dispute. That discord and dispute led to the husband approaching the Family Court at Bandra, Mumbai with a petition seeking divorce. That petition bearing No.A-1425 of 2015 was later on sought to be converted into a petition and a joint one. The relief was altered to that of a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955.
  5. 5. Our attention has been invited to the Consent Terms tendered in the Family Court and the altered Consent Terms. Pages 77 to 84 of the paper-book have been perused by us carefully. One of the clauses in the Consent Terms postulates that the sum deposited in the account and mentioned in the Terms cannot be withdrawn by the complainant/wife unless she agrees to quashing of this criminal proceedings.
  6. 6. The nature of this settlement and which prima facie appears to us to be one sided, compelled us to call upon the Advocate appearing for the second respondent/complainant to request her to remain present.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  7. 7. She has remained present and has tendered an affidavit confirming the above arrangement.
  8. 8. She says that she is completely familiar and can speak and equally read and write in English language. She has perused the affidavit. That is drafted as per her instructions and reflects the position correctly.
  9. 9. Though she is not aware of the legal proceedings and provisions, we have sufficiently clarified to her that the affidavit being tendered on record and the prosecution being quashed on the ground that it is purely a private one arising out of a strained matrimonial relationship, then, she would have waived her rights which she has as wife and stated to be voluntarily. We called upon her and repeatedly, whether this arrangement and as reflected in the affidavit is arrived at willingly and her consent is free and unequivocal.
  10. 10. This query was raised by us especially because there are rights of a child, a minor son at the relevant time aged eight years. The custody of this minor son is handed over to the wife. The mother is now going to fend for herself in a City like Mumbai with only a sum of Rs.84 lakhs, that too deposited in the Bank account and as permanent alimony. The same is full and final settlement for all claims of the wife/mother including for permanent alimony. No separate amounts are provided for the child as well.
  11. 11. Upon our limited questioning, she says that she wants an end to all these proceedings and desires to resume her life with her son. She wants nothing more from the in-laws or the husband.
  12. 12. Once she repeatedly says that she is agreeable to the criminal prosecution being quashed and with the above understanding as well, then, we have no alternative but to quash this criminal prosecution which is a fall out of a dispute between the husband and wife, a direct impact after the complaint for domestic violence was lodged, the husband’s petition for Divorce. Then going by this settlement and which is confirmed, we allow the petition. Rule is made absolute in terms of prayer clause (a). No order as to costs.
  13. 13. The consequence being not only the FIR is quashed but even the criminal case and charge-sheet which is filed in the Court of the Metropolitan Magistrate, 71st Court, Bandra, Mumbai.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  14. 14. However, since the complainant/wife says that in the interest of her child as also on account of her lack of faith, trust and love for the husband, the criminal prosecution should be quashed and she is ready for the same, in the event the Family Court’s jurisdiction under Section 26 of the Hindu Marriage Act, 1955 r/w Section 114 of the Code of Civil Procedure, 1908 is invoked for variation or modification of the Terms and particularly the clause for payment, our order passed today quashing the criminal prosecution shall not be an impediment for the Family Court to exercise its jurisdiction and in accordance with law. Clarifying thus, the petition is allowed.

 

(PRAKASH D. NAIK, J.)

(S.C. DHARMADHIKARI, J.)


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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