Bombay High Court
Surekha Keshav Kumbhar vs The State Of Maharashtra And Another on 26 February, 2026
2026:BHC-AUG:8440
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 22 OF 2026
Surekha Keshav Kumbhar
Age: 35 Yrs, Occu : Household,
R/o. C/o. Laxman Chagan Kumbhar,
Galan Bk., Tq: Pachora, Dist. Jalgaon. ..PETITIONER
[Orig.Applicant in DV Case]
VERSUS
1] The State of Maharashtra
2] Keshav Natthu Kumbhar
Age: 40 Yrs, Occu : Retired & Business,
R/o. Motha Kumbharvada,
Balaji Chowk, Parola,
Dist : Jalgaon. .. RESPONDENTS
...
Mr.Swapnil S. Patil, Advocate for the petitioner
Mr.A.S.Shinde, APP for the respondent-State
Mr.S.V.Suryawanshi, Advocate for the respondent no.2
...
WITH
CRIMINAL WRIT PETITION NO. 24 OF 2026
Surekha Keshav Kumbhar
Age: 35 Yrs, Occu : Household,
R/o. C/o. Laxman Chagan Kumbhar,
Galan Bk., Tq: Pachora, Dist. Jalgaon. ..PETITIONER
[Orig.Applicant in DV Case]
VERSUS
1] The State of Maharashtra
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2] Keshav Natthu Kumbhar
Age: 40 Yrs, Occu : Retired & Business,
R/o. Motha Kumbharvada,
Balaji Chowk, Parola,
Dist : Jalgaon. .. RESPONDENTS
...
Mr.Swapnil S. Patil, Advocate for the petitioner
Mr.A.S.Shinde, APP for the respondent-State
Mr.S.V.Suryawanshi, Advocate for the respondent no.2
...
CORAM : MEHROZ K. PATHAN, J.
Reserved on : 09.02.2026
Pronounced on : 26.02.2026
ORDER :
1] The petitioner has filed the present Writ
Petitions thereby praying for quashing and setting aside the
judgment and order dated 03.12.2025 passed by the Ad-hoc
DJ-1 & ASJ, Jalgon (hereinafter referred to as Appellate
Court for the sake of brevity) in Criminal Appeal
No.53/2025 and further to dismiss the said Criminal Appeal
No.53/2025 by restoring and confirming order dated
12.06.2025 passed by the learned Judicial Magistrate First
Class, Pachora, (hereinafter referred to as the Trial Court )
below Exh. 28A and 30A in D.V. Application No.17/2022.
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2] The learned counsel for the petitioner submits
that vide application below Exh. 27, the petitioner has
prayed for residence order in shared household under
Section 19 of the Protection of Women from Domestic
Violence Act, 2005 [for short ‘DV Act‘]. The said application
was disposed of by the learned trial Court vide order dated
09.10.2024 by giving liberty to both the parties to adduce
evidence in respect of relief of residence order under
Section 19 of the D.V. Act for final hearing. The
respondent-husband, namely, Keshav Kumbhar has filed an
Appeal challenging the order dated 09.10.2024 being
Criminal Appeal No.124/2024. During pendency of the
appeal, the respondent-husband had executed a sale deed
in favour of his nephew Yogesh Suryawanshi with an
attempt to defeat the petitioner’s right to reside in the
shared household vide registered sale deed No.12139/2024
dated 21.11.2024.
3] The petitioner was constrained to file
application for amendment in D.V. Application No.17/2022
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below Exh. 28A and another application Exh.30A for
permission to add transferee nephew of respondent no.2
Yogesh on record under Section 2 (q) of the D.V. Act. The
learned trial Court, after calling say of the respondents and
hearing both sides at length, has decided the said
applications vide separate orders dated 12.06.2025.
