Payment of entire amount of maintenance awarded before filing an appeal thereagainst is not mandatory
Sabina Sahdev vs Vidur Sahdev
Crl. MC 878 of 2018
About/from the judgment:
Protection of Women from Domestic Violence Act, 2005 - Ss. 23 & 29 - Criminal P.C. 1973 - Ss. 125, 399 & 401 - A revision u/s. 399 r/w. 401 Cr.P.C. and an appeal u/s. 29 of the DV Act, against the order granting maintenance u/s. 125 Cr.P.C. and u/s. 23 of the DV Act respectively, would be maintainable, and would be entertained and heard without any pre-condition of deposit of the arrears of maintenance.
Protection of Women from Domestic Violence Act, 2005 - Ss. 23 & 29 - Criminal P.C. 1973 - Ss. 125, 399 & 401 - Pendency of a Revision or Appeal, as the case may be, shall not operate as a stay of the operation of the order granting interim maintenance.
Interim maintenance was awarded to the wife by the trial court under Section 23, DV Act. The husband preferred an appeal against the order under Section 29. The wife challenged the maintainability of the appeal on the ground that the appellant was required to deposit the complete amount of compensation awarded before he could file an appeal. However, the Additional Sessions Judge rejected the challenge. Matter reached the High Court, and the learned Single Judge referred the same to be considered by a larger bench, as there were two conflicting judgments of coordinate benches. The question before the Court was whether statutory remedy of appeal under Section 29 could be made subject to pre-deposit of entire amount of interim maintenance fixed by Magistrate under Section 23?
The Court, after perusing the concerned sections, was of the view that neither the language used by the legislature in Section 399 read with Section 401 CrPC nor in Section 29 of DV Act even remotely suggest that the legislature intended to impose preconditions to the available remedies. Further, any such precondition will fall foul of Article 14 of the Constitution. It was held that there cannot be an absolute rider that the entire maintenance amount, as granted by the trial Court, should be deposited prior to the entertainment of the statutory remedy, because it would leave the remedy of statutory revision/appeal illusory. The reference was answered in above terms and the matter was directed to be listed before the Single Judge for further proceedings.
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