PRAKASH NAGARDAS DUBAL SHAHAversusSOU. MEENA PRAKASH DUBAL SHAH & ORS.

                         [2016] 2 S.C.R. 969



            PRAKASH NAGARDAS DUBAL SHAHA                                 A
                                  v.
        SOU. MEENA PRAKASH DUBAL SHAH & ORS.
                 (Criminal Appeal No. 320of2016)
                          APRIL 22, 2016                                 B
       [DIPAK MISRA AND SHIVA KiRTI SINGH, JJ.]
       Protection of Women from Domestic Violence Act, 2005: ss.12.
18 to 22 - Application for maintenance filed by respondent-wife
against the appellant-husband - Sessions Judge held that since the
parties had initiated divorce proceedings at an earlier point of time,   C
the Act which came into force only later in 2005 was wrongly invoked
by the wife and her application was not maintainable - Held: In the
instant case, the divorce proceedings had not resulted in divorce -
The unsuccessful divorce proceedings cannot adversely affect the
maintainability of application filed by the contesting respondents       D
under the Act - High Court was right in holding that the· wife was
entitled to seek maintenance.
      Dismissing the appeal, the Court
      HELD: 1. The Sessions judge had held that since the
husband and wife had initiated divorce proceedings at an .earlier        E
point of time, the Protection of women from Domestic Violence
Act, 2005 which came into force only later in 2005 was wrongly
invoked by the wife and her application was not maintainable.
The reasoning of Sessions conrt was not accepted by the High
Court which has noted the fact that the divorce proceedings did          F
not result in the divorce and hence the marital relationship
continued and in view of second marriage by the husband, cruelty
on the wife stood established and that such act would constitute
mental domestic violence and hence wife was entitled to seek
maintenance. The unsuccessful divorce proceedings cannot
adversely affect the maintainability of application filed by the         G
contesting respondents under the Act. Even on merits of other
issues the views taken by the Magistrate are cogent and
supported by relevant materials. Hence the High Court rightly
interfered with the order of the Sessions Court and confirmed
that of the Magistrate. (Paras 5, 6] (972-B-C, E)
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                                 969
970             SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A           CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
      320 of2016.
            From the Judgment and Order dated 24.01.2013 of the High Court
      of Judicature at Bombay in Criminal Revision Petition No. 79 of20 I 2.
            Abdulrahiman T., Rahul, M.A. Krishna Moorthy, Advs. for the
B
      Appellant.
             Aniruddha P. Mayee, A. Selvin Raja, Sanjay Kumar Yisen, Advs.
      for the Respondents.
            The Judgment of the Court was delivered by
c            SHIVA KIRTI SINGH, J. I. By the impugned judgment and
      order dated 24.1.2013 the learned Single Judge of High Court of Judicature
      at Bombay has allowed Criminal Revision Petition No. 79 of 20 I 2
      preferred by the respondents by reversing order of learned Sessions
      Court and restoring that oflearned Judicial Magistrate First Class, Miraj
D     passed in Criminal Miscellaneous Application No. 147/2011.
              2. The facts relevant for adjudication of relevant issue arising in
      this appeal lie within a narrow compass. Respondent no. I is wife of
      appellant, respondent no. 2 is unmarried daughter and respondent no. 3
      is minor son born out of marriage between the appellant and respondent
 E    no. I. The aforesaid three contesting respondents initiated the present
      proceedings before the learned Magistrate by preferring an application
      under Sections I 2, I 8, I 9, 20, 2 I and 22 of Protection of Women from
      Domestic Violence Act, 2005 (hereinafter referred to as "the Act").
      Learned Magistrate noticed the case ofrival I?arties including undisputed
 F    facts such as solemnization of the marriage on 27.3.1986 as per Hindu
      rites. It is the case of contesting respondents/applicants that the appellant
      has qualification of D. Pharmacy and has a shop named Vijay Medical
      situated at a favourable location. Since the wife is handicapped by right
      leg, not only the husband made uncharitable remarks and meted out ill
      treatment but also neglected her by regularly coming to home late. He
 G
      also made demands for money which the parents of the wife met from
      time to time. He defaulted in payment of instalments of a flat situated at
      Grimar Complex, in the year 200 I and when the concerned bank wanted
      to seize that property wife's relation came to their help and paid the loan
      on transfer of the property in the name of the wife. The wife has alleged
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  PRAKASH NAGARDAS DUBAL SHAHA v. SOU. MEENA                                 971
     PRAKASH DUBAL SHAH [SHIVA KIRT! SINGH, J.)

