JUDGMENT

1. The Petitioner has approached this Court challenging an Order dated 23.02.2022 passed by the learned Additional Sessions Judge, Dwarka Courts, Delhi setting aside the Order dated 07.04.2021 passed by the learned Metropolitan Magistrate.

2. Shorn of unnecessary details, the facts of the case reveal that the marriage between the Appellant and the Respondent was solemnized on 18.06.1998 as per Hindu rites and customs at Delhi. Out of the wedlock, Signature Not Verified Digitally Signed CRL.M.C. 2732/2022 Page 1 of 8 there are two children, a son who is about 18 years of age and a daughter aged 14 years.

3. Material on record discloses that disputes arose between the husband and wife and on 30.01.2018, the husband filed a petition for divorce under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955 on the ground of cruelty against the Appellant herein. The Appellant herein filed a case for domestic violence under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short „DV Act‟).

4. Since the Appellant herein was not in a position to maintain herself, she filed an application under Section 23 of the DV Act, 2005 for grant of interim maintenance and demanded a sum of Rs. 20,000/- towards maintenance. Pleadings and income affidavits by both the parties were filed. 5. On 07.04.2021, when the matter came up for hearing, an adjournment was sought by the Proxy Counsel for the Respondent herein. A perusal of the order shows that the case was adjourned. However, after adjourning the case, upon enquiry by the learned Metropolitan Magistrate the Respondent herein, who was appearing in person, undertook to pay Rs.20,000/- per month towards maintenance of the Complainant along with the medical expenses. On the said statement, the learned Metropolitan Magistrate passed an order directing the Respondent herein to pay Rs.20,000/- per month and take care of the medical expenses.

6. Aggrieved by the Order dated 07.04.2021, the Respondent herein preferred an appeal before the learned Additional Sessions Judge, Dwarka Courts, New Delhi. After hearing arguments from both sides, the learned Additional Sessions Judge has taken note of the fact that on perusal of the order of the learned Magistrate it is apparent that that the Proxy Counsel on Signature Not Verified Digitally Signed CRL.M.C. 2732/2022 Page 2 of 8 behalf of the Respondent sought an adjournment from the learned Magistrate stating that the main Counsel is not available today and the Respondent was appearing in person. The learned Magistrate granted adjournment to the Respondent on this ground.

7. The learned Additional Sessions Judge while allowing the appeal and setting aside the impugned Order dated 07.04.2021 held that once adjournment was granted to the Respondent herein, the Court became functus officio at that very moment and it was not right for the learned Metropolitan Magistrate to ask him any further questions and more so, record his submissions and undertaking which were made after granting him an adjournment. The learned Additional Sessions Judge has then remanded back the matter to the learned Trial Court to decide the ad-interim maintenance application afresh after perusing the material on record.

Relevant portion of the said Order reads as under:

“7. From the perusal of the impugned order, prima facie it is reflected that none of the Counsels representing either of the parties were present before the Court to address arguments on the application seeking interim maintenance filed by the respondent herein under Section 23 of the D.V. Act. Perusal of the impugned order further reflects that the present appellant had sought an adjournment citing non- availability of his Counsel as a reason and ld. MM was also pleased to grant the same by mentioning in the order sheet "adjournment is granted".

8. However, I fail to understand that once the Id. MM had already granted the adjournment to the appellant who was the respondent before the ld. Trial Court, the