Bombay High Court
Shaikh Siraj Shaikh Burhanoddin vs Smt. Shaikh Farzana Begum on 10 December, 2013
Bench: A.M. Thipsay
1 Cri.W.P.667.13.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 667 OF 2013
Shaikh Siraj Shaikh Burhanoddin
..PETITIONER
-VERSUS-
Smt. Shaikh Farzana Begum
W/o Shaikh Siraj and another.
..RESPONDENTS
...
Advocate for petitioner: Mr. M.S. Choudhary
Advocate for Respondents: Mr. S.G. Bhalerao
ig ...
CORAM : ABHAY M. THIPSAY, J.
Dated: December 10, 2013
...
ORAL JUDGEMENT:-
Rule. By consent, Rule is made
returnable forthwith. By consent, heard finally.
2. The challenge in this Writ Petition is
to an interim order of maintenance passed by the
Magistrate under the provisions of Section 125 of
the Code of Criminal Procedure (hereinafter
referred to as "the Code"), directing the
petitioner herein to pay maintenance to the
respondents herein.
2 Cri.W.P.667.13.odt
3. In the course of the arguments, the
learned counsel for the petitioner submitted that
the maintenance has wrongly been made payable from
the date of the original application, whereas the
same should have been made payable from the date
of the application for interim maintenance. It is
not in dispute that the application for
maintenance was filed by the respondents herein on
02.05.2011. It is also not in dispute that the
application (Exhibit 32) for interim maintenance,
on which the impugned order came to be passed, was
made on 10.09.2012. The impugned order granting
interim maintenance directs that it shall be paid
from the date of the filing of the main
application i.e. 02.05.2011.
4. Initially, in section 125 of the Code,
there was no provision for grant of interim
maintenance. On the basis of the judicial
pronouncements, subsequently, the said section was
amended to provide for interim maintenance also.
3 Cri.W.P.667.13.odt
Sub-section (2) of section 125 reads as under :-
"125 Order for maintenance of wives, children and
parents.-
(1) ********
(2) Any such allowance for the maintenance or interim
maintenance and expenses for proceeding shall be payable
from the date of the order, or, if so ordered, from the date
of the application for maintenance or interim maintenance
and expenses of proceeding, as the case may be."
5. It is clear from a reading of said sub-
section that in the context of interim
maintenance, the date of application would be the
date of application for interim maintenance.
Therefore, the interim maintenance could have been
made payable by the Magistrate either from the
date of his order i.e. 30th April, 2013, or from
the date of the application for interim
maintenance i.e. 10.09.2012. It could not have
been made payable from 02.05.2011. To that extent,
the impugned order is erroneous.
4 Cri.W.P.667.13.odt
6. It is submitted that there is no case
for grant of interim maintenance. But, considering
that the matter before the Magistrate has not yet
attained finality, it would not be proper to
interfere in the matter at this stage by
exercising the constitutional jurisdiction of this
Court. In my opinion, interference is warranted
only to extent of the date from which such interim
maintenance would be payable.
7. The Petition is partly allowed.
The impugned order shall stand modified
to the extent that the interim maintenance shall
be payable from 10.09.2012 i.e. from the date on
which the application for interim maintenance was
made.
Save and except as aforesaid, no other
modification in the impugned order.
8. The Petition is allowed in the aforesaid
5 Cri.W.P.667.13.odt
terms and to the aforesaid extent.
9. Rule is made absolute in the aforesaid
terms.
Sd/-
( ABHAY M. THIPSAY, J. )
***
sga/-
