- 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 WRIT PETITION NO.775 OF 2008 WRIT PETITION NO.775 OF 2008 WRIT PETITION NO.775 OF 2008 Mrs.Rimpi Manish Jain ...Petitioner vs. Manishkumar Rajkumar Jain & Anr. ...Respondents Ms Rimpi Jain Petitioner in person present Mr.Umesh Mankapure, Advocate appointed as amicus curie Mr.Niranjan Mundargi for the Respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE ON WHICH SUBMISSIONS ARE CONCLUDED: 1ST AUGUST 2008 DATE ON WHICH SUBMISSIONS ARE CONCLUDED: 1ST AUGUST 2008 DATE ON WHICH SUBMISSIONS ARE CONCLUDED: 1ST AUGUST 2008 DATE ON WHICH JUDGMENT IS PRONOUNCED : 12TH AUGUST 2008 DATE ON WHICH JUDGMENT IS PRONOUNCED : 12TH AUGUST 2008 DATE ON WHICH JUDGMENT IS PRONOUNCED : 12TH AUGUST 2008 JUDGMENT: JUDGMENT: JUDGMENT: 1. By order dated 14th July 2008, this court requested Shri Umesh Mankapure, Advocate to assist the court as Amicus Qurie in this petition. On 18th July 2008, the petition was taken up for final disposal. The submissions of the petitioner appearing in person were heard on that day. Shri Mankapure, the learned Advocate appointed as Amicus Qurie also made submissions. Shri Mundgargi, learned Counsel for the first Respondent made his submissions. On 21st July 2008, when the petition was called out for dictation of the Judgment, before starting the dictation, I indicated to the petitioner appearing in person the view which I was proposing to take in the petition. The petitioner appearing in person insisted that she wanted to make further submissions. Therefore, the petition was adjourned to 28th July 2008 for hearing further submissions. Accordingly, further submissions of the petitioner appearing in person were heard on 1st August 2008. - 2 - 2. With a view to appreciate the submissions made by the petitioner appearing in person, the learned counsel appearing as amicus curie and the learned counsel appearing for the first Respondent, it will be necessary to refer to the facts of the case in brief. 3. The petitioner is the wife of the first Respondent. The marriage was solemnised on 5th October 1998. From the wedlock, a daughter was born on 31st August 1999. In the year 2000, the petitioner lodged a complaint against the first Respondent alleging commission of offence under section 498-A of the Indian Penal Code. The first Respondent filed a petition for divorce against the petitioner before the Family Court at Meerut. In the said petition filed by the first Respondent, the petitioner herein made an application under section 24 of the Hindu Marriage Act,1955 for grant of interim maintenance. The Family Court at Meerut by order dated 9th May 2002 granted interim maintenance at the rate of Rs.1,000/- p.m to the petitioner and interim maintenance at the rate of Rs.1,000/- p.m to the minor daughter. It appears that the said Hindu Marriage Petition filed by the first Respondent was dismissed and later on the same was restored. The petitioner filed an application under section 12 of the Protection of Women from Domestic Violence Act,2005 (hereinafter referred to as the said Act) before the Metropolitan Magistrate. One of the allegations in the said complaint/application was that the - 3 - first Respondent was not abiding by the order of the interim maintenance passed by the Family Court and therefore, Petitioner and her daughter were completely dependant on the petitioner’s parents and her sisters for maintenance. The petitioner alleged that non compliance with the order of maintenance passed by the Family Court amounts to economic abuse within the meaning of the said Act. The petitioner alleged that apart from the economic abuses, the petitioner was subjected by the first Respondent to physical, verbal and emotional abuses. Various prayers were made in the said application. In the said application, the petitioner applied under section 23 of the said Act for grant of interim relief. The said application was contested by the first Respondent. The first Respondent made an application contending that the application/complaint filed by the petitioner under the said Act was not maintainable. The first Respondent prayed for dismissal of the said application. By order dated 13th December 2007, the learned Metropolitan Magistrate dismissed the said application filed by the first Respondent. While dismissed the said application, the learned Magistrate recorded a prima facie finding that the first Respondent was involved in domestic violence against the petitioner. The learned Judge held that the first Respondent was in arrears of maintenance payable under the orders of the Family Court for a period of 17 months. The learned Judge held that there was no merit in the in the objection raised regarding tenability of the application made by the petitioner. - 4 - 4. By further order dated 1st February 2008, the learned Metropolitan Magistrate allowed the application for interim relief and directed the first Respondent to pay maintenance of Rs.5,000/- p.m to the petitioner and maintenance at the rate of Rs.5,000/- p.m to the minor daughter. The learned Judge directed the first Respondent to return all the "Stridhan" articles of the petitioner. By the same order the learned Judge appointed a Protection Officer. 