1 Criminal Application No.4998/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4998 OF 2010 Jagannath s/o Rangnath Navpute Aged 35 years, Occ. Agri., R/o Chikalthana, Mahadeo Temple Lane, Aurangabad ... APPLICANT VERSUS 1. The State of Maharashtra (Copy to be served on Public Prosecutor, High Court of Bombay, Bench at Aurangabad) 2. Kavita w/o Jagannath Navpute, Age 32 years, Occ. Household, R/o Asegaon, Taluka and District Aurangabad. ... RESPONDENTS ..... Shri P.S. Mehta, Advocate for applicant Shri K.M. Suryawanshi, A.P.P. for respondent No.1. Mrs. S.T. Kazi, Advocate for respondent No.2. ..... CORAM : K.U. CHANDIWAL, J. DATE : 7th March, 2011 ORAL JUDGMENT : 1. Heard both the sides extensively. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing at admission stage. 2 Criminal Application No.4998/2010 2. The applicant/ husband seeks quashment of Criminal M.A. No.1296/2010 pending before 15th Judicial Magistrate, First Class, Aurangabad filed under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the said Act for short). 3. The marital status and its subsistence between the husband/ applicant and respondent No.2 Kavita is not in controversy. The respondent No.2 Kavita initiated proceedings under Section 125 of the Criminal Procedure Code, wherein she has been benedicted with award of maintenance at the rate of Rs.500/-. It was thereafter enhanced at the rate of Rs.1000/- in proceedings No.173/2005. 4. Another Criminal Application No.37/2009 was moved by respondent No.2, wherein she claimed enhanced maintenance and the maintenance was awarded at the rate of Rs.2000/-. However, it was tested before this Court, wherein interim protection in favour of the husband was granted by allowing him to deposit Rs.7000/- and to pay Rs.1000/- towards maintenance. Such orders are still in force and complied with by the husband. 5. According to the applicant, the respondent No.2 has not 3 Criminal Application No.4998/2010 cohabited with him as wife and since nine years, the parties have parted their relations. Consequently, an application in terms of Section 12 of the said Act is in itself not maintainable. The counsel submits, that the position of law is clarified by this Court in judgment in the matter of Kishor Shrirampant Kale Vs. Shalini Kishor Kale & ors. [ 2010 (3) Bom.C.R. (Cri.) 694 ]. In said case, the parties were residing separately since 15 years, several proceedings were initiated and when applications in terms of the said Act was moved by the wife, seeking protection in terms of Section 12 read with Sections 19 and 20 thereof, certain order were passed by the learned Judicial Magistrate, First Class, dated 31.10.2005 and 11.12.2007, which were also tested before this Court. 6. Learned counsel submits, reading the question petition, it would depict the position that, there is nothing that the applicant/ husband has committed any act of commission, or shown any such conduct by which he wanted to deprive his wife from enjoyment of shared household or maintenance or the applicant had at any point of time prohibited or restrained or restricted any alleged continued access to the resources or facilities which the respondent could be said to have been entitled to use or enjoy by virtue of their domestic relationship. This is explained by the learned counsel based on para 9 in Kishor’s judgment. 4 Criminal Application No.4998/2010 7. In the present case, as yet simply, application has been moved by the respondent No.2 before the learned Judicial Magistrate, First Class, wherein yet response of the husband is to be received. The Court has yet to take action and decide maintainability of the application and also entitlement of the wife/ respondent No.2 to the reliefs claimed. 8. Divorce petition was moved by the husband, it was dismissed and challenge to the same before this Court in Family Court Appeal No.12/2010 also came to be dismissed. The observations of the Division Bench, while rejecting the contention of the husband are eye-opener in itself, as the Division Bench has observed, “Existence of an order awarding maintenance in favour of wife raises a presumption that husband has not been able to establish before the Court that wife is residing separately, on her own accord and without sufficient cause.” It was further observed, “On going through the judgment of the Trial Court, it can be presumed that husband has suffered this order without challenging the same. In view of this, practically husband is now estopped from pleading that wife has deserted him or that she is staying separate without sufficient reasons.” 5 Criminal Application No.4998/2010 9. In the context of these observations of the Division Bench, between the same parties, it is not open to the husband now to seek challenge to the proceedings under Section 12, wherein the wife has, by virtue of prayers (d) and (e), sought separate residence or to make separate arrangement in the shared house and also claimed Stridhana, list of which she has given, amounting to Rs, 54,200/-. 10. The wife had earlier initiated proceedings being Petition No.12/2010 before the learned Judge, Family Court, Aurangabad seeking return of the Stridhana, with identical details. However, said petition has been withdrawn. Consequently, the wife is not estopped or inhibited from claiming Stridhana by taking recourse to the said Act. 11. In the matter of Rashmi Kumar (Smt.) Vs. Mahesh Kumar Bhada [ (1997) 2 Supreme Court Cases 397 ], the Hon’ble Lordships of Apex Court have explained meaning of nature and the term Stridhana, which reads as under : “Properties gifted to the bride before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. The husband has no control 6 Criminal Application No.4998/2010 over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof.” In the said judgment, Hon’ble Lordships have also, while dealing with powers of the High Court to maintain petition in terms of section 482 of the Criminal Procedure Code, cautioned that it should be used sparingly and cautiously to prevent miscarriage of justice or whether it would tantamount to abuse of process of Court. 12. Taking survey of the matter in hand, I find that the wife was entitled under the statute to take recourse in terms of section 12 of the said Act. Long drawn separation of the wife from the husband after marriage in the year 2000 and claiming the maintenance under the said Act by itself would not be clamping an injunction against the wife from resorting to her remedies available under the said Act. Said Act is in supplement to petition under Section 125 of the Criminal Procedure Code or proceedings under other statute The availability of remedies under other statutes also by itself will not prohibit claiming umbrella under the Protection of Women from Domestic Violence Act, 2005. 7 Criminal Application No.4998/2010 13. With the above observations, Criminal Application sans merits, dismissed. Rule discharged. K.U. CHANDIWAL JUDGE