- 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.1660 OF 2008 WRIT PETITION NO.1660 OF 2008 WRIT PETITION NO.1660 OF 2008 Sureshchandra Jain ...Petitioner vs. The State of Maharashtra & Anr. ...Respondents Ms Rohini Wagh for the petitioner Mr.R.M.Nakhawa A.P.P. for State Mr.A.K.Saxena for the respondent no.2 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 23,2009 : APRIL 23,2009 : APRIL 23,2009 P.C.: P.C.: P.C.: 1. It appears that there is no possibility of amicable settlement between the husband and wife. The second respondent wife filed an application under section 12 of the Protection of Women from Domestic Violence Act,2005 (hereinafter referred to as the said Act). The challenge in this Writ Petition under Article 227 of the Constitution of India is to the orders dated 30th April 2008, 26th May 2008, 27th June 2008 passed by the learned Magistrate as well as to the order dated 10th June 2008 passed by the Sessions Court. 2. By the first order dated 30th April 2008, the learned Metropolitan Magistrate granted maintenance of Rs.4,000/- per month with effect from March 2008. The husband of the second respondent was directed to return certain articles. The present petitioner is the father of the husband. By the said order, the learned Magistrate observed that relief of separate residence to the second respondent herein cannot be granted. He further observed that the second respondent was at liberty - 2 - to move for the same relief when she find that her husband was having a separate accommodation. By further order dated 26th May 2008, the learned Magistrate permitted the second respondent to share matrimonial home situated at Malad (West). By the said order, the husband of the second respondent was directed to provide proper accommodation to the second respondent in the matrimonial home. The third order dated 27th June 2008 which is subject matter of challenge in this petition is merely the consequential order for implementation of the orders dated 30th April 2008 and 26th May 2008. The learned counsel for the petitioner stated that though the orders dated 30th April 2008 and 26th May 2008 are appealable orders, in view of the Judgment and Order dated 10th June 2008 passed by the Sessions Court on an appeal preferred by the husband of the second respondent, the appeal by the petitioner may not be entertained. 3. The submission of the learned counsel for the petitioner is that before passing the orders dated 30th April 2008 and 26th May 2008, the petitioner was not heard. The petitioner is not a party to the Misc.Application no.945 of 2008. According to the petitioner he is affected by both the orders dated 30th April 2008 and 26th May 2008. Statutory remedy of preferring an appeal under section 29 of the said Act is admittedly available to the petitioner. The apprehension expressed on the basis of the order dated 10th June 2008 passed by the Sessions Court in Misc.Application no.945 of - 3 - 2008 is uncalled for. The said order is passed by the Sessions Court in an Appeal preferred by the husband of the 2nd respondent. The present petitioner is not a party to the Misc. Application no.945 of 2008 and therefore, the findings recorded by the Sessions Court in order dated 10th June 2008 are not binding on the petitioner. This position is accepted by the learned counsel for the second respondent. 4. In view of this position, it is obvious that efficacious remedy of preferring statutory appeals against the orders dated 30th April 2008 and 26th May 2008 is available to the petitioner. In view of availability of statutory remedy, this petition need not be entertained. 5. Accordingly, the Writ Petition is disposed of with liberty to the petitioner to adopt statutory remedy. If statutory remedy is adopted by the petitioner, the concerned court is bound to take notice of the fact that the present petition was filed in this court on 8th August 2008, the petition was entertained by this court and the said petition remained pending in this court till today. These aspects are bound to considered by the concerned court while considering the prayer for condonation of delay. If statutory appeal is preferred by the petitioner, the concerned court will decide the same on its own merits in the light of observations made by this court in this court. - 4 - 7. All contentions of the parties on merits are kept open. JUDGE JUDGE JUDGE