IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION
NO. 350 of 2016
DILIPBHAI MOTIBHAI SONARA….Applicant(s)
KAJALBEN W/O DILIPBHAI SONARA D/O HIRABHAI VAGHJIBHAI CHHAIYA & 1….Respondent(s)
MR.DEVENDRA H PANDYA, ADVOCATE for the Applicant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 1 – 2
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 04/07/2016
1. Rule. Learned advocate Mr. Ashish M. Dagli waives service of notice of rule on behalf of respondent Nos. 1 and 2.
- Heard learned advocate Mr. Devendra Pandya for the applicant and learned advocate Mr. Ashish Dagli for respondents. Perused the record.
- Petitioner herein is husband, whereas respondent No.1 is wife and respondent No.2 is their minor son. The petitioner has challenged the judgment and order dated 24.02.2016 in Criminal Misc. Application No.205 of 2013 by the Family Court, Rajkot. By such impugned judgment, the Family Court has awarded an amount of Rs.5000/- towards maintenance of wife and Rs.3000/- towards maintenance of minor son with cost of Rs.10,000/- The Family Court has awarded an amount of Rs.2,00,000/- as lumpsum amount for the purpose of provision for residence.
- The petitioner has challenged such order on several grounds. However, if we peruse the impugned judgment, it becomes clear that present petitioner has defended the claim of maintenance before the Family Court. The petitioner has adduced his own evidence, so also examined two witnesses and produced relevant documentary evidence either to prove his income so also income of the wife. However, the fact remains that so far as income of the wife is concerned, the land in question is not owned by her and, therefore, at the most, she may get some labour charges as agricultural laborer, if at all she is able to do agricultural work. Whereas it is the case of the petitioner husband that wife is working in Beauty Parlour and earning Rs.10,000/-. However, there is no supporting or corroborating evidence to that effect except pleadings and statement by the petitioner.
- As against that, petitioner is also owning 11 hectares of agriculture land though it is stated that some of the plots of land owned by his sister. It has also come on record, that his sister is unmarried and she is also serving as a teacher and earning Rs.15,000/- per month. Even evidence of the petitioner husband has confirmed such situation and, therefore, there is reason to believe that husband is having reasonable income and thereby he can certainly maintain his wife and son.
- Considering the rival submissions, when petitioner has not disclosed his correct income or relevant evidence for consideration of his income, the Family Court has relied upon the legal provisions regarding adverse inference and held that petitioner must be earning Rs.15,000/- for awarding compensation to his wife and minor child. Therefore, considering overall facts and circumstances so also requirement of wife to stay with dignity, the Court has awarded such amount as maintenance for two living persons and, therefore, I do not see any reason to reduce the same.
- However, so far as additional amount of Rs.2,00,000/- towards provision of residence is concerned, it is clear that the Family Court has misinterpreted the decision in the case of Lomalam Amma vs. Kumara Pillai Raghavan Pillai reported in AIR 2009 SC 636 because, though it is true that provision for maintenance must include provision for residence with provision for food and clothing etc. and thereby though basic need of roof over head is to be considered and, therefore, though the Honourable Supreme Court has stated that provision for residence may be made either by giving lump sum in money or properties in lieu thereof or by providing money for necessary expenditure or by giving life interest in property, it becomes clear that under the provisions of Section 125 of the Code of Criminal Procedure, the Court is empowered to make arrangement for maintenance of wife which may include consideration for provision for residence but in my considered view, the Court while passing an order under Section 125 of the Code of Criminal Procedure does not have jurisdiction to award lump sum amount towards residential accommodation though it can be awarded under the provisions of Domestic Violence Act. It cannot be ignored that in such cited decision, the Honourable Supreme Court was dealing with the relief of maintenance under Hindu Adoption and Maintenance Act and not under provisions of Section 125 of the Code of Criminal Procedure. It is quite clear and obvious that both under Hindu Adoption and Maintenance Act and the Protection of Women from Domestic Violence Act, wife can claim a separate residential accommodation or provision for it and competent Court can grant such relief, but there is no similar power vested in the Court while dealing with the application under Section 125 of the Code of Criminal Procedure wherein jurisdiction of the Court is limited for making immediate arrangement for livelihood of the wife and children, though such maintenance must be enough for the wife to live with dignity. However, at the same time, such living should not be luxurious, though she should not be left to live in discomfort.
