BHANU KIRAN Vs. RAHUL KHOSLA

JUDGEMENT

(1.) The petitioner through the instant petition is seeking setting aside of order dtd. 18/10/2022 whereby Additional Sessions Judge, Ludhiana has partially stayed operation of order dtd. 22/9/2022 passed by Judicial Magistrate Ist Class, Ludhiana.

(2.) The brief facts emerging from the record and arguments of both sides are that marriage of the petitioner was solemnized with respondent No. 1 in 2009. Due to reasons best known to the parties, couple could not enjoy fruits of marriage tree. The petitioner preferred a petition under Sec. 12 read with other provisions of Protection of Women from Domestic Violence Act, 2005 (for short'D.V. Act') before Magistrate seeking maintenance and other reliefs. The petitioner further preferred an application under Sec. 23 of D.V. Act seeking interim maintenance. The application seeking interim maintenance came up for consideration before Magistrate who vide order dtd. 22/9/2022 directed the respondent to pay a sum of Rs.60,000.00 per month towards maintenance. The said amount was awarded as interim maintenance to petitioner and minor child. The respondent preferred an appeal before Sessions Court seeking setting aside of interim order passed by the Magistrate. The appeal was filed in terms of Sec. 29 of D.V. Act. The appeal came up for consideration before Additional Sessions Judge, Ludhiana who vide impugned order dtd. 18/10/2022 issued notice of appeal to the present petitioner as well as partially stayed operation of the impugned order. The Magistrate had awarded interim maintenance of Rs.60,000.00 and Appellate Court vide impugned order has stayed operation of the order granting interim maintenance beyond Rs.15,000.00 per month till final disposal of the case.

(3.) Learned counsel for the petitioner inter alia contends that respondent has preferred appeal under Sec. 29 of D.V. Act and appeal under Sec. 29 of D.V. Act can be filed against final order and not interim order whereas order under challenge before Appellate Court was interim order passed in terms of Sec. 23 of D.V. Act. She further contends that Magistrate under Sec. 23 D.V. Act had granted interim maintenance and Appellate Court in the absence of specific power under Sec. 29 of DV Act has no power to stay operation of impugned order. The Appellate Court was supposed to decide appeal one or another way, however, Appellate Court had no power to stay operation of the impugned order. Learned counsel in support of her contention relied upon judgment of the Hon'ble Supreme Court Shalu Ojha vs. Prashant Ojha (2015) 2 SCC 99 and judgment of a Co-ordinate Bench of this Court in Balwinder Kaur and another vs. Mahan Singh and others (CRM-M-31518 of 2008) decided on 3/12/2008.