Important Point—While deciding application seeking interim relief Magistrate is even not bound to hear opposite party.

1. In this Revision Petition, petitioner-husband assailed the impugned order dated 21.05.2016 passed by Learned Additional District and Sessions Judge No. 3, Kota in Criminal Appeal No. 12/2015 (Rahul Soni @ Diomond Soni vs. Smt. Nikita Soni) whereby Learned Lower Appellate Court dismissed the appeal of present petitioner while affirming impugned order dated 20.01.2015 passed by Learned Judicial Magistrate No. 2 (South), Kota in Complaint Case No. 76/2013 (Smt. Nikita Soni vs. Rahul Soni @ Diomond Soni) whereby Learned Magistrate allowed the application of respondent/wife for interim maintenance for Rs. 20,000 per month under Section 12 read with Section 18, 19, 20, 22, 23 of Domestic Violence Act, 2005.

2. The brief facts of the case are that respondent/wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short Act of 2005) on the alleged facts that she is legally wedded wife of the petitioner and is living separately, petitioner/husband is committing domestic violence he is committing cruelty with her in connection of dowry, therefore she cannot live with the petitioner and prayed for interim maintenance in the tune of Rs. 25,000 per month.

3. Petitioner/husband in reply to the application denied allegations levelled by respondent/ wife and stated that he never committed any act of violence against the respondent/wife and he is always ready and willing to live with the respondent/wife and child, but the respondent/wife is living separately from the petitioner/husband on her own accord and without any reasonable cause, therefore she is not entitled for any interim maintenance amount.

4. After hearing both the parties, Learned Magistrate partly allowed the application for interim maintenance and awarded maintenance amount in the tune of Rs, 20,000/- per month.

5. Petitioner/husband challenged the order of Learned Magistrate dated 20.01.2015 in appeal which was rejected by the Appellate Court vide impugned order dated 21.05.2016 (Annexure-2). Aggrieved by the orders of both the Courts, petitioner now filed this Revision Petition before this Court.

6. Learned Counsel for petitioner Mr. Naseemuddin Quazi submits that the allegations levelled in application by the respondent/wife are false and frivolous, she is living separately without any reasonable cause, both the Courts below ignored the fact that the petitioner is ready and willing to keep the respondent/wife and the child with him. He submits that under the provisions of the Protection of Women from Domestic Violence Act, 2005 is akin to the provisions of Section 125 of the Code of Criminal Procedure and in the present case the ingredients of Section 125 are not complete. Section 125 envisages the “neglect and refusal” to maintain wife, children or parents, but in the present case no such refusal or neglect can be inferred in the light of the reply of the petitioner wherein he has specifically stated that the respondent wife is herself working as a private teacher and she is also giving tutions, as such she herself is earning well, therefore this Revision Petition may be allowed and both the impugned orders may be quashed and set aside and application seeking interim maintenance of wife may be dismissed.

7. Per Contra Mr. Vijay Chaudhary Learned Counsel appearing on behalf of respondent/wife supported the impugned orders and submitted that there is no dispute that respondent is legally wedded wife of petitioner and is living separately with one child. He submits that petitioner himself admitted before the Family Court that his income is Rs. 15,00,000 per annum, therefore considering his own admission, Learned Magistrate awarded only Rs. 20,000 per month as interim maintenance which cannot be said to be illegal or excessive. He submits that respondent wife is not having income. Allegation regarding tutions is false. Other issues are triable issues which can be decided after evidence, therefore this Revision Petition m