( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 288 OF 2009 Mansub s/o. Rajjab Shaikh .. Petitioner Age. 41 years, Occ. Service, R/o. RX-3/1, In front of Datta Mandir, Bajrangnagar, Waluj, M.I.D.C.,Waluj, Aurangabad. Versus 1. Smt. Nigar w/o. Mansub Shaikh .. Respondents Age. 39 years, Occ. Household, R/o. RM 110/1, Bajrangnagar, M.I.D.C., Waluj, Aurangabad. 2. The State of Maharashtra Mrs. C.E. Gaikwad, Advocate for the petitioner. Shri A.S. Londhe, Advocate for respondent No.1. Shri K.M. Suryawanshi, A.P.P. for respondents/State. CORAM : P.R. BORKAR,J. DATED : 10.12.2009 ORAL JUDGMENT :- 1. Heard Adv. Mrs. C.E. Gaikwad for the petitioner, Adv. Shri A.S. Londhe for the respondents and A.P.P. Shri K.M. Suryawanshi for respondent No.2/State. ( 2 ) 2. By this writ petition the petitioner is challenging the order passed by the learned II Jt. Judicial Magistrate, First Class, Aurangabad, in R.C.C. No. 714 of 2007 on 18.07.2007 under Section 12 of the Protection of Women From Domestic Violence Act, 2005 (for short “Domestic Violence Act”). It is case of present respondent No.1 that she married the petitioner on 17.05.1994. The parties are Muslim. The petitioner was working as a Maintenance Engineer in F.D.C. Limited, Waluj. Till 1997, she was treated well, but thereafter there were demands. Somehow Rs. 50,000/- were paid as per demand of the petitioner and out of said amount the property in which the respondent No.1 is residing was purchased. It is further stated that thereafter the petitioner treated respondent No.1 well up to 2002 and thereafter she was illtreated on the ground that she could not beget child. In 2003 the petitioner remarried. It is also stated that respondent No. 1 was doing some work and credited amount of her earnings in joint account in Deogiri Nagari Sahakari Bank Ltd., Branch-Waluj, Aurangabad amounting to Rs. 55,658/-. It was kept in F.D.R., but it was withdrawn by the petitioner. It is also stated that out of amount ( 3 ) received from present respondent No.1 on 16.06.2005 a house was purchased in the name of the petitioner in Bajaj Nagar, Waluj and there the petitioner and his second wife and children reside. It is stated that on 19.02.2007 at about 10.00 p.m. the petitioner came to the house of respondent No. 1, abused and beat her. Complaint regarding the same was given on 20.02.2007. However, police did not take any action. It is stated that the petitioner was not maintaining respondent No.1 nor giving her any money. She is maintaining herself out of rent which she receives for part of the house purchased out of her money. So, on the rent received, respondent No.1 was maintaining herself and the petitioner was even trying to collect even rent amount. Prayer was made in the complaint to pass necessary orders under Sections 18, 19 and 20 of the Domestic Violence Act. 3. The learned Magistrate passed order on 18.07.2007, thereby prevented the petitioner from entering plot No. R.M. 110/1, M.I.D.C. Waluj and from recovering any rent from tenants therein and from transferring said property to anybody or from attempting to dispossess respondent No.1 from said property. The petitioner is also prevented from ( 4 ) spending Rs. 55,658/- which was in the joint account in Deogiri Nagari Sahakari Bank. Further order was made for Rs. 5000/- to be paid to respondent No.1 by the petitioner, before 10th of every month. The petitioner is directed to execute bond for complying with above said directions. 4. The above-said order is challenged before the Sessions Court, Aurangabad, in Criminal Appeal No. 112 of 2007 and same was decided by Adhoc Additional Sessions Judge on 31.01.2007 and the appeal was dismissed. 5. One of the arguments is that the affidavit filed by respondent No. 2 which is given Exh.4 by the Trial Court was not signed by respondent No.1. It does bear endorsement which appears to be by the Magistrate that the complainant was present and she admitted the contents from the affidavit, after the contents were read over to her. So, it is also argued that said affidavit is not in the From No. III of Rules under Domestic Violence Act. It appears that the affidavit is not signed, though verification in the Exh. 4 is signed by respondent No.1. Apart from said technicalities it is argued before this Court that the impugned order passed by ( 5 ) the Magistrate is said to be under Section 12 of the Domestic Violence Act and under Section 12 the order which is to be passed is final order. 