Case Note & Summary
The petitioner, Syed Naim, husband of respondent No.1, filed a criminal writ petition under Article 227 of the Constitution of India challenging the judgment dated 30.05.2011 passed by the Sessions Judge, Beed, which confirmed the order dated 29.10.2010 passed below Exhibit 22 in Criminal Miscellaneous Application No.586/2008. The background is that respondent No.1 (wife) filed an application under the Domestic Violence Act before JMFC, Beed, being Miscellaneous Criminal Application No.205/2008. On 18.06.2008, she filed a separate application seeking interim maintenance and other directions. The trial court allowed the interim maintenance application on 21.08.2008, directing the petitioner to pay financial assistance @ Rs.5000/- under Section 20 of the Domestic Violence Act to the respondents. However, the order did not specify that the amount was payable 'per month'. Subsequently, respondent No.1 filed an execution application on 29.11.2008 for recovery of maintenance for 3 months totaling Rs.15,000/-. Along with the execution application, she also moved an application under Section 465 of the Criminal Procedure Code seeking correction of the operative part of the order dated 21.08.2008 to include the words 'per month'. The trial court allowed the correction application and the execution application. The petitioner challenged these orders before the Sessions Judge, who confirmed them. In the High Court, the petitioner argued that the interim maintenance order was passed without notice to him, violating principles of natural justice. The High Court examined the record and found that the order dated 21.08.2008 was indeed passed without notice to the petitioner. The court held that such an order cannot be sustained as it violates the right to be heard. Regarding the correction under Section 465 CrPC, the court held that the omission of the words 'per month' was not a mere typographical error but a substantive omission, and Section 465 could not be used to supply a missing substantive part. The court set aside the orders of the courts below and remanded the matter to the trial court for fresh consideration of the interim maintenance application after giving notice to the petitioner. The court also directed that the amount already deposited by the petitioner be kept in a fixed deposit and disbursed to the respondents only after the final order.
Headnote
A) Family Law - Domestic Violence - Interim Maintenance - Section 20 of Protection of Women from Domestic Violence Act, 2005 - Natural Justice - The court held that an order granting interim maintenance cannot be passed without notice to the opposite party, as it violates principles of natural justice. The trial court's order dated 21.08.2008 was set aside for being passed without notice to the husband. (Paras 4-5) B) Criminal Procedure - Correction of Orders - Section 465 of Code of Criminal Procedure, 1973 - Typographical Error - The court held that Section 465 CrPC cannot be used to supply a missing substantive part of the order, such as the words 'per month', as it is not a mere typographical error but a substantive omission. (Para 6) C) Family Law - Maintenance - Execution - The court set aside the execution proceedings and remanded the matter for fresh consideration after giving notice to the husband. (Para 7)
Issue of Consideration
Whether an order granting interim maintenance under the Domestic Violence Act can be passed without notice to the opposite party, and whether the order can be corrected under Section 465 CrPC to include the words 'per month'.
Final Decision
The High Court allowed the petition, set aside the judgment of the Sessions Judge and the orders of the JMFC, and remanded the matter to the JMFC for fresh consideration of the interim maintenance application after giving notice to the petitioner. The amount already deposited by the petitioner was directed to be kept in a fixed deposit and disbursed only after the final order.
Law Points
- Natural justice
- right to be heard
- interim maintenance under Domestic Violence Act
- Section 20 of Protection of Women from Domestic Violence Act
- 2005
- Section 465 CrPC
- correction of typographical error
