Bombay High Court
Rahul Arun Suryavanshi And Ors vs Lalita Rahul Suryavanshi @ Lalita Hari ... on 8 January, 2019
Author: Prakash D. Naik
Bench: Prakash Deu Naik
Sknair revn-569-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.569 OF 2016
Lalita Rahul Suryawanshi ... Applicant
Vs.
Rahul Arun Suryawanshi & Ors. ... Respondents
WITH
CRIMINAL APPLICATION NO. 101 OF 2017
IN
CRIMINAL REVISION APPLICATION NO.569 OF 2016
Lalita Rahul Suryawanshi ... Applicant
Vs.
Rahul Arun Suryawanshi & Ors. ... Respondents
WITH
CRIMINAL REVISION APPLICATION NO. 480 OF 2016
Rahul Arun Suryawanshi & Ors ... Applicants
Vs.
Lalita Rahul Suryawanshi & Anr. ... Respondents
WITH
CRIMINAL APPLICATION NO. 486 OF 2016
IN
CRIMINAL REVISION APPLICATION NO. 480 OF 2016
Rahul Arun Suryawanshi & Ors ... Applicants
Vs.
Lalita Rahul Suryawanshi & Anr. ... Respondents
WITH
CRIMINAL APPLICATION NO. 597 OF 2016
IN
CRIMINAL REVISION APPLICATION NO. 480 OF 2016
Lalita Rahul Suryawanshi ... Applicant
Vs.
Rahul Arun Suryawanshi & Ors. ... Respondents
...
Mr. Balwant W. Kakade for the applicant in Revision Application No.
569 of 2016 and Respondent in Revision Application No. 480 of 2016.
Mr. R.R. Salvi I/by Ms. Suvarna Telgate for the applicant in Revision
Application No. 480 of 2016 and respondent in Revision Application
No. 569 of 2016.
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RESERVED ON : 19th JULY, 2018
PRONOUNCED ON : 8th JANUARY, 2019
JUDGMENT :
1. Revision applicant in CRA No. 569 of 2016 hereinafter referred to as "Wife" have challenged the impugned order passed by Courts below to the extent of monetary relief under Section 20(1)(a) of the Domestic Violence Act (herein after referred as to 'D.V.Act'). Whereas revision applicants in CR No. 480 of 2016 have challenged the impugned orders passed by the Courts below. These proceedings arise out of application filed by wife under section 12 of Protection of Woman from Domestic Voilence Act, 2005 (hereinafter called as "D.V.Act").
2. Wife (revision applicant) in CRA No. 569 of 2016 had preferred an application/complaint under the Domestic Violence Act viz CC 219/N/2011. In the said application it was stated that the applicant (wife) was married to Respondent No.1 on 12th December, 2009, according to Hindu Religious rites and customs. After the marriage she joined matrimonial home with husband and other opponents at B-302, Mohan paradise, Phase-1, Near 2 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt Nilkantha Park, Khadakpada, Kalyan, Dist. Thane. The husband used to quarrel with wife on account of mobile phone numbers of several persons stored in her mobile phone. Husband used to taunt her as characterless. Husband kept on taunting her before his relatives who were also residing at the said matrimonial house from 22nd December, 2009 to 8th January, 2016. Revision applicant surrendered her mobile phone to husband and she did not operate the same. Thereafter, phone was handed over to her. She gave it for repairs. Husband then kept on making inquires about the person whose number were stored in the mobile phone of the revision applicant and also about her e-mail address and e- mail exchanged with her. The applicant explained her husband that she was acquainted with said person in group of friends marriage at Kolhapur where telephone numbers were exchanged. She also disclosed about other persons who had proposed her for marriage which was turned down by her and since they were not in good terms on account of refusal of proposal of marriage by the revision applicant they were sending dirty e-mails. However, she was continuously tortured physically and mentally. The husband called the parents of the