JUDGMENT :

S.J. Mukhopadhaya, J.

1. Leave granted.

2. This appeal has been preferred by the Appellant against the judgment dated 23rdJanuary, 2013 passed by the High Court of Judicature at Bombay in Writ Petition No. 4250 of 2012. By the impugned judgment, the High Court dismissed the writ petition preferred by the Appellant and upheld the order dated 3rd November, 2012 passed by the Additional Sessions Judge, Sewree, Mumbai whereby the Sessions Judge held that the application filed by the Appellant under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Domestic Violence Act, 2005") is not maintainable.

3. The case of the Appellant is that she got married to 1st Respondent according to Muslim rites and rituals on 13th May 2005. 1st Respondent was in the habit of harassing her. She was subjected to physical abuse and cruelty. For example, 1st Respondent acted with cruelty, harassed her and had banged her against a wall on her back and stomach on 5th January, 2006, due to which she suffered severe low back pain. The 1stRespondent refused her entry into the matrimonial house on 19th February, 2006 and asked her to stay with her parents. She delivered a baby boy at Breach Candy Hospital, Mumbai on 10th August, 2006 but the 1st Respondent never visited to see the new born baby. Later, the 1st Respondent filed a petition seeking custody of the minor child.

4. The Appellant lodged FIR No. 224 of 2007 on 6th September, 2007 before Agripada Police Station Under Section 498A, and 406 Indian Penal Code against the 1stRespondent, his mother and his sister. Against the same, a writ petition was filed by the 1st Respondent bearing Writ Petition No. 1961 of 2007 seeking quashing of the FIR. The High Court dismissed the said writ petition and the same was challenged by the 1stRespondent on which this Court issued notice. Subsequently, this Court by order dated July, 2008 remitted the matter to the High Court for hearing afresh Writ Petition No. 1961 of 2007. On 4th December, 2008, Writ Petition No. 1961 of 2007 was partly allowed by the High Court quashing the FIR against the 1st Respondent's mother and sister with the observation that the prima facie case Under Section 498A was made out against the 1st Respondent.

5. According to the Appellant, she obtained an ex parte 'Khula' from Mufti under the Muslim Personal Law on 9th May, 2008. The 1st Respondent challenged the 'Khula' pronounced by-Mufti before the Family Court, Bandra vide M.J. Petition No. B-175 of 2008. He also filed a petition for restitution of conjugal right.

6. On 29th September, 2009, the Appellant filed a petition Under Section 12 of the Domestic Violence Act, 2005 against the 1st Respondent before the ACMM's 46th Court, Mazgaon, Mumbai for relief Under Section 18 to 23 of the Domestic Violence Act, 2005 alleging that he is not providing maintenance for herself as well as for the minor child. The 1st Respondent filed his reply to the said application which was followed by the rejoinder filed by the Appellant. The Protection Officer appointed by the Magistrate under Domestic Violence Act, 2005 filed his report, inter alia, stating that an act of domestic violence was committed by the 1st Respondent upon the Appellant. But the Magistrate was transferred, the Court fell vacant and no order was passed. Subsequently, the Appellant filed an application for interim maintenance and the Magistrate by order dated 4th February, 2012 allowed the application directing the 1st Respondent to pay interim maintenance of Rs. 25,000/-. Without paying the maintenance, the 1st Respondent preferred an appeal before the Sessions Court challenging the order of Magistrate dated 4th February, 2012. The Sessions Court, Sewree, Mumbai by order dated 3rd August, 2012 condoned the delay in preferring the appeal and directed the 1st Respondent to deposit the entire amount of maintenance prior to the hearing of the appeal. As the 1stRespondent did not deposit the amount, t