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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2070 OF 2016
Noor Alam Khan ]
Aged – 50 years, Occupation – Service, ]
R/at.CGS Quarter, Building No.202/2453,]
Kane Nagar, Antop Hill, Wadala ]
Mumbai – 400 030. ] .. Petitioner
Vs.
(1) Hasina Bano Noor Alam ]
Age – 36 years, ]
Occupation – Beutician, ]
R/at. 323/324, Qaim Ali Peer ]
Bhai Chawl, Room No.4, ]
S.V. Road, Andheri (W), ]
Mumbai 400 058; ]
(2) State of Maharashtra. ] .. Respondents
……
Mr.Ahmed N. Shaikh, Advocate for the Petitioner.
Ms.Flavia Agnes a/w. Mr.Pramod Shenoy, Advocate for
Respondent No.1.
Mrs.M.R. Tidke, APP for Respondent No.2 – State.
……
CORAM : PRAKASH D. NAIK, J.
DATED : JULY 11, 2018.
JUDGMENT :
Heard both side for final disposal.
2 The proceedings under the provisions of the Domestic
Violence Act were initiated by respondent no.1 vide CC
Digitally signed
Rajeshri by Rajeshri
Prakash Aher
Prakash Date:
Aher 2018.07.26
16:12:27 +0530
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No.46/DV/2012. The said proceedings are pending before the
Court of Metropolitan Magistrate 10th Court at Andheri Mumbai.
The petitioner has challenged order dated 21 st July, 2015, passed
by the trial Court granting maintenance in the sum of Rs.10,000/-
to respondent no.1 and order dated 15th February, 2016, passed
by the Sessions Court in an Appeal preferred by the petitioner by
modifying the same and directing the petitioner to pay the
maintenance in the sum of Rs.6,000/- per month to respondent
no.1.
3 According to petitioner, respondent no.1 has filed a
false proceedings in order to harass and extort money from the
petitioner. In the proceedings initiated by respondent no.1 false
and baseless allegations are made against the petitioner. It is
contended that respondent no.1 has suppressed that the
petitioner had pronounced three times oral Talaq “Islamic
Permissible Divorce” against respondent no.1. and thereby the
marital ties between the petitioner and respondent no.1 has come
to an end by virtue of oral Talaq pronounced by the petitioner on
16th May, 2012. The application initiated by respondent no.1 is
based on false and concocted averments. It is also contended that
the mandatory requirement of report submitted by protection
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officer contradicts the allegations of domestic violence made by
respondent no.1, before the trial Court in the said proceedings.
4 The Protection Officer had submitted the domestic
incident report to the Court of Metropolitan Magistrate 10 th
Court, Mumbai, on 24th July, 2012. Alongwith the said report, the
copy of the non-cognizable complaint made by respondent no.1
and registered with the concerned police station was also
forwarded to the Court. Respondent no.1 filed an affidavit before
the trial Court on 17th October, 2012, giving instances of
purported the domestic violence committed by the petitioner
against her. It was also stated that the details provided in the
application for grant of relief under Section 12 of the Protection
of Women from Domestic Violence Act, 2005, have been entered
into on her instructions. It was further stated that the relief
claimed in the applications are urgent. The petitioner filed his
reply opposing the relief sought by respondent no.1. Learned
Magistrate by order dated 21st July, 2015, directed the petitioner
to pay maintenance of Rs.10,000/- to respondent no.1, until
further orders from the date of application. The petitioner
preferred an Appeal before the Sessions Court challenging the
order of maintenance. The learned Sessions Judge, by order
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dated 15th February, 2016, confirmed the findings of the trial
Court. However, the maintenance amount was reduced from
Rs.10,000/- to Rs.6,000/-, per month from the date of the
Domestic Violence Petition.
