ORDER

[Physical Hearing/Hybrid Hearing (as per request)]

Girish Kathpalia, J. (Oral):

CRL.M.A. 16346/2023 (Exemption)

1. Exemptions allowed subject to just exceptions.

CRL.M.C. 4349/2023 & CRL.M.A. 16345/2023 (Stay)

2. By way of this petition under Article 227 of the Constitution of India, the petitioner husband, facing proceedings under the Protection of Women from Domestic Violence Act, 2005, has assailed order dated 03.05.2023 of the learned Additional Sessions Judge, whereby in the course of appellate challenge to the magisterial order of interim maintenance to be paid to child of the parties, request for stay on the operation of the interim maintenance order was rejected. On service of notice of this petition, the respondent wife entered appearance through counsel. In view of settled legal position and for expeditious disposal, learned counsel for both sides kindly consented to address arguments today itself. I heard learned counsel for both sides.

3. For the sake of convenience, the relevant portion of the impugned order is quoted as follows:

"Learned counsel for petitioner has prayed for stay on order of interim maintenance passed by the learned MM.

Stay is objected to by learned counsel for respondent. Learned for respondent has relied upon judgment passed by Hon'ble Delhi High Court in case titled as Rajeev Preenja vs Sarika & Ors., 2008, Delhi High Court. Relevant observations are:

"It is accordingly directed that when a revision is filed by husband in the court of learned ASJ against an order of interim maintenance passed by a learned MM in favour of the wife, the said revision petition will not be entertained by learned MM upto the date of filing of the revision petition is first deposited in the court of the learned ASJ. The respondent wife and child if any, should be permitted by the learned ASJ to withdraw whole or part of the said sum, upon such terms and conditions as may be determined by the learned ASJ" (sic.)

In view of the above law laid down by the Hon'ble Delhi High Court, this court is not inclined to grant any stay on the operation of the impugned order".

4. The short question involved in this petition is as to whether during pendency of appeal under the Protection of Women from Domestic Violence Act, denial of stay on the operation of interim maintenance order solely on the basis of judgment of this Court in the case of Rajeev Preenja vs Sarika, reported as (2009)159 DLT 616 is sustainable in the eyes of law.

5. On behalf of petitioner husband, it was argued by the learned counsel that judgment in the case of Rajeev Preenja (supra) no more holds the field as the same stands overruled. It was argued that the petitioner has legally sound case to be granted interim relief against the order of interim maintenance impugned by him before the Additional Sessions Judge, so rejection of stay application on the basis of overruled judgment is not sustainable. On the other hand, learned counsel for respondent wife supported the impugned order of the learned Additional Sessions Judge, though did not dispute that the law laid down in the case of Rajeev Preenja (supra) does not hold field anymore.

6. It would be apposite to recapitulate the legal position on the issue involved in this dispute.

7. The judgment in the case of Rajeev Preenja (supra) came out in the following circumstances. An order passed by the magisterial court in proceedings under Section 125 CrPC, thereby directing the husband to pay interim maintenance at a rate of Rs.2000/- per month to his wife and Rs.1500/- per month to his minor son till disposal of the maintenance petition was affirmed by the court of Additional Sessions Judge exercising revisional jurisdiction in the challenge brought by the husband. The said order of learned Additional Sessions Judge was further assailed by the husband before this Court under Article 227 of the Constitution of India. On the very first date of hearing, learned Single Judge of this Court directed the husband t