Wednesday, 25 January 2017

Whether court can grant relief not asked by party?

From the careful reading of the above said provisions, it is
apparent that the court would not be empowered to grant
the relief unless sought. In the present case, it appears that
at the time of delivering judgment, the court suo motu
considered the application under section 26 of the Domestic
Violence Act thereby clearly deniying an opportunity to nonapplicant
to meet with the same. It was obligatory on the
part of the Family Court to hear the non-applicant before
awarding maintenance under Section 26 of the Domestic
Violence Act. Since the Family Court failed for the same and
since the applicant/present non-applicant failed to establish
that she entered into domestic relationship or she was
legally married to non-applicant, she was not entitled to
relief of maintenance either under Section 125 of the Code
of Criminal Procedure or under the provisions of the
Domestic Violence Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION [APL] NO.664 OF 2011
Gautam s/o Jairam Gavai,

V
Sau. Ragini alleged w/o Gautam,
Gavai, 
CORAM : KUM. INDIRA JAIN, J.
DATED : JANUARY 20, 2017.



By these applications under Section 482 of the
Code of Criminal Procedure, applicant has assailed the
judgment and order of the Family Court, Akola in Petition
No.E-82/2010 passed on 21.10.2011, order dated
31.12.2014 passed by the Judicial Magistrate, First Class,
Akola in Miscellaneous Criminal Case No.949/2010 and order
dated 18.3.2015 passed by the Adhoc Additional Sessions
Judge, Akola in Criminal Appeal No.11/2015.

2] Heard the learned counsel for the parties. Since
common questions of facts and law arise in these two
applications, they are disposed of by common judgment.
3] The facts giving rise to the applications may be
stated, in brief, as under :
Respondent no.1 claiming herself to be the wife of
applicant, filed an application under Section 125 of the Code
of Criminal Procedure before the Family Court, Akola. She
pleaded that she was married to applicant Gautam Gawai on
11.5.1997. They have two sons Vaibhav and Nipun born out
of the said wedlock. According to respondent Ragini, till
Diwali 2009, they led happy married life. After Diwali-2009,
quarrel between respondent and applicant started and
applicant used to treat her as maid servant. He started
harassing her and ultimately left the house, not to return
forever. She made efforts to find out his whereabouts. She
was not successful and so she informed about the same to
the Superintendent of Police. According to respondent, both
the children were studying in English Medium School. She
was unable to maintain herself. She, therefore, claimed
maintenance for herself and the children.

4] Applicant appeared in the proceedings and
contested the same. He denied marriage between him and
respondent Ragini. According to applicant, he was married
to Suvarna on 9.5.1990. The couple were blessed with three
children. Marriage between applicant and Suvarna still
subsists. Further submission is that respondent is a legally
wedded wife of one Shamrao Bhopaji Ambhore and her
marriage was solemnized on 01.03.1995 under the
provisions of the Special Marriage Act. He contended that
on false grounds, application for maintenance came to be
filed and prayed to reject the same.
5] On appreciation of evidence, Family Court came to
the conclusion that Ragini was not the legally wedded wife
of Gautam Gawai. However, keeping in view the object of
the provisions relating to maintenance, the learned Judge
thought it appropriate to consider the prayer for
maintenance under Section 26 of the Family Courts Act and
awarded maintenance at the rate of Rs.1500/- per month to
the applicant. It is this order which is the subject matter of
Criminal Application No.664/2011.
6] In another proceeding, respondent presented an
application under the provisions of the Protection of Women

from Domestic Violence Act, 2005 (In short “Domestic
Violence Act”) claiming relief of protection order, monetary
relief and compensation. This application was presented
almost on the same grounds on which an application under
Section 125 of the Code of Criminal Procedure was filed by
her. Considering the evidence, the learned Judicial
Magistrate, First Class, partly allowed the application and
granted maintenance at the rate of Rs.2000/- per month to
the applicant under Section 20 of the Domestic Violence Act.
The order was carried in appeal before the District Court,
Akola. Applicant preferred an application seeking stay to
the judgment and order passed in Misc. Criminal Case
No.949/2010. Vide order dated 18.3.2015, the learned
Adhoc Additional Sessions Judge, Akola allowed the
application and stayed the impugned judgment, subject to
condition of depositing 50% of the outstanding amount
within one month from the date of order, with further
condition that non-compliance of the same, would result into
automatic end to the stay order. The order passed by the
learned Judicial Magistrate, First Class and the order on
Exh.5 passed by the learned Adhoc Additional Sessions
Judge are the subject matter of Criminal Application
No.229/2015.

7] Learned counsel Shri Dhande submits that
marriage between applicant and respondent is in dispute.
Family Court has categorically held that there was no legal
marriage between applicant and respondent. He submits
that respondent could not establish dissolution of marriage
in accordance with the law and in such circumstances,
respondent was not entitled for maintenance under Section
125 of the Code of Criminal Procedure.
8] Regarding protection under the Domestic Violence
Act, learned counsel submitted that domestic relationship
between applicant and respondent is not established and in
the absence of proof of domestic relationship, respondent
was not entitled to any protection under the provisions of
the Domestic Violence Act. In support of the submissions,
learned counsel placed reliance on the decisions of the
Hon’ble Supreme Court in D. Velusamy .vs. D. Patchaiammal
(2010 (10) SCC 469 and of this Court in the case of Shri
Ambadas Gangadhar Shetye .vs. Malabai Ambadas Shetye
and another (2013 BCI 535). Reliance is also placed on the
judgment dated 27.1.2015 passed by this Court in Criminal
Writ Petition No.773/2014.

