apl.328.12
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
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CRIMINAL APPLICATION (APL) NO. 328 /2012
1) Subroto Chatopadhaya Aged 50 years, occu: service
2) Lipika w/o Subroto Chatopadhaya Aged 48 years, occu: Household R/o Plot No.202, Vishal Towers, Near Pull No.10, Nagsen School Lashkaribagh Road, Panchpaoli Nagpur. ... ...APPLICANTS
v e r s u s
1) The State of Maharashtra Through Inspector
P.S. Panchpaoli, Nagpur.
2) Sheela d/o Govindrao Tirpude Aged about 40 years, occu: service R/o Plot No.70, Empress Mills Quarters Bezongagh, Nagpur. . ... ...NON-APPLICANTS
RESPONDENTS
…........................................................................................................................ Mr. M.R.Kalar, Advocate for applicants
Mr S.S Doiphode, Addl. P.P. for non-applicant no.1
Mr. P.N.Mehta, Advocate for non-applicant no.2
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CORAM: M.L.TAHALIYANI,J.
DATED : 3rd January, 2013
ORAL JUDGMENT :
Admitted. Heard finally by consent of parties. Heard learned counsel Mr. M.R.Kalar, learned counsel for the applicants; Mr S.S.Doiphode, learned Addl. P.P. for non-applicant no.1-State; and Mr. P.N. Mehta, learned counsel for non-applicant no.2.
2. Learned counsel for the non-applicant no.2 states that he will not press for the proceedings against applicant no.2-Lipika. He has submitted that this Court may pass suitable order for quashing the proceedings against applicant no.2.
3. As far as the applicant no.1 is concerned, it is submitted by learned Advocate Mr.Kalar that there are no averments in the Application submitted to the Magistrate that applicant no.1 was ever in domestic relationship with non-applicant no.2. It is further submitted that house where non-applicant no.2 claims to have had relationship with applicant no.1 cannot be called as "shared household".
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4. Admittedly, the house where the relationship was allegedly maintained is not in joint possession of applicant no.1 and non-applicant no.2. It is in possession of non-applicant no.2. The allegations made in the Application are that the applicant no.1 was regularly visiting the non-applicant no.2 at the said house and he was maintaining relationship with non-applicant no.2. He used to arrive at about 7 o' clock and used to leave the house at midnight.
5. Learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of S.R.Batra and another vs.Smt. Taruna Batra, reported at AIR 2000 SC 1118. I have gone through the full text of the said judgment. In the said case there was a dispute between husband and wife. The issue raised was as to whether the house of mother-in-law of the respondent- Smt. Taruna Batra could be called as "shared household". After having taken into consideration the facts of the case, the Hon'ble Supreme Court had come to the conclusion that since the house in question belonged to mother-in-law of Smt. Taruna Batra, and it did not belong to her husband Mr Amit Batra, it could not be called as
"shared household" only because Mrs. Taruna Batra and Mr. Amit Batra had stayed in the said house for a few days.
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6. In the present case, the non-applicant no.2 is not claiming any residential accommodation from the applicant. Her claim is only with regard to the maintenance. Considering the averments made in the Application, it is for the learned trial Magistrate to decide as to whether sharing the house of non-applicant no.2 for few hours regularly and maintaining relations like husband and wife would be sufficient to call the said house as a 'shared household'. It is premature for this Court to examine the issue in question because in my opinion, the evidence will have to be laid by the parties before the trial Court so that the trial Court can decide the issue on the basis of evidence led before it. I do not find any substance in the Application as far as the applicant no.1 is concerned. As already stated, the proceedings against applicant no.2 are not pressed. Hence, I pass the following order:
ORDER
(i) The proceedings pending before the learned trial Magistrate in Misc. Criminal Case No.1688/2009 against applicant no.2- Lipika Subroto are hereby quashed and set aside. Interim order, if any, passed against her shall stand vacated.
(ii) The Application of applicant no.1 has been dismissed. Interim order, if any passed, shall stand vacated. The Application is allowed
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accordingly.
(iii) Any observations made in the above order as regards the facts of the case should not influence the learned Magistrate while deciding the case on merits.
JUDGE
sahare
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