- Therefore, though amount of monthly maintenance may not be disturbed, so far as lump sum amount for residential accommodation is concerned, the same needs to be quashed and set aside. Otherwise also it is quite clear and obvious that an amount of Rs.2,00,000/- would not be sufficient for residential accommodation in a city like Rajkot where wife is residing. In such circumstances, practically while considering quantum of maintenance to be paid to the wife, the Court can consider the proper amount of residential accommodation. In the present case, when Court has awarded total Rs.8,000/- towards maintenance of both applicants from the total income of Rs.15,000/-, it is made clear that this amount includes the provisions for rental accommodation and considering all such aspects, such amount is not reduced to any extent.
- For arriving at such conclusion, I am placing reliance on the following decisions: (1) Minati Binati Nayak vs. Govranga Charan Nayak reported in 1995 Cri.L.J. 3569. (2) Vardappa Naidu vs. Thayarammal reported in 1990 (3) Crimes (HC) 706. (3) Chaturbhuj vs. Sita Bai reported in AIR 2008 SC 530
- In view of above facts and circumstances, revision is partly allowed. Thereby impugned order so far as lump sum amount of Rs.2,00,000/- for the purpose of residence is quashed and set aside. Rest of the order regarding maintenance would remain in force. Interim relief shall stand vacated. Rule is made absolute accordingly.
CALCUTTA HC- The future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.
In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
The Hon’ble Justice Ashim Kumar Roy
C.R.R. NO. 399 of 2007
Pranati Mukherjee & Anr.
For Petitioners : Mr. Jayanta Nath Saha For O.P. No. 1 : Mr. Subhasish Chakraborty Ms. Shreyashi Biswas
Mr. Soumya Chakraborty
Ms. Sasita Halder
Heard On : August 26th, 2008.
Judgment On : 12-11-2008.
In connection with a maintenance proceeding under Section 125 of the code of Criminal Procedure, the present petitioner was directed to pay a sum of Rs. 2,000/- per month to his wife, the opposite party herein as her monthly maintenance. Since the petitioner allegedly made no payment the wife/opposite party moved an application under Section 125 (3) of the Code of Criminal Procedure before the court concerned for enforcement of the said order and for realization and recovery of the amount due i.e. a sum of Rs. 22,000/- relating to the period from February 2005 to December 2005, which give rise to Misc. Case No. 50 of 2006 and the Learned Additional Presiding Judge, Family Court, Calcutta made an order directing that a sum of Rs. 1,000/- per month be deducted from the pension account of the petitioner and be credited to the savings account of the wife/opposite party on and from January, 2007 during the coming 22 months towards the recovery of arrear maintenance in addition to Rs. 2,000/- per month which has already been directed to be deducted from the pension account of the petitioner towards the payment of future maintenance. The petitioner challenged the said order on the ground in default of payment of maintenance allowance and for recovery of the same the future pension cannot beattached.
2. Heard the learned advocates appearing on behalf of the parties. Perused the impugned order as well as other materials on record. Considered their respective submissions.
3. In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.
4. It may be noted that the Learned Judge also in her order observed that no future income can be attached as she was of the view since same was not salary but was pension to which the petitioner is entitled during her lifetime the same can be attached. In this regard the observations made by the Division Bench of our High Court in the aforesaid case of Md. Jahangir Khan Vs. Mst. Manoara Bibi (supra) would be very relevant and is quoted below; Para 13. “A single Judge of Orissa High Court relying on a Karnataka decision in Rudraiah V. Muddagangamma, 1985 Cri LJ 707 sought to make a synthesis in Surekha V. Ramahari, 1990 Cri LJ 639. His Lordship while agreeing that only tangible corporeal property could be attached held that salary when becomes due was liable to attachment. According to the learned Judge, writ of attachment should remain dormant and would revive at the end of the month. With deep respect to the learned Judge, wecannot accept his view for the foregoing reasons. On similar reasons, we are unable to agree with the finding of the referring Judge.”
5. Thus, the future pension of the petitioner not being tangible and still not been earned by him same cannot be attached.
