IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 93 OF 2008 Mrs.Sonal Amit Shah ..... ...... ......Petitioner V/s The State of Maharashtra & Ors. ..... .........Respondents. Mr.Rakesh Agrawal i/by Mr.M.P.Vashi & Associates, Adv. For the petitioner. Mr.P.A.Pol, APP for the State. Mrs.Tauban F. Irani, Adv. For the respondent No.2. CORAM: A.P.DESHPANDE, J. 5/2/08 PC: The present petitioner and respondent No.3 are wife and husband respectively having married some time in the year 1997. There are two sons born out of the said wedlock one in the year 1998 and the other in 2000. It is the case of the petitioner that she was deserted by respondent No.3 and thus since April, 2006 she is staying with her sons with her brother at Ghatkopar. The petitioner fileld an application vide application No.126/07 in 48th Court, Metropolitan Magistrate, Andheri under sections 19 and 20 of the Protection of Women from Domestic Violence Act, 2005. Section 19 of the act deals with orders in relation to residence whereas section 20 deals with the monitory reliefs. By virtue of section 23 the Court is vested with powers to grant interim ex-parte relief in regard to residence so also monitory relief. In the instant case the Magistrate did issue notice to respondent No.3 but the 1 grievance of the 3rd respondent is that notice was served on him on 12.10.07 at 1.00 p.m. viz. The date on which the case was fixed before the learned Metropolitan Magistrate. It is undisputed that an ex-parte order in regard to grant of residence was passed on 12.10.07 so also an order in regard to monitory reliefs was also passed. The ex-parte order in the first place directed that the petitioner and her two children be placed in possession of portion of flat No.401 and further direction had been issued to respondent No.3 to pay sum of Rs.5000/- per month to the present petitioner and her two children each thus aggregating to a sum of Rs.15,000/-. 2. Aggrieved by ex-parte ad-interim order passed by the Magistrate, instead of approaching the Magistrate a revision was carried before the Sessions Judge. The revision has been disposed of by the Sessions Court by observing that the Revisional order is passed on concession made available by the learned counsel for the parties. This is an admitted position that till date the ex-parte ad- interim order in regard to residence has not been executed. However the Sessions Court directed respondent No.3 herein to pay sum of Rs.75,000/-. The amount of Rs.75,000/- takes care of monitory relief granted by the Metropolitan Magistrate where under the 3rd respondent herein has been directed to pay sum of Rs.15,000/- each month to the petitioner and her children. By now period of five months has elapsed from the date of passing of order. After revision was disposed of review application also was field raising certain objections which need not detain me from 2 disposing of this writ petition in view of the agreement between the learned counsel in regard to order that I propose to pass. The fact remains that ad-interim ex-parte order passed by the Metropolitan Magistrate has been passed without affording a reasonable opportunity of hearing to respondent No.3 and thus it would be in furtherance of cause of justice to direct the Metropolitan Magistrate to pass an appropriate order on the application No.126/07 after affording an opportunity of hearing to both the parties. Both the learned counsel appearing for respective parties undertake to remain present before the trial Court. I am informed that the case is now fixed on 12.2.08. Both the parties agree to remain present before the trial Court on 12.2.08. The trial Court shall permit the respondent No.3 herein to file affidavit in reply to the application and shall afford reasonable opportunity of hearing. Learned counsel appearing for respective parties assure this Court of their full cooperation in expeditious disposal of the application. In this view of the matter I hope and trust that the trial Court shall proceed to dispose of application No.126/07 after hearing the parties as expeditiously as possible and preferably within a period of one month from today. It is further made clear that the payment of Rs.75,000/- made by respondent No.3 pursuant to the order passed by the Sessions Judge in revision would be without prejudice to the rights of the parties and the excess or deficit amount shall be adjusted having regard to order that the Magistrate may pass. Rule made absolute in above terms. 5.2.08 3