5 Learned advocate for the petitioner made following
submissions:
(i) The petitioner had pronounced three times oral Talaq and
thereby the martial ties between the petitioner and
respondent no.1 has come to an end. Reliance was placed
on the Fatwa dated 16th May, 2012. It is submitted that the
Talaq was pronounced on 16th May, 2012;
(ii) The report of the Protection Officer is contradictory to the
allegations made by respondent no.1, in her application;
(ii) The marriage between the petitioner and respondent no.1
was not consummated. Respondent no.1 is not having any
menstruation period. Hence, the petitioner was
constrained to pronounce oral Talaq, which is supported by
the Fatwa obtained from Mufti/Qazi Aziz-ur-Rehman;
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(iv) The trial Court without appreciating the reply filed the
petitioner to the interim application had come to the
conclusion of granting the maintenance in the sum of
Rs.10,000/-, per month to respondent no.1, until further
order from the date of application;
(v) The petitioner was working in ASTT Garrison Engineer as
Mate (Labour) (FGM) in the year 2011 and his net pay
salary of Rs.5,180/-, after deducting all deductions which
are reflected in the salary of May 2011. The petitioner
after loosing his job again approached the employer and
started working as mate (FGM) at the same company and
his net pay is Rs.6,397/-, after deducting all deduction, as
per salary slip of the month of July 2015. The petitioner is
having net pay of Rs.6,124/-, after necessary deduction as
seen from the salary slip for the month of March 2016,
which is annexed to this petition;
(vi) The petitioner had borrowed friendly loan to clear the
arrears for the maintenance of his first wife Zarina Khatun
in respect of the proceedings which arepending in the
Court of Metropolitan Magistrate Kurla and had deposited
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Rs.85,000/-, towards the arrears of the interim
maintenance granted by the Sessions Court in Criminal
Appeal No.706 of 2015, at the time of admission while
granting stay to the implementation of the order dated 21 st
July, 2015, passed by the trial Court in the present
proceedings. The petitioner was required to repay the
borrowed sum of Rs.85,000/- from MSE Co-operative
Credit Society Colaba. The statement of loan obtained by
the petitioner has been annexed to the petition. The aged
parents of the petitioner are dependent on him. The first
wife Zarina Khatun had filed an application under the
Domestic Violence Act, in which the Court had granted
interim maintenance at the rate of Rs.1,200/- per month to
Zarina Khatun and Rs.1,000/- for minor son from the date
of application. The petitioner has to pay a monthly interim
maintenance of Rs.2,200/-, per month to his first wife and
child;
(vii) The petitioner is diabetic and suffering from several health
issues. He is also required to spend amount towards his
daily basic needs;
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(viii) The application filed by respondent no.1 does not disclose
any domestic violence. She is not entitled for the relief
claimed in her application. The Appellate Court has not
considered the income of the petitioner while passing the
impugned order. The quantum of maintenance is very high
and it will be difficult for the petitioner to pay the said
amount of maintenance to respondent no.1;
(ix) The petitioner had produced his salary slip for the month
of July 2015 which reveals that there are deduction of
Rs.14,518/-, comprising of subscription towards GPF at the
rate of 14,000/-, per month. The Courts below have
committed an error for not considering such deductions
while calculating the income capacity. The net pay/salary
of the petitioner as per the salary slip is of Rs.6,397/-. The
Appellate Court has committed an error while deciding the
quantum of net gross pay of Rs.20,915/-, but did not
consider the net salary received by the petitioner;
(x) While awarding maintenance from the date of application,
expressed order is necessary, however, in the present case
there was no express order giving reasons as to why the
maintenance is to be paid from the date of the application;
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(xi) The respondent no.1 has filed the application in the year
2012, and from time to time she sought adjournments for
hearing interim application which had caused delay. The
Courts below have failed to take into consideration the
said aspect while awarding interim maintenance without
giving reasons for granting maintenance from the date of
the proceedings. Reliance is placed on the following
decisions:
(1) Kalyan Dey Choudhari Vs. Rita Dey Choudhari,
decided by Supreme Court1;
(2) Decision of the Supreme Court delivered in the case
of Shail Kumari Devi Anr. Vs. Krishan Bhagwan
Pathak @ Kishun B. Patha2
6 The submissions of Ms.Flavia Agnes, learned counsel
appearing for respondent no.1 can be summarised as under::
(a) There is no infirmity in the order passed by the Courts
below. The trial Court had analyzed the evidence on record
and had come to the conclusion that there is Domestic
Violence, and, thereafter, the maintenance was granted. It
is submitted that the Appellate Court has modified the
order of the trial Court and has reduced the maintenance
1 Civil Appeal No.5369 of 2017
2 AIR 2008 SC 3006
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from Rs.10,000/- to Rs.6,000/- per month. It is submitted
that while reducing the maintenance, the Appellate Court
has confirmed the findings of the trial Court qua the
existence of Domestic Violence and after taking into
consideration all the aspects of the matter including the
earnings of the petitioner had passed the order directing
maintenance in the sum of Rs.6,000/-, per month;
(b) The contention of the petitioner that the order passed by
the Courts does not consider the deductions with respect to
General Provident Fund while calculating the income of the
petitioner is devoid of merits. The contention is erroneous,
as the subscription to General Provident Fund is a
voluntary deduction that is not to be considered while
calculating income for the purposes of deciding
maintenance;
(c) The Allahabad High Court in the case of Veena Panda @
Seema Panda Vs. Devendra Kumar Panda3, has
observed that the contributions towards General Provident
Funds and payment towards installments loan etc., shall not
3 2006 SCCC OnLine All 332
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be permitted to be deducted to work out the carry home
salary;
(d) In the case of Savita Aggarwal Vs. R.C. Aggarwal4, the
High Court of Punjab and Haryana had rejected the
deductions of General Provident Fund and other deductions
from calculations of income;
(e) The High Court of Punjab and Harayan in the case of
Mukesh Kumar Vs. Rekha Rane and Ors.5, had observed
that deductions that are made from the gross salary
towards long term savings, which a person would get back
at the end of his service and such as deductions towards
General Provident Fund, General Group Insurance Scheme,
L.I.C. Premium, State Life Insurance Loan can be deemed
to be asset that he is creating for himself. In arriving at the
income of the party only involuntary deductions like income
tax, provident fund contributions etc. are to be excluded.
