Dayanand Bahimania v. Sunita & Anr.

Present: Mr.A.K.Gupta, Advocate, for the petitioner. Mr.Mani Ram Verma, Advocate, for the respondents. **** SABINA, J. This petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure for setting aside the impugned order dated 9.12.2009 passed by District Judge (Family Court) Bhiwani. Learned counsel for the petitioner has submitted that vide order dated 17.2.2009 (Annexure P-2) Rs.5,000/- were allowed as maintenance to respondent No.1 and Rs.4,000/- were allowed as maintenance to respondent No.2 by the Chief Judicial Magistrate, Crl. Rev. No. 490 of 2010 (O&M) 2 Bhiwani in an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The said order was placed on record before the Family Court, at the time of consideration for determination of maintenance to the respondents but without considering order dated 17.2.2009, District Judge, Family Court, Bhiwani has allowed Rs.5,000/- as interim maintenance to respondent No.1 and Rs.4,000/- as interim maintenance to respondent No.2 vide impugned order dated

9.12.2009. No observation has been made qua assessment of maintenance allowed vide order dated 17.2.2009. Learned counsel for the respondents, on the other hand, has opposed the petition. There is force in the argument raised by learned counsel for the petitioner. The Family Court was required to take in consideration the order of maintenance passed by the Chief Judicial Magistrate, Bhiwani in the proceedings under the Protection of Women from Domestic Violence Act, 2005, while determining the quantum of maintenance liable to be paid to the respondents. However, no reference has been made to order dated 17.2.2009 (Annexure P-2), while passing the impugned order dated 9.12.2009 (Annexure P-1) by the Family Court. In these circumstances, this petition is allowed. The impugned order dated 9.12.2009 is set aside. Learned District Judge (Family Court), Bhiwani is directed to pass a fresh order, qua interim maintenance, after taking into Crl. Rev. No. 490 of 2010 (O&M) 3 consideration order dated 17.2.2009 (Annexure P-1) passed by the Chief Judicial Magistrate, Bhiwani and in accordance with law. May 13, 2010 SABINA) JUDGE