6. The impugned order is thus set aside and accordingly the criminal revision is allowed.
The Learned Judge is directed to proceed with the matter against the petitioner who is in alleged default of making payment of maintenance allowance and to enforce the order of maintenance in accordance with the provisions of Section 125 (3) of the Code of Criminal Procedure. Both the parties are directed to appear before the court concerned within fortnight from this date and the Learned Magistrate is directed to take necessary steps immediately thereafter. In view of the disposal of the main criminal revision C.R.R. No. 399 of 2007, the application for modification and/or variation of the order dated February 2007 passed by the Hon’ble Mr. Justice P.N. Sinha being CRAN No. 1800 of 2007 stands disposed of.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
( Ashim Kumar Roy, J. )
Bombay HC- If there is no Domestic Violence on Woman then the children are not entitle for relief u/s. 20 of PWDVA 2005.
“the monetary relief is available for the children of the aggrieved person if the monetary relief is required to meet the
expenses incurred by the aggrieved person as a result of domestic violence. The monetary relief is also permissible in case losses are suffered by the aggrieved person as a result of the domestic violence. The monetary relief is available to children of the aggrieved person under Section 20 of the Act. However, the aggrieved person is under obligation to establish that she had to meet the expenses incurred and losses suffered due to domestic violence on the part of the respondent. In the present case, since the learned Magistrate has come to a conclusion that the domestic violence could not be proved and since that finding of the learned Magistrate has not been challenged by the aggrieved person, it follows that no relief could have been given to respondent Nos. 2 and 3 also.
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 32 OF 2014
Koushik S/o. Anil Gharami,
Aged about 40 years,
R/o House NO.59, Shayamapalli
Khajurikala, Piplani, Bhopal462022
Tahsil Hujur and District : Bhopal(MP) …. PETITIONER.
// VERSUS //
1. Sau. Sangeeta Koushik Gharami,
aged about 36, Occu. Service,
2. Ku. Gayatri Sangeeta Gharami,
3. Ku. Astha Sangeeta Gharami,
Age about 6 years,
Respondent No.2 and 3 being minors are
represented by their adlitum mother the
Respondent Nos. 1 to 3 all are R/o. C/o.
Thakurdas Mahaldar, Post : Alapalli,
Tahsil : Aheri, District : Gadchiroli.
Mrs. Sonali Saware, Advocate with Petitioner.
Mr. C.M.Munje,Advocate with the respondent No.1.
CORAM : M.L. TAHALIYANI, J.
DATED : MAY 05, 2014.
ORAL JUDGMENT :
2. ADMIT. Heard finally by consent of the parties.
3. A short question that arises for determination in present writ petition is, as to whether the minor children of the aggrieved person are entitled for maintenance under Section 20 of the Protection of Women from Domestic Violence Act, 2005 if the trial Magistrate has come to a conclusion that the domestic violence has not been proved.
4. Admittedly, the petitioner is husband of respondent No.1 and father of respondent Nos.2 and 3. Respondent Nos.1, 2 and 3 filed an application under Section 12 of the Domestic Violence Act, 2005 in the Court of Judicial Magistrate First Class, Aheri. The said application was heard on merits and following points were framed by the Magistrate for determination:
1. Does Applicant No.1 prove that she was subjected to Domestic
Violence by Nonapplicant No.1 as alleged in the application ?
2. Do the applicants are entitled for relief claimed in their claim
3. What order ?
The learned Magistrate had answered point No.1 in negative and point No.2 was answered partly in affirmative. The learned Magistrate had come to a conclusion that respondent No.1 had not been able to establish that she was subject to domestic violence by the petitioner. The learned Magistrate has also come to a conclusion that respondent No.1 was not entitled for any monetary relief. However, monetary relief was granted to respondent Nos. 2 and 3. The final order of the learned Magistrate runs as
“1. The application is partly allowed.
2. NonApplicant No.1 shall pay Rs.2000/ per
month to Applicant No.2 and 3 each, for their
education, from the date of application.
3. NonApplicant No.1 shall pay Rs.1000/ per
month to applicant no.2 and 3 each, for their
maintenance (monitory relief) from the date of
4. parties to bear their own cost.
5. The amount received by Applicant No. 2 and 3
under interim order, Exh.No.18, be set off against
the amount as mentioned above.”
5. The petitioner had filed a criminal appeal against the said order of the learned Magistrate. The said Criminal Appeal was also dismissed on 9th December, 2013.
