The petitioners are before this Court seeking to set

aside

the

order

dated

06.01.2020

passed

in

Crl.Misc.No.588 of 2017 by the learned Civil Judge and

JMFC, Indi, which was confirmed by the order dated

16.08.2021 passed in Criminal Revision Petition No.140 of

2020 by the learned III Additional Sessions Judge,

Vijayapur.

Brief facts of the case are that, respondent

No.1 – petitioner has filed an application under Section

125(3) read with Section 157 of Cr.P.C. praying to enforce

the order of maintenance and to create charge over the

4

properties, to an extent of 1/7^th share of her husband, who

is respondent No.2 herein, as shown in the schedule

attached to the application. The said application was

considered by the Trial Court and the impugned order

dated 06.01.2020 was passed which reads as under:

“The Tahasildar Babaleshwar is hereby

directed to create charge of Rs.7,19,250/- over

the Sy.No.192/2 measuring 6 acres 22 guntas,

Sy.No.190/2A measuring 4 acres 23 guntas,

Sy.No.327/1 measuring 4 acres 8 guntas,

Sy.No.194/1+2 measuring 16 acres 10 guntas

situated at Sarawad in resepct of share of

respondent No.1.

Further it is hereby ordered that issue

attachment of movable properties of Kirana shop

situated at property Sl.No.950 in Sarawad

village as recovery of maintenance amount.”

The said order was called in question by these

petitioners who are the family members of respondent

No.2, in Criminal Revision Petition No.140 of 2020 before

the learned III Additional Sessions Judge, Vijaypura. The

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said revision petition came to be dismissed vide order

dated 16.08.2021 confirming the order passed by the

learned Magistrate. Being aggrieved by the same, the

petitioners are before this Court.

Heard the learned counsel for the petitioners.

Perused the materials on record.

Learned counsel for the petitioners submits

that initially respondent No.1 - wife and another filed

petition under the provisions of Domestic Violence Act by

filing Crl.Misc.No.372 of 2013 against respondent No.2

claiming maintenance and the Trial Court allowed the said

petition and directed the husband-respondent No.2 to pay

maintenance of Rs.5,000/- each per month from the date

of filing of the petition. It is stated that respondent No.2

herein had not paid the amount towards maintenance and

an amount of Rs.7,19,250/- was due to be paid. Therefore,

an application under Section 125(3) of Cr.P.C. came to be

filed against respondent No.2. An application was filed

seeking to create charge over the schedule properties

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which are all family properties. The Trial Court blindly

allowed the application creating charge over the family

properties and also created charge over the movable

properties in the Kirana shop which was run by petitioner

No.1 herein. Therefore, it is contended by the learned

counsel for the petitioners that the petitioners are not

parties for maintenance proceedings and no notice was

issued to them before passing the impugned order.

Therefore, the impugned order suffers from illegality.

6.

Learned counsel places his reliance on the

decision of the Hon’ble Apex Court in Rajnesh Vs Neha

and Others ¹, to contend that to enforce the order of

maintenance, the proceedings will have to be initiated

under Section 128 of Cr.P.C. Learned counsel further

submitted

that

Section

128

of

Cr.P.C.

refers

to

enforcement of the order of maintenance against the

persons who are parties to such maintenance proceedings

and against whom the order of maintenance was passed.

1 (2021) 2 SCC 324

7

Therefore, it is contended that the petitioners are not the

parties to the maintenance proceedings and the impugned

order passed by the Trial Court for creating charge over

the family properties is illegal, perverse and the same is

liable to be set aside.

7.

Per contra, learned counsel for respondent

No.1

-

wife

opposing

the

petition

submitted

that

respondent No.1 claimed maintenance from respondent

No.2 in the year 2013. Since then nothing has been paid

to the wife and the minor