revision applicant and meeting was held on 30th January, 2011. The opponents complained about the 3 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt character of revision/applicant to her parents and passed objectionable remarks about her chastity. The respondent No.1 also told the revision/applicant to leave the house with her parents immediately. Revision/applicant then went to her matrimonial home. She was ill and totally disturbed due to mental harassment and she had no choice but to leave with her parents. The husband then tried to compromise with the applicant wife on the condition that she should loose her mobile and also employment and joined the matrimonial home. Applicant wife joined her matrimonial home on 16th May, 2010. The respondent No.1 husband told her that she should leave the job and stop operating her cell phone. She resigned from job on 17th May, 2010. Inspite of that harassment continued, the husband also told her to being two gold bangles and gold nathani from her parents. Even thereafter she was continuously harassed by opponent. The husband has also assaulted her by giving blow on her chest. Opponents keeps on taunting the revision/applicant. The respondent No.1 also insisted that she should leave the home on her own accord. The applicant lodged the complaint with Mahatma Phule Police Station on 13th September, 2010 under Section 323, 504, 506 of Indian Penal Code. Respondent No.1 was called at the police station. The 4 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt respondent No.1 had agreed that he would bring his wife back to matrimonial home within one week and hence police did not take cognizance of the complaint and registered his case as non- cognizable offence. The respondent No.1 then sent legal notice through his advocate making false and frivolous allegations and asking her whether she is willing to go for divorce by mutual consent. Said notice was sent on 8th November, 2011. On 22nd November, 2011, the revision applicant/ wife filed the application under Section 12 of the Domestic Violence Act. She had prayed for monetary relief under Section 20 of the Domestic Violence Act for loss of job and her earnings of Rs.15,000/- per month. She had also prayed of Rs.1,00,000/- as compensation for injuries to physical pain and mental torture faced by her. Respondent filed reply to the said application denying the contention of revision/applicant. The revision applicant wife also preferred an application to grant interim order under Section 23 of Domestic Violence Act and read with Section 20 of Domestic Violence Act. The Court then proceeded to record the evidence. After recording the evidence, order dated 27th October, 2015 passed by the trial Court.
3. Learned Magistrate by order dated 27th October, 2015 5 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt directed the respondent to pay Rs.5000/- per month to the wife towards maintenance and Rs.5000/- per month towards rent from the date of filing of application i.e from 22 nd November, 2011. Respondent No.1 also directed to pay compensation of Rs.50,000/- to the wife in lumpsum.
4. The said order was challenged by both the parties before the Sessions Court. Wife preferred criminal appeal no. 1009 of 2016 whereas the husband preferred Criminal Appeal No. 268 of 2016 challenging the order dated 27th October, 2015. Learned Additional Sessions Judge, Greater Mumbai rejected both appeals by order dated 4th July, 2016.
5. The said order passed by the Court's below are subject matter of these revision applications viz. Criminal Revision Application No. 569 of 2016 (wife) and Criminal Revision Application no. 480 of 2016 (Husband and others).
