38. cr wp 1761-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1761 OF 2010 Rohit Bhimsen Khurana .. Petitioner Vs Neha Rohit Khurana & Ano. .. Respondent Rohit Bhimsen Khurana, Petitioner present in person. Neha Rohit Khurana, Respondent present in person. Mr. H.J. Dedhia, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 9th SEPTEMBER,2010. P.C.: 1. Heard the petitioner and respondent no. 1 who are both appearing in person and learned APP for the State. 2. The petitioner has prayed for a number of reliefs in this petition. They are as under: A) Rule nisi be issued and record and proceedings be called for the cases filed by the respondent of same relief of maintenance and resident; B) By a suitable writ,order or direction this Hon'ble Court may be pleased to quash and set aside the impugned order dated 11.02.2010 passed in Regular Criminal Case No. 309 of 2007 by the Ld. JMFC, Panvel. C) By a suitable writ, order or direction this Hon'ble 1 38. cr wp 1761-10.doc Court may be pleased to quash and set aside the impugned order dated 17.05.2010 passed in below Exhibit-5 in Criminal Appeal No. 23 of 2010 by the Ld. 2nd Additional Sessions Judge, Raigad-Alibag. D) By a suitable writ, order or direction this Hon'ble Court may be pleased to issue direction to Civil Court of Senior division Panvel decide the case filed by the Petitioner under HMP 82/08 may be expedited with the time bound. E) By a suitable writ, order or direction this Hon'ble Court may be pleased to restrain the Respondent, her mother, relatives or anybody acting on their behalf coming to the place where petitioner is working, residing and speaking to any of his colleagues and/or office staff member. F) By this writ petition the petitioner request this Hon'ble Court to permit the petitioner to sell self acquired flat for the reasons stated in the paragraph no. 28 of the present petition. G) Pending the hearing and final disposal of this writ petition, the impugned order dated 11.02.2010 passed in Regular Criminal Case No. 309 of 2007 by the Ld. JMFC, Panvel may kindly be stayed. H) Pending the hearing and final disposal of this writ petition, the impugned order dated 17.05.2010 passed in 2 38. cr wp 1761-10.doc below Exhibit 5 in Criminal Appeal No.23 of 2010 by the Ld. 2nd Additional Sessions Judge, Raigad-Alibag may kindly be stayed. I) Pending the hearing and final disposal of this writ petition, the execution application MA No. 162/10 in R.C.C. No. 309 of 2007 filed by the respondent for execution of impugned judgment and order dated 11.02.2010 passed by the Ld. JMFC, Panvel may kindly be stayed. J) Pending the hearing and final disposal of this writ petition, application for maintenance under Section 24 of Hindu Marriage Act in HMP 82/08 before the Civil Court Senior Division may kindly be stayed. K) Pending the hearing and final disposal of this writ petition, the interim order of maintenance passed by Civil Court of Senior Division, Panvel in Suit No. 45/07 may kindly be stayed. L) Pending the hearing and final disposal of this writ petition, the Respondent mother, her relatives or anybody acting on behalf of Respondent be restrained by an injunction order from entering into the Kharghar house as they have got no right to reside in that house separately. M) Costs of this petitioner be provided for; and N) Any other order necessary in the interest of justice may kindly be passed. 3 38. cr wp 1761-10.doc 3. Respondent no. 1 was married to the petitioner in the year 1999. Thereafter, dispute arose between the parties and respondent no. 1 filed complaint before the JMFC, Panvel under the Domestic Violence Act. The said Complaint is numbered as RCC 309 of 2007. In the said proceedings, the learned Magistrate by order dated 11th February, 2010 restrained the petitioner from entering forcibly and dispossessing the applicant i.e wife from the premises in Nargis Building i.e he prohibited the petitioner from entering the place of respondent-wife i.e Flat No. J-1203, Nargis Building, Jalvayu Defence Enclave, Sector 20, Plot 20, Kharghar, Navi Mumbai. The learned Magistrate also directed the petitioner to pay compensation of Rs. 10000/- to the respondent wife and Rs. 2500/- to each of the two children. 4. Being aggrieved by the said order, the petitioner preferred Criminal Appeal No. 23 of 2010 before the learned Sessions Judge, Raigad, Alibag. Respondent wife being aggrieved by the quantum of maintenance filed Criminal Appeal No. 20 of 2010. Both the matters are pending before the learned Sessions Judge for hearing. 5. The respondent wife had also preferred proceedings seeking maintenance before CJSD, Panvel by filing Suit No. 45 of 2007. In the said suit, by order dated 16th September 2009, the respondent wife was granted maintenance of Rs. 4 38. cr wp 1761-10.doc 3000/- per month and the children were granted maintenance of Rs. 1500/- each per month by way of interim maintenance. 6. Respondent no. 2 wife has also filed an application for maintenance under Section 24 of Hindu Marriage Act being HMP No. 82 of 2008 before the CJSD, Panvel. The said proceedings are still pending before the said Court. 7. Thus, it is seen that the wife has preferred three separate proceedings for maintenance before three separate forums. The petitioner has stated that the wife cannot seek maintenance from three separate forums and the maintenance granted by CJSD in Suit No. 45 of 2007 be set of against the maintenance granted by learned Magistrate in RCC NO. 309 of 2007. 8. However, respondent-wife states that even the maintenance granted by the learned Magistrate has not been given by the petitioner to her and he is in arrears. She further submitted that order dated 11th February 2010 in R.C.C. No. 309 of 2007 has been stayed by the learned Sessions Judge by order dated 17th May 2010 which was passed on Exh 5 in the appeal preferred by the petitioner. She pointed out that however, stay was granted on condition that the petitioner deposits all arrears i.e totaling to Rs. 2,15,000/- by 16th June, 2010. She pointed out that in the said case, as of 30th April 2010, the arrears were 5 38. cr wp 1761-10.doc 2,15,000/- which as per order dated 17th May 2010 were to be deposited by 16th June, 2010. The said amount also includes the amount of compensation of Rs. 10000/- awarded to her. Out of this amount of Rs. 2,15,000/-, only some small amount has been deposited by the petitioner. The respondent wife has pointed out that even in the proceedings before CJSD, the petitioner is in arrears of almost Rs. 2,44,000/- as of today. Hence, the order dated 11th February 2010 or 17th May 2010 should not be stayed. 