Bombay High Court
Sharad Arjunrao Kosare vs Surekha Sharad Kosare on 19 June, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 wp1065.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.1065 OF 2018
Sharad Arjunrao Kosare,
Aged 57 years, Occupation - Service,
R/o Babupeth, Chandrapur. .... APPELLANT
VERSUS
Surekha Sharad Kosare,
Age 57 years, Occupation - Private,
R/o Behind Gurukrupa Apartment,
Plot No.117, Vishwasnagar, Nara
Road, Jaripatka, Nagpur-c/o-District. .... RESPONDENT
______________________________________________________________
Shri M. Anilkumar, Counsel for the appellant,
Shri Mahesh Rai, Counsel for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 19th JUNE, 2019.
ORAL JUDGMENT :
Heard Shri M. Anilkumar, learned Counsel for the appellant and Shri Mahesh Rai, learned Counsel for the respondent.
2. With consent, the petition is finally heard at the stage of admission.
::: Uploaded on - 24/06/2019 ::: Downloaded on - 14/07/2019 08:48:12 :::
2 wp1065.18
3. The petitioner is assailing the order dated 06-8-2018 rendered by the 16th Judicial Magistrate First Class, Nagpur in Miscellaneous Criminal Application 3944/2017 whereby the objection to the maintainability of the execution proceedings is rejected and is also assailing the confirmatory order dated 03-10-2018 passed by the Additional Sessions Judge-7, Nagpur whereby Criminal Appeal 246/2018 preferred by the petitioner is dismissed.
4. In view of the limited controversy, only few relevant facts are stated.
The respondent preferred an application under the provisions of the Protection of Women from Domestic Violence Act (DV Act) and further prayed for interim relief under Section 23 of the DV Act.
The respondent also filed petition before the Family Court for maintenance in which monthly maintenance of Rs.10,000/- was granted to her.
In Miscellaneous Criminal Application 637/2014 i.e. the DV Act matter, the respondent-wife applied for additional interim maintenance and vide order dated 25-2-2015 the petitioner-husband was directed to pay the respondent-wife interim maintenance of ::: Uploaded on - 24/06/2019 ::: Downloaded on - 14/07/2019 08:48:12 ::: 3 wp1065.18 Rs.5,000/- per month.
The order dated 25-2-2015 was challenged by the petitioner in Appeal 97/2015 which was dismissed by the first appellate Court on 24-8-2015. The petitioner approached this Court in Criminal Writ Petition 765/2015. This Court granted interim stay to the order impugned and directed the learned Magistrate to decide the quantum of maintenance alongwith the main application.
Ultimately, the learned Magistrate dismissed Miscellaneous Criminal Application 637/2014.
It is stated at the bar that the appeal of the wife challenging the order of dismissal of Miscellaneous Criminal Application 637/2014 is pending.
The respondent-wife sought to recover the interim maintenance i.e. the maintenance for the period from the date of the order to the date of the dismissal of the proceedings. The claim to recovery is on the premise that although the application under the DV Act came to be dismissed, the respondent-wife is entitled to the recovery of interim maintenance from the date of the order vide which the interim maintenance is granted till the date of the dismissal of the proceedings.
The petitioner-husband objected to the maintainability of ::: Uploaded on - 24/06/2019 ::: Downloaded on - 14/07/2019 08:48:12 ::: 4 wp1065.18 the execution proceedings relying on the order in Criminal Writ Petition 765/2015.
5. Shri M. Anilkumar, learned Counsel for the petitioner submits that the interim order merges in the final order of dismissal and in view of the order dated 27-6-2017 in Criminal Writ Petition 765/2015, the execution proceedings was not tenable. In order to appreciate the said submission, the order dated 25-2-2015 in Miscellaneous Criminal Application 637/2014 may be looked into.
6. The said order notes the contention of the respondent-wife that the maintenance of Rs.10,000/- granted by the Family Court in separate proceedings is not sufficient to meet the expenditure on medicines and the ailments from which the wife is suffering. The learned Magistrate considered the medical papers and the other material on record and directed that Rs.5,000/- per month be paid towards medical expenses. This order is confirmed in appeal. The petitioner-husband approached this Court in Criminal Writ Petition 765/2015 which is disposed of vide order dated 27-6-2017 which reads thus :
"Learned Counsel Shri Anil Kumar for the petitioner and learned Counsel Shri Mahesh Rai for the respondent submit ::: Uploaded on - 24/06/2019 ::: Downloaded on - 14/07/2019 08:48:12 ::: 5 wp1065.18 that during the pendency of the present petition, evidence in the main proceedings before the Court below has already complete and arguments are already over and the case is fixed for judgment.
In that view of the matter, in my view, nothing survives in the present proceedings.
Hence, the proceedings are disposed of. However, it is made clear that the amount of interim maintenance will be considered by learned Judge of the Court below while deciding the final quantum of maintenance."
7. It is clear from the order that what weighed with this Court was that the case was fixed for judgment. This Court clarified that the amount of interim maintenance will be considered by the learned Judge while deciding the final quantum of maintenance. It is more than clear that all that is clarified is that while determining the final quantum of maintenance the quantum of interim maintenance shall be factored in. This order dated 27-6-2017 does not nullify the effect of the order dated 25-2-2015 passed by the Family Court. The said order directed payment of Rs.5000/- per month towards the medical expenses and the fact that the application under the DV Act ultimately is dismissed, would not preclude the wife from recovering the said maintenance for the period from the date of the order i.e. 25- 2-2015 till the disposal of the proceedings i.e. 25-7-2017. The submission of the learned Counsel Shri M. Anil Kumar that the doctrine ::: Uploaded on - 24/06/2019 ::: Downloaded on - 14/07/2019 08:48:12 ::: 6 wp1065.18 of merger applies is noted only for rejection.
8. I do not see any error in the view concurrently taken by the Courts below. No case is made out for this Court to interfere with the orders impugned in exercise of writ jurisdiction.
9. The petition is dismissed with no order as to costs.
JUDGE adgokar ::: Uploaded on - 24/06/2019 ::: Downloaded on - 14/07/2019 08:48:12 :::