6. Learned advocate Shri Kakade appearing for revision applicant wife in CRA No. 569 of 2016 and respondents in CRA No. 480 of 2016 submitted that the trial Court as well as Appellate Court has not taken into consideration the documents on record while granting of maintenance. The husband was directed to pay meager amount of Rs.5000/- per month towards maintenance and 6 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt Rs.5000/- per month towards rent and compensation of Rs.50,000/-. It is submitted that applicant had produced the resignation acceptance letter of her employment issued by SISCO Research Laboratories Private Limited showing that the applicant was earning Rs.15,280 per month and her resignation was accepted from 17th May, 2010. Inspite of evidence on record, the trial Court has observed that the applicant did not give any document to show how much salary she was earning when she was employed. Even the Appellate Court has recorded similar findings which is contrary to record. He submitted that the Respondent No.1/husband had put up two fold conditions for joining her matrimonial home. Firstly, the applicant shall loose her mobile (not to use mobile) and secondly, she should resign from her job. Accordingly, the applicant had joined her matrimonial home on 16th May, 2010 and resigned from job on 17th May, 2010. The appellate Court has observed that in the appeal preferred by the wife, she had claimed Rs.15,000/- per month for loss of job but she did not produce document to show quantum of her salary. It is submitted that document in respect to her salary were completely overlooked by the Court. The applicant claimed monetary relief under Section 20(1)(a) of 7 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt Domestic Violence Act. The applicant was earning Rs.15,280/- per month and claimed Rs.15,000/- per month. She had claimed the amount of salary. Although, the Court has granted lumpsum compensation of Rs.50,000/- the Court did not grant any amount for loss of earning. Learned Magistrate granted maintenance of Rs.5000/- per month and not consider income of the Respondent No.1 and his standard of living. The Appellate Court has reiterated the error. The applicant had brought on record documents relating to the earning of Respondent No.1. However, the same were not considered by the Courts below. Documents shows that the Respondent No.1 earning Rs.77,376/- per month however, the said evidence was ignored by both the Courts. Applicant had studied upto B.A. She had persuaded her study for MBA. It is therefore submitted that the applicant be granted relief under Section 20(1)(a) of the Domestic Violence Act regarding loss of her earning Rs.15,000/ per month from 17th May, 2010.
7. Mr. Kakade learned counsel for the applicant relied upon the following decisions.
i) V.D. Bhanot Vs. Savita Bhanot 1 ii) Mangesh Sawant Vs. Minal Vijay Bhosale & Anr.2 1. AIR 2012 Supreme Court 965 8 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt
8. Mr. Salvi appearing for the Respondents in CRA No. 569 of 2016 and applicant in CRA No. 480 of 2016 submitted that the orders passed by the Courts below are contrary to law. Both the Courts have not taken into consideration the question relating to applicability of Domestic Violence Act. There was no domestic violence and the allegations made in the application in Domestic Violence Act did not attract the provisions of Domestic Violence Act. The Respondent No.1 had filed the reply opposing the relief sought in CRA No. 569 of 2016. It is submitted that marriage was solemnized in 2009. After the marriage they came to Kalyan and resided there till 18th January, 2010. The wife left to her parent's house on 19th January, 2010 for MBA examination. On 16th May, 2010, she returned to matrimonial home. On 11 th July, 2010, the wife again left to her parent's house and stayed there till 16 th July, 2010 and returned to Kalyan at the parent's place with Respondent No.1. Thereafter she joined the Respondent No.1 at Pune and stayed there till 9th September, 2010. She left the matrimonial home on 13th September, 2010 and lodged false NC complaint. Thereafter, the Respondent No.1 made attempts to bring his wife back to matrimonial home but failed due to her adamant
