IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINETEENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition No.9365 of 2010 Between: Marneni David Raju .. Petitioner AND Marneni Bala Shanthi and 4 others .. Respondents ORDER: Heard Sri P.S.P. Suresh Kumar, learned counsel for the petitioner and Sri N. Indrasena Reddy, learned counsel representing Sri Parsa Anantha Nageswararao, learned counsel for the 1st respondent and Sri C. Prakash, learned counsel representing the learned Public Prosecutor-5th respondent. Respondents 2 to 4 are stated to be unnecessary parties. In Crl.M.P.No.1615 of 2010 in DVC.No.41 of 2010 on the file of the Judicial Magistrate of First Class, Suryapet, the learned Magistrate passed the order under Section 23 (2) of the Protection of Women from Domestic Violence Act, 2005 on 06-07-2010, which is the subject matter of the present Criminal Petition. The complaint of the 1st respondent herein against the petitioner herein was about being married to him on 27-01-2010 at which time cash and gold etc., were given as dowry and about the petitioner herein harassing her for bringing additional dowry. She claimed to have been driven out of matrimonial home and on the contents of the affidavit making such allegations, the learned Magistrate considered it prima facie evident that she was subjected to cruelty in the hands of the husband. The learned Magistrate also found the wife to be unemployed and considered that there are justifiable grounds to pass an order of protection and also grant of monetary relief. Therefore, while granting interim protection order under Section 18 (a) of the Act against all the respondents to the Domestic Violence Case, the learned Magistrate directed the 1st respondent to pay Rs.2,500/- per month to the wife as interim monthly monetary relief under Section 20 (d) of the Act until further orders. The Magistrate also made it clear that the said order shall remain in force until further orders of the Court. Aggrieved by the same, the petitioner contends herein, after referring to the various events that happened between him and his wife, that the trial Court ought to have issued notice to him before granting any interim maintenance and it should have given him a reasonable opportunity to place his submissions about being physically handicapped and being not in a position to earn sufficiently even for his own maintenance by imparting tuitions to the students, which is the only source of his livelihood. He claimed that the orders were passed by the learned Magistrate even before the day fixed for his appearance before the trial Court and without even asking the 1st respondent to provide proof of the income of the petitioner or the 1st respondent probablising any negligence on the part of the petitioner to maintain his wife. The petitioner, therefore, desired the order to be suspended pending the Criminal Petition and the order to be ultimately quashed in the Criminal Petition. Pending the Criminal Petition, an interim stay was granted on 21-09-2010 at the time of admission of the Criminal Petition and the same continued to be in force till today. The point for consideration is the manner in which the rights and interests of both parties can be protected in this regard? It is true that Section 23 (2) of the Protection of Women from Domestic Violence Act, 2005 confers the power on the Magistrate to pass an ex parte order under Section 20 of the Act, but the satisfaction of the Magistrate about an application prima facie disclosing committal of acts of domestic violence is a prerequisite for exercising such jurisdiction. While the learned Magistrate had every judicial discretion to exercise under the said provision, the impugned order obviously took into account only the status of the 1st respondent herein as an unemployed person, who requires some monetary relief from her husband, who was claimed to have deserted her and to have treated her cruelly. But, the trial Court did not make any reference to the means of the petitioner, which will enable him to pay the maintenance fixed at Rs.2,500/- per month as an interim monthly monetary relief until further orders. The physical or financial status of the petitioner was not even remotely considered by the trial Court and though the statute duly conferred the jurisdiction to pass such an order of interim relief, while passing such an order, the fundamental principles of judicial procedure could not have been totally ignored and the rights and interests of both parties should have been equally and equitably balanced by the learned Magistrate to fix any maintenance. The petitioner enclosed a copy of the medical certificate issued by the Handicapped Welfare Department of the State Government certifying him to be 60% disabled and he claimed to be earning only Rs.2,500/- by imparting tuitions to the students. These questions of fact can be requested to be enquired into by the learned Magistrate for coming to an appropriate conclusion about the liability of the husband to pay maintenance and the quantum of such maintenance to be paid to the wife during the pendency of the case by taking recourse to Section 23 (2) of the Act. While the fact remains that notwithstanding the interim order in question passed on 06-07-2010, the petitioner did not pay a single pie to the 1st respondent herein towards interim monthly monetary relief granted by the said order, if the trial Court were to be directed to decide the matter on merits after hearing both the parties within a stipulated period, the same will safe guard the rights and interests of both parties. However, if the petitioner were to be found liable to pay the monthly monetary relief to the 1st respondent herein at such quantum as found justifiable by the learned Magistrate, then such a relief should be necessarily operative from the date of the order challenged in this petition i.e. 06-07-2010. Therefore, the order dated 06-07-2010 in Crl.M.P.No.1615 of 2010 in DVC.No.41 of 2010 on the file of the Judicial Magistrate of First Class, Suryapet, is set aside and the said Crl.M.P.No.1615 of 2010 in D.V.C.No.41 of 2010 is remitted back to the trial Court for determination on merits in accordance with law afresh, after giving every reasonable opportunity of hearing to both parties including the filing of reply or counter by the petitioner herein to the Criminal Miscellaneous Petition, within a period of one month from the date of communication of this order. If the petitioner were to be found liable to pay any monthly monetary relief to the 1st respondent herein during the pendency of the Domestic Violence Case under Section 20 (d) of the Act, the same shall be payable from 06-07-2010, the date of the impugned order. The Criminal Petition is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 19-10-2011 Ksn