Bombay High Court
Sarfaraz Moinuddin Patel vs The State Of Maharashtra And Anr on 8 August, 2019
Author: S. S. Shinde
Bench: S. S. Shinde
(913) wp-4451.14&anr.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4451 OF 2014
Sarfaraz Moinuddin Patel : Petitioner.
Versus
The State of Maharashtra and anr. : Respondents.
ALONG WITH CRIMINAL WRIT PETITION NO.4445 OF 2014 Moinuddin Ibrahim Patel and anr. : Petitioners versus The State of Maharashtra and anr. : Respondents.
Mr. Priyal Sarda i/by Ms. Manjiri S Parasnis for the Petitioners in both the Petitions.
Mrs. M R Tidke, APP for the Respondent/State.
Mr. P B Shah a/w Ms. Gunjan Shah i/by Mr. K P Shah for Respondent No.2.
CORAM : S. S. SHINDE, J
DATE : 08th August 2019
P.C.
1 Heard the learned counsel for the parties. The Petitioner -
husband in Writ Petition No.4451 of 2014 has challenged the order dated 3 rd August 2013 passed by the learned Magistrate in Criminal Misc. Application No.100 of 2008 and the order dated 04 th September 2014 passed by the learned 2nd Additional Sessions Judge, Satara in Criminal Appeal No.11 of 2013.
2 Respondent No.2 herein has filed an application under Section 12
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of the Protection of Women from Domestic Violence Act, 2005 in the Trial Court for separate residence, maintenance, damages to Respondent No.2/Applicant. The trial Court after considering the evidence and material placed on record, by order dated 03 rd August 2013 partly allowed the application filed by Respondent No.2 wife and directed the Petitioner - husband to provide separate residence either on ownership or on rent to the Applicant i.e. Respondent No.2 herein as per her status and he shall bear the expenses for the same. The Trial Court also directed the Petitioner - husband to pay Rs.1,000/- per month towards maintenance and, Rs.25,000/- towards damages to the Applicant, as also Rs.1500/- towards costs of the Applicant. 3 Against the order of Trial Court, the Applicant wife filed Criminal Appeal No.112 of 2013 in the Court of 2 nd Additional Sessions Judge, Satara. The Appellate Court by order dated 04/09/2014 partly allowed the said Appeal and modified by the order passed by the Trial Court. By the said order the Appellate Court set aside the order of dismissal of application as against Opponent Nos.2 and 3 i.e. the parents of the Petitioner husband. The Appellate Court directed the Petitioner husband, who is the Opponent No.1 in the said Appeal, to pay Rs.3000/- per month towards the house hold expenses in addition to the maintenance amount of Rs.1,000/- to the Applicant - wife. However, in so far as directions as regards providing separate residence by Petitioner husband to the Applicant wife, payment of compensation and costs lgc 2 of 6 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 23:25:28 ::: (913) wp-4451.14&anr.odt of application are concerned, the Appellate Court did not deem it appropriate to interfere with the said directions of the Trial Court. 4 Being aggrieved by the orders passed by the Courts below the Petitioners have filed the aforesaid writ petitions. It is not in dispute that the Respondent No.2 and Petitioner Sarfaraz got married on 03/12/2006. It is the case of the Petitioner that Talaq was given by Petitioner Sarfaraz to Respondent No.2 on 12/10/2007. It is the case of Respondent No.2 that she has undergone the alleged domestic violence. The learned counsel for the Petitioner submits that the Petitioner husband is not working in any company and had left the job and therefore he has no source of income and therefore directing the Petitioner to pay maintenance and provide separate accommodation either on ownership or on tenancy basis is not legally sustainable because both the Courts below did not consider the financial condition of the Petitioner husband.
5 It is pertinent to mention at this stage that while admitting Writ Petition No.4445 of 2014 filed by the parents of the Petitioner - husband, this Court (Coram : Mrs. Mridula Bhatkar, Her Ladyship then was), by order dated 10/12/2018 directed the Petitioners to pay amount of Rs.3,000/- towards household expenses and amount of Rs.1000/- towards maintenance to Respondent No.5 and also directed to pay amount of Rs.25000/- to lgc 3 of 6 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 23:25:28 ::: (913) wp-4451.14&anr.odt Respondent No.2 towards compensation. By the said order this Court stayed the remaining impugned order and the matter was adjourned only for the purpose of compliance of interim arrangement in respect of the rent and alternate house arrangement.
6 Pursuant to the aforesaid order dated 10/12/2018, Respondent No.2 wife has filed an affidavit dated 18/02/2019 thereby giving details of ownership flats as well rented flats.
7 The learned counsel for the Petitioners submits that the accommodation mentioned in the affidavit by Respondent No.2, if taken on rent, rent is minimum Rs.11,000/- and maximum Rs.15,000/- per month. The learned counsel for the Petitioner submits that Respondent No.2 wife has suggested some flats to be taken on rent, however, those are lavish flats and the petitioner may not be able to pay the monthly rent or ownership price of the said flats. The learned counsel for the Petitioner submits that since last 10 years Respondent No.2 is residing with her father. It is also submitted that the Petitioners have shown flats to Respondent No.2 but Respondent No.2 did not reply to the same. It is submitted that Respondent No.2 is not in dire need of the accommodation as she is more comfortable with her father at Wai. He invites attention of this Court to the grounds taken in the Petition in support of the aforesaid contentions.
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8 I have heard the learned counsel for the parties. Perused the
pleadings and the material placed on record as also the reasons assigned by both the Courts below. As indicated herein above, this Court by order dated 10/12/2018 admitted the Petition filed by the parents of the Petitioner husband, and directed the Petitioners to pay the amount of Rs.3000/- towards household and amount of Rs.1000/- towards maintenance to Respondent No.2. Though both the courts below have directed to provide separate residence to Respondent No.2, the Petitioner did not comply with the said orders nor he did comply with the directions issued by this Court. The matter is pending since 2014, more than five years have elapsed, still Petitioner husband did not take any step to provide accommodation to Respondent No.2. Keeping in view the conduct of the Petitioners in not providing accommodation in spite of directions of the Courts below, this Court (Coram : S S Shinde, J) on 7 th August 2017 has specifically queried Respondent No.2, whether Respondent No.2 is ready to accept rent per month. Upon this specific query being asked to Respondent No.2, the learned counsel for Respondent No.2 on instructions, replied in the affirmative. At that time, the learned counsel for the Petitioner sought a day's time to take instructions. Hence the matter was adjourned for today i.e. 08/08/2019. Today i.e. on 08 th August 2019 the learned counsel for the Petitioner husband submits before this Court that he has accordingly sought the instructions from the Petitioner husband as regards payment of rent lgc 5 of 6 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 23:25:28 ::: (913) wp-4451.14&anr.odt to Respondent No.2 and, the Petitioner husband is ready to pay Rs.4000/- per month towards the rent to Respondent No.2.
9 Considering the submissions made by the learned counsel for the parties as also considering the orders passed by Courts below, the interest of justice would be served if the Petitioner - husband in Writ Petition No.4451 of 2014 is directed to pay an amount of Rs.8,500/- towards rent per month from the month of August 2019 to Respondent No.2 wife without prejudice to the contentions of the parties and also subject to the final outcome of the Petition. The Petitioner husband shall start depositing from this month (i.e. August 2019), the said amount of Rs.8,500/- in the account of Respondent No.2 in which the Petitioner is depositing the amount of maintenance. 10 List the both the Petitions for compliance of directions as mentioned in paragraph 9 of this order on 07/10/2019 along with Writ Petition No.1707 of 2018.
[S. S. SHINDE , J]
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