2. 2012 ALL MR (Cri) 1113 9 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt behaviour. Thereafter, the husband sent notice of divorce by mutual consent. As a counter blast to the notice, the wife filed proceedings under Domestic Violence Act before the Court of Magistrate at Mulund. The notice was replied through her advocate. The Respondent No.1 filed written statement to the complaint under the Domestic Violence Act. Respondent No.1 also forwarded a notice dated 23rd July, 2013 for restitution of conjugal rights as a counter blast to that wife interim maintenance application under section 22(2) of the Domestic Violence Act on 2nd September, 2013. The respondent No.1 opposed the same by filing reply vide Exh.23. The trial Court did not pass any order on interim application and proceeded with the trial and recorded the evidence of both the parties. During the trial the advocate for the applicant preferred an application for condonation of delay vide Exh.38. Said application was opposed by the Respondent No.1 by filing reply. No orders was passed on the said application. Trial Court then proceeded to pass the impugned order dated 27th October, 2015 and partly allowed the application. The appeal filed by the Respondent No.1 was dismissed by the Sessions Court. It is submitted that applicant wife is not "aggrieved person" as per Section 2(a) of the Domestic Violence Act and she was not in a 10 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt "domestic relationship" with Respondent No.1 as per Section 2(f) of the said Act. She was not staying in her "shared household" as defined under Section 2(s) of the said Act. The application preferred by the Respondent No.1 was time barred. There was a delay of 15 months in preferring said application. The applicant wife had not established any case of domestic violence and did not produce any documentary evidence or examined any witness. The trial Court has accepted the statement of the applicant as a gospel truth and partly allowed the application. The applicant wife has admitted in her deposition that mobile number of several boys were saved in her mobile phone and she was acquainted with them. There was exchange of dirty messages and e-mails. The alleged incident of domestic violence taken place in matrimonial house at Kalyan which belongs to the father of the Respondent No.1 and it is not her shared household as defined under Section 2(s) of the Domestic Violence Act. The applicant wife is a educated lady having done master in degree in Human Resources Development. She was working in a company. It is submitted that the proceedings under the Domestic Violence Act were initiated on 22nd November, 2011 and interim maintenance application was filed on 2nd September, 2013 which showed that the applicant was 11 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt not genuine and the wife was not in need of maintenance. There is no evidence for passing the order of rent by the trial Court. House where applicant and respondent No.1 had stayed were belongs to his father. Matrimonial house is not her household as defined under Section 2(s) of the Domestic Violence Act. The applicant is not entitled to claim right the residence in a share household would only mean that the house belong to parent of husband or joint family and the matrimonial home cannot be considered as shared household and therefore wife is not entitled for rent. Wife had residing with her parents after deserting Respondent No.1. Parties had made attempt to resolve the dispute during the pendency of these proceedings but could not succeed. Respondent No.1 was required to take frequent leave from his employment and on account of low performance rating, he had loose his job. In September, 2014, he joined another company, the applicant/wife made an application and summons were issued to the Manager of the said company. The company was not happy on receipt of the summons from the Court for attending the Court proceedings, the Respondent No.1 shall required to take frequent leave. The trial Court had issued a distress warrant which had been stayed by this Court. The employer had relieved the Respondent No.1 from his 12 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt job on 21st November, 2016 which is evident from the relieving letter dated 21st November, 2016.
9. Learned counsel Shri Salvi for the Respondent relied upon the following decisions i. S.R. Batra & Anr. Vs. Smt. Taruna Batra 3 ii. Japani Sahoo Vs. Chandra Sekhar Mohanty 4.
iii. Inderjit Singh Grewal Vs. State of Punjab and another5
iv. Sejal Dharmesh Ved Vs. The State of Maharashtra & Ors.6
v. Smt. Mamta Jaiswal Vs. Rajesh Jaiswal7
vi. Damanpreet Kaur Vs. Indermeet Juneja and Anr.8
10. Shri Salvi learned counsel for the Respondent No.1 also tendered the compilation of documents relating to the proceedings before the trial Court as well as the documents showing that shared household is in the name of father of Respondent No.1 and the e-mails exchanged between the applicant wife and other
3. AIR 2007, Supreme Court 1118
4. (2007) 7 SCC 394
5.(2011) 12 SCC 588
6. 2014 ALL MR (Cri) 636
7. II (2000) DMC 170
8. 2013(I) Crimes 650 (Del.) 13 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt persons.