that the appellant had a girlfriend whom he subsequently niarried and         A
from that marriage also he has a son. It is also her case that due to
mental and physical abuse, she agreed to file an application for divorce
by mutual consent but the appellant did not fulfill the agreed term of
paying her Rs. 5,00,000/- as alimony. Hence the application for divorce
ultimately got dismissed. The wife claimed for maintenance for herself        B
and children on the ground that the appellant is living with the second
wife and although he is earning Rs. 40,000/- from the shop, he is not
p'aying anything towards their maintenance. She claimed Rs. I 0,000/-
per month as maintenance for herself and same amount for each of her
children and also a compensation of Rs. 50,00,000/-.
                                                                              c
       3. The appellant denied all the allegations. He claimed that he has
stopped running his medicine shop and rented it out to another person.
He alleged that his wife had negative attitude and therefore she had
made his life miserable. He also denied the second marriage and claimed
that after the flat was transferred in the name of the wife he was driven     D
out and therefore he is living separately. According to him the wife is
capable ofmaintainingherselfand children and the application was filed
only to harass him.
       4. After considering the case of both the parties and the materials
produced by them, the learned Magistrate held that the application filed      E
by the wife was maintainable and she was eligible to claim remedy under
the Act because after the rejection of divorce petition, she remained a
lawfully wedded wife ofappellant. He also held that appellant committed
act of domestic violence. The defence of the appellant that he has rented
out shop for a meagre amount of Rs 3,000/- to one Rajashri Patil was
                                                                              F
rejected. The learned Magistrate considered the birth certificate of son
of the appellant from the alleged second wife as well as the related
circumstances and came to a finding that appellant had performed second
marriage, was living with the other woman and was therefore guilty of
domestic violence. Ultimately, by way of maintenance the learned
                                                                              G
Magistrate fixed Rs. 5,000/- per month for the wife, same amount for
the daughter and Rs. 4,000/- for the minor son. Some education cost
was also allowed in favour of two children from the date of final disposal
of the case but maintenance was allowed from the date of filing of the
application.
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972             SUPREME COURT REPORTS                           [2016] 2 S.C.R.



A             5. The appellant preferred Criminal Appeal No. 335 of201 I before
      the Additional Sessions Judge, Sangli who allowed the same by order
      dated 13.1.2012 mainly on the ground that since the husband wife had
      initiated divorce proceedings at an earlier point of time, the Protection of
      Women from Domestic Violence Act which came into force only later
 B    in 2005 was wrongly invoked by the wife and her application was not
      maintainable. This reasoning of the Sessions Court was not accepted by
      the High Court which has noted the fact that the divorce proceeding did
      not result in divorce and hence the marital relationship continued and in
      view of second marriage by the husband, cruelty on the wife stood
      established. Such act would constitute mental domestic violence and
 c
      hence the wife was entitled to seek maintenance.
             6. Having given anxious consideration to the relevant facts and
      materials and on careful perusal of orders passed by learned Magistrate,
      Sessions Court and the High Court and appreciating those orders in the
 D    light of the submissions advanced before us, we have no hesitation in
      affirming the views of the High Court. The unsuccessful divorce
      proceedings cannot adversely affect the maintainability of application
      filed by the contesting respondents under the Act. Even on merits of
      other issues the views taken by the learned Magistrate are cogent and
      supported by relevant materials. Hence the High Court rightly interfered
 E
      with the order of the Sessions Court and confirmed that of the learned
      Magistrate. We therefore find no good reasons to interfere. The appeal
      is therefore dismissed.
      Devika Gujral                                              Appeal dismissed.