4] The respondent no.2, being aggrieved by order
dated 12.06.2025 passed by the learned trial Court allowing
the application below Exh. 28A and 30A, had filed an
appeal being Criminal Appeal No.53/2025 and Criminal
Appeal No.54/2025, respectively. The learned Appellate
Court, vide its order dated 03.12.2025, has set aside the
order dated 12.06.2025 passed below Exh. 28A and 30A
with direction to the learned trial Court to proceed in
accordance with the law without the impermissible
amendments under the provisions of D.V. Act. The
petitioner-wife was granted liberty to file appropriate
proceedings before the Civil Court or the Family Court. The
petitioner (wife) had thus, challenged the said order dated
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03.12.2025 passed by the Ad-hoc DJ-1 & ASJ, Jalgaon in
both the Appeals i.e. Criminal Appeal No.53/2025 and
54/2025.
5] The learned counsel for the Petitioner Shri
Swapnil Patil submits that the orders dated 12.06.2025
passed by the Trial court clearly records that the provisions
under Section 19 of the D.V. Act gives right of shelter to the
aggrieved person, is a benevolent provision for women, and
also considered that the said original application did not
contain property number, its area and location of the shared
household, as such complainant wife intends to incorporate
those details of shared household in her main petition and
no prejudice would be caused to the husband if such
application is allowed.
6] The learned counsel for the petitioner further
submits that the procedural order of allowing amendment
could not have been challenged in an appeal as it is almost
a settled law that the appeal under Section 29 of the D.V.
Act against the procedural order of allowing amendment is
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not maintainable as held by the Bombay High Court in the
case of Abhijit Bhikaseth Auti Vs. State of Maharashtra and
another in Criminal Writ Petition No.2218 of 2007, decided
on 16.09.2008 [reported in 2009 (1) BomCR (Cri) 845]
that :
“An appeal under section 29 will not be
maintainable against the purely procedural
orders such as orders on application for
amendment of pleadings, orders refusing or
granting adjournments, order issuing witness
summons or orders passed for executing the
orders passed under the said Act. The learned
counsel, therefore, submits that the appeal itself
was not tenable. The observations of the First
Appellate Court are non est as it lacks
jurisdiction to entertain under Section 29 of the
D.V. Act against procedural order of allowing
amendment.”
7] The learned counsel further submits that the
amendment application of the petitioner was allowed by
order dated 12.06.2025, exercising powers under Order 6
Rule 17 of the CPC. The proposed amendment did not
change the nature of the application under Section 19 of the
D.V. Act or application filed before the trial Court by the
petitioner wife. The trial Court, by order dated 12.06.2025,
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has observed that as the cross examination of the applicant
is yet not commenced, amendment would not cause any
prejudice to the respondents and as such may be allowed.
8] The learned counsel for the petitioner,
therefore, submits that the First Appellate Court has
unnecessarily gone into the details of the contract law,
property law, matrimonial law and held that the
amendment creates third party dispute by adding nephew,
who is not concerned with the property, with the
observations that the amendment is not related to the
domestic violence allegations, the proceeding is likely a
property dispute in disguise. The learned Appellate Court
has wrongly applied the distinction principle between
productive relief versus the property adjudication by
holding that matrimonial property does not automatically
make it property dispute and make it domestic. The
Appellate Court has wrongly entertained the Appeal against
a procedural order passed by the trial Court, thereby
rejecting the amendment made by the petitioner. The
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impugned order therefore, needs to be quashed and set
aside thereby restoring the order dated 12.06.2025 passed
by the trial Court below Exh.28A and Exh.30A in D.V.
Application No.17/2022.
9] As against this, the learned counsel for the
respondent submits that earlier application filed by the
petitioner under Section 19 of the D.V. Act came to be
rejected by the trial Court vide order dated 09.10.2024 by
passing a detailed order. The petitioner had again filed such
application without there being any substance. The
applications filed by the applicant- petitioner herein under
the garb of only amending application is virtually claiming
substantial rights in the shared household, and therefore,
cannot be said to be a procedural amendment, which would
rule out any appeal to be entertained under Section 29 in
view of the judgment of the Single Bench of the Bombay
High Court in the case of Abhijit Bhikaseth Auti Vs. State of
Maharashtra & another [supra]. The application below Exh.
