1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3424 OF 2009 1. Madhav S/o.Radhakrishna Yeshwant, Age-31 years, Occu-Lecturer, 2. Radhakrishna S/o.Mahadev Yeshwant, Age-65 years, Occu-Nil, 3. Sindhubai W/o.Radhakrishna Yeshwant, Age-55 years, Occu-Household, Respondent no.1 to 3 are r/o.A/P.Bhenda (Bk.) Tq.Newasa, Dist. Ahmednagar 4. Adinath S/o.Nivrutti Sutar (Waghmare) Age-43 years, Occu-Teacher, R/o.At.Post.Akoli, Tq.Sangamner, Dist. Ahmednagar. 5. Laxmibai W/o.Adinath Sutar (Waghmare) Age-35 years, Occu-Household, R/o.At.Post.Akoli, Tq.Sangamner, Dist. Ahmednagar APPLICANTS VERSUS 1. Sau.Pramila W/o.Madhav Yeshwant, Age-19 years, Occu-Household, R/o.12th Scheme, CL 5-36/2, Shivaji Nagar, Aurangabad 2. The State of Maharashtra RESPONDENTS Mr.V.P.Latange, learned counsel for applicants. Mrs.Y.M.Kshirsagar, learned APP for respondent no.2 Mr.Santosh Bhosale, learned counsel for respondent no.1 2 (CORAM : A.V.POTDAR, J.) DATE : 17/02/2010 ORAL JUDGMENT : 1. By the present application, the applicants have approached this Court u/s. 482 of The Cr.P.C. challenging the order passed below Exh.58, by the learned Magistrate, Aurangabad, by which the application of the present applicants, who is respondents before that Court was rejected in Cri.M.A.No.602/2008 filed u/s. 17,18,19,20,21,22,23 of The Protection of Women from Domestic Violence Act, 2005 (In Short Act of 2005), as they were intending to put certain questions in the cross examination of respondent no.1, who is applicant before learned J.M.F.C. Court Aurangabad. 2. Rule. 3. Rule made returnable forthwith. By consent of the parties, the application s finally heard at the stage of admission itself. 4. Such of the facts which gave rise to file the present application can be summarized as, the respondent no.2 filed an application u/s. 17 to 23 of the Act of 2005 before the J.M.F.C., at Aurangabad, which is numbered as Cri.M.A.No. 602/2008. After issuance of notice of the said application, respondents appeared before the Lower Court and filed their written statement. In the petition filed by the 1st respondent before the trial court, it is prayed that the respondents be 3 directed to pay Rs.8,00,000/- towards compensation and damages towards the injuries including mental torcher under the Domestic Violence Act at the hands of these petitioners. Also prayed to pay the interim maintenance to the tune of Rs.5,000/- per month from the date of filing of the application and also prayed to handover the possession of share of the petitioners in house and direct to provide residential accommodation for the benefit of 1st respondent who is petitioner before the trial court. It appears that in the say filed before the trial court by the respondents, in para no.5 onward, the case of denial is put up by these respondents, while in para no.16(a) to (f), certain facts are pleaded which are within the knowledge of first applicant, who is first respondent before the trial court and the petitioner who is 1st in the application before this Court. 5. It appears that after the pleadings are complete, the parties are directed to lead the evidence in support of their cases. It appears that the 1st respondent has filed her affidavit of examination in chief and now it is the turn of respondents to take the cross examination of 1st respondent, who is petitioner before the trial court and now it is the 1st respondent who has to face the allegations made against her in the written statement, in para no.16(a) to (f). Rule is laid down by our own High Court that unless the facts are pleaded, there can not be any evidence to be lead to that effect and it is the settled legal position. While conducting the cases under the Act of 2005, while considering any violence at the hands of either of the spouse, causes harassment to the spouse styled as female, at the same time, her 4 conduct is also material and the real cause behind this dispute to be searched. The questions which are proposed by the present applicants are based on these pleadings and as the learned lower court refused to allow these questions to be put by way of cross examination, an application was moved at Exh.58, wherein 15 questions were proposed to be put in the cross examination, which was denied by the trial court. 6. During the course of submissions across the bar, it is the simple submission on behalf of the applicants in this application that as to prove the facts pleaded particularly in para no.16(a) to (f), it is necessary to put these questions in the cross examination of 1st respondent. As against this, according to counsel for 1st respondent, by putting these questions, the respondents are preparing the foundation to file a petition for divorce against the 1st respondent. While considering these submissions, it is not material whether the respondents are preparing a foundation/grounds for the petition of divorce, but it is material whether the questions proposed to be put in the cross examination are really based on the facts pleaded in the written statement or not. 7. On perusal of the written statement of these petitioners, all these questions are based on the facts pleaded in their written statement. In the premise, to decline or to reject these questions to put to 1st respondent in her cross examination is as good as to deny the opportunity to put the defence of these petitioners by putting 5 those questions in the cross examination of 1st respondent, which is against the legal provisions. 8. In the premise, the order passed below Exh.58 is liable to be quashed and set aside. Accordingly, the order passed below Exh.58 is hereby quashed and set aside. The 15 questions proposed in Exh. 58 before the trial court, to be put in the cross examination of 1st respondent are allowed to put in her cross examination. 9. Rule thus made absolute as indicated above. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/FEB 2010/cri.appl.3424-09