5. The first Respondent preferred an Appeal by invoking section 29 of the said Act for challenging the order dated 1st February 2008 granting interim relief. By order dated 20th February 2008, the learned Additional Sessions Judge, Bombay admitted the appeal and stayed the operation of the impugned order till the disposal of the Appeal. It appears that an application for dismissal of the Appeal and for vacating stay was filed by the petitioner. The said application was taken up for hearing. On 15th April 2008 the learned Additional Sessions Judge passed two separate orders. By one order, he allowed the Appeal and directed the learned Metropolitan Magistrate to adjudicate the preliminary issue whether the domestic relationship between the first Respondent and the petitioner existed on 3rd August 2006. The learned Additional Sessions Judge directed that after making the said adjudication the learned Metropolitan Magistrate will decide the application for interim relief filed by the petitioner. - 5 - By a separate order passed on the same date, the learned Judge rejected the application for dismissal of the Appeal preferred by the petitioner. 6. By this petition under section 482 of the Code of Criminal Procedure,1973(hereinafte referred to as the said Code) and Article 227 of the Constitution of India, the petitioner has challenged the interim order dated 20th February 2008 passed in the Appeal as well as final order dated 15th April 2008 passed in the Appeal. The petitioner also prayed for quashing and setting aside the order dated 1st February 2008 passed by the learned Magistrate on her application for interim relief and prayed that the application for interim relief be allowed as prayed for in the additional affidavit filed by the petitioner on 24th January 2008. The petitioner has also prayed for direction to dispose of the pending application under the said Act within a time bound period. Another prayer made by the petitioner is for enhancement in the maintenance amount granted by the learned Magistrate by order dated 1st February 2008. 7. The first contention raised by the petitioner appearing in person is that the Appeal under section 29 of the said Act was not maintainable against an interim order passed on 1st February 2008 by the learned Magistrate. She submitted that the order of remand passed by the learned Judge was totally unwarranted as the Appeal itself was not maintainable. She - 6 - pointed out that the application made by the first Respondent for dismissal of the proceeding of the application was dismissed by the learned Magistrate. She placed reliance on number of documents such as photographs of the business premises of the first Respondent, copies of the accounts of the business of the first Respondent and the documents relating to vehicle held by the first Respondent. Her submission is that the maintenance amount of Rs.5,000/- per month each granted by the learned Magistrate needs to be enhanced to Rs.10,000/- per month for the petitioner and Rs.15,000/- per month for the minor daughter. She submitted that a sum of Rs.15,000/- p.m. be granted to the petitioner towards alternate accommodation and a sum of Rs.13,92,000/- by way of reimbursement of loan and expenditure incurred by the petitioner for maintenance of herself and of her minor daughter. The petitioner appearing in person relied upon the rules framed under the said Act and submitted that as the interim application will have to be decided by following the procedure laid down for deciding the application under section 125 of the said Code of 1973, only a revision application will be maintainable against the order dated 1st February 2008. 8. The learned counsel appearing for the first Respondent submitted that against every order passed by the learned Magistrate under the provisions of the said Act, an Appeal is maintainable before the Sessions Court in view of section 29 of the said Act. He submitted that an Appeal against an - 7 - interim or an interlocutory order is not excluded by section 29 of the said Act. He submitted that the maintenance amount granted by the learned Magistrate is much higher than the maintenance amount fixed by the Family Court. He submitted that the learned Magistrate could not have passed an order directing payment of amount in excess of what is awarded by the Family Court. He submitted that the direction regarding return of "Stridhan" is very vague and the same cannot be upheld. He submitted that unless the issue of maintainability of the proceeding under section 12 of the said Act was decided, the court of the learned Magistrate does not