6. As already stated, the question that arises, whether respondent Nos.2 and 3 could be granted any monetary relief despite the fact that domestic violence could not be proved by respondent No.1. In this regard, one will have to refer to certain provisions of the Protection of Women from Domestic Violence Act. ‘Aggrieved Person’ has been defined in Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 :
“2(a) “aggrieved person” means any 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;”
7. Chapter IV deals with ‘Procedure for obtaining orders of reliefs’.
Section 12 lays down the procedure for presenting application before the
concerned Magistrate. Sections 18 and 19 of the Act deal with ‘Protection
Orders’ and ‘Residence Orders’, respectively. Section 20 deals with
8. In the present petition, this Court is concerned as to whether any monetary relief could have been given to respondent Nos. 2 & 3. Section 20 of the Protection of Women from Domestic Violence Act, 2005
lays down :
“20. Monetary reliefs. (1) While disposing of an
application under subsection (1) of Section 12, the
Magistrate may direct the respondent to pay monetary
relief to meet the expenses incurred and losses suffered
by the aggrieved person and any child of the aggrieved
person as a result of the domestic violence and such relief
may include, but is not limited to
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or
removal of any property from the control of the
aggrieved person; and
(d) the maintenance for the aggrieved person as well as
her children, if any, including an order under or in
addition to an order of maintenance under section 125
of the Code of Criminal Procedure, 1973(2 of 1974) or
any other law for the time being in force.”
9. It is thus, clear that the monetary relief is available for the children of the aggrieved person if the monetary relief is required to meet the expenses incurred by the aggrieved person as a result of domestic violence. The monetary relief is also permissible in case losses are suffered by the aggrieved person as a result of the domestic violence. The monetary relief is available to children of the aggrieved person under Section 20 of the Act. However, the aggrieved person is under obligation to establish that she had to meet the expenses incurred and losses suffered due to domestic violence on the part of the respondent. In the present case, since the learned Magistrate has come to a conclusion that the domestic violence could not be
proved and since that finding of the learned Magistrate has not been challenged by the aggrieved person, it follows that no relief could have been given to respondent Nos. 2 and 3 also.
10. In my considered opinion, the learned Magistrate had committed an error in granting monetary relief to respondent Nos. 2 and 3 despite the fact that domestic violence could not be established. Though it is possible to say that the maintenance was permissible for respondent Nos. 2 and 3 (minor children) under Section 125 of the Code of Criminal Procedure, the monetary reliefs could not have been given to them under Section 20 of the Protection of Women from Domestic Violence Act, 2005. The view taken by the learned Magistrate and the appellate Court, in my opinion, is not correct and hence, I pass the following order.
i. The writ petition is allowed.
ii. The order passed by learned Magistrate in Misc. Criminal Case No. 27 of 2011 on 12th March, 2013 and the order passed by the learned Sessions Judge, Gadchiroli in Criminal Appeal No. 14 of 2013 on 9th
December, 2013 are set aside.
iii. The amount of Rs.Twenty Five Thousand, deposited by the petitioner in this Court shall be refunded to him immediately.
The petition stands disposed of accordingly.
Bombay HC- CrPC 125(3) procedure to be followed for recovery of due amount/ arrears in PWDVA 2005 instead of issuing Non Bailable order Directly.
“the procedure laid down under Section 125(3) of the Code of Criminal Procedure for getting compliance of the orders passed by the Magistrate under Section 125(1) of the Code will have to be followed for executing the orders passed by the Magistrate under Section 20 (Monetary Reliefs) of the Protection of Women from Domestic Violence Act, 2005. The reliefs available under Section 125(1)(a) of the Code of Criminal Procedure are analogous to the reliefs available under
Section 20 of the Protection of Women from Domestic Violence Act, 2005. ”
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.305 OF 2014.
Mr. Sachin s/o Suresh Bodhale,
Aged 36 years,
Occupation – Business,
R/o Plot No.2, Apana Ghar Scheme,
Visava Naka, Godoli, Satara (MH). …. PETITIONER
Sau. Sushma w/o Sachin Bodhale,
Aged 35 years,
Occupation – Nil,
R/o C/o Sau. Savita Sanjay Patil,
Plot No.119, Shri Mahalaxmi Apartment,
Nelco Housing Society, Subhash Nagar,
Nagpur. …. RESPONDENT
Shri Sudhir Moharir, Advocate for the petitioner,
Shri R.R. Vyas, Advocate for the respondent.
CORAM : M.L. TAHALIYANI, J.
