Bombay High Court
Manaal Sayed Mukhtar Ali vs Sayed Mukhtar Ali And Ors on 9 January, 2019
Bench: Mridula Bhatkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION No. 129 OF 2019
Mrs. Manaal Sayed Mukhtar Ali ...Petitioner
Versus
Mr.Sayed Mukhtar Ali & Ors. ...Respondents
......
Ms.Gayatri Gokhale i/b.Rizwan Merchant and Associates for the
Petitioner.
Mrs. Veera Shinde, APP for Respondent No.4 - State.
......
CORAM: MRS.MRIDULA BHATKAR, J.
DATED : 09 JANUARY 2019
P.C.:
1. Upon urgent mentioning, taken on production board.
2. This Petition is directed against the order dated 3 rd January,
2019 passed by the learned Addl. Chief Metropolitan Magistrate,
9th Court, Bandra, Mumbai, thereby rejecting the application below
exhibit 5.
3. The petitioner, who is the original applicant, had filed an
application under section 23 of the Protection of Women from
Domestic Violence Act, 2005 ("the said Act"). The learned
Magistrate refused to pass an ad-interim order on the ground that
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it would not desirable to pass the ad-interim order without giving an
opportunity to the other side and issued notices to all the
respondents.
4. The learned counsel for the petitioner has submitted that the
petitioner is 22 years old mother and having a baby boy of two
months old. She has further submitted that respondent No.1 is a
husband, respondent No.2 is a mother-in-law and respondent No.3
is a sister-in-law. She has further submitted that respondent No.1
is 47 years old. He is having three wives and the petitioner is the
fourth wife. She has further submitted that respondent No.1 has
suppressed the said fact and also suppressed his real age and got
married with the petitioner. She has further submitted that
presently, respondent No.1 is in prison at Dubai for fraud, however,
child is born from him. She has further submitted that after birth of
the child, respondent Nos.1 to 3 are threating the petitioner that
they would take away the child. She has further submitted that
respondent No.1, who is in central jail in Dubai, allowed to make a
phone call as per law of the land of Dubai. She has further
submitted that the petitioner apprehends that respondent Nos. 1 to
3 would take away her child.
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5. It is a fit case wherein the learned Magistrate ought to have
passed an ex-parte order under section 23 of the said Act. It is
necessary for the learned Magistrate to consider the facts of the
case so also the object of section 23 of the said Act. The learned
Magistrate ought to have taken into account that a baby is of only
two months. In view of the facts and the criminal background of
respondent No.1, ex-parte interim order in the case of urgency and
if the matter is serious, is required to be passed. If such protection
is given to the petitioner, no harm will be caused to respondent
Nos. 1 to 3.
6. The learned counsel for the petitioner informs that now the
matter is fixed before the learned Magistrate on 6 th February, 2019.
7. In view of above, I pass the following order without issuing
notice to the other side :
a) Respondent Nos. 1 to 3 or their agents or associates
or friends are prevented from threatening and
contacting the petitioner;
b) Respondent Nos. 1 to 3 are also prevented from
visiting the residence of the petitioner;
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c) Respondent Nos. 1 to 3 shall not send any associate
to the house of the petitioner and shall not approach
in any manner;
d) Respondent Nos. 1 to 3 shall not make an attempt to
separate the child from the petitioner i.e., mother,
who is at present a natural guardian of the child;
e) Parties to appear before the learned Magistrate on 6 th
February, 2019.
8. With this, Writ Petition is disposed of.
(MRIDULA BHATKAR, J.)