28A does not even make a mention of transfer of the suit
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property in the name of the Yogesh and as such prayer for
inserting Yogesh is already waived in such application. The
Civil Procedure Code applies to the proceedings under the
D.V. Act Order II Rule 2 provides suit to include the whole
claim wherein as per sub-rule 2, the plaintiff may not be
allowed to make claim which was already relinquished
earlier and subsequent amendment to that effect would,
therefore, be prohibited. Proviso to the order VI Rule 17
prohibits any amendment after commencement of the trial.
The learned counsel for the respondent further submits that
the petitioner herein has already filed civil suit in respect of
the suit properties for claiming various claims. Order II Sub-
Rule (2) of Rule 2 of Civil Procedure Code, reads as under :
2. Suit to include the whole claim. –
(1) ...
(2) Relinquishment of part of claim. - Where a
plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or
relinquished.
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Order VI Rule 17 of the Civil Procedure Code
reads as under :
17. Amendment of pleadings. –
The Court may at any stage of the proceedings
allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and
all such amendments shall be made as may be
necessary for the purpose of determining the real
questions in controversy between the parties.
Provided that no application for amendment
shall be allowed after the trial has commenced, unless
the Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter
before the commencement of trial.
10] The learned counsel for the respondent
therefore submits that portion which he has already omitted
or relinquished cannot be allowed to be inserted now by
way of amendment in violation of the proviso to Order VI
Rule 17 as well as in violation of sub-rule (2) of Order II
Rule 2 of CPC.
11] He further relies upon the provisions of Section
2 (q) of the Protection of Women from Domestic Violence
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Act, 2005, which defines as under :
(q) “respondent” means any adult male person
who is, or has been, in a domestic relationship with
the aggrieved person and against whom the aggrieved
person has sought any relief under this Act :
Provided that an aggrieved wife or female
living in a relationship in the nature of a marriage
may also file a complaint against a relative of the
husband or the male partner.
Thus, unless the petitioner is able to show that
Yogesh is having domestic relationship with the petitioner-
wife, the application for adding Yogesh could not have been
allowed by the trial Court. The order passed by the trial
Court is rightly quashed and set aside by the First Appellate
Court, rejecting the amendment with direction to the trial
Court to decide the trial in accordance with law without any
such amendment and as per original pleadings in the D.V.
application.
12] The learned counsel for the petitioner Shri. Patil
relies upon the judgment in the case of Hiral P. Harsora and
Ors. Vs. Kusum Narottamdas Harsora and Ors. reported in
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D.V. Act is struck down holding the same to be
unconstitutional. The learned counsel further relies upon
the judgment in the case of Kunapareddy @ Nookala
Shanka Balaji Vs. Kunapareddy Swarna Kumari & Anr.
Reported in 2016 GoJuris (SC) 551 = 2016 (11) SC 774 to
submit that if power to amend complaint/application etc. is
not read into the provisions of D.V. Act, the same would
defeat purpose. If the amendment did not change original
nature of the complaint, the amendment can be allowed.
The learned counsel for the petitioner has further relied
upon the judgment of the Bombay High Court in the case of
Abhijit Bhikaseth [supra] to submit that an appeal under
Section 29 shall not be maintainable against the purely
procedural orders like a order allowing amendment of
pleadings.
13] Relying upon the aforesaid submissions, the
learned counsel for the petitioner submits that the
amendment application filed by the petitioner below Exh.
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28A does not change nature of the complaint and as per the
said application, only details of the shared household is to
be incorporated in the main application along with
consequential amendment in the prayer clause whereas
other application below Exh. 30A was only to add Yogesh
(son of respondent no.5 Kalpana) as respondent, who is a
member of the family of the husband and falls under
definition of respondent under D.V. Act.
