P.C.
1. Rule.
2. By consent, Rule made returnable forthwith.
3. By consent, heard finally.
4. The petitioner is the husband of the respondent no.1. The respondent no.1 has filed an application under section 12 of the Protection of Woman from Domestic Violence Act (for short 'the D.V.Act') which is pending before the Judicial Magistrate, First Class at Bhiwandi. The respondent no.1 had also applied for interim maintenance during the pendency of the application under section 12 of the D.V. Act, and such interim maintenance was granted by the learned Magistrate by an order dated 23rd August 2011. The petitioner filed an Appeal against the said order, but the learned Addl. Sessions Judge, Thane was of the view that the Magistrate had not committed any error while passing the interim order, and consequently, dismissed the Appeal. Being aggrieved thereby, the petitioner has approached this Court invoking its jurisdiction under Article 227 of the Constitution of India.
5. The learned counsel for the petitioner submitted that the interim order of maintenance came to be passed ex-parte without giving an opportunity of being heard in the matter to the petitioner. He submitted that though notice had been issued to the petitioner, the notice was not served, and there was nothing to show that the petitioner had willfully remained absent before the Magistrate, or had declined to participate in the matter of grant of interim maintenance to the respondent no.1. It is also pointed out to me that the respondent no.1 has also filed proceedings under section 125 of the Code of Criminal Procedure (for short "the Code"), and in those proceedings, an order directing the present petitioner (respondent in the proceedings under section 125 of the Code) to pay interim maintenance @ Rs.2,500/- per month to the respondent no.1 herein, has been passed. It is also submitted that in a petition for dissolution of marriage filed by the petitioner, an interim order of maintenance in the sum of Rs.1,500/- in favour of the respondent no.1 herein, has also been passed.
6. I have carefully considered the matter. I have gone through the application and the annexures thereto, which include the order passed by the Magistrate, as also the order passed by the Court of Sessions in Appeal under section 29 of the D.V. Act.
7. The learned counsel for the respondent no.1 submitted that the Magistrate was empowered to pass an ex-parte interim order of maintenance in law. According to him, the Court ought not to interfere with such interim order.
8. There can be no doubt that a Magistrate would have jurisdiction to pass an interim order of maintenance in proceedings under the D.V. Act, and such interim order can be passed even ex-parte. Thus, there is no jurisdictional error committed by the Magistrate in passing an ex-parte order. However, the question is whether passing of an ex-parte order in the present case, was proper and justified. It is not in dispute that in two other proceedings, the Respondent no.1 wife is already getting maintenance from the petitioner. If the grievance was that the amounts awarded by the Magistrate in the proceedings under section 125 of the Code, or the amount awarded by the Civil Court in the proceedings for dissolution of marriage, was not being paid, it was open for the respondent no.1 wife to take steps for executing the said orders and recover the amount. There was no such pressing necessity in the facts of this case to pass an ex-parte order, particularly when it was nobody's case that the petitioner was willfully remaining absent or was willfully avoiding service of the notice which was already been issued to him.
9. The learned counsel for the respondent has relied upon a decision of this Court reported in Abhijit Bhikaseth Auti Vs. State of Maharashtra and Anr., 2009 (1) Bom.C.R. (Cri) 845. He also relied upon another decision rendered by this Court in Smt.Sheetal Hitesh Thawkar Vs. Hitesh Vijay Thawkar and Anr., 2012 Cri.L.J. 516. I am unable to hold that these judgments support the view that simply because passing of an ex-parte order of interim maintenance is permissible, it must be passed in all the cases, and that once it is passed, the Appellate Court or Superior Court should not entertain with such order. On the contrary, in the decision reported in Abhijit Bhikaseth Auti Vs. State of Maharashtra and Anr (supra), it has been mentioned that an opportunity of being heard should be given to the husband even while passing an interim order of maintenance. In the instant case, when interim orders for maintenance passed by two the other Courts were already in favour of the respondent no.1 wife, there was hardly any occasion to pass an ex-parte order of maintenance.
10. The impugned orders are not proper. They are required to be interfered with in the interest of justice.
11. However, keeping in mind that the order passed by the Magistrate which has been impugned by the present petition, is only an interim order, I am inclined to direct that if the Magistrate considers that he will be able to dispose of the main proceedings under section 12 of the D.V. Act within a period of two months from today, he may not re-consider the question of grant of interim maintenance.
12. In the result, the petition is partly allowed.
13. The impugned orders are set aside.
14. The learned Magistrate shall re-consider the question of grant of interim maintenance to the respondent no.1 after giving to the petitioner an opportunity of being heard in the matter. However, if the learned Magistrate feels certain that he would be able to dispose of the main proceedings within a period of two months from today, he need not re-consider the question of grant of interim maintenance.
15. Rule is made absolute in the aforesaid terms.