11. I have perused the documents. Wife has given instances of harassment which according to her amounts to domestic violence. The marriage was solemnized in 2009. According to applicant/wife, she was harassed by the respondent/husband and in laws. The exchange of messages and the phone numbers of the boys which were found saved in the cell phone of the applicant wife and said instances which had occurred prior to marriage. According to applicant, she has tendered explanation for the messages and storing the phone number of the said persons. However, she has not done anything wrong to brand her as a characterless. She was continuously taunted by the husband and others by calling her characterless. She was abused in the presence of relatives and it was also stated by the respondent/opponents that she was slept with several person. The applicant/wife has undergone mental trauma and she was subjected continuous mental torture. The evidence also indicate that she was allowed to join matrimonial home on two fold conditions i.e to stop using mobile phone and to leave her job. Immediately thereafter she joined the matrimonial home and complied the conditions on the next day. She left the job on 17 th 14 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt May, 2010. She was working with SISCO Research Labortaroies Private Limited, Andheri and she was earning the amount of Rs.15,280/- per month. She had resigned from job on 17 th May, 2010. The salary certificate of the respondent No.1 was also brought on record. According to applicant wife the documents shows that husband was earning Rs.77000/- per month. The applicant wife filed an application under Section 23 and Section 20 of Domestic Violence Act for claiming interim maintenance and loss of salary of Rs.15,000/- per month. However, trial court granted maintenance of Rs.5000/- which order is confirmed by the Sessions Court.
12. Applicant wife has filed affidavit in this Court dated 9 th July, 2010 alongwith documents. She has produced certified copy of interim application Exh.22 and other documents exhibited as Exh.29, Exh.31, Exh.33 (certified copies of salary certificate of husband). It is stated in the affidavit that she had filed application Exh.22 for interim relief in respect of salary certificate of her employment. Certified copy is produced. It is apparent that applicant had produced on record certificate of salary issued by SISCO Research Labortaroies Private Limited wherein it was mentioned that the applicant wife was working with the said 15 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt company on 13th July, 2009. She had joined as Executive HR and was promoted to the post of Senior Executive HR with effect from 13th January, 2010. She resigned from the company from 17 th May, 2010 due to personal reason. The certificate mentioned that her monthly salary was Rs.15,280/-. Said certificate was issued in pursuant to the letter issued by the advocate for the applicant dated 2nd April, 2012. Said document is part of evidence. The applicant had preferred an application (Exh.29) before the trial Court seeking direction to HR Manager Capgemini India Private Limited where the Respondent No.1 was working for producing salary details of Respondent No.1. On 14th January, 2015 the trial Court directed the Respondent No.1 to produce salary certificate. The Respondent No.1 filed an application (Exh.31) before the trial Court on 6th February, 2015 stating that he was serving temporarily and his employer cannot issue salary or certificate in his favour. He is receiving salary according to his attendance. During January, 2015 he received salary of Rs.10,000/-. Applicant had contacted his HR Manager alleging that she is subjected to ill- treatment and it is very difficult for him to serve in the company. His salary is less than Rs.15,000/- per month and his parents are depending upon him. Applicant thereafter preferred another 16 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt application on 6th February, 2015 before the trial Court (Exh.32) In this application she had stated that respondent No.1 is avoiding for production of salary certificate and therefore summons/notice was issued to HR Manager, Capgemini India Pvt. Ltd to produce the salary details of Respondent No.1. In pursuant to that notice was issued to the Manager of the said employer of the Respondent No.1 calling upon the Manager of the company to produce the salary slip and salary certificate of the Respondent No.1. Thereafter in compliance of the said order, the employer of Respondent No.1 produce the documents sought by the Court. The documents relating to the earnings / salary of Respondent No.1 he is drawing salary of Rs.77,000/- per month after deducted. Intimation letter alongwith salary document was exhibited in evidence vide Exh.33.
