1 CRI-WP-369-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.369 OF 2011 Manish Gujnaji Patade and ors. ..Petitioners Vs Mrs.Nidhi Manish Patade and ors. ..Respondents -- Mr.A.S.Khandeparkar with Mr.Amogh Karandikar i/b. M/s. Khandeparkar & Associates, for petitioners. Mrs.Nidhi M. Patade, respondent no.1 in person. Mrs.U.V.Kejriwal, APP for respondent no.2 State. -- CORAM : R.G.KETKAR, J. DATE : 30 th SEPTEMBER, 2011 P.C.: Heard Mr.A.S.Khandeparkar, learned counsel for the petitioners, Mrs.Nidhi M. Patade, respondent no.1 appears in person and accepts service and Mrs.U.V.Kejriwal, learned APP appears for respondent no.2 – State and accepts service. 2 CRI-WP-369-11.sxw 2] Rule. By consent of the parties, Rule is made returnable forthwith and heard finally. 3] By this petition, the petitioners are challenging the judgment and order dated 28 th October, 2010 passed by the learned Ad-hoc Addl. Sessions Judge, Thane in Appeal No.66 of 2009. By that order, the learned Sessions Judge allowed the appeal preferred by the first respondent and set aside the order dated 24 th April, 2009 passed by the learned Judicial Magistrate F.C. below exhibit 1 in Misc. Application no.123 of 2009. The petitioner no.1 was directed to pay Rs.20,000/- per month to the first respondent - wife and Rs. 15,000/- per month to minor daughter Samrudhi by way of interim maintenance from the date of application. 4] In support of this petition, Mr.Khandeparkar submitted that on 5 th June, 2007, the first respondent filed application for interim maintenance only for the child. At that time, she did not claim any maintenance for herself. She, thereafter, filed complaint under the Protection of Women from Domestic Violence Act, 2005 (for short 3 CRI-WP-369-11.sxw “the Act”) on 26 th February, 2009 i.e. almost after two years of filing earlier application for interim maintenance. He submitted that as far as domestic violence is concerned, the respondent no.1 left the matrimonial home on 21 st August, 2006 and the complaint is filed on 26 th February, 2009 under the Act. There is no proximity shown anywhere nearer to the date of filing the complaint. He invited my attention to the order passed by the learned Magistrate as also the cases pending between the parties. Petitioner no.1 has filed private complaint on 17 th November, 2006 against one Robinson Nelson David for adultery before the Judicial Magistrate F.C., Thane. On 24 th November, 2006, the learned Magistrate issued process against Robinson. The said order was challenged by Robinson by filing Revision Application which was dismissed on 26 th July, 2007. Charge was framed on 11 th August, 2008 and the case is pending. 5] He further submitted that on 21 st August, 2006, the first respondent left matrimonial home. She thereafter filed F.I.R. on 8 th December, 2006 under Section 498-A, 406 Indian Penal Code. In 2006, the first petitioner filed petition for divorce and though the first respondent was duly served in that proceeding, she did not apply for 4 CRI-WP-369-11.sxw interim maintenance. He further submitted that the first petitioner is presently unemployed and the first respondent is highly qualified. She filed present proceedings on 26 th February, 2009 only after the Charge was framed against Robinson on 11 th August, 2008. Respondent no.1 filed complaint under the Act almost after three years after she left the matrimonial home. He criticized the order passed by the learned Sessions Judge on the ground that without considering aspect of paying capacity of the first petitioner or his unemployment as also without properly considering the fact that in the past, the first respondent was in employment and is capable of earning, has awarded the interim maintenance by the impugned order. He, therefore, submitted that the order passed by the learned Sessions Judge deserves to be set aside. 6] On the other hand, the first respondent has submitted that she was employed in Human Resource Department between November, 2006 and January, 2009 and therefore, she did not apply for maintenance for herself when application for maintenance of the child was made on 5 th June, 2007 She gave up her job in January, 2009 to look after her disabled daughter on a full time basis. After she left 5 CRI-WP-369-11.sxw the employment in January, 2009 the complaint was filed in February, 2009 under the Act. She further submitted that petitioner no.1 is highly qualified and has done M.B.A. from Jamnalal Bajaj Institute of Management Studies, Mumbai. She, therefore, supported the impugned order. 