Therefore, such deductions cannot be deducted or excluded
from his salary while computing his means to pay
maintenance;
4 I (1991) DMC 18
5 MANU/PH/0277/2018
rpa 11/25 wp-2070-16.doc(f) Respondent no.1 has fully made out case of Domestic
Violence, a separate application for interim maintenance
under D.V. Act is not required.
(g) There is no infirmity in the orders passed by the Courts
below in granting maintenance from the date of application.
Reliance was placed on the Roznama of the proceedings
before the trial Court to show that the applicant had not
delayed the said proceedings.
(h) Apart from the decisions referred to herein above, learned
counsel for respondent no.1 also relied upon the following
decisions:
(1) Annurita Vohra Vs. Sandeep Vohra6, decided by Delhi
High Court;(2) Harminder Kaur Vs. Sukhwinder Singh7, Decided by
Delhi High Court;(3) Anup Varadpande Vs. Anisha Anup Varadpande8,;
(4) Sukumar Pawanlal Gandhi Vs. Bhakti Sushil Gandhi 9;(5) Bharat Hegde Vs. Saroj Hegde10;
(6) Vishal Damodar Patil Vs. Vishakha Patil11;6 2004(74) DRJ 99
7 2002(62) DRJ 742
8 2010(3) MH.L.J. 777
9 2016 SCC OnLine Bom 12942
10 2007 DMC 815
11 2009 Cri.L.J. 107
rpa 12/25 wp-2070-16.doc(7) Jaiminiben H. Vyas Vs. Hirenbhai R. Vyas12;
(8) Shamima Farooqui Vs. Shahid Khan137 The proceedings under the Domestic Violence Act
were initiated on 24th July, 2012. The Domestic incident report
was submitted by the Protection Officer. The respondent no.1
filed affidavit dated 17th October, 2012. In the report submitted to
the trial Court, it was mentioned that the petitioner claims
maintenance in the sum of Rs.10,000/-. In the affidavit dated 17 th
October, 2012, respondent no.1 had contended that the details
provided in the application for grant of relief under Section 12 of
the said Act have been entered into on her instructions. It was
also stated that the relief claimed in the application are urgent,
as respondent no.1 would face great financial hardship and will
be forced to live under the threat of repetition/escalation of acts
of domestic violence, if the said reliefs are not granted. It was
also stated that the respondent in this proceedings (petitioner)
has threatened her of dire consequences and threatened to kill
her if she initiates any legal proceedings to restraining him from
his evil tactics. He has abused and assaulted her on several
occasions, however, she remain silent. The affidavit also gives
instances of incidents which according to her amounts to
12 (2015) 2 SCC 385
13 (2015) 5 SCC 705
rpa 13/25 wp-2070-16.docdomestic violence. Whereas, it is contention of the petitioner
herein that false and frivolous allegations are made at the
instance of respondent no.1, which are not supported by any
evidence. It is further contended that the report of the protection
officer and the claim of respondent no.1 are contradictory to each
other. The primary contention of the petitioner is that there is no
existence of any relationship between the petitioner and
respondent no.1. The marital ties between them has come to an
end on account of oral Talaq pronounced thrice by the petitioner
on 16th May, 2012. The petitioner has placed reliance on the
Fatwa issued by Mufti/Qazi. The other contentions which are
emanating from the submissions advanced by the counsel for the
petitioner is that no case was made out for grant of maintenance.