DATED : 6th
ORAL JUDGMENT :
1. Heard learned Counsel Shri Sudhir Moharir for the petitioner and learned Counsel Shri R.R. Vyas for the respondent.
2. Rule. Rule made returnable forthwith by the consent of the learned Counsel appearing for the parties.
3. The petitioner has moved this Court by invoking powers of this Court under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure. The petitioner is aggrieved by the order passed by the learned Magistrate in Misc. Criminal Application No.890/2012
(Sushma vs. Sachin). The order, which is questioned before this Court, reads as under :
“Perused the application and stay.
Heard learned Advocate for both sides.
Applicant relied on 2013 All M.R.(Cri.) 2572. Learned
Advocate for N.A. has opposed that Magistrate has no powers.
N.A. has not paid any amount towards interim maintenance.
Learned Advocate has also confessed that N.A. has not paid any
amount towards interim maintenance order which is passed on
Provision under Section 28(2) is very clear when N.A. has
not paid amount and not complied the order, she cannot be kept
high and dray. Magistrate is empowered under Section 28(2) to
issue N.B.W. Citation filed by applicant is very much applicable
in the case in hand. Hence application is allowed. Issue N.B.W.
4. The petitioner is husband of the respondent. The respondent has filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the learned Magistrate. An interim order has been passed granting monetary relief. It appears that the petitioner has not paid the amount to the respondent as per the interim order. A
nonbailable warrant has been issued for nonpayment of amount of interim maintenance to the respondent by the petitioner. It appears from the order of the learned Magistrate that the learned Magistrate was of the view that he could formulate his own procedure under Section 28(2) of the Protection of Women from Domestic Violence Act, 2005. It appears that the Magistrate was also of the view that he can lay down his own procedure for recovery of the amount of interim maintenance. Subsection (2) of Section 28 of the Protection of Women from Domestic Violence Act, 2005 reads as under :
“28(2). Nothing in subsection (1) shall prevent the court from laying down its own procedure for disposal of an
application under section 12 or under subsection (2) of section 23.
Subsection(1) of Section 28 of the said Act reads as under :“28(1). Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions
of the Code of Criminal Procedure, 1973 (2 of 1974)”
5. Therefore, it is abundantly clear that basically the learned Magistrate has to follow the procedure laid down in the Code of CriminalProcedure for recovery of maintenance either final or interim. Subsection (2) of Section 28 of the Protection of Women from Domestic Violence Act, 2005 can be pressed into service when there is no provision available for implementing a particular order passed under the Protection of Women from Domestic Violence Act, 2005. If the procedure is available in Code of Criminal Procedure, that is necessarily to be followed.
6. In my considered opinion, the procedure laid down under Section 125(3) of the Code of Criminal Procedure for getting compliance of the orders passed by the Magistrate under Section 125(1) of the Code will have to be followed for executing the orders passed by the Magistrate under Section 20 (Monetary Reliefs) of the Protection of Women from Domestic
Violence Act, 2005. The reliefs available under Section 125(1)(a) of the Code of Criminal Procedure are analogous to the reliefs available under Section 20 of the Protection of Women from Domestic Violence Act, 2005.
The procedure for getting compliance of the order passed under Section 125(1) of the Code of Criminal Procedure is available under Section 125(3) of the Code of Criminal Procedure, which runs as under :
“125(3). If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made
to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”
7. The procedure for levying of fines is available under Section 421 of the Code of Criminal Procedure as under :
“421. Warrant for levy of fine – When an offender has been
sentenced to pay a fine, the Court passing the sentence may take
action for the recovery of the fine in either or both of the
following ways, that is to say, it may
(a) issue a warrant for the levy of the amount by
attachment and sale of any movable property belonging to the
(b) issue a warrant to the Collector of the district,
authorising him to realise the amount as arrears of land revenue
from the movable or immovable property, or both of the
8. Thus there is absolutely clear provision under the Code of Criminal Procedure, which lays down as to how the amount of maintenance, final or interim, is to be recovered. The Magistrate, in my opinion, could not have issued nonbailable warrant directly. He should have followed the procedure laid down in sub section (3) of Section 125 & Section 421 of the Code of Criminal Procedure. In the scheme of Code of Criminal Procedure, in the first place, the Magistrate was under obligation to issue a warrant for levy of the amount by attachment and sale of any movable property. The other remedy available was to issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter. The Magistrate could have sentenced the petitioner for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which might extend to one month or until payment if sooner made.
