Bombay High Court
Ankita Sople vs Abhishek Sople on 23 August, 2021
Bench: Manish Pitale
1 4-wp 594-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Criminal Writ Petition No. 594 of 2021
Ankita Sople Vs. Abhishek Sople
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S.P. Bhandarkar, Advocate for the petitioner
CORAM : MANISH PITALE, J.
DATED : AUGUST 23, 2021
By this Writ Petition, the petitioner seeks
to challenge order dated 09/10/2019, passed by the
Court of Judicial Magistrate First Class, Nagpur,
whereby maintenance amount of Rs.10,000/-, as
interim maintenance was directed to be given to the
petitioner under the provisions of the Protection of
Women from Domestic Violence Act, 2005
(hereinafter referred to as "D.V. Act").
2. The record shows that the order was
passed by the Magistrate on 09/10/2019. Aggrieved
by the same, the respondent i.e. the husband filed an
appeal bearing Criminal Appeal No. 351 of 2019,
under Section 29 of the D.V. Act before the Sessions
Court at Nagpur.
3. By judgment and order dated
15/02/2020, the Court of Additional Sessions Judge-
7, Nagpur, dismissed the appeal, confirming the order
2 4-wp 594-2021.odt
of the Magistrate, holding that the direction to pay
interim maintenance of Rs.10,000/- per month was
proper. The contentions raised on behalf of the
respondent to the effect that the said amount was
exorbitant or that it could not have been granted,
were rejected and the order of the Magistrate was
confirmed. It is significant that the petitioner before
this Court i.e. wife did not file an appeal against the
order passed by the Magistrate.
4. It is after the appeal filed by the husband
was dismissed by the judgment and order dated
15/02/2020 and the order of the Magistrate was
confirmed that the petitioner has chosen to file the
present Writ Petition, challenging the order of the
Magistrate, as also the judgment and order passed by
the Sessions Court. It is further prayed that the
amount of interim maintenance be increased from
Rs.10,000/- to Rs.51,000/- per month.
5. This Court is of the opinion that since the
petitioner chose not to challenge the order passed by
the Magistrate by filing an appeal under Section 29 of
the D.V. Act, insofar as she is concerned, the order
passed by the Magistrate had attained finality. She is
not entitled to make a grievance about the amount of
interim maintenance granted to her by the Magistrate
and confirmed by the Sessions Court after dismissal
of appeal filed by the respondent (husband).
3 4-wp 594-2021.odt
6. In this context, Mr. S.P. Bhandarkar,
learned counsel for the petitioner invited attention of
this Court to Section 29 of the D.V. Act and contended
that an appeal under the said provision would not lie
from the order of the Magistrate because it concerns
grant of interim maintenance to the petitioner before
this Court. On this basis, it is submitted that since
the petitioner could not have filed an appeal under
Section 29 of the D.V. Act, to challenge the order of
Magistrate, she was entitled to file the present writ
petition after the appeal filed by the respondent
(husband) was dismissed on merits.
7. Section 29 of the D.V.Act reads as
follows :
"Section 29. Appeal - There shall lie an appeal
to the Court of Session within thirty days from
the date on which the order made by the
Magistrate is served on the aggrieved person or
the respondent, as the case may be, whichever
is later."
8. There is nothing in the above quoted
provision to indicate that the petitioner could not
have filed an appeal against the order passed by the
Magistrate in the present case. The learned counsel
then sought to refer to Section 23 of the D.V. Act,
which provides for power to the Magistrate to grant
interim and ex-parte order. There is nothing in the
said provision to support the contention raised on
behalf of the petitioner that an appeal could not have
been filed by the petitioner under Section 29 of the
D.V. Act, as the order of the Magistrate pertains to
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grant of interim maintenance, when the petitioner
was aggrieved by the quantum of such interim
maintenance.
9. Since there is no substance in the said
contention raised on behalf of the petitioner, this
Court is of the opinion that as the petitioner chose
not to challenge the order of the Magistrate by filing
an appeal before the Sessions Court under Section
29 of the D.V. Act, she is not entitled to maintain the
present Writ Petition.
10. Accordingly, the Writ Petition is dismissed.
JUDGE
MP Deshpande
