Bombay High Court
Mohammed Tanvir S/O Mohammed ... vs Ayesha Farheen W/O Mohammed ... on 1 August, 2022
Bench: V. G. Joshi
Judgment wp249.22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION No. 249/2022.
Mohammed Tanvir s/o Mohammed
Zameer, Age 26 years, Occupation -
Labour, resident of Aurangpura,
Balapur, Tq. Balapur,
District Akola. ... PETITIONER.
VERSUS
Ayesha Farheen w/o Mohammed
Tanvir, Age 23 years, Occupation
Household, c/o. Mohammed Saleem
S/o. Mohammed Sameer, resident
of Islampura, Balapur, Tq. Balapur,
District Akola. ... RESPONDENT.
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Mr. U.J. Deshpande, Advocate for the Petitioner.
Mr.D. Ailani, Advocate h/f. Shri S.V. Sohoni, Advocate for
Respondent.
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CORAM : VINAY JOSHI, J.
DATE : AUGUST 01, 2022.
Rgd.
Judgment wp249.22
ORAL JUDGMENT :
Considering the controversy involved in the matter and by
consent of the learned Counsel appearing for the parties, the matter
is taken up for final disposal by issuing Rule, making the same
returnable forthwith.
2. The petitioner - husband is challenging the order dated
17.02.2022 passed by the Additional Sessions Judge, Akola below
Exh.5 in Criminal Appeal No.19/2022, by which a conditional stay
was granted.
3. Initially the respondent - wife has filed an application in
terms of Section 12 of the Protection of Women from Domestic
Violence Act, seeking various reliefs. The learned Magistrate vide
order dated 21.01.2022, has granted interim maintenance @
Rs.4000/- per month. The said order was challenged by the
petitioner - husband in Criminal Appeal, wherein he also sought for
stay to the interim order. While deciding said application, the
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Judgment wp249.22
Appellate Court has passed a conditional order of stay directing the
petitioner - husband to pay 50% of the arrears within one month
from the date of order. It also directed to deposit an amount of
Rs.2000/- per month towards interim maintenance till disposal of
the appeal. The said order is under challenge in this writ petition.
4. The learned Counsel for petitioner - husband firstly
submitted that while passing the interim order the Magistrate has
not followed the procedure laid down by the Supreme Court in case
of Rajnesh vrs. Neha and another - AIR 2021 SC 569. Secondly it is
submitted that the order of interim maintenance is quite excessive,
as the petitioner - husband is a mere labourer.
5. It is to be noted that yet the proceeding filed under the
provisions of D.V. Act is still pending wherein the Court is expected
to take care of the compliance of the directions before adjudicating
the matter finally. As regards to the quantum of interim
maintenance is concerned, on the basis of prima facie facts, the
quantum has been fixed. Pertinent to note that the Appellate Court
has stayed the order with a condition to clear the arrears to the
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Judgment wp249.22
extent of 50%, and further directed the husband to pay only 50% of
the maintenance i.e. Rs.2000/- per month. In other words the
Appellate Court has reduced the amount to the extent of 50%,
during pendency of appeal. The said amount is quite low and bear
minimum requirement for survival, therefore, to that extent no
modification is necessary.
6. However, as regards to the deposit of arrears of
maintenance is concerned, it reveals that the arrears are from
September 2019 i.e. for near about three years. Considering the
huge mounting arrears, the said part of the order is modified by
directing to deposit Rs.50,000/- before the trial Court within a
period of one month from today instead of depositing 50% of the
arrears.
7. With this modification only, Criminal Writ Petition is
partly allowed and disposed of. Rule made absolute in aforesaid
terms with no order as to cost.
JUDGE
Rgd.
Signed By:RAKESH GANESHLAL
DHURIYA
Private Secretary
High Court of Bombay, at Nagpur
Signing Date:02.08.2022 10:37
