RACHNABEN KUNAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution of India, the petitioner original respondent No.1 has challenged the order dated 30th September, 2011 passed by the learned Additional Sessions Judge, Court No.11, Ahmedabad in Criminal Appeal No.341/2011 whereby the learned Judge has stayed the order dated 20th August, 2011 passed by the learned Metropolitan Magistrate, Court No.21, Ahmedabad in Criminal Miscellaneous Application No.46/2010 and has directed him to decide the main application expeditiously.

(2.) MR. B.H. Mankad, learned advocate for MR. Hriday Buch, learned advocate for the petitioner invited attention to the impugned order passed by the learned Additional Sessions Judge to submit that the said order was an ex parte order and that without even issuing notice to the petitioner, the appeal has been disposed of by staying the order dated 20th August, 2011 whereby the respondent No.2 herein had been directed to pay Rs.7,000/- per month by way of maintenance to the petitioner. It was submitted that the impugned order is in clear breach of the principles of natural justice as the same has been passed without affording any opportunity of hearing to the petitioner and causes immense hardship to the petitioner inasmuch as, despite the fact that the proceedings have been filed since a considerably long time, till date, the petitioner has not been paid any amount by way of maintenance except a pittance of Rs.4,000/-. It was submitted that under the circumstances, the impugned order is required to be quashed and set aside and the appeal is required to be restored to file to be decided in accordance with law after hearing the petitioner herein.

(3.) IT may be noted that the proceedings under the Protection of Women from Domestic Violence Act have been pending in the court of the learned Metropolitan Magistrate since the year 2010. Initially, vide order dated 17th January, 2010, the respondent No.2 was directed to pay interim maintenance of Rs.6,000/- which came to be carried in appeal by the respondent No.2. In appeal, the said order appears to have been set aside and the matter came to be remanded to the learned Metropolitan Magistrate for deciding the same afresh. Pursuant to the order of remand, the learned Metropolitan Magistrate by an order dated 20th August, 2011 has directed the respondent No.2 to pay Rs.7,000/- per month to the petitioner herein. However, till date, the petitioner has not got the benefit of the interim orders passed by the learned Metropolitan Magistrate in the light of the fact that the earlier order of payment of Rs.6,000/- had been quashed and set aside and subsequently now by the impugned order, the order directing payment of Rs.7,000/- has been stayed. Thus, the impugned order, apart from the fact that the same has been passed without affording any opportunity of hearing to the petitioner is even otherwise highly prejudicial to her interest. By staying the order passed by the learned Metropolitan Magistrate till the final disposal of the main matter, the learned Additional Sessions Judge has virtually rendered the order passed in favour of the petitioner nugatory and as such pending the proceedings the petitioner is left without any interim maintenance. Under the circumstances, before passing an order which seriously affects the rights of the petitioner, it was incumbent upon the learned Additional Sessions Judge to issue notice to her and give her an opportunity of hearing. The impugned order being in clear breach of the principles of natural justice, therefore, cannot be sustained.