9. The petitioner submitted that he cannot be made to pay maintenance by two forums and hence, the order granting maintenance passed by the learned Magistrate should be stayed or at the most, the amount of maintenance in the said order be set off against the order granting maintenance dated 16th September 2009 passed by the CJSD, Panvel in Suit No. 45 of 2007. Looking to the facts of this case, I find some merit in this submission that the petitioner cannot be made to pay maintenance as directed by these two separate orders dated 16th September 2009 and 11th February 2010. 10.Looking to the fact that both the petitioner as well as respondent-wife have preferred appeals against the order of JMFC dated 11th February 2010 and the appeals preferred by both of them are pending before the learned Sessions Judge, I am not inclined to interfere with the 6 38. cr wp 1761-10.doc amount of maintenance awarded by the learned Magistrate by order dated 11th February 2010 at this stage. It would be open to both the parties to raise all their contentions before the learned Sessions Judge. Needless to state that the learned Sessions Judge after hearing both sides shall pass appropriate orders in accordance with law in both the appeals. However, looking to the fact that the matter has been pending since a long time, the learned Sessions Judge to dispose of both the appeals as far as possible by 31st December, 2010. 11.The petitioner agreed that he would deposit half the amount of arrears arising from order dated 11th February 2010. The arrears as of today are almost 2 Lakhs, hence, he would deposit Rs. One Lakh by 11th October, 2010. The petitioner further agreed that instead of depositing the amount in Court, he would handover this amount of Rs. 1 Lakh by way of pay order to the wife in this Court at 5.00 p.m.on 11th October 2010. As the petitioner is handing over an amount of Rs. One lakh, the execution application M.A. No. 162 of 2010 in R.C.C. NO. 309 of 2007 is stayed till disposal of Cr. Appeals 20 of 2010 and 23 of 2010. In view of the fact that the petitioner is handing over the pay order in the amount of Rs. 1 Lac on 11th October, 2010, the order dated 16th September 2009 granting interim maintenance in Suit No. 45 of 2007 is also stayed till 7 38. cr wp 1761-10.doc disposal of the suit. Interim stay is granted to the said order provided the petitioner continues to deposit the maintenance to the wife and children as directed by order dated 11th February, 2010 by 15th of every month till disposal of Criminal Appeals 20 of 2010 and 23 of 2010. This maintenance amount to be deposited before the learned JMFC, Panvel by 15th of every month. This amount shall be paid from the month of November, 2010 onwards. The respondent-wife is at liberty to withdraw the said amounts. Order dated 17th May 2010 passed by the learned Sessions Judge granting stay to the order dated 11th February 2010 is accordingly modified. 12.The Suit No. 45 of 2007 for maintenance wherein interim maintenance has been granted to the respondent wife and her children is still pending before the learned CJSD, Panvel. It is seen that the wife has also preferred HMP 82 of 2008 interalia praying for interim maintenance before CJSD, Panvel which is also pending. Hence, HMP No. 82 of 2008 is also expedited and to be disposed of by 31st January 2011. 13.The petitioner is also seeking permission to sell the flat Flat No. J-1203, Nargis Building, Jalvayu Defence Enclave, Sector 20, Plot 20, Kharghar, Navi Mumbai. The said flat stands in his name and at present, the respondent-wife and children are residing in the flat. Looking to the fact 8 38. cr wp 1761-10.doc that the proceedings under the Domestic Violence Act wherein the appeals are pending before the Sessions Court also relate to the flat in question, at this stage, no permission can be granted to sell the said flat. 14.The petitioner submitted that the respondent is contacting people at his workplace,due to which he has lost his earlier job. He submitted that at the present place of work also, she is contacting people due to which the people will get a wrong picture due to which he will loose his job. If he loses this job also, it would be difficult for him to pay maintenance. Looking to these facts, during pendency of the appeals before the learned Sessions Judge as well as HMP NO. 82 of 2008 and Suit No. 45 of 2006, the respondent-wife, her relatives or anybody acting on her behalf shall not visit the place where the petitioner is working and the society where the petitioner is residing. 15.The petitioner submitted that he has not been able to meet his two children since a long time as the respondent- wife is denying access. Respondent wife states that she will give access to the children to the petitioner in the house of Ms. Rohini who is her friend and who is residing at flat no. 901, Jalvayu Kamal Building, Kharghar on 19th September, 2010 from 4.00 p.m. to 6.30 p.m. It is made clear that if, for any reason, 19th is not suitable to the 9 38. cr wp 1761-10.doc parties, then access shall be given on 22nd September 2010. Thereafter, access shall be given on 1st and 3rd Sunday till 31st December 2010. The grand parents are also allowed to meet the children in the house of Rohini. The petitioner undertakes that he and his parents shall not speak adversely about the respondent-wife to any society members. Needless to say that the petitioner and his family members will behave in a responsible manner during the time, they visit the said society in relation to access to the children. 16.Writ Petition is disposed of in above terms. 17.Matter be kept on 11th October, 2010 only for the purpose of handing over pay order to the wife. [SMT. V.K. TAHILRAMANI, J.] 10 38. cr wp 1761-10.doc 11