1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 933 OF 2009 Sunil s/o. Ramesh Hujband, Age 34 yrs., Occu. Nil, R/o. "Punyai" Niwas, Nishiganda Colony, Karkhana Road, Akole, Dist. Ahmednagar.....Petitioner. Versus 1. Smt. Smita w/o. Sunil Hujband, Age 22 yrs., Occu. Household, R/o. C/o. Madhukar Baburao Bagade, Maharashtra Housing Society, Nagar Road, Beed. 2. The State of Maharashtra ....Respondents. Shri. R.D. Bhalerao, Advocate for the petitioner. Shri. S.J. Salunke, Advocate for the respondent No. 1. Shri. K.M. Suryawanshi, A.P.P. for respondent No. 2. CORAM : P.R. BORKAR, J. DATE : 5th February, 2010 ORAL ORDER : 1. Heard Shri. R.D. Bhalerao for the petitioner, Shri. S.J. Salunke for respondent No. 1 and A.P.P. Shri. K.M. Suryawanshi for respondent No. 2. 2 2. By this petition, the petitioner has sought relief that the Misc. Criminal Application filed by the respondent No. 1 against the petitioner before the Chief Judicial Magistrate, Beed under the provisions of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Domestic Violence Act") be quashed and set aside as the same being parallel proceedings to the previous proceedings in Misc. Civil Application No. 306/2008 before the Chief Judicial Magistrate, Beed. 3. Brief facts giving rise to this petition are summarized as below :- The petitioner and the respondent No. 1 married on 23.1.2007. Somehow they could not adjust with each other. The respondent No. 1 filed Misc. Civil Application No. 306/2008 under section 125 of the Criminal Procedure Code in the Court of Chief Judicial Magistrate, Beed. The same came to be decided on 16.5.2009. The copy of the judgment is at Exh. "C" annexed with the petition. Thereafter, Misc. Civil Application No. 932/2009 was filed by the respondent No. 1 under section 12 of the Domestic Violence Act, 3 2005 and amongst other things, she claimed that she has no source of income and therefore, she should get maintenance of Rs. 10,000/- per month. Similarly, she wanted services of Councillor under section 14 of the Domestic Violence Act, 2005, so also for initiating police action and for medical treatment. She also claimed that she should get compensation of Rs. 5,00,000/- to Rs. 6,00,000/- and also prayed for protection under section 18 of the Domestic Violence Act. It is argued before this Court that respondent No. 2 moved the Chief Judicial Magistrate and there is no compliance of proviso to section 12(1) of the Domestic Violence Act. Secondly, there are parallel proceedings simultaneously pending viz. one under section 125 of Criminal Procedure Code and other under section 12 of the Domestic Violence Act for getting maintenance. On the other hand, Shri. S.J. Salunke for respondent No. 1 argued that the report was given in the Court by the Protection Officer and therefore, there is no question of compliance of proviso under section 12(1) of the Domestic Violence Act. He drew my attention to section 20(1)(d) and argued that similar reliefs can be claimed under the provisions of Domestic Violence Act. Thirdly, he argued that appeal 4 is provided under section 29 and therefore, the present petition need not be entertained. 4. Exh. "E" produced with Writ Petition clearly shows that a report was submitted by the Protection Officer and Nayab Tahsildar, Beed to the Chief Judicial Magistrate, Beed, wherein he summarized the complaint made to him by respondent No. 1 and reliefs claimed by her and at the end, stated that form No. I along with application in two copies was submitted with the report. So it is clear that, it is the Protection Officer, who has moved the Chief Judicial Magistrate, Beed and Section 12 (1) is as follows :- 12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act : Provided that before passing any order on such application, the Magistrate shall take in to consideration any domestic incident report received by him from the Protection Officer or the service provider. This proviso is applicable only in case the application is made to the Magistrate by aggrieved party or any other person on behalf of aggrieved 5 party. The Magistrate is free to pass an order, if report is submitted by the Protection Officer himself or the service provider and therefore, there is no bar of proviso of section 12 (1) of the Domestic Violence Act. Here the order passed is of issuance of notice to the present petitioner, calling upon him to appear in the matter. 5. So far as the second submission is concerned, no doubt the document at Exh. "C" with the petition indicates that the respondent No. 1 Smita had filed Misc. Civil Application No. 306/2008 in the Court of Chief Judicial Magistrate, Beed and the said application was allowed on 15.5.2009, awarding her maintenance of Rs. 1500/- per month. The application is annexed with the report of Protection Officer and it appears that again maintenance of Rs. 10,000/- per month was claimed. No doubt, the present petitioner is entitled to bring to the notice of the Magistrate that already there is order under section 125 of Criminal Procedure Code and it should be taken into consideration and as per provisions of Section 20(1) (d), the Magistrate can direct if the maintenance awarded under section 125 is not enough or more 6 maintenance should be awarded depending upon the circumstances and evidence placed before him by the parties. I quote section 20(1)(d) for ready reference :- 20. Monetary Reliefs .- (1) While disposing of an application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,- (a)........ (b)....... (c)....... (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force. So even though maintenance amount is awarded under section 125 of Cr.P.C., still proceedings under section 12 of the Domestic Violence Act are not barred on the ground that there is again prayer for maintenance. So the proceedings under section 12 of the Domestic Violence Act are maintainable in law. 6. Lastly, it is argued by Shri. S.J. Salunke, Advocate for respondent No. 1 that as held in the case 7 of Ajay Kant and ors. Vs. Smt. Alka Sharama, 2008 Cri.L.J. 264, under section 29 even the order of Magistrate issuing notice to respondent in application under section 12 is appealable. 7. In the facts and circumstances of the case, this writ petition is dismissed in limine for the above said reasons. [ P.R. BORKAR, J. ] ssc/criwp933.09