Gujarat High Court
Imtiyazbhai Abdulbhai Shaikh & vs State Of Gujarat & on 25 February, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/5/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5 of 2015
=============================================
IMTIYAZBHAI ABDULBHAI SHAIKH & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
=============================================
Appearance:
MR PARTHIV A BHATT, ADVOCATE for the Applicant(s) No. 1 2
MS HB PUNANI, APP for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 25/02/2015
ORAL ORDER
1. This petition is filed under Article 227 of the Constitution of India, wherein the petitioners have prayed that the order dated 24.11.2014 passed by the learned 4th (Adhoc) Additional Sessions Judge, Ahmedabad (Rural) at Viramgam passed below Exh. 25 in Criminal Appeal No.6 of 2013 be quashed and set aside.
2. Heard learned advocate Shri Parthiv Bhatt for the petitioners and learned APP Ms. Punani for respondent No.1 - State of Gujarat.
3. Learned advocate for the petitioners submitted that petitioner No.1 and respondent No.2 are husband and wife. Learned advocate further submitted that the respondent No.2 has preferred an application under the Domestic Violence Act for getting maintenance. The learned Magistrate, vide order dated 28.01.2009, awarded Rs.1,000/ per month by way of interim maintenance in favour of the respondent No.2 wife. Learned advocate further submitted that the respondent No.2 again preferred an application under Section 25(2) of the Domestic Violence Page 1 of 4 R/SCR.A/5/2015 ORDER Act. In the said application, the learned Magistrate, vide order dated 19.10.2013, enhanced the amount of interim maintenance and awarded Rs.2,000/ per month in favour of the respondent No.2 - wife from the date of the order i.e. 19.10.2013. The respondent No.2, therefore, preferred Criminal Appeal No.6 of 2013 before the learned Sessions Court and requested that the amount of Rs.2,000/ per month by way of interim maintenance be awarded from the date of the application and not from the date of the order. The said appeal was allowed. Learned advocate, therefore, submitted that the learned Sessions Court has committed an error by awarding the amount of interim maintenance of Rs.2,000/ per month from the date of the application i.e. from 30.10.2010. The learned Sessions Court ought to have confirmed the order passed by the learned Magistrate and thereby the learned Sessions Court ought to have awarded the amount of Rs.2,000/ per month as interim maintenance from the date of the order i.e. from 19.10.2013. Learned advocate has relied upon the decision rendered by the Punjab & Hariyana High Court in the case of Bhupinder Singh Walia v. Varinder Kaur., reported in 1993 Cri.L.J. 1128 and submitted that when the delay in disposal of the case is not caused due to husband alone, and if wife is taking more time in producing her evidence, grant of maintenance from the date of application is not justified and therefore the maintenance was awarded from the date of the order.
4. On the other hand, learned APP submitted that the learned Sessions Court has not committed any error while granting the amount of maintenance from the date of the application. Learned APP further pointed out that Sessions Court has assigned the reasons why the interim maintenance is awarded from the date of the application. Learned APP has relied upon the decision rendered by the Hon'ble Supreme Court in the case of Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandra Page 2 of 4 R/SCR.A/5/2015 ORDER Vyas., reported in AIR 2015 SC P. 300 and submitted that the concerned Court is empowered to award the maintenance from the date of application or from the date of the order but for that it has to assign the reasons.
5. I have considered the arguments advanced by the learned advocates for the parties and I have also perused the documents produced on record. From the record, it appears that the learned Magistrate has awarded the interim maintenance in favour of respondent No.2 - wife from the date of the order. However, respondent No.2 - wife has challenged the said order by filing an appeal before the learned Sessions Court and the learned Sessions Court has modified the said order passed by the learned Magistrate, whereby the petitioner No.1 is directed to pay the interim maintenance from the date of the application i.e. from 30.10.2010.
6. Thus, the interim order passed by the learned Court below is challenged before this Court and main proceedings are still pending before the learned Magistrate Court. As per the decision rendered by the Hon'ble Supreme Court in the case of Jaiminiben Hirenbhai Vyas (Supra), the Court below is empowered to award the amount of maintenance from the date of application also. However, for that the Court has to assign the reasons. In the present case, from the impugned order, it is clear that the reasons are assigned by the learned Sessions Court why the maintenance amount is awarded from the date of the application and from the reasons recorded by the learned Sessions Court, it appears that no illegality is committed by the learned Sessions Court while awarding the amount of maintenance from the date of the application and therefore the petition is required to be dismissed. However, at this stage, learned advocate for the petitioners has requested that the matter is pending since 2008 before the learned Magistrate Court, wherein the Page 3 of 4 R/SCR.A/5/2015 ORDER interim order of maintenance is passed and therefore the learned Magistrate be directed to hear and decide the main application for maintenance pending before it within a time framed.
7. Looking to the fact that application for maintenance is pending since 2008 before the learned Magistrate Court, the learned Magistrate shall decide the said application as expeditiously as possible and preferably within a period of 4 months from the date of receipt of this order.
8. With the aforesaid observations and directions, the petition is disposed of.
(VIPUL M. PANCHOLI, J.) Jani Page 4 of 4