1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (APL) NO. 224 OF 2011 SMT. AYESHA W/O MOHAMMED FAIYYAZ ..VERSUS.. MOHD. FAIYYAZ S/O HAJI MOHD. KALEEM Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. P. N. Mehta, Advocate for the applicant. Mr. A. M. Rizwy, Advocate for the non-applicant. CORAM : PRASANNA B. VARALE, J. DATED : 13 th SEPTEMBER , 2011 . Heard Mr. P. N. Mehta, the learned counsel for the applicant and Mr. A. M. Rizwy, the learned counsel for the non- applicant. By the present application, the applicant is questioning the order passed by the learned Extra Joint Ad-hoc Additional Sessions Judge, Nagpur, dated 19.01.2011 on application Ex.4 in Criminal Appeal No. 326 of 2010 thereby substituting the order of interim maintenance. The brief facts giving rise to this application are that the marriage between the appellant/applicant and the respondent/ non-applicant was solemnized on 23.03.2009 as per the Muslim rites and customs. It was the case of the applicant that as the demand of vehicle namely Skoda-Octavia car was not fulfilled by the parents of the applicant, the non-applicant and his family members started ill-treating the applicant. It was also the case of the applicant that though initially, the applicant tried to bear with 2 the ill-treatment, subsequently as the ill-treatment was beyond tolerance, the applicant left with no option but to leave the matrimonial house and went to her parental home within a short span of nine months of marital life. The applicant lodged report with the police station and an offence under Section 498-A of Indian Penal Code was registered against the non-applicant. The applicant-Smt. Ayesha also filed proceedings under Section 12 of the Domestic Violence Act, 2005 before the learned Judicial Magistrate, First Class, Court No.4, Nagpur along with an application (Exh.4-A) for grant of interim maintenance under Section 25 of the Act. The learned Magistrate on considering the fact that the applicant was deserted by the non-applicant and having no means of livelihood as well as considering the income of the non- applicant, passed the order dated 10.05.2010 on the application (Exh.4-A) thereby directing the non-applicant to pay Rs.5,000/- per month to the applicant towards interim maintenance from the date of application. Being aggrieved by the said order, the non- applicant preferred an appeal under Section 29 of the Domestic Violence Act, 2005 and prayed for quashing and setting aside the order of interim maintenance dated 10.05.2010 along with an application for stay to the said order. The learned Extra Joint Ad- hoc Additional Sessions Judge, Nagpur, by order dated 19.01.2011 was pleased to grant stay to the order of interim maintenance. The learned Sessions Judge was also pleased to set aside the order dated 10.05.2010 and substituted the order by directing the non-applicant to pay interim maintenance of Rs. 3000/- per month to the applicant from the date of filing of application (Exh.4-A) till decision of Misc. Criminal Application 3 No. 308/2010. Being aggrieved by the said order, the applicant is before this Court. Mr. Mehta, the learned counsel for the applicant has raised the following grounds : i) That, the learned Sessions Judge has committed an error in passing the order dated 19.01.2011 and exceeded the powers vested in him. ii) The learned Sessions Judge substituted the order of the learned Magistrate by directing the non-applicant/husband to pay interim maintenance @ Rs.3,000/- per month, when there was no such prayer made by the applicant/wife. iii) The learned Sessions Judge also has not considered the fact that the appeal preferred by the non-applicant itself was time barred. Mr. Mehta, the learned counsel for the applicant in support of his submissions, has placed reliance on the following judgments. 1] 2011(5) Mh.L.J. 340 (Sheela Burney and others .vs. Syed Ali Mossa (dead) by LRs and others) 2] AIR 1997 Supreme Court 2724 (Ashis Kumar Hazra .vs. Rubi Park Co-operative Housing Society Ltd and others.) 3] 2010(8) U.J. 4022 (S.C.) (Kranti Associates Pvt. Ltd. and another .vs. Sh. Masood Ahmed Khan and others), and 4] 2006(5) Bom.C.R. 190 (John Vergese .vs. Gracy Vergese). Per contra, Mr. Rizwy, the learned counsel for the non- applicant supported the impugned order passed by the learned Additional Sessions Judge. The learned counsel for the non- 4 applicant, by inviting my attention to the impugned order, submitted that the ground of delay in preferring appeal was not raised before the learned Additional Sessions Judge and is being raised by the applicant for the first time before this Court. He further submitted that the appeal was presented within the period of limitation and the delay, if any, was caused, was caused due to various applications filed by the wife before the lower Court and as such the request was made that the delay, if any, may kindly be condoned. The learned counsel for the non-applicant further submitted that on considering the material before the Court, the learned Additional Sessions Judge found that the amount of Rs.5,000/- awarded by the learned Magistrate towards interim