6. Adv. Mrs. Gaikwad pointed out that under Section 23 interim and/or even ex-parte order can be passed by the Magistrate. She pointed out that for orders passed under Section 23 prima facie satisfaction is to be seen and the order is to be passed on the basis of affidavit. Admittedly, the petitioner appeared and filed his say. There is affidavit filed by respondent No.1 and the matter was decided on affidavit. So, the order could have been passed under Section 23 of the Domestic Violence Act by the Magistrate. 7. Adv. Shri Londhe submitted that the order passed is in-fact under Section 23 of the Domestic Violence Act. It is interim order and for that purpose he referred to the order passed on application Exh. 36 which shows that the Magistrate has observed that the order passed below Exh.1, though stated to be under Section 12, was interim and not final. 8. Adv. Mrs. Gaikwad further pointed out that in the ( 6 ) complaint application or in the affidavit it is nowhere prayed that amount of maintenance should be paid. I have already reproduced almost entire complaint. Admittedly, there was no separate application filed under Section 23 of the Domestic Violence Act and the main complaint itself was considered for passing impugned interim order. Eventhough, there was no prayer in the application for interim maintenance, the learned Magistrate awarded Rs. 5000/- as interim maintenance per month. We find no discussion regarding this aspect of awarding interim maintenance in the order of the Magistrate. So, without there being prayer by respondent No.1 and without there being any discussion, order of maintenance of Rs. 5000/- was passed. 9. The learned Adhoc Additional Sessions Judge referred to the question of quantum of interim maintenance in last portion of para 9 of his judgment. Therein he considered the argument that amount of Rs. 5000/- per month was excessive and without any basis. The learned Adhoc Sessions Judge referred to written statement Exh. 15 in which it is mentioned that the petitioner was working as a Maintenance Engineer having handsome salary and on the basis ( 7 ) of that it is stated that Rs.5000/- was not excessive. Though pending this writ petition along with reply affidavit, copy of pay slip of the petitioner is produced, but same was not produced before the Appellate Court or the Trial Court. In my considered opinion, this is not happy state of things. If the original complainant wanted maintenance even by way of interim relief, she could have been allowed to amend the application and add such prayer and then after obtaining say of the petitioner on such prayer, the issue could have been decided. In my opinion, the order of interim maintenance was passed without following proper procedure and in absence of any pleadings or material. There was no opportunity to the petitioner to file say about interim maintenance and the order is passed without proper opportunity to him though he was present and contesting. 10. Adv. Mrs. Gaikwad at the time of arguments pointed out that as per Rule 6 of the Protection of Women From Domestic Violence Rules, 2006, while passing order under Section 12, the procedure as laid down for order under Section 125 of the Cr.P.C. should be followed. She also argued that there should have been opportunity to lead oral ( 8 ) as well as documentary evidence before passing order under Section 12. The submission of Adv. Mrs. Gaikwad are correct. 11. In the facts of the case the impugned order of maintenance of Rs. 5000/- is not justified for foregoing reasons. So, the impugned order except the part regarding interim maintenance is hereby confirmed. The order of interim maintenance is set aside. The Trial Court is directed to take up the complaint for final hearing immediately. The learned advocates for the parties agree to appear before the Trial Court on 12.01.2010. On that day the Magistrate shall take up the matter and proceed with it according to law. Liberty given to the original complainant to add pleadings and prayer for maintenance in the application, if she so chooses. If such application for amendment is given on 12.01.2010, then the Magistrate shall allow the present petitioner to file reply on said amendment and then the matter may be taken up for final hearing. As far as possible the complaint be decided within three months from 12.01.2010. Registry to send record and proceeding to the Trial Court immediately. ( 9 ) 12. Rule made partly absolute and petition stand disposed of accordingly. [P.R. BORKAR,J.] snk/2009/DEC09/crwp288.09