The Courts have not taken into consideration the deduction while
awarding the maintenance. The petitioner has no earning
capacity to pay maintenance awarded by the trial Court and the
Appellate Court and that the order directing payment of
maintenance from the date of application, is contrary to law.
8 On perusal of the order dated 21 st July, 2015, passed
by the trial Court, it appears that prior to filing application for
maintenance, the respondents therein (petitioner) had filed an
rpa 14/25 wp-2070-16.docapplication objecting the maintainability of the proceedings. The
said application was rejected by order dated 14 th November,
2014. The contention of the petitioner on the ground of Talaq
was rejected and that order had attained finality. It is further
observed that the contention of the petitioner that the respondent
no.1 is not legally wedded wife is devoid of any substance and
that he was liable to pay the maintenance to respondent no.1. the
learned Magistrate took into consideration the contents of the
application, the documents on record, the reply filed by the
petitioner opposing the reliefs and has come to the conclusion
that the respondent no.1 is entitled to maintenance in the sum of
Rs.10,000/- per month from the date of the application. It was
also observed that the contention of the applicant therein that the
respondent has suppressed the fact of his three marriages itself
amounts to mental cruelty to any women. The respondent therein
is neglecting the applicant by denying the fact of their marriage.
The respondent had not filed any documents to show that he had
provided any kind of maintenance to the applicant therein. The
Court referred to NC complaint which shows that the wife was
subjected to ill treatment. It was further observed that the
husband being a government servant has sufficient means to
maintain his wife. The petitioner had also contended that he is
rpa 15/25 wp-2070-16.docrequired to pay maintenance to his first wife as per the directions
of the Court. It was submitted that the salary of the petitioner
and the expenditure which is require to in curred towards the
maintenance to be paid to his first wife and towards his parents
and himself, has to be considered and thus, the quantum of
maintenance as awarded by the Courts below was contrary to
law. The Appellate Court has reduced the maintenance from
10,000/- to Rs.6,000/-. The said order had not been challenged by
the respondent no.1.
9 Learned Sessions Judge while deciding the Appeal
after analyzing the documents on record, observed that the
respondent was entitled to maintenance, however, the so far as
the quantum is concerned, prima facie, dependency on the
appellant and his income capacity is required to be considered.
After analysing the aspects relating to quantum of maintenance,
the Court was pleased to reduce the maintenance amount to
Rs.6,000/-, per month from the date of the D.V. Petition. The
Court has observed that though the petitioner is bound to
subscribe some amount towards GPF, it cannot be huge amount
of Rs.14,000/- per month, which reveals the intention of evading
maintenance amount. Though the pay slip reveals Rs.6397/-, net
rpa 16/25 wp-2070-16.docgross pay of the petitioner is Rs.20,915/- and the interim
maintenance is required to be provided considering the
maintenance of Rs.2,200/-, to be provided to the earlier wife, and
after considering the compulsory reductions/deductions. The
Court noted that the maintenance of Rs.10,000/- was exorbitant
in the light of the factual aspects in the present matter. The
appellate Court has also dealt with the contention of the
petitioner that the D.V. Petition was filed in the year 2012,
whereas, the impugned interim order came to be passed in the
year 2015 and, as such there was no urgency for the respondents
to have any interim monetary relief. The Court observed that no
material was produced by the appellant to ascertain as to who
has caused delay in hearing of interim relief. It was further
observed that the copy of Fatwa is in Urdu language and its
translation was annexed thereto. The appellant has not filed
affidavit of the translator to prima facie make out the sanctity of
the contents thereof. The respondent had not submitted that she
has been divorced by the appellant at any time. Under such
circumstances, the communication of pronouncement of Talaq
was required to be prima facie made out. Apart from such factual
proof of pronouncement of Talaq it is necessary to consider that
the status of the aggrieved person under the D.V. Act in relation
rpa 17/25 wp-2070-16.docto her marriage and divorce is not relevant. The Court relied
upon the decision of the Supreme Court in the case of Zuveri
Abdul Majid Patni Vs. Atif Iqbal Mansoori. It was further
observed that in the present case, the respondent have made
allegations of harassment by the appellant and the
pronouncement of Talaq which was allegedly done on 16 th May,
2012, is after the wife was driven from matrimonial home on 13 th
May, 2012. Prima facie the act of the appellant who had
pronounced Talaq after causing harassment amounts to domestic
violence. I do not find any reason to deviate from the findings
given by the Appellate Court
10 Section 23 of D.V. Act provides for interim relief to be
granted by the Court if satisfied that prima facie case of domestic
violence being caused to the applicant is made out in the
application. In the present case, D.V. Petition is presented to
Protection Officer in prescribed form and it reveals the instances
of domestic violence. Such instances, are further substantiated by
the affidavit filed by the respondent under Section 23(2) of the
D.V. Act. It is revealed from the submissions that the respondent
is married to the petitioner on 21st November, 2010, and she was
assaulted and abused by the petitioner. However, she remained
rpa 18/25 wp-2070-16.docsilent to keep peace in the matrimonial relations. It is also
revealed that the petitioner had suppressed the fact that he is
already married to other woman. The Appellate Court had
observed that the appellant in the reply did not specifically
disclose his monthly income and merely denied the claim of the
original applicant. The salary slip was produced before the trial
Court for the month of May 2011 and July 2015. The pay slip for
the month of July 2015, shows that the gross salary of the
petitioner was Rs.20,915/- with total deduction of Rs.14,518/-.
