CRIMINAL WRIT PETITION NO. 869 OF 2018

8th July 2019

Petitioner Counsel: Shri M. M. Dhandekar
Respondent Counsel: Shri S. B. Gandhe
Act Name: Contempt of Courts Act, 1971 Code of Criminal Procedure, 1973 Protection of Women from Domestic Violence Act, 2005

Section :
Section 91 Code of Criminal Procedure, 1973 Section 12 Protection of Women from Domestic Violence Act, 2005 Section 23 Protection of Women from Domestic Violence Act, 2005

Cases Cited :

JUDGEMENT

1. Exception is taken to the order dated 18.07.20108 rendered by the Judicial Magistrate First Class, Court No. 7, Amravati, whereby the application of the respondent-husband under Section 91 of the Criminal Procedure Code, 1973 ('Code' for short) for issuance of summons to the Proprietor, Karwa Interior, Karwa Arcade, Amravati, is rejected.

2. The application under Section 91 of the Code is predicated on the assertion that the wife is employed at Karwa Interior, Amravati. The petitioner-husband asserts that the fact of employment is suppressed in the petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005, (“D.V. Act” for short).

3. The wife asserts in response that she is not employed much less with the establishment referred to in the application.

4. The learned Magistrate observed in Paragraph 4 that the application is filed at the stage of hearing on application for interim maintenance under Section 23 of the D.V. Act. It is observed that for deciding the issue of interim maintenance, it is not necessary to permit the husband to summon the alleged employer. Further, observation is that the burden to prove that the wife was earning, is on the husband who is expected to discharge the same by adducing evidence. The learned Magistrate further observed that the object of Section 91 of the Code is not to unable or facilitate a litigant to collect the evidence.

5. To the extent, the learned Magistrate observes that at the stage of decision on interim maintenance, it would not be necessary to consider the application under Section 91 of the Code, the observation is unexceptionable. However, some observations state that the legal position too broadly. Section 91 of the Code is in two parts. The first part confers discretion. The second part is, however, mandatory. If the documents of which production is sought are necessary for just decision of the case, the magistrate would have no discretion and is mandated to exercise power under Section 91 of the Code. The learned Magistrate has not adverted to the scope of Section 91 of the Code, presumably, in view of his opinion that the application under Section 91 of the Code needs no consideration at the stage of deciding interim maintenance.

6. In this view of the matter, while I am not inclined to interfere with the order impugned, it is made clear that if an application under Section 91 of the Code is moved at the stage of recording of evidence, to summon the documents from the establishment who according to the husband is the employer, such prayer shall be considered without being influenced by the observations in the order impugned. Needless to record, that the prayer shall be considered only if the petitioner-husband establishes, at least prima facie, that the wife is working at the said establishment. The fishing inquiry shall not be encouraged or permitted. At this stage, the learned counsel Shri Dhandekar states that this observation ought not to come in the way of the other course of action like summoning witnesses etc. The apprehension is clearly unfounded. Whether the application under Section 91 of the Code is allowed or otherwise, it is always open for the petitioner to examine the person who according to the petitioner is the employer of the wife, as witness.

7. The disturbing feature is that due to the litigation on the issue of Section 91 application and its rejection, the interim maintenance is not decided. This Court was inclined to direct that the petitioner-husband pays the wife a reasonable maintenance per month from the date of the application in four equal monthly installments, since the petitioner-husband is drawing salary of Rs. 40,000/- per month or there about. However, the learned counsel Shri Dhandekar states that the petitioner shall deposit monthly maintenance of Rs. 5,000/- from the date of the application in four equal monthly installments of Rs. 34,000/- each. The statement is accepted as an undertaking to this Court. Any breach of the undertaking shall entail action under the Contempt of Courts Act.

8. It is made clear that this Court has not addressed the issue of quantum of maintenance on merits which shall be decided by the learned Magistrate strictly on the basis of evidence adduced.

9. Since both the learned counsel state that every co-operation shall be extended to the Court for expeditious disposal of the matter, the learned Magistrate is requested to finally decide the proceedings within six months.

10. With these observations and directions the petition is disposed of.