9. As such the first option available to the Magistrate was to issue a warrant for levying fine. If whole of the amount was recovered by adopting the procedure under Section 421 of the Code of Criminal Procedure, the question of putting the defaulter in prison did not arise. In case amount was not recovered or part of it was recovered and part of it was not recovered, then the question would have arisen as to how much sentence should be imposed on the defaulter as per the provision laid down in the Code of Criminal Procedure. The stage of issuing warrant comes only after sentencing and not before that.
10. In view of above discussion, it is abundantly clear that the order dated 024 2014 passed by the learned Magistrate in Misc. Criminal Application No.890/2012 cannot be sustained. It needs to be quashed and is
accordingly quashed. The respondent is at liberty to take necessary steps in accordance with law.
11. Rule is made absolute in the above terms.
Bombay High Court
Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale on 17 February, 2010
Bench: R. S. Dalvi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8954 OF 2009
Neelam Dadasaheb Shewale .. Petitioner Vs.
Dadasaheb Bandu Shewale .. Respondent Mr. Milind N. Jadhav i/b Mr. Sagar G. Talekar for the Petitioner. Mr. R. T. Lalwani for the Respondent.
CORAM : MRS. R. S. DALVI, J.
DATE : 17TH FEBRUARY, 2010
1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.
2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.
3. Two orders are passed upon three applications of the parties.
4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.
5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife’s application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.
6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.
7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.
8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband’s name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.
9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.
10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :
ORDER III :
1. Appearances, etc., maybe in person, by recognized agent or by pleader. – Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression “appearance, application or act in or to any Court”. This is so because, the right of audience in Court, the right to address the Court, the right to examine and cross-examine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not “acting” as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be “appearing, applying or acting” on his behalf. 7
12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression “practice” is wider than the expression “plead”. Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney 8
could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.
13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties’ constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and 9
the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.
14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought 10
permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.
15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner’s life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.
16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.
(R. S. DALVI, J.)
Bombay HC:- Service of Notice of Maintenance Case should be served to the Respondent (Husband) personally or to the Family of the Respondent and not to the advocate appearing on behalf of Respondent in other matters.
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.74 OF 2012.
Atul S/o. Bhaskarrao Thakre (Deshmukh),
aged about 34 years, R/o. C/o.
Bhaskarrao Sheshrao Thakre, Near Samaj
Mandir Khedkar Nagar, Akola, Dist. Akola. …. APPLICANT.
1. Sau. Anuja W/o. Atul Thakre,
(Deshmukh), Aged 31 years,
Occu. Housewife, R/o. S.B.I. Colony,
No.4, Gajanan Peth, Akola, Tq. and
2. The State of Maharashtra, through
P.S.O. Akola. …. RESPONDENTS.
Mr. A.V.Bhide, Advocate for Applicant.
Mr. U.J.Deshpande, Advocate for Respondent No.1.
Mr. V.A.Thakre, Additional Public Prosecutor for Respondent No.2.
CORAM : M.L. TAHALIYANI, J.
DATED : MARCH 01, 2013.
ORAL JUDGMENT :
3. Heard finally by consent.
4. The applicant is aggrieved by the order passed by learned Family Court in Petition No.E11/2011 directing the applicant to pay a sum of Rs.8,300/ per month to respondent No.1 by way of maintenance. Respondent No.1 is wife of the applicant. Respondent No.1 has filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure before the Family Court. The said application was finally decided by the impugned order.
5. During the course of hearing it was pointed out by learned counsel Mr. Bhide that the application filed by nonapplicant under Section 125 of the Code of Criminal Procedure was not served upon the applicant in
accordance with law. He has brought to my notice contents of the impugned judgment at paragraph No.10 which can be reproduced as under :
“10. The non applicant had filed the petition for divorce which was pending in this Court. His advocate received the service of the notice of the present proceeding. The non applicant did not remain present nor filed his say inspite of various opportunities given to him hence by an order dtd 16.6.2011 the applicant was directed to proceed without say.”
6. It is, thus, clear that there was no service of maintenance application on the applicant personally or on any of his family members. The application was served through the Advocate who was appearing on behalf of the applicant in separate proceedings under the Hindu Marriage Act, 1955.