maintenance was excessive and as such substituted the amount of Rs.3,000/- per month in place of Rs.5,000/- per month. He, therefore, prayed for rejection of the application. On hearing the learned counsel for the respective parties at length, it reveals that a very short point involved in the present application is whether the order passed by the learned Additional Sessions Judge, dated 19.01.2011 suffers from the exercise of excessive power, which was not vested with the learned Additional Sessions Judge. It is not in dispute that the non- applicant had preferred an appeal challenging the order of interim maintenance passed by the learned J.M.F.C. and prayed for stay to the said order. The learned Additional Sessions Judge, while finding favour with the submissions of the non-applicant, allowed the application (Exh.4) and at the same time proceeded to set aside the impugned order of the learned Magistrate and substituted the order by directing the non-applicant to pay interim maintenance @ Rs.3000/- per month. The course adopted by 5 the learned Additional Sessions Judge cannot be approved of. There is considerable merit in the submission of Mr. Mehta, the learned counsel for the applicant. This Court in the judgment in John Vergese’s case (supra) has observed that - “11. Having heard rival parties and having considered the material on record, it is not in dispute that the interim relief cannot travel beyond the scope of petition as well as prayer clauses incorporated therein. In the case of State of Orissa v. Madan Gopal Rungta MANU/SC/0012/1951 : (1952)1 SCR 28, the Constitution Bench of the Supreme Court clearly spelt out con- : tours within which the interim relief can be granted. The Court said : an interim can be granted only in the aid of, and as ancillary to the main relief which may be available to the party on (mal determination of his rights in a suit or proceedings. If this be the purpose to achieve which power to grant temporary relilef is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting of such a relief ipso facto the temporary relief of the same, nature cannot be granted.’ It is not in dispute that the non-applicant has not made any prayer before the learned Additional Sessions Judge for interference in the quantum of maintenance, but only sought for stay to the order of interim maintenance. The learned Additional Sessions Judge, therefore, has committed an error in substituting the amount of interim maintenance. There is also considerable merit in the submission of the learned counsel for the applicant 6 that when the Act prescribes limitation of 30 days for preferring the appeal, the appeal preferred by the non-applicant at a belated stage, ought not to have been entertained by the learned Sessions Judge. In reply to the objection raised by Mr. Rizwy, the learned counsel for non-applicant that the ground of delay in preferring appeal is raised for the first time before this Court, Mr. Mehta, the learned counsel for the applicant submitted that the plea if raised for the first time before this Court which goes to the root of the matter, can be entertained by this court. It will be useful to refer here the observation of the Apex Court in Sheela Burney’s case (supra) : “22. The objection of the respondent that such point is taken only before this Court and not at an earlier stage of the proceeding cannot be counternanced since this point goes to the root of the matter and for consideration of this point no further investigation in the facts of the case is necessary. This point actually appears from the admitted records of the case and this point is based on the provisions of the Code of Civil Procedure.” In view of the aforesaid facts, I am of the opinion that there is considerable merit in the submission of the learned counsel for the applicant that the learned Additional Sessions Judge has erred in substituting the order of interim maintenance when there is no such prayer and the only prayer made was for stay to the said order. The learned Additional Sessions Judge has also erred in allowing the stay application and at the same time setting aside the order of the Magistrate by substituting the same. Hence, the application deserves to be allowed. 7 In the result, the criminal application is allowed. The order passed by the learned Extra Joint Ad-hoc Additional Sessions Judge, Nagpur, dated 19.01.2011 on application (Exh.4) in Criminal Appeal No. 326/2010, is quashed and set aside. As prayed by Mr. Rizwy, the learned counsel for the non- applicant that since the trial is proceeded, the learned Sessions Judge may be directed to decide the appeal preferred by the non- applicant within a stipulated period, I am not inclined to grant such prayer, but I hope and trust that the learned Sessions Judge will decide the appeal preferred by the non-applicant as early as possible. Needless to say that if the non-applicant was aggrieved by the quantum of maintenance, he could have availed the appropriate remedy for seeking modification or alteration in the amount of quantum of maintenance. Criminal Application is disposed of in the aforesaid terms. JUDGE Diwale