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2013 DIGILAW 1293 (BOM)

Dinesh Dadarao Jayle v. Sau. Swati Dinesh Jayle

2013-07-11

P.D.KODE

body2013
JUDGMENT Heard. 2. For the reasons recorded below, the Registry is directed to re-register the present revision application as an application under Section 482 of the Code of Criminal Procedure. 3. Heard learned counsel for the parties. Rule. Rule returnable forthwith. Mr. Agrawal, Advocate appears waiving service on behalf of the non applicants. Heard finally by consent of the parties. 4. Since the applicant has, by the present application, sought for exercising powers under section 397 of the Code of Criminal Procedure for examining legality and propriety and correctness of the order dated 30.03.2013 passed by Family Court, Amravati granting interim maintenance in favour of non applicants, the application would have been liable to be dismissed in limini in view of being preferred against an interlocutory order as such being untenable in law. However, the facts, to which the attention is drawn, also reveal that the said application i.e. the application arising out of a dispute between husband and wife, was decided without hearing the applicant. Though, learned counsel for the non applicants tried to convince that the applicant is not a diligent person as he even failed to file his say to the application for interim maintenance made by the non applicants and No Written Statement order was passed against him and as such no leniency should be shown, it is difficult to accept the said submission because the order in question does not reveal that the applicant was heard in the matter. Indeed, it is true that the order of No Written Statement was passed against him. However, passing of an order of No Written Statement does not deprive his right to make submission before the Court. 5. The perusal of the order reveals that fair opportunity was not given to the applicant to defend himself. The fairness of proceeding and giving an equal opportunity to the parties is a cardinal rule of criminal jurisprudence and violation thereof warrants exercise of powers under section 482 of the Code of Criminal Procedure, if the same has resulted in miscarriage of justice like in the instant case. 6. Resultantly, the impugned order is set aside with a direction to the applicant to appear before the Family Court, Amravati on 05.08.2013. The trial Court is directed to decide the said application for interim maintenance after giving equal opportunity to both the sides of placing their case before the Family Court. 6. Resultantly, the impugned order is set aside with a direction to the applicant to appear before the Family Court, Amravati on 05.08.2013. The trial Court is directed to decide the said application for interim maintenance after giving equal opportunity to both the sides of placing their case before the Family Court. Rule made absolute in the above terms. No order as to costs. Ordered accordingly.