7] Mr.Khandeparkar relied upon the judgment of Delhi High Court in the case of Harbans Lal Malik and ors. Vs. Payal Malik, dated 29 th July, 2010 in Cri. Revision Petition No.253 of 2010. He further relied upon the judgment of the Delhi High Court in the case of Sanjay Bhardwaj & ors Vs. State and anr., dated 27 th August, 2010 in Cri.M.C..No.491 of 2009. Finally, he relied upon the judgment of this Court in the case of Kishor s/o.Shrirampant Kale Vs. Sou. Shalini w/o.Kishor Kale & ors., 2010 All.M.R.(Cri.) 1386. 8] On the other hand, the first respondent appearing in person has relied upon the following judgments : (i) Jaswant Singh Vs. Ajmer Kaur, 1990 Civil Court Cases 0736 (P & H.) 6 CRI-WP-369-11.sxw (ii) Rajeev Preenja Vs. Sarika and ors, dated 26 th February, 2009 in Cri.M.C.No.1859 of 2008 (Delhi High Court). (iii) Ajithkumar Vs. Shaima, 2010(1) Civil Court Cases 0152 (Kerala). (iv) Jagir Singh Vs. Jasbir Kaur and ors., 2005(2)Civil Court Cases 0749 (P & H). (v) Sou. Sudha alias Ranjana R. Patil Vs. Rajkumar Deogonda Patil and another, 1997 Cri.L.J. 3140. (vi) Paras Nath Kurmi Vs. Sessions Judge, Mau, 1998(1) Civil Court cases 0700 (Allahabad). (v) Neeta Rakesh Jain Vs. Rakesh Jeetmal Jain, 2010(3) Civil Court Cases 0756 (S.C.). 9] I have considered the rival submissions made by the learned counsel for the parties. It is not in dispute that the first petitioner has done M.B.A. from Jamnalal Bajaj Institute of Management Studies, Mumbai and he was working as Asstt. General Manager with 3 Infotech Company and was drawing salary of Rs.1,60,000/- p.m. 7 CRI-WP-369-11.sxw Before the Courts below, the first petitioner did not bring on record his monthly income. The learned Magistrate declined to grant interim maintenance to the wife only on the plea that the husband has filed complaint for adultery against Robinson David where it is alleged that the first respondent is having adulterous relations with him. In my opinion, the learned Sessions Judge, in paragraph 4 of the impugned order, has rightly came to the conclusion that the said matter is subjudice and till date no Court has given any finding on that issue. What is equally important is that the first petitioner had filed petition for divorce and one of the grounds was that the first respondent is having adulterous relations with Robinson. The said petition was dismissed in default and till date the said petition is not restored. The learned Sessions Judge has also found that the first respondent is not working anywhere and the minor daughter is handicapped. The first petitioner was working as Asstt. General Manager and was getting Rs.1,60,000/- p.m. by way of salary. Considering these facts as also standard of living of both the parties, he was of the view that the first respondent is entitled to get maintenance at the rate of Rs. 20,000/- per month for herself and Rs.15,000/- for minor daughter Samrudhi from the date of application. 8 CRI-WP-369-11.sxw 10] I do not find that the learned Sessions Judge has committed any error in passing the impugned order. It cannot be said that the impugned order suffers from any perversity. This is more so having regard to the fact that the first petitioner is a highly qualified person and at one stage he was working as Asstt. General Manager. It is really inconceivable that a person who has obtained M.B.A. degree from Jamnalal Bajaj Institute of Management Studies, Mumbai which is one of the premier institutes in management courses will remain idle doing nothing. 