13. Surprisingly, the trial Court as well as Appellate Court has ignored the said documents. In the impugned order dated 27 th October, 2015, in paragraph 25 it is stated that applicant is claiming compensation for the loss of job. The applicant did not give document to show how much salary she was getting when she was doing the job. In Paragraph 20 of order dated 4 th July, 2016, the Sessions Court has observed that wife has claimed Rs.15,000/-
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per month for the loss of job. The trial Court has stated that she did not produce the documents to prove her salary. Reasons are appropriate and the relief was rightly refused. Thus, the documents with regards to the salary of the applicant wife, while she was working with SISCO Research Labortaroies Private Limited is completely overlooked by both Courts below. There is no reference to salary documents of respondent-husband and even the salary with regards to earning of Respondent No.1 was completely ignored by the Courts below. It is also apparent that the Respondent No.1 was avoiding to produce the salary documents which is evident from the application preferred by him vide Exh.31. The trial Court had directed the Respondent No.1 to pay Rs.5000/- per month to the applicant wife towards maintenance and Rs.5000/- per month towards rent from the date of filing of the application i.e. 22 nd November, 2011. The order dated 27th October, 2015 does not take into consideration the aforesaid document and it is not mentioned on what basis the meager amount of Rs.5000/- has been arrived by the trial Court. The Court has not granted relief of loss of earnings. The Appellate Court has also accepted the reasons assigned by the trial Court with regards to the grant of maintenance. There are no reasons 18 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt for awarding the maintenance of Rs.5000/-. The applicant wife is therefore aggrieved with the findings of the trial Court with regards to grant of maintenance.
14. There is concurrent findings of both the Courts with regards to the domestic violence against wife. After analyzing the evidence adduced by the applicant wife wide Exh.11 and the evidence of Respondent No.1 vide Exh.25. The trial Court has analysed the nature of harassment and torture caused to the applicant/wife. The trial Court has also considered the defence of Respondent No.1 which is apparent from the impugned judgment. The trial Court has also considered the objection with regards to delay in preferring an application. The Court took into consideration the judgment of Hon'ble Supreme Court delivered in special leave petition in Criminal Appeal No. 3196 of 2010 wherein it was observed that the conduct the parties even prior to the coming into force of PWD Act could be taken into consideration while passing an order under Sections 18, 19 and 20 and even after the wife who had shared household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act. The Court has observed that there is sufficient material to come to the conclusion 19 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt that there is domestic violence by the respondent against the applicant. The appellate Court has also drawn analysis of the evidence adduced before the trial Court. The Court also took into consideration e-mails exchanged with the applicant/wife which was subject matter of dispute. The Appellate Court has observed that there is domestic violence. The appellate Court has also rejected the contention of the respondent that the application was barred by law of limitation. The findings of the trial Court and the Appellate Court with regards to the instances of domestic violence and applicability of the provisions which are concurrent finding in nature. I do not find any infirmity in the said findings of both Courts. The contention of the Respondent that there was no domestic violence of that applicant wife was not living in shared house hold and all contentions with regards to maintainability of complaint under the Domestic Violence Act are devoid of merits in the light of evidence adduced by the applicant.
15. The decision in the case of V.D.Bhanot Vs. Savita Bhanot (Supra), it was observed that women who had shared household in the past but had left it prior to the enforcement of Act is also entitled for protection of Act. In the case of S.R. Batra Vs. Smt. Taruna Batra (Supra), the Hon'ble Supreme Court has dealt with 20 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt the issue relating to shared household accommodation, it was observed that the mother-in-law does not become shared household only because the applicant-wife had shared that house with her husband earlier and for that it has to be used owned and taken on rend by husband or house which belongs to joint family of which the husband become a member. In the case Japani Sahoo Vs. Chandra Shekhar Mohanty (supra), the Court has considered the bar of limitation, the Court has considered the fact of Section 468 of Code of Criminal Procedure which relates to the limitation of taking cognizance by the Court. In the case of Inderjit Singh Grewal Vs. State of Punjab and another (supra), the Apex Court has held that complaint under section 12 was not maintainable on various grounds. It appears conclusive review on issue of limitation does not seem to have been expressed. In the case of Sejal Dharmesh Ved Vs. The State of Maharashtra (supra), it was observed that wife has returned from USA lived in India for one year cannot be said to be domestic violence relationship. In the case of Mamta Jaiswal Vs. Rajesh Jaiswal (Supra), the decision delivered by M.P. High Court, it was observed that lady who is fighting for matrimonial petition filed for divorce cannot be permitted to sit idle and put her burden on 21 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt husband for demanding pendent lite alimony from him during pendency of matrimonial petition. In the case of Damanpreet Kaur Vs. Indermeet Juneja and another (Supra), the Delhi High Court had observed that the wife of well qualified, capable to maintain herself and had been actual earning in past. Well qualified spouse desirous of remaining idle not making efforts for finding out a source of livelihood was to be discouraged. The ratio laid down in the aforesaid decisions were applicable in the facts of the respective cases. The said decisions are not applicable in the present case.
