The Magistrate has the power to grant interim maintenance even after the appearance of the respondent, and the detailed enquiry under Section 28(1) of the D.V.Act is only required for passing the final order of maintenance.

ORDER :

1. This revision petition is filed by the petitioner/wife against the order passed by the Principal Sessions Judge, Kodagu Madikeri (hereinafter referred to as “First Appellate Court) in Crl.A.No.69/2013 dated 05.11.2016 for having setting aside the order of granting interim maintenance passed by the Principal Civil Judge and JMFC, Somwarpet (hereinafter referred to as ‘trial Court’) in Cr.M.C.No.34/2013 dated 23.10.2013.

2. Heard the arguments of learned counsel for the petitioner and the respondent.

3. The case of the petitioner before the trial Court is that she has filed an application under Section 20 read with Section 23 of Protection of Women from Domestic Violence Act (for short ‘D.V.Act’) by claiming interim maintenance and other relieves. After issuance of the notice, respondent appeared and filed his objection and after hearing on both the sides, the trial Court has ordered the respondent to pay Rs.3,000/per month as interim maintenance till further orders of the main petition. Assailing the same, the respondent approached the First Appellate Court by filing Crl.A.No.69/2013 under Section 29 of the D.V.Act. The First Appellate Court has set aside the order of the trial Court on the ground that once the Magistrate is reluctant to pass ad interim maintenance until conducting enquiry, the Magistrate has no power to grant any interim maintenance and set aside the same. Assailing the same, the petitioner wife is before this Court by way of revision petition.

4. Learned counsel for the petitioner has strenuously contended that the First Appellate Court has illegality in setting aside the order and misread the provisions of law. The trial Court having power to grant the maintenance as per Section 23 of the D.V.Act. Such being the case, setting aside the interim order is not correct. The respondent has left the petitioner long back and married to some other lady in the year 2008 itself. She was suffering from poverty and left without food and maintenance. Such being the case, until disposal of the main petition, the petitioner wife is entitled for interim maintenance. Hence, prayed for setting aside the order of First Appellate Court and to confirm the order of trial Court.

5. In support of his contention, learned counsel for the petitioner has relied upon the judgment of coordinate bench of this Court in the case of Hazaratali vs. Fahmeeda begum and others in Crl.R.P.No.100262/2017 dated 27.06.2018.

6. Per contra learned counsel for the respondent has supported the order passed by the First Appellate Court and contended that the petitioner has not produced any documents before the Court in order to grant any maintenance. Therefore, the First Appellate Court has rightly set aside the same, hence, prayed for dismissing the petition.

7. Upon hearing the arguments and on perusal of the record, the point that arises for my consideration is:

"Whether the First Appellate Court has committed error in setting aside the order of granting interim maintenance only on the ground that the Magistrate has no power to grant interim order once, the respondent appeared and filed the objections?”

8. On perusal of the record, it shows that the petitioner claims to be the wife of the respondent and their marriage was said to be solemnized in the year 2003. Both the petitioner and respondent were living separately. The respondent is said to have got second marriage in the year 2008. However, the petitioner has chosen to file the petition before the trial Court in the year 2013 and admittedly, the trial Court in granting interim maintenance and awarding Rs.3,000/from the date of the petition until further orders by invoking the provisions of Section 20 read with Section 23 of D.V.Act. The First Appellate Court has set aside the order only based upon the judgment of the Coordinate Bench of this Court in the case of Krishna Murthy Nookula vs. Y.Savitha in Crl.R.P.No.815/2009 dated in LAWS(KAR) 2009 12 12 dated 09.12.2009 wherein this Court h