get jurisdiction to pass an interim order. He submitted that the learned Additional Sessions Judge was justified in passing the order of remand in the light of what is held by the learned Single Judge of this Court in case of Ali Asgar Salim Bootwala Vs. Leena Bootwala (Criminal Writ Petition No.1236 of 2007) decided on 26th July 2007. He submitted that no interference is called for. Shri Mankapure appearing as amicus curie assisted the Court. He pointed out that though the Appeal was maintainable, the order of remand is illegal. He submitted that the learned Additional Sessions Judge could not have granted a blanket stay. 9. I have carefully considered the submissions. The first Respondent preferred an Appeal by invoking section 29 of the said Act for challenging the order dated 1st February 2008. In the Appeal, an exparte stay was granted by the learned - 8 - Additional Sessions Judge. The order dated 20th February 2008 shows that the learned Judge stayed the operation of the order dated 1st February 2008 till the final disposal of the Appeal. Such drastic interim order could not have been passed by the learned Additional Sessions Judge without hearing the petitioner. As pointed out earlier, what is granted by the learned Judge is an interim relief till the disposal of the Appeal and not ad-interim relief till the contesting respondent in the Appeal was heard. After the said order was passed, the petitioner appearing in person made an application for setting aside the order of stay and for dismissal of the appeal on the ground that the Appeal was not maintainable under section 29 of the said Act against an interim order. The said application was rejected by the learned Additional Sessions Judge by order dated 15th April 2008. For the reasons recorded in the separate Judgment dated 15th April 2008, the learned Judge finally disposed of the Appeal without considering the merits of the contention raised by the petitioner that the Appeal was not maintainable. The Appeal was allowed by the learned Judge by passing an order of remand. The learned Judge relied upon the decision dated 26th July 2007 of this Court in the case of Ali Asgar (supra). The learned Single Judge in the said decision held that before deciding the application under section 23 of the said Act, the learned Magistrate has to decide the issue regarding applicability of the provisions of the said Act. Before the learned Single Judge of this court, the order under challenge - 9 - was an order directing the husband to pay interim maintenance to the wife passed under the provisions of the said Act. In the facts of the case before the learned Judge, there was a decree of divorce passed between the husband and wife by the competent court. In the context of the factual aspects of the case before the learned Judge, it was held that the issue of maintainability of the proceeding under the said Act will have to be decided first by the learned Magistrate and only after the preliminary issue is decided, the application under the said Act made by the wife will have to be decided afresh. 10. In the present case, the learned Additional Sessions Judge followed the said decision of this court and directed the learned Magistrate to adjudicate upon the preliminary issue. While doing so, the learned Judge completely ignored that in the present case, an application dated 13th December 2007 was made by the first Respondent contending that the application filed by the petitioner under the said Act was not maintainable. By order dated 13th December 2007, the learned Magistrate held that the said Act was applicable to the application filed by the petitioner and the objection raised by the first Respondent to the tenability of the application was devoid of any merits. Thus, the issue regarding maintainability of the application filed by the petitioner was decided by the learned Magistrate by order dated 13th December 2007. The said order dated 13th December 2007 was not challenged by the first Respondent. Perusal of the Memorandum - 10 - of Appeal preferred by the first Respondent show that the challenge was confined to the order dated 1st February 2008. The said order holding that the proceeding filed by the petitioner was maintainable was completely ignored by the Additional Sessions Judge. As the said order was not challenged by the first Respondent, the learned Additional Sessions Judge could not have directed the learned Magistrate to decide the preliminary issue of maintainability of the proceeding filed by the petitioner. The Appeal preferred by the first Respondent has been allowed only on the ground that the preliminary issue is not heard and decided by the learned Magistrate. The learned Additional Sessions Judge has not at all considered the Appeal on merits. The learned Judge did not consider the contention raised by the petitioner that the Appeal was not maintainable. In the facts of the case before