7. In my considered view, the service effected by the Family Court was not ‘good service’ in law. For this reason the order passed by the Family Court cannot be sustained. The applicant will have to be given opportunity of being heard and the application will have to be decided afresh.
i. The application is allowed.
ii. The order passed by Family Court in Petition No.E11/2011 directing the applicant to pay a sum of Rs.8,300/ by way of maintenance to respondent No.1 and all other consequential orders are set aside.
iii. The application filed by respondent No.1 shall be heard afresh.
iv. The applicant and respondent No.1 both shall appear before the Family Court on 18th March, 2013 at 11.00 a.m.
v. It is made clear that now Family Court is not under obligation to effect fresh service on the applicant.
The application stands disposed of accordingly.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: January 07, 2010
Date of Order: January 25, 2010
+ Cont. Cas(C) 482 of 2008
Gurbinder Singh …Petitioner Through: Mr. V.M. Issar, Advocates
Manjit Kaur …Respondents Through: Mr. Anish Dhingra, Advocate along with respondent in person.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
1. The petitioner has preferred this contempt petition against respondent alleging violation of an undertaking given to the Court of Additional District Judge, Jallandhar on 8th September 2000.
2. The petitioner and respondent are husband and wife. The petitioner was in the Army and the wife was working as a teacher in S.D. Model School, Jalandhar Cantt. The divorce and various other proceedings were going on between the parties. The parties with the intervention of their counsels entered into a settlement and this settlement was recorded by the Court. In that settlement, the respondent (wife) agreed that she will not initiate any type of action against petitioner or against children of the parties or against the parents of the petitioner and other relatives of the petitioner (the children were at that time living with the petitioner) before the Court of law or before any other authority and she would not do anything which would affect the character, status or reputation of the petitioner. The petitioner also gave a similar undertaking that he would not disturb respondent in any manner and he Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 1 Of 3 would not institute any action against her either before the Court of law or before any authority and he will not try to castigate honour or character or reputation in any manner. Thereafter, before this Court in April’05, she (respondent) again filed an affidavit that she would abide by the undertaking given to the learned ADJ on 8th September 2000 and she would not harass or humiliate the petitioner in future and will not create any cause of action afresh. This undertaking was given by way of an affidavit. Thereafter, the respondent herein filed an application under Section 125 Cr.P.C. before the Jallandhar Court in August’ 04 claiming maintenance from the petitioner on the ground that the petitioner had neglected to maintain her and she had no source of income. There is no doubt that the respondent had a right to claim maintenance from the petitioner, if she was not able to maintain herself. A perusal of the ex parte order obtained by her from the Court of Jallandhar shows that she concealed all material facts from the Court at Jallandhar. She did not disclose that she was working as a teacher in a school at Jallandhar and that there was an agreement between the parties arrived before learned ADJ, Delhi and that she had also filed an affidavit in the High Court that she would not unnecessarily harass the husband. Where a person after concealing the material facts about her own employment and about the undertaking given to the Court, files an application for maintenance just to harass the opposite side, after giving an undertaking to the Court that she would not harass the petitioner (husband), I consider this amounts to violation of undertaking given by her. The respondent appeared in person today in the Court and admitted that at the time she filed the petition in the Jallandhar Court, she was gainfully employed as a teacher and she continued to remain in employment till 2008 i.e. even after passing of the order under Section 125 of Cr.P.C. A perusal of the ex parte order passed by learned JM would show that the respondent had concealed from the JM about her own employment, her salary from the school and her assets and contended that the respondent was drawing a pension of Rs.10,000/- per month and his income from other sources was Rs.20,000/- per month and she obtained an order of grant of maintenance @ Rs.3,000/- per month from the date of application. She did not disclose to this Court when she filed her affidavit in this Court in April, 2005 that Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 2 Of 3 she had filed a petition at Jallandhar Court which was going on ex parte or that she had already preferred a petition under Section 125 of Cr.P.C which was pending.
3. I consider that the conduct of the wife (respondent herein) of not disclosing to this Court about a petition being pursued by her and her conduct of concealing the material information from the Court of Judicial Magistrate, Jallandhar obtaining an ex parte order was contemptuous and violation of an undertaking given by her.
4. I, therefore, hold the respondent guilty of contempt and a fine of Rs.10,000/- is imposed on her.However, after her retirement, if she seeks maintenance for herself after disclosing to the Court concerned about her pension and other income and properties, which she holds in Delhi and other places, she would be free to make a petition regarding maintenance before the Court of competent jurisdiction.
5. With above order, the petition stands disposed of.
January 25, 2010 SHIV NARAYAN DHINGRA J. rd