14] The learned counsel for the petitioner,
therefore, submits that taking into consideration law laid
down by the Bombay High Court, the appeal under Section
29 could not have been entertained by the First Appellate
Court and thus the impugned order dated 03.12.2025 is
liable to be quashed and set aside on this ground alone.
Even on merits the learned First Appellate Court has given
erroneous reasoning to allow the appeal. The learned
Appellate Court has held that amendment seeks to
adjudicate the property right which is outside the scope of
the D.V. Act and relief sought involves complex property
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law questions requiring civil court adjudication. The learned
counsel, therefore, submits that on merits also the
impugned order dated 03.12.2025 passed by the Ad-hoc DJ-
1 and ASJ, Jalgaon is liable to be quashed and set aside,
thereby allowing the petitioner to amend the main
application as per order dated 12.06.2025 allowing
application for amendment and addition of Yogesh as
respondent no.6.
15] As against this, the learned counsel for the
respondent relies upon the judgment of the Hon’ble Apex
Court in the case of Satish Chandr Ahuja Vs. Sneha Ahuja
reported in AIR 2020 SC 5397 to submit that for identical
claim, the petitioner has already filed civil suit bearing RCS
No.764/2024 with prayer for cancellation of gift deed dated
23.12.2021 with further declaration that gift deed dated
23.12.2021 is not binding upon the plaintiff-wife-Surekha.
The plaintiff-wife-Surekha has further prayed for
cancellation of the sale deed dated 21.11.2024 executed by
the husband in favour of the Yogesh and further declaration
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that the sale deed is not binding upon the plaintiff and her
legal heirs. It is further submitted that the petitioner has
also filed amendment applications under Order 1 Rule 10
and Order VI Rule 17 of the CPC, thereby seeking
appropriate amendment, which is allowed by the CJJD and
JMFC, Nashik vide order dated 13.02.2025. It is further
submitted that vide order dated 25.11.2025, there is
already status quo order operating in favour of the plaintiff
– Wife – Surekha. The order below Exh.49 passed by the
trial Court, rejects the application for prayer to restrain
respondent nos. 1 to 6 from alienating shared household i.e.
survey Nos.79/2A and 79/4A situated at Bhagur Shivar,
Deolali Cantonment Board Premises, Taluka and District
Nashik, vide order dated 04.11.2025. Therefore, another
application to amend D.V. proceedings was completely
untenable. It is further submitted by the learned counsel for
the respondent that in view of the alternate remedy being
already pursued by the plaintiff-wife for getting her share
in the shared household and for cancellation of the gift deed
dated 23.12.2021 on the allegation of forcibly taking
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signature of the plaintiff-wife and also amending suit to
add subsequent purchaser, Yogesh, as respondent in the
said suit and also prayed for cancellation of the sale deed in
favour of the Yogesh, the applications for amendment below
Exh.28A and 30A were, therefore, not maintainable in view
of the judgment of the Hon’ble Apex Court in the case of
Satish Chandr Ahuja [supra].
16] The learned counsel for the respondent,
therefore, submits that the learned Appellate Court has
taken into consideration scope of the amendment sought by
the applicant-wife and therefore rightly held that relief
sought by way of amendment involves complex property
law questions requiring civil court adjudication and hence
the amendment applications below Exh.28A and 30A are
not tenable. The impugned order dated 03.12.2025 is
passed by the Appellate Court after applying its mind to the
relevant provisions of law and the judgment governing field
by rightly allowing the Appeal, hence, the present Writ
Petition is devoid of substance and the same liable to be
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dismissed.
17] The learned counsel for the respondents
submits that Yogesh, who is sought to be added as party
respondent, does not have domestic relationship with the
aggrieved person i.e. petitioner-wife and as such Yogesh
could not have been allowed to be added as respondent in
view of Section 2 (q) of the D.V. Act which mandates
definition of respondent to be a person who is in domestic
relationship with the aggrieved person.
