Bombay High Court
Naushad S/O Shabdar Sheikh vs Shamsunnissa Wd/O Shabdar Sheikh on 26 August, 2022
Bench: V. G. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 87 OF 2022
Naushad s/o Shabdar Sheikh, aged - 51
years, Occupation Service, R/o
Sanjeevani Apartment, Plot No.32,
Zingabai Takli, Nagpur - 440 030
... PETITIONER
VERSUS
Smt. Shamsunnissa wd/o Shabdar
Sheikh aged about 72 years,
Occupation : Household, R/o (I) C/O
Gulam Nabi Khan, Nabab Colony,
behind bus depot Saoner ward, No.5
- Saoner Parsodi Post Tahsil Saoner
District - Nagpur.
(ii) C/o Amin Patel, Near Water
Tank Parsodi, Umred, At Post Tahsil
Umred District Nagpur.
... RESPONDENT
_____________________________________________________________
Shri M.M. Awode, Advocate for the petitioner.
______________________________________________________________
CORAM : VINAY JOSHI, J.
DATED. : 26.08.2022.
ORAL JUDGMENT :
Heard finally the learned Counsel for the petitioner. The
sole-respondent though served, chooses to remain absent.
2. The petitioner - a son has challenged the interim order of
maintenance dated 26.10.2021 passed by the Magistrate in terms of
Section 125 of the Code of Criminal Procedure. The respondent -
mother has filed the said application in which she sought for interim
maintenance, which was allowed by directing the petitioner-son to pay
the interim maintenance at the rate of Rs.3,000/- per month from the
date of filing of the application.
3. The challenge is technical one. It is the only grievance that
the Trial Court without giving a right of hearing has decided the
interim application. In this regard, my attention is invited to the copy of
the note-sheet stating that on 1st October 2021, the Magistrate has
posted the case to 18th October 2021. The petitioner has produced a
printout taken from E-Court's website to show that on 18th October
2021, a Court holiday was declared with an instructions that the
matters which were on 18th October 2021, were kept on 27th November
2021. In the wake of said position, it reveals that the matter was taken
on board on 21st October 2021 of which the petitioner says that notice
was not served on him. The Magistrate on 26 th October 2021 has
passed an impugned order i.e. prior to the assigned date of 27 th
November 2021. Thus, it is apparent that the Magistrate has preponed
the matter and without giving a right of hearing to the petitioner, has
disposed of the same by passing an impugned order.
4. The petitioner undertakes to pay interim maintenance at
the rate of Rs.3,000/- from this month, till the interim application will
be decided on merits. Having regard to the said fact, it is desirable that
the Magistrate shall be directed to decide the interim maintenance
application afresh, after hearing the both sides.
5. In view of that, the petition is allowed. The impugned order
dated 26th October 2021 is hereby quashed and set aside. The learned
Magistrate is directed to rehear the interim maintenance application
and decide it on its own merits. In the meantime, the petitioner (son)
shall go on depositing interim maintenance at the rate of Rs.3,000/-
per month commencing from 1st September 2022 till the disposal of
interim application. The amount deposited shall be adjusted at latter
stage of proceeding.
6. The Petition stands disposed of in the above terms.
(VINAY JOSHI, J.)
Trupti
TRUPTI SANTOSHJI AGRAWAL
30.08.2022 19:17