the Additional Sessions Judge, the decision of this Court in case of Ali Asgar (supra) was not applicable. Therefore, both the orders dated 15th April 2008 passed by the learned Additional Sessions Judge will have to be set aside and the Appeal will have to be restored to the file. After the Appeal is restored to the file, the contention raised by the petitioner regarding maintainability of the Appeal will have to be considered by the learned Additional Sessions Judge while deciding the Appeal finally. As pointed out earlier, as of today, the issue regarding maintainability of the application filed by the petitioner is already decided by the learned Magistrate and there is no challenge to the same. - 11 - Therefore, as of today, the said order of the learned Magistrate overruling the objection of the first Respondent has become final. 11. In this petition, the petitioner appearing in person has prayed for setting aside the order dated 1st February 2008 and for granting enhancement in maintenance. The submission of the petitioner appearing in person was that in view of sub rule 5 of rule 6 of the Protection of Women from Domestic Violence Rules,2006, an application under section 12 of the said Act will have to be dealt with in the same manner as laid down in section 125 of the said Code. The submission was no Appeal will lie against the order granting interim maintenance under the said Act and a Revision Application under section 397 of the said Code will have to be filed. I have already mentioned that the issue regarding maintainability of the Appeal under section 29 of the said Act will have to be kept open. Therefore, I am not dealing with the said contention raised by the petitioner on merits. However, suffice it to say that the prayer for grant of enhancement in maintenance and the prayer for grant amounts incorporated in the form of prayer (aa) cannot be considered in this petition and the petitioner will have to file appropriate proceeding in that behalf. The challenge to the same order dated 1st February 2008 at the instance of the first Respondent is pending in the form of the Appeal which is being restored by this order. - 12 - 12. The petitioner is appearing in person is aggrieved by the order of the blanket interim stay passed by the learned Additional Sessions Judge by order dated 20th February 2008. The said order is an exparte order which was to operate till the disposal of the Appeal. In a given case, ad-interim stay could have been granted by the learned Additional Sessions Judge with notice to the respondent in Appeal. However, interim stay could not have been granted without hearing the petitioner. 13. In the order dated 1st February 2008, a primafacie finding has been recorded that the first Respondent is doing business in diamonds. The learned Judge noted that the first Respondent had not paid maintenance amount as per the order of the Family Court at Meerut. There are certain documents placed on record by the petitioner appearing in person which primafacie disclose that the family of the first Respondent is very affluent and is having immoveable assets. Interim maintenance granted by the learned Magistrate is at the rate of Rs.5,000/- p.m. each for the petitioner and her daughter. In my view, the order granting interim maintenance could not have been stayed by the Court. In so far as direction issued regarding return of ‘Stridhan’ articles is concerned, the same is very vague and therefore that direction will have to be stayed till the disposal of the Appeal. There is no description of ‘Stridhan’ articles in the order. However, a reasonable time deserves to be granted to the first Respondent - 13 - to comply with the order for payment of maintenance. The petitioner appearing in person will be entitled to costs of Rs.7,500/- from the first Respondent 14. Hence, I pass the following order : i) Impugned orders dated 20th February 2008 (Exh.P) and 15th April 2008 (Exh.Q collectively) are quashed and set aside. Criminal Appeal No.8 of 2008 is restored to the file of the Sessions Court, Borivali Division, Dindoshi, Goregaon. ii) Appeal shall be heard and decided afresh on merits in the light of the observations made in this Judgment as expeditiously as possible and preferably on or before 29th November 2008. The issue regarding maintainability of the Appeal is expressly kept open. (iii) Till the final disposal of the Appeal, the direction issued under the order dated 1st February 2008 for return of ‘Stridhan’ articles will remain stayed. iv) Time of four weeks is granted to the first Respondent to pay arrears of maintenance, if any, as per the order dated 1st February 2008. v) The petition is partly allowed in above terms. - 14 - vi) The first Respondent will pay costs of Rs.7,500/- to the petitioner within a period of six weeks from today. vii) Parties and the concerned court to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE