SAFARAZ ISHWERSINH RANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocates for the parties and perused the record.

(2.) For one or another reason, there are two orders of maintenance against the petitioner; one under Protection of Women from Domestic Violence Act, 2005 and another under Section 125 of the Code of Criminal Procedure, 1973 (For short, 'Code') but when later order was passed under Domestic Violence Act, probably, previous order under section 125 of the Code was not disclosed before the concerned court at the relevant time. Such fact was disclosed only before the competent court while challenging the order under section 125 of the Code, but the sessions court has also failed to consider the factual details that in fact there are two orders of maintenance against the petitioner. In view of such fact, now, when facts are very much clear before us that final order under Section 125 is dated 26.9.2017 when an amount of Rs.9,500/ is awarded towards maintenance of wife and minor child. Whereas, by order dated 23.2.2017, there is an order to pay Rs.5,500/ under the Domestic Violence Act. Therefore, by all means, considering the settled legal position, the petitioner is liable to pay higher amount of maintenance amongst both the orders and thereby when petitioner makes a statement that he has already paid the arrears as per order under section 125 of the Code and confirmed that if any amount is unpaid considering the recurring liability, he will pay such amount at the earliest. Hence, let there be RULE, returnable on 7.2.2018 with interim relief in terms of paragraph 8(C) till the next date of hearing. However, with condition that petitioner shall wipe out the arrears if any as per order under section 125 of the Code and shall continue to pay such amount or paid by the final order under such proceeding, without fail.

(3.) Learned APP waives service of notice of Rule for the respondent - State.