11] Mr.Khandeparkar relied upon the judgment of the Delhi High Court in the case of Harbans Lal Malik (supra). In that case, marriage between Ms.Payal Malik and Mr.Nagesh Malik was solemnized on 30 th August, 2001. Nagesh Malik was working in USA and after marriage both of them went to USA on 20 th September, 2001 where they settled their matrimonial home and lived together. On 24 th October, 2002 a female child was born to the couple at USA. The parties continued living together in USA till 2008. Because of 9 CRI-WP-369-11.sxw differences between the parties, they could not bull on together. On 6 th August, 2008, Nagesh Malik alleged that due to differences, the parties executed a post-nuptial agreement and decided to obtain divorce. The wife refuted having signed the agreement voluntarily and alleged that she was turned out from USA by her husband on 22 nd August, 2008. As against this, the husband’s contention was that the wife left home on her own without joining him for obtaining divorce through a Court in USA. The husband filed a divorce petition before the Superior Court of New Jersey Chancery Division Family Court USA on 27 th August, 2008. Notice of this proceedings was duly served on the wife. The Court of New Jersey allowed the divorce petition and a decree of divorce was granted on 4 th December, 2008. 12] On 13 th January, 2009, wife filed a complaint before CAW Cell Hissar against husband and in-laws. The Inspector of CAW Cell Hissar made report on 20 th January, 2009 observing that the allegations in the complaint were not true. The wife, thereafter, filed complaint under Section 12 of the Act in the Court of Metropolitan Magistrate, Delhi making her husband Nagesh, Harbans Lal Malik - 10 CRI-WP-369-11.sxw father-in-law, Neelam Malik – Mother-in-law, Varun Malik – Brother-in- law as parties. The first issue that arose in the case was whether an application under Section 12 of the Act made by the wife could have been entertained against all the respondents (petitioners before High Court) as arrayed in the application and whether the Court without discussing the domestic and legal relationship of different respondents with her, could have passed an order against her making them jointly and severally liable to pay maintenance of Rs. 50,000/-. 13] The Court after considering the provisions of the Act came to the conclusion that the respondent wife could not have impleaded her father-in-law, mother-in-law and brother-in-law as husband and wife were saying in USA between 2001 and 2008. The next question considered by the Delhi High Court was about decree of divorce granted by the Court of New Jersey, USA. The Court held that the decree of divorce granted by the Court of New Jersey could not have been ignored and it could not be said that the domestic relationship of the wife continued with her husband in New Jersey or her in-laws living at Panipat. In my opinion, this judgment does not advance the 11 CRI-WP-369-11.sxw case of the petitioners. 14] Mr.Khandeparkar also relied upon the judgment of the Delhi High Court in the case of Sanjay Bhardwaj (supra). In that case the petitioner husband was a non resident Indian, working in Luanda, Angola as Manager. The respondent wife was M.A.(English) and M.B.A.. The marriage between the parties was solemnized on 14 th May, 2007. The parties lived together for a limited period of 10 days i.e. from 15 th May, 2007 to 19 th May, 2007 and from 2 nd June to 6 th June, 2007. The parties made allegations against each other and the husband filed petition under Section 12 of the Hindu Marriage Act, 1955 for declaring the marriage as null and void. The wife filed FIR against the husband under Sections 498-A and 406 Indian Penal Code and then filed complaint under Section 12 of the Act. In paragraph 5 of that judgment, it was undoubtedly observed that an unemployed husband who is holding M.B.A. degree, cannot be treated differently to an unemployed wife who is also holding M.B.A. degree. However, it was further observed that since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed. 12 CRI-WP-369-11.sxw 15] In the present case, the respondent has contended that the because of her disabled daughter, she gave up her job in January, 2009 to look after her on full time basis. I have already observed that the first petitioner was working as Asstt. General Manager and was getting monthly salary of Rs.1,60,000/- per month and it is unconceivable that the first petitioner will remain idle and do nothing. I am, therefore, of the opinion that the judgment relied upon by the learned counsel for the petitioners does not advance their case any further. 