18] I have gone through the order dated 12.06.2025
passed by the learned Judicial Magistrate First Class,
Pachora, thereby allowing application at Exh. 28A and 30A
to amend the main application under Order VI Rule 17 of
the Civil Procedure Code and addition of Yogesh as
respondent. I have also gone through the order dated
03.12.2025 passed by the Adhoc DJ-1 & ASJ, Jalgaon,
thereby allowing the Appeals filed by the respondent-
husband, rejecting amendment application filed below
Exh.28-A and 30A.
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19] Perusal of the order dated 09.10.2024 passed
on an application filed under Section 19 of D.V. Act by the
wife – Surekha i.e. the petitioner herein would show that
the same was disposed of with liberty to the both the parties
i.e. wife and husband to lead evidence in respect of relief of
residence order sought under Section 19 of the D.V. Act by
the petitioner wife. The learned JMFC, Pachora, vide its
order dated 09.10.2024, had specifically observed that the
Petitioner-wife was driven out of matrimonial house and
was presently residing with her relatives, the provisions of
Section 17 of the D.V. Act is not applicable in such situation.
Thus, in the background of the fact that the respondent-wife
was already driven out of the matrimonial house for which
she was seeking residence order, the learned trial Court had
held that the provisions of Section 19 of the D.V. Act would
only apply. The learned trial Court has further held that
while deciding an application under sub-section (1) of
Section 12, the Magistrate may, on being satisfied that
domestic violence has taken place, pass a residence order.
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The learned Magistrate, therefore, found application under
Section 19 of the D.V. Act as premature and liable to be
decided only at the time of final hearing of the case.
Holding that the parties are at liberty to adduce evidence in
respect of relief of residence claimed under Section 19 of
the D.V. Act at the time of final hearing.
20] The application Exh. 28A came to be filed by
the petitioner, thereby seeking amendment to the main
petition, incorporating necessary pleadings to lead her
evidence to that effect. The said application Exh. 28A was
filed by the petitioner seeking amendment to the main
petition under Order VI Rule 17 of the CPC. The
amendment sought by the petitioner-wife was only giving
details of the shared household in the main application,
which she did not raise in the earlier application moved
before the Court. The earlier application was filed by the
petitioner-wife in respect of the pleadings and material facts
regarding gift deed dated 23.12.2021 allegedly executed by
the husband by obtaining signature of the applicant-wife by
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playing fraud. The said fact is pleaded in para no.5 of the
main application but details of the shared household is not
pleaded as also in the prayer clause u/s. 19 of D.V. Act
prayer regarding possession of half portion of the shared
household was not included in main application. Thus, to
lead evidence regarding shared household as permitted by
the trial Court vide its order dated 09.10.2024 it was
necessary to amend the main application as well as prayer
clause of the application filed by the Petitioner wife.
21] On the other hand, it would be seen that the
First Appellate Court has allowed appeal by setting aside
the well reasoned order dated 12.06.2025 passed by the
trial Court only on the ground that respondent-wife has
chosen wrong forum under the Domestic Violence to redress
her grievance. It is held that the filing of the civil suit on the
ground that the amendment seeks to adjudicate property
right is outside the scope of the D.V. Act and the other
amendment introduces a third party nephew unrelated to
the domestic violence allegations. It was further held that
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the relief sought involves complex property law questions
requiring civil court adjudication. The First Appellate Court
held that the appellant has proved that order passed by
JMFC, Pachora below Exh.28A in D.V. Case No.17/2022
dated 12.06.2025 is beyond the scope of provisions of the
D.V. Act and hence the Appeal came to be allowed. The
Hon’ble Supreme Court in the case of Satish Ahuja (cited
supra) has specifically observed that any relief available
under D.V. Act may also be sought in a civil court. In my
opinion, the reason given by the learned First Appellate
Court in Criminal Appeal No.53/2025 is erroneous and the
same is liable to be quashed and set aside.
