Sheikh Mehaboob Shaikh Mustafa vs Banobee Shaikh Mehaboob And Anr
2017 Latest Caselaw 7343 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.

                    CRIMINAL WRIT PETITION NO. 662 OF 2010

Sheikh Mehaboob Shaikh Mustafa,
aged about 38 years, Occupation
Service, R/o Shivaji Ward, Pusad,
Taluka Pusad, District Yavatmal.                                   ... PETITIONER

                                            VERSUS

1. Banobee Shaikh Mehaboob,
     aged about 32 years,

2. Master Sk. Samir Sheikh Mehboob,
     aged about three years, through his
     mother Smt. Banobee Sk. Mehboob,

     Both r/o Tukaram Bapu Ward,
     Pusad, Taluka Pusad, Distt. Yavatmal.                       ... RESPONDENTS

                                    ....
Shri Amit Kukde, Advocate for the petitioner.
Nonw for the respondents.
                                    ....


                                        CORAM : P.N. DESHMUKH, J.

DATED : 20TH SEPTEMBER, 2017.

ORAL JUDGMENT :

Heard Shri Kukde, learned Counsel appearing on behalf of the

petitioner. None for the respondents. Record reveals that none present

for the respondents even on earlier date and the matter was adjourned

with a view to give opportunity to respondents to defend the petition on

merits. In spite of that, none present today for the respondents.

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2. Challenge in this petition is to impugned order dated

29.11.2010 passed by the learned trial Court thereby issuing warrant of

arrest against the petitioner for non payment of maintenance amount to

the extent of Rs.52,500/-.

3. Learned Counsel for the petitioner has submitted that a similar

application under Section 125(3) of the Code of Criminal Procedure was

filed by respondent No.1 as the petitioner was then in arrears of

Rs.28,000/- which amount was thereafter deposited by the petitioner. Fact

of depositing an amount of Rs.28,000/- has been accepted by respondent

No.1 in her application subsequently made under Section 125(3) of the

Code of Criminal Procedure at Exh.73 before the trial Court. By this

application, total amount claimed was Rs.52,500/- after deposit of

Rs.28,000/- and for non payment of said amount, arrest warrant is issued

which order is impugned in this petition.

4. Learned Counsel for the petitioner further submitted that he

was not issued with the notice of said application filed subsequently vide

Exh.73 and thus the order of issuing arrest warrant is prayed to be quashed

as according to the learned Counsel for petitioner, no opportunity was

granted to the petitioner to put up his case.

5. There is nothing on record to establish that the petitioner was

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issued with notice with reference to application (Exh.73) filed by

respondent No.1.

6. Having considered the facts, as aforesaid, it is, therefore,

desirable to remand the case back to the learned 2nd Jt. Civil Judge, Junior

Division and JMFC, Pusad to reconsider the order of issuance of arrest

warrant against the petitioner for non payment of alleged amount of

Rs.52,500/- by issuing notice to petitioner and on duly considering his say

on said application.

7. In view of above, petition stands disposed of as allowed.

Impugned order dated 29.11.2010 issuing arrest warrant against the

petitioner is quashed and set aside. Rule is made absolute in aforesaid

terms with no order as to costs.

JUDGE

*rrg.