Bombay High Court
Dilip S/O Dinkarrao Rode vs Sau. Malabai W/O Dilip Rode And ... on 8 September, 2017
Bench: P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.255 OF 2016
Dilip s/o Dinkarrao Rode,
aged about 61 years, occupation :
pensioner, r/o c/o Viman Sadashiv
Bhatkar's House, Gadge Nagar,
Amravati. ... Petitioner
- Versus -
1) Sau. Malabai w/o Dilip Rode,
aged about 46 years,
occupation : housewife,
2) Ku. Gauri d/o Dilip Rode,
aged about 20 years, occupation :
student,
Both above 1 and 2 r/o c/o Ambadas
Ghongde, Radha Nagar, Amravati,
Taluq and District Amravati.
3) State of Maharashtra, through
Police Station, Gadge Nagar,
Amravati, Taluq and District :
Amravati. ... Respondents
-----------------
Shri V. Dahat, Advocate for petitioner.
Smt. G. Tiwari, Additional Public Prosecutor for respondent no.3.
----------------
CORAM : P.N. DESHMUKH, J.
DATED : SEPTEMBER 08, 2017
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ORAL JUDGMENT :
Rule, returnable forthwith. Heard finally with the consent of
Shri Dahat, learned Counsel for petitioner, and Smt. Tiwari, learned
Additional Public Prosecutor for respondent no.3. None for respondent
nos.1 and 2. Record reveals that on the earlier date, since respondent
nos.1 and 2 were not represented, matter was adjourned for today.
Despite that, nobody appears for respondent nos.1 and 2 even today.
2) Challenge in this petition is to order dated 1/7/2014 passed
on the application of stay (Exh.6) in Criminal Appeal No.115/2013 by
learned Additional Sessions Judge, Amravati. By filing said application,
petitioner prayed for stay to execution of order passed by learned trial
Court contending that petition was filed by respondent wife under the
provisions of Protection of Women from Domestic Violence Act, 2005
after a long gap, i.e. in the year 2010 though she was residing separately
from petitioner since 1993. Learned appellate Court passed a conditional
order, thereby granting stay to interim maintenance subject to petitioner
making payment of arrears of Rs.26,000/- to respondent nos.1 and 2
within two months from the date of impugned order and to continue to
pay maintenance at the rate of Rs.1000/- per month and Rs.500/- per
month to respondent nos.1 and 2 respectively from the date of appeal.
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3) It is noted that though there is no interim protection granted
in favour of petitioner in this petition, learned Counsel for petitioner has
made a statement that in spite of non compliance of order of payment of
maintenance or payment of arrears of Rs.26,000/- within two months as
directed in the impugned order, respondent nos.1 and 2 have not
initiated any execution proceedings.
4) It appears to be the case of petitioner that he married to
respondent no.1 at Amravati in 1991 and they cohabited together till 1993
when she left his company and started residing with her father and on
6/4/1996 she filed application under Section 125 of Code of Criminal
Procedure for grant of maintenance, which was allowed and petitioner
was directed to pay Rs.250/- per month to respondent no.1 and Rs.125/-
per month for respondent no.2. It is submitted by learned Counsel for
petitioner that petitioner could not comply with the said order of
maintenance as he was working as Sweeper and as on today, he has
retired and is paid Rs.1500/- per month towards pension. As against this,
respondent no.1 is earning sufficient amount out of tailoring business
to maintain herself and respondent no.2. It is further noted that
thereafter respondent no.1 filed application under Section 12 read with
Sections 18, 19, 20 and 21 of the Protection of Women from Domestic
Violence Act, 2005, which came to be decided on 14/5/2013 by learned
Judicial Magistrate, First Class, Amravati directing petitioner to pay
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Rs.1200/- per month to respondent no.1 from the date of application in
addition to earlier maintenance under Section 125 of Code of Criminal
Procedure and to pay Rs.800/- per month to respondent no.2 from the
date of application till she attains majority. Petitioner challenged the
said judgment before learned appellate Court by filing Criminal Appeal
No. 115/2013 under Section 29 of the said Act of 2005. Petitioner also
filed application for grant of stay, which was marked as Exh. 6, upon
which impugned order came to be passed by learned appellate Court
partly allowing the same and granting stay to order of interim
maintenance on the condition that petitioner shall pay arrears of
Rs.26,000/- within two months as aforesaid and shall continue to pay
maintenance at the rate of Rs.1000/- per month to respondent no.1 and
Rs.500/- per month to respondent no. 2 pending appeal.
5) Shri Dahat, learned Counsel for petitioner, has made a
statement that respondent nos. 1 and 2 have not taken any steps in spite
of petitioner not making any payment as per order passed under
Section 125 of Code of Criminal Procedure and though petitioner has also
not made payment of Rs.26000/- within two months from the impugned
order nor is making payment of maintenance at the rate of Rs.1000/- per
month or Rs.500/- per month to respondent nos.1 and 2 as per impugned
order dated 1/7/2014, respondent nos. 1 and 2 have not initiated any
execution proceedings.
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6) In view of aforesaid statement of learned Counsel for petitioner
and since respondent nos.1 and 2 are not present to defend the petition on
merits, the same is disposed of as per order below :
The criminal writ petition is partly allowed. The learned
Additional Sessions Judge, Amravati, who is seized of Criminal Appeal
No. 115/2013, is directed to decide the said appeal expeditiously,
preferably within four months from the date of receipt of writ of this
Court. In the meantime, impugned order dated 1/7/2014 passed by
learned Additional Sessions Judge, Amravati below Exh. 6 in Criminal
Appeal No.115/2013 directing petitioner to pay arrears of Rs.26,000/-
and to pay further amount of Rs.1000/- per month and Rs.500/- per
month to respondent nos.1 and 2 respectively shall stand stayed.
7) Rule is made absolute in the aforesaid terms. No order as to
costs.
JUDGE
khj