9] Per contra, learned counsel for respondent strongly
supports the order impugned in both the applications. It is
submitted that strict proof of legal marriage is not required
in the proceeding under Section 125 of the Code of Criminal
Procedure and so far as the protection under the Domestic
Violence Act is concerned, this is an admitted fact that for a
long long years, applicant and respondent resided together
and they have two children out of the said relationship. The
learned counsel submits that in such a situation no
interference is required in extra-ordinary jurisdiction and
prays to reject the applications.
10] With the assistance of the learned counsel for the
parties, this court has gone through the reasons recorded by
the learned Judge of the Family Court, learned Judicial
Magistrate, First Class and the learned Adhoc Additional
Sessions Judge. Needless to state that to attract the
provisions of Domestic Violence Act, applicant must not only
to show existence of live-in-relationship with the nonapplicant
which is akin to a marriage visible from the fact
that applicant and non-applicant are living together as
husband and wife but also should show that they are
otherwise legally qualified to marry. A woman, who is

married, cannot enter into a domestic relationship as
contemplated under Section 2 (f) of the Domestic Violence
Act, and even if, she is successful in establishing a long
standing relationship with the man, she would not be
entitled to protection under the provisions of the Domestic
Violence Act. The cases referred by the learned counsel for
applicant reiterate the well settled propositions of law in this
regard.
11] In the case on hand, so far as the domestic
relationship between applicant and respondent is
concerned, applicant could not establish the same as
required under Section 2 (f) of the Domestic Violence Act.
Though she states that her previous marriage with Shamrao
Ambhore was dissolved by a deed of dissolution, she could
not prove the said deed of dissolution in accordance with
the law. Once respondent admits her marriage with
Shamrao Ambhore in the year 1995, it was for her to prove
that after dissolution of the said marriage, she married to
non-applicant or enter into domestic relationship with nonapplicant.
In the absence of proof regarding dissolution of
first marriage of respondent Ragini, the courts below
committed serious error in holding that she entered into

domestic relationship with the non-applicant whose first
marriage with Suvarna was also in existence on 11.5.1997.
12] As stated above, Family Court has held that Ragini
was not the legally wedded wife of Gautam Gawai and
proceeded to consider the application under Section 125 of
the Code of Criminal Procedure under Section 26 of the
Family Courts Act and awarded maintenance to her. The
provisions of Section 26 of the Protection of Women from
Domestic Violence Act, 2005 read thus -
26. Relief in other suits and legal
proceedings :- (1) Any relief available
under sections 18, 19, 20, 21 and 22
may also be sought in any legal
proceeding, before a civil court, family
court or a criminal court, affecting the
aggrieved person and the respondent
whether such proceeding was initiated
before or after the commencement of
this Act.
(2) Any relief referred to in
sub-section (1) may be sought for in
addition to and along with any other
relief that the aggrieved person may
seek in such suit or legal proceeding
before a civil or criminal court.
(3) In case any relief has been
obtained by the aggrieved person in any
proceedings other than a proceeding
under this Act, she shall be bound to
inform the Magistrate of the grant of
such relief.

From the careful reading of the above said provisions, it is
apparent that the court would not be empowered to grant
the relief unless sought. In the present case, it appears that
at the time of delivering judgment, the court suo motu
considered the application under section 26 of the Domestic
Violence Act thereby clearly deniying an opportunity to nonapplicant
to meet with the same. It was obligatory on the
part of the Family Court to hear the non-applicant before
awarding maintenance under Section 26 of the Domestic
Violence Act. Since the Family Court failed for the same and
since the applicant/present non-applicant failed to establish
that she entered into domestic relationship or she was
legally married to non-applicant, she was not entitled to
relief of maintenance either under Section 125 of the Code
of Criminal Procedure or under the provisions of the
Domestic Violence Act.
13] So far as maintenance to minors is concerned, it
can be seen from the municipal record that name of father
of Vaibhav was initially shown as Sanjay and later on tried to
be rectified as Gautam. Regarding Nipun, there is no
convincing evidence to show that he was born to respondent

from applicant. Exh.28 is considered as a letter by applicant
to S.D.P.O. and reliance is placed on the admissions therein.
On cursory look at Exh.28, it can be seen that on 1.1.2010,
S.D.P.O. recorded statement of applicant in the course of
enquiry. Applicant has not admitted the statement. In the
absence of unequivocal admission on the part of applicant
Gautam and for want of legal proof, reliance could not have
been placed on contents of Exh.28 to fasten paternity of
children on him.
14] In the above circumstances, this court finds that
the case of the respondent is completely out of purview of
the provisions of Section 125 of the Code of Criminal
Procedure and the provisions of Domestic Violence Act. As
impugned orders suffer from material legal infirmities,
interference in extra-ordinary jurisdiction is warranted.
Hence, the following order.
(1) Criminal Application (APL) No.664/2011 is allowed
The impugned order dated 21.10.2011 in Petition
No.E.82/2010 passed by the Family Court, Akola is quashed
and set aside. Rule is made absolute in the aforesaid terms.
No order as to costs.

(2) Criminal Application (APL) No.229/2015 is allowed.
Rule is made absolute in terms of prayer clauses (a)-(i), (ii)
and (iii). No order as to costs.
(Kum. Indira Jain, J.)

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