22] The respondent – Yogesh is sought to be added
in the main application only because the petitioner has
transferred the property i.e. shared household being survey
Nos.79/2A and 79/4A situated at Bhagur Shivar, Deolali
Cantonment Board Premises, Taluka and District Nashik,
immediately after order dated 09.10.2024 came to be
passed by the learned JMFC, Pachora, allowing the parties
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to lead evidence under Section 19 of the D.V. Act, filed by
the petitioner – wife praying for residence. The said
amendment is only consequential amendment as the
respondent – husband has transferred the aforesaid suit
property in the name of Yogesh on the basis of the alleged
gift deed dated 23.12.2021, forcibly obtaining signature of
the petitioner – wife. Yogesh is a relative [nephew] of the
husband of complainant and falls under the definition of
respondent under D.V. Act. Whether there was any
domestic relationship with relatives is a matter to be
decided after completion of evidence. The amendment
praying for allowing addition of Yogesh as respondent is,
therefore, necessary for effectively adjudicating the rights of
the petitioner – wife, who has filed amendment application
under the D.V. Act. The impugned order in Appeal
No.54/2025 is therefore liable to be set aside.
23] In so far as the judgment relied upon by the
respondent as regards alternate remedy being pursued by
the petitioner – wife by filing civil suit is not maintainable in
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view of the judgment in the case of Satish Chander Ahuja
[supra]. It could be seen from the said judgment that the
Hon’ble Supreme Court has specifically considered Section
26 of the D.V. Act in para no.94 and 95 as under :
“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.
“40. Section 26 of the 2005 Act has to be
interpreted in a manner to effectuate the very purpose
and object of the Act. Unless the determination of
claim by an aggrieved person seeking any order as
contemplated by the 2005 Act is expressly barred
from consideration by a civil court, this Court shall be
loath to read in bar in consideration of any such claim
in any legal proceeding before the civil court….24] Thus, taking into consideration aforesaid law on
the subject, I am of the opinion that the learned trial Court
has not committed any mistake on the point of allowing
application for amendment, which is consequential in
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pursuance to the order dated 09.10.2024 whereby
application under Section 19 of the D.V. Act filed by the
petitioner – wife came to be disposed of with liberty to the
parties to lead evidence to that effect. It is almost a settled
law that before leading any evidence, there has to be
pleadings to that effect in the proceedings. The Hon’ble
Supreme Court in the case of Kunareddy @ Nookala Shanka
Balaji [supra] has laid down that if power to amend
complaint / application etc. is not read into the provisions
of the Domestic Violence Act, the same would defeat very
purpose for which Act attempts to sub-serve itself, and has
allowed amendment in the application.
25] The Bombay High Court in the case of Abhijit
Bhikaseth Auti [supra] was pleased to hold that an appeal
under section 29 will not be maintainable against the purely
procedural orders such as orders on application for
amendment of pleadings, orders refusing or granting
adjournments, order issuing witness summons or orders
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etc.
26] Thus, taking into consideration every aspect of
the matter, I am inclined to allow the present writ petitions.
Hence, the following order :
ORDER
i] Both the Writ Petitions are allowed.
ii] The impugned order dated 03.12.2025 passed
by the Ad-hoc DJ-1 & ASJ, Jalgaon in Criminal Appeal
No.53/2025 is hereby quashed and set aside. The order
dated 12.06.2025 passed by the learned Judicial Magistrate
First Class, Pachora below Exh.28A is hereby confirmed.iii] The impugned order dated 03.12.2025 passed
by the Ad-hoc DJ-1 & ASJ, Jalgaon in Criminal Appeal
No.54/2025 is hereby quashed and set aside. The order
dated 12.06.2025 passed by the learned Judicial Magistrate
First Class, Pachora below Exh.30A is hereby confirmed.iv] The petitioner-wife was allowed to carry out the
amendment within 14 days. The necessary amendment be
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already.
v] The trial Court is requested to decide the
application expeditiously.
vi] The Writ Petitions are allowed and disposed of
in aforesaid terms with no order as to costs.
[MEHROZ K. PATHAN]
JUDGE
DDC