The modified order passed by the Sessions Court do not require
any interference. The advocate for the petitioner had tendered
document relating to loan, LIC premium, GPF subscription.
Whereas advocate for respondent tendered written submission
along with decisions of Court.
11 In the case of Shailkumari Devi (Supra), which is
relied on by the petitioner the Court dealt with issue whether
while deciding an application under Section 125 of the Code, the
Magistrate is required to record reasons for granting
maintenance from the date of application. It is observed that for
awarding maintenance from the date of application, express
order is necessary, however, no special reasons are required to be
rpa 19/25 wp-2070-16.docrecorded by the Court. It was also held that while deciding an
application under Section 125 of the Code, a Magistrate is
required to record reasons for granting or refusing maintenance
to wife, children or parents. Another decision relied upon by
advocate for petitioner in the case of Kalyan Dey (Supra) was
relating to order of maintenance passed by High Court in Review
Petition. It was observed that maintenance is always depending
on the factual situation of the case and Court would be justified in
moulding the claim on various factors. Learned counsel for the
respondent placed reliance on the decision of the Delhi High
Court in the case of Annurita Vohra Vs. Sandeep Vohra
(Supra), wherein it was observed that the Court must first arrive
at the net disposable income of the husband or the dominant
earning spouse. If the other spouse is also working, these
earnings must be kept in mind. This would constitute the Family
Resource Cake which would then be cut up and distributed
amongst the members of the family. The apportionment of the
cake must be in consonance with the financial requirements of
the family members, which is exactly what happens when the
spouses are one homogeneous unit. The satisfactory approach
would be to divide the Family Resource Cake in two portions to
the husband since he has to incur extra expenses in the course of
rpa 20/25 wp-2070-16.docmaking his earning, and one share each to other members. In
another decision of Allahabad High Court relied upon by the
counsel for the respondents delivered in the case of Veena
Panda @ Seema Panda Vs. Devendra Kumar Panda (Supra),
it was observed by the Court that as long as matrimonial ties
subsists between the parties, the wife is entitled to live in the
matrimonial house or in a separate building. The wife should not
be relegated to a lower standard of living than that the husband
enjoys. She should be given maintenance according to status of
her husband. While considering the question of 'maintenance
pendente lite' under Section 24 of the Hindu Marriage Act its
definition as given in Hindu Adoption and Maintenance Act
should be adopted and some significant points should necessarily
be taken into account such as position and status of the parties,
reasonable wants of the claimant, towards food, clothing, shelter
and medical attendance, income of the respondent, income, if any,
of the claimant, number of persons the respondent is obliged to
maintain. In another decision of the Delhi High Court in the case
of Harminder Kaur Vs. Sukhwinder Singh (Supra), it was
observed that One could not be oblivious to the fact that equal
status has been given to Indian women under Articles 14 and 16
of the Constitution. Wife has to live according to the status of her
rpa 21/25 wp-2070-16.dochusband. In the decision of Anup Varadpande Vs. Anisha Anup
Varadpande (Supra), this Court has observed that what is
contemplated to be income in any provision for grant of interim
maintenance, be that under Section 24 of the Hindu Marriage
Act, Section 18 of the Hindu Adoptions and Maintenance Act,
Section 20(1)(d) of the Protection of Women from Domestic
Violence Act, 2005, under Section 125 of the Criminal Procedure
Code, or any other similar legislation is that the wife, of her own
volition, and upon her educational or professional qualifications,
pursues a settled career either by way of service or profession or
business in which she derives her own independent, separate
income or otherwise earns income by way of investments, rents,
profits or the like from any settled source of income. The
sufficiency or otherwise of such income is required to be seen and
calculated to grant or reject her claim of maintenance.
