Durgesh Kumar Lakhera S/o Shri Babulal Lakhera v. State of Rajasthan Through P. P.
2017-02-10
SABINA
body2017
DigiLaw.ai
JUDGMENT : SABINA, J. 1. Petitioners have filed this petition under Section 482 Criminal Procedure Code, 1973 challenging the order dated 23.11.2016 whereby, petitioners were directed to deposit fifty per cent of the awarded amount as a condition precedent before the hearing of the appeal. 2. I have heard learned counsel for the petitioners and have gone through the record available on the file carefully. 3. Respondent no.2 has filed an application under the Domestic Violence Act, 2005. (Hereinafter referred to as the 'Act') 4. Vide order dated 17.03.2015, petitioner no.1 was directed to pay Rupees four thousand per month by way of maintenance to the respondent no.2 and Rupees three thousand per month each to both the minor children. In all petitioner no.1 was directed to pay Rupees ten thousand per month to respondent no.2 on her behalf and on behalf of minor children. The said order was passed against the petitioners in ex parte. Petitioners filed an appeal against the order dated 17.03.2015. The Appellate Court vide the impugned order directed the petitioners to bring a draft with regard to fifty per cent of the maintenance amount as a condition precedent and held that the appeal would be heard after the draft with regard to fifty per cent of the maintenance amount was handed over by the petitioners to respondent no.2 Learned counsel for the petitioners has submitted that there was no provision in the Act authorising the Appellate Court to impose such a condition. 5. Learned counsel for the respondent no.2 has submitted that the petitioners have not paid maintenance to respondent no.2 despite passing of the order dated 17.03.2015. 6. Appellate Court fell in error by imposing a condition that appeal would be heard only after fifty per cent of the maintenance amount was paid by the petitioners to respondent no.2. With regard to payment of the maintenance amount execution proceedings are already pending. Petitioners were legally entitled to file an appeal against the order dated 17.03.2015 under Section 29 of the Act. Appellate Court should have heard the appeal on merits. However, the condition imposed by the Appellate Court that fifty per cent of the amount of maintenance be paid to respondent no2 by way of demand draft and then the appeal will be heard on merits is without any legal basis. 7. Accordingly, this petition is allowed.
Appellate Court should have heard the appeal on merits. However, the condition imposed by the Appellate Court that fifty per cent of the amount of maintenance be paid to respondent no2 by way of demand draft and then the appeal will be heard on merits is without any legal basis. 7. Accordingly, this petition is allowed. Impugned order whereby, condition was imposed by the Appellate Court on the petitioners that they should pay fifty per cent to respondent no.2 by way of a demand draft before hearing the appeal is set aside. 8. At the request of the learned counsel for respondent no.2, Appellate Court is directed to dispose of the appeal expeditiously.