16] Mr.Khandeparkar also relied upon the judgment of this Court in the case Kishor (supra). In that case, the petitioner had deserted both respondent nos.1 and 2 i.e.wife and son in the year 1992 and since then, respondent nos.1 and 2 were leaving separately. The wife filed proceedings for grant of maintenance which was decided on 30 th November, 1996 and both were awarded maintenance amount by the Court under Section 125 of the Code of Criminal Procedure, 1973. Respondent nos.1 and 2 filed complaint under the provisions of the Act in the year 2007. The petitioner husband filed 13 CRI-WP-369-11.sxw application before the Family Court for dismissal of the complaint and also raised objection about maintainability of the complaint. It is in that fact situation, the Court observed that there was no complaint regarding domestic violence at any point of time before the filing of the compliant and the complaint under the Act was filed after 15 years. The Court, therefore, held that there was no proximity shown anywhere nearer to the date of filing of complaint. In my opinion, having regard to the facts and circumstances of the present case, the said decision is not applicable to the present case. 17] On the other hand, respondent on.1 relied upon a decision of the Panjab and Haryana High Court in the case of Jaswant Singh (supra). In paragraph 6 of the judgment, it was observed thta it not appropriate for the High Court to go into the merits of the case in order to decide to various pleas raised on behalf of the husband, as there is no reason to alter the interim maintenance order. While deciding proceedings under Section 125 of Cr.P.C., it would be open to the trial Court to decide all the pleas on merits. She, therefore, submits that since by the impugned order, interim maintenance is awarded, this Court should not interfere at this stage. 14 CRI-WP-369-11.sxw 18] Respondent no.1 also relied upon the decision of Delhi High Court in the case of Rajeev Preenja (Supra) and contended that the petitioner is in arrears of maintenance and this Court should not entertain the petition till the entire amount of interim maintenance granted under the impugned order is first deposited in this Court. 19] She relied upon decision of Kerala High Court in the case of Ajithkumar (supra) to contend that it is no defence that a person has no job, property or income when he is directed to pay maintenance and that it amounts to sufficient cause under Section 125(3) of Cr.P.C. 20] She relied upon a judgment of Punjab and Haryana High Court in the case of Jagir Singh (supra) to contend that interim maintenance cannot be denied to wife on the allegation that she was living in adultery. Husband has to prove the allegation by cogent evidence. 21] She relied upon judgment of this Court in the case of 15 CRI-WP-369-11.sxw Sou.Sudha alias Ranjana R. Patil (Supra) to contend that Section 125 of Cr.P.C. nowhere lays down that only an able bodied husband will be bound to maintain his wife. Section 125 speaks of the inability of the wife to maintain herself and does not speak about the physical capacity or earning capacity of the husband to maintain himself or his wife or children. 22] She also relied upon a decision of the Allahabad High Court in the case of Paras Nath Kurmi (supra) to contend that the husband is able bodied man and even if he is unemployed, he is not entitled to refuse to maintain the wife. 23] In view of this, the plea raised by the petitioner husband about his paying capacity as also unemployment and that the respondent is capable of earning, cannot be considered at this stage. I have already indicated that the learned Magistrate has declined to award maintenance only on the ground that the petitioner husband has filed complaint for adultery against Robinson wherein, it is alleged that the first respondent no.1 is having adulterous relations against him. The learned Sessions Judge has considered the material on record and 16 CRI-WP-369-11.sxw standard of leaving of both parties and passed the impugned order. I do not find that any case is made out for interference at the hands of this Court. Since the interim maintenance is awarded, it would be open to the parties to substantiate their case by leading evidence and based on that material, the Court will pass appropriate order. In view thereof, the petition fails and the same is dismissed. Rule is discharged. [R.G.KETKAR, J.]