11 The Apex Court in the case of Shamima Farooqui
Vs. Shahid Khan14, has observed that the obligation of the
husband is on the higher pedestal when the question of
maintenance of wife and children arises. When the woman leaves
the matrimonial home, the situation is quite different. She is
14 (2015) 5 SCC 705
rpa 22/25 wp-2070-16.docdeprived of many comfort. Some time her faith in life reduces.
Sometime she feels she has lost the tenderest friend. There may
be a feeling that her fearless courage has brought her the
misfortune. At this stage, the only comfort that the law can
impose is that the husband is bound to give monetary comfort.
That is the only soothing legal balm, for she cannot be allowed to
resign to destiny. Therefore, the lawful imposition for grant of
maintenance allowance. Grant of maintenance to wife has been
perceived as a measure of social justice.
12 In the case of Sukumar Pawanlal Gandhi Vs.
Bhakti Sushil Gandhi (Supra), this Court has laid down the
requisite procedure for a claim of interim relief. It was observed
that Sub-section (1) of Section 12 of D.V. Act, is a salutary
provision which enables not only the aggrieved person but a
Protection Officer or any other person on behalf of the aggrieved
person to present an application to the Magistrate seeking one or
more reliefs under the D.V.Act. Sub-section (3) of Section 12
contemplates that every application under Sub-section (1) shall
be in such form and contain such particulars as may be
prescribed. Accordingly, Rule 6 of the Protection of Women From
Domestic Violence Rules, 2006, prescribes a form of application
rpa 23/25 wp-2070-16.docunder Sub-section (1) of Section 12 and a form of affidavit under
Sub-section (2) of Section 23. Factual detailed averments are not
at all required to be made. Thus, Clause 1 provides only for
information as to whether the applicant is an aggrieved person or
a Protection Officer or any other person acting on behalf of the
aggrieved person. Clause 2 contains a list of prayers and Clause 3
of the prescribed form only gives a list of orders which are
required to be passed. Clause 4 of the form requires details of
previous litigations, if any. When an interim relief is claimed, an
affidavit in prescribed form is required to be filed. Clause 9 of
Form III requires the Applicant to specify the threat given by the
Respondent. Even going by the said form, it is not necessary to
make detailed averments therein. Therefore, if an application is
made under Sub-section (1) of Section 12 in Form II under the
D.V. Rules, or any affidavit in support is filed in Form III of the
D.V. Rules, the same need not contain detailed averments on
facts. It is not necessary to incorporate factual averments therein
making out a case that a particular act or omission or conduct of
the respondent constitutes a domestic violence within the
meaning of Section 3 of the D.V. Act. It is a matter of inquiry to be
made by the concerned Court before which reliefs under the D.V.
Act are sought. In the case of Vishal Damodar Patil Vs.
rpa 24/25 wp-2070-16.docVishakha Vishal Patil (Supra), the respondent therein had filed
an application under the Domestic Violence Act and the trial
Court had passed an order directing the husband to pay interim
maintenance. It was contended by the husband that in the
absence of any interim application being made by the first
respondent, there was no occasion for the Magistrate to consider
prayer for grant of interim relief. However, the said contention
was rejected by this Court and it was observed that there need
not be any separate application for interim relief made by the
aggrieved person. In the case of Saroj Hegde (Supra), it was
held by Delhi High Court that, while considering the claim of
interim maintenance, the Court has to keep in mind status of
parties, reasonable wants of applicant, income and property of
both parties. The Supreme Court in the case of Jaiminiben H.
Vyas Vs. Hirenbhai R. Vyas (Supra), has observed that there
was no evidence of having an independent income during the
period the parties lived as husband and wife. Thus, the order of
the High Court was reversed and the husband was directed to
pay maintenance from the date of application.
13 In the light of the principles enunciated in
several decisions and considering the factual aspects involved in
rpa 25/25 wp-2070-16.docthis matter, and, for the reasons stated above, there is no reason
to interfere in the impugned orders. The Court is also justified in
granting maintenance to the respondent from the date of the
petition under the Domestic Violence Act. Hence, the petition
fails and the same is required to be dismissed.
14 Hence, I pass the following order::: O R D E R ::
(i) Criminal Writ Petition No.2070 of 2016, stands
dismissed;
(ii) Criminal Writ Petition, stands disposed of.
(PRAKASH D. NAIK, J.)