16. In the light of the observations herein above, it can be seen that there is total non-application of mind on the part of the trial Court as well as Appellate Court with regards to quantum of maintenance and grant of relief of loss of earnings however as far as other findings of the trial Court as well as Appellate Court is concerned, with regards to maintainability of application and existence of domestic violence, I do not find any reason to interfere with the said findings. The Court below has thus granted maintenance to the applicant/wife but without considering the documents on record in proper prospective. There is no reference to salary documents of applicant wife and respondent husband.
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Although, the documents relating to the salary of applicant/wife and salary of Respondent No.1 were on record. The Court below has completely overlooked them and on the contrary has observed that there are no documents about earnings of wife on record. Taking into consideration the fact that both Courts ignored the documents which were exhibited in evidence with regards to the earning of the applicant and the respondent No.1, it would be appropriate to direct the trial Court to decide the issue relating to the quantum of maintenance as well as relief of loss of earning in accordance with Section 20(1)(a) of Domestic Violence Act by taking into consideration the documents on record. The respondent husband had deposited the amount of Rs. 2,65,000/- towards maintenance before trial Court. Distress warrant was issued on 2nd March, 2016. The husband agreed to deposit Rs.50% of arrears of maintenance. The Sessions Court stayed this warrant by order dated 13th April, 2016. The wife had preferred application No. 597 of 2016 before this Court to withdraw the said amount. The husband had preferred criminal application No. 486 of 2016 to stay execution of warrant and by order dated 24 th August, 2016 distress warrant is stayed. The wife is entitled for maintenance. Amount of Rs.5000/- had been awarded without considering 23 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt relevant evidence/document. While deciding quantum the Courts ought to have considered documents on record. In these circumstances, the deposited amount is required to be permitted to be withdrawn by applicant wife. The trial Court shall also decide the issue relating to loss of earning by considering evidence/ documents adduced by wife before Court. Hence, I pass the following order.
ORDER i. The impugned order dated 27th October, 2015 passed by the Metropolitan Magistrate, 27th Court, Mulund, Mumbai in C.C. No. 219/N/2011 and order dated 4th July, 2016 passed in Criminal Appeal No. 268 of 2016 and Criminal Appeal No. 1009 of 2015 are quashed and set aside to the extent of quantum of maintenance and refusal to grant loss of earning to the applicant wife. ii. The matter is remanded to the trial Court for considering the quantum of maintenance in the light of documents Exh.33 and prayer for loss of earnings by considering documents produced before Court viz. salary of applicant wife with SISCO Research Laboratories Pvt. Ltd.
iii. The trial Court shall decide the proceedings in accordance with the directions in clause (ii) within a period of six months 24 of 25 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 22:45:22 ::: Sknair revn-569-16.odt from the receipt of the order.
iv. The applicant wife is permitted to withdraw the amount of Rs.2,65,000/- deposited by husband before trial Court. The cheque for said amount be issued in maiden name of applicant wife viz. Lalita Hari Jagtap. The husband is granted four months time to pay the balance arrears towards maintenance, other than deposits made in trial Court.
v. Criminal Revision Application No. 569 of 2016 and Criminal Revision Application No. 480 of 2016 stand disposed off. vii. Criminal Application No. 101 of 2017, Criminal Application No. 486 of 2016 and Criminal Application No. 597 of 2016 stand disposed off.
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