SABINA SAHDEV & ORS Vs. VIDUR SAHDEV

JUDGEMENT

(1.) The above is a petition preferred by the petitioner-wife, under Article 227 of the Constitution of India read with Section 482 Cr PC., being aggrieved by the order passed by the Ld. ASJ on 22.01.2018 in the appeal preferred by the respondent-husband under Section 29 of the Protection of Women from Domestic Violence Act (DV Act). Before the learned ASJ, the petitioner-wife had contended that the appeal under Section 29 of the DV Act - against the order granting interim maintenance, was not maintainable in the light of the decision of a learned Single Judge of this Court in Rajeev Preenja v. Sarika & Ors., (2009) 159 DLT 616, which directs that the appellant-husband should be required to deposit the complete arrears of interim maintenance (awarded under Section 125 Cr.P.C.) before the revisional remedy (under Section 399 read with Section 401 Cr.P.C.) is entertained. The judgment of another learned Single Judge in Brijesh Kumar Gupta v. Shikha Gupta & Anr., 2015 SCCOnlineDel 7086 was placed before the learned ASJ wherein it was, in effect, held that the statutory remedy of appeal under Section 29 of the DV Act could not be curtailed by imposition of such a condition. The Ld. ASJ by the said order rejected the submission of the petitioner- wife that the subsequent decision in Brijesh Kumar Gupta , is per incurium the decision in Rajeev Preenja. He held that the two decisions were mutually reconcilable. The Ld. ASJ held that the statutory appeal under Section 29 of the DV Act was maintainable, as the appellant-husband had cleared arrears of maintenance up to the extent of 50%, till the date of filing of the appeal.

(2.) On 07.03.2018, the learned Single Judge observed that in view of the decision of the Supreme Court in Central Board of Dawoodi Bohra Community & An. V. State of Maharashtra & Anr., (2005) 2 SCC 673, the learned Single Judge while deciding Brijesh Kumar Gupta could not have disregarded the earlier judgment in Rajeev Preenja - since both were decisions of benches of co-equal strength. However, he made a reference of the legal issue involved in the case to a larger Bench, in view of two conflicting opinions of two learned Judges of this Court. Hon'ble the Acting Chief Justice has, accordingly, placed the reference before this Bench for its consideration.

(3.) We have heard learned counsels for the parties on the said issue and we proceed to answer the reference.