- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL REVISION REVISION REVISION APPLICATION NO.93 OF 2009 APPLICATION NO.93 OF 2009 APPLICATION NO.93 OF 2009 Sanjay Hasmukh Parekh ...Applicant vs. State of Maharashtra & Anr. ...Respondents Ms Manjula Rao for the applicant Mr.Y.M.Nakhawa A.P.P. for State Mr.Abad Ponda for the 2nd respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 29,2009 : APRIL 29,2009 : APRIL 29,2009 P.C.: P.C.: P.C.: 1. Heard learned counsel for the applicant and the learned counsel for the second respondent. The second respondent is the wife and the applicant is husband. Proceedings under section 12 of the Protection of Women from Domestic Violence Act,2005 (hereinafter referred to as the said Act) has been filed at the instance of the second respondent before learned Metropolitan Magistrate. In the said proceeding, an application has been made for grant of interim maintenance. On 21st May 2008, an exparte ad-interim order was passed by the learned Magistrate in exercise of power under sub section 2 of section 23 of the said Act. By the said order, the applicant was directed to deposit a sum of Rs.3,00,000/- towards medical expenses required for surgery to be undergone by the female child. The learned Magistrate also directed the applicant to pay a sum of Rs.30,000/- p.m to the second respondent towards interim maintenance allowance. The learned - 2 - Magistrate also directed the applicant to pay monthly maintenance charges and electricity charges in respect of the residential flat. The said order was challenged by the applicant by preferring a statutory appeal under section 29 of the said Act. By the impugned order dated 19th January 2009, the learned Additional Sessions Judge dismissed the appeal. The learned Judge directed that the applicant shall deposit a sum of Rs.3,00,000/- either in cash or by demand draft before 3 days of fixing the date of surgery. 2. I have heard the submissions of the learned counsel for the applicant and the learned counsel for the second respondent. The learned counsel for the applicant on instructions stated that the applicant has deposited a sum of Rs.3,00,000/- in compliance with order of the learned magistrate in terms of clause (1) of the order dated 21st May 2008, which has been confirmed by the impugned order. 3. The perusal of the order dated 21st May 2008 shows that the said order is an ad-interim order passed by the learned Magistrate in exercise of power under sub section 2 of section 23 of the said Act. In terms of the decision of this court in the case of Abhijit B. Auti V/s.State of Maharashtra and another (2009 (1) Bombay Cases Reporter (cri) 845), the applicant will have to be heard by the learned Magistrate and an appropriate order by way of interim relief, if any, will - 3 - have to be passed in exercise of power under sub section 1 of section 23 of the said Act. The learned counsel for the applicant states that the applicant has not filed any reply for contesting the application and affidavit made by the second respondent for grant of interim relief. 4. Thus, the impugned order has been passed by the Sessions Court in an Appeal agianst ad-interim order under sub section 2 of section 23 of the said Act. Prayer for interim relief made by the second respondent will have to be considered on its own merits. Considering the facts of the case, it is not necessary to entertain this revision application. 5. The learned counsel for the applicant stated that the applicant will be in position to file a reply within a period of 2 weeks from today. The learned Magistrate will permit the petitioner to file a reply within a period of two weeks from today. 6. After the reply is filed by the applicant, the learned Magistrte will have to consider the prayer made by the second respondent for grant of interim order in exercise of power under sub section 1 of section 23 of the said Act. 7. An apprehension is expressed by the learned counsel for the applicant that as tge ad-interim order passed by the - 4 - learned Magistrate is confirmed by the Sessions Court in Appeal, the learned Magistrate may be influenced by the order passed in appeal. As stated earlier, the result of the order passed in Appeal is the confirmation of ad-interim order. When the learned Magistrate considers the prayer for grant of interim relief under sub section 1 of section 23 of the said Act, the learned Magistrate is bound to pass an order after considering the material on record. While considering the prayer for interim relief, it is obvious that the learned Magistrate will not be influenced by the ad-interim order passed by him on 21st May 2008 and confirmation thereof by the Sessions Court in appeal. The prayer for interim relief will have to be decided on its own merits without being influenced by the observtions made in the impugned order by the Sessions Court. 8. Considering the nature of controversy between the parties and the mandate of the said Act, the learned Magistrate will have to give priority to this case in so far as hearing of the prayer for interim relief is concerned. 9. Hence, I pass the following order : i) It will be open for the applicant to file a reply to the prayer made by the second respondent for grant of interim relief within a period of two weeks from today. - 5 - ii) The learned Magistrate will hear the parties and will pass an appropriate order in accordance with law on the prayer for interim relief. The order shall be passed as expeditiously as possible and in any event within a period of six weeks from the date on which a reply is filed by the applicant. iii) It is made clear that the prayer made by the second respondent for grant of interim relief will be decided on its own merits without being influenced by the impugned Judgment and order passed by the Sessions court by whoch ad-interim relief has been confirmed. iv) It is made clear that this court has not made any adjudication on the merits of the prayer made for grant of interim relief and all contentions in that behalf are expressly kept open. v) Revision application is disposed of in above terms. vi) Parties and the concerned court to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE