Sabina Sahdev & Ors vs Vidur Sahdev on 9 July, 2018

1. The above is a petition preferred by the petitioner-wife, under Article
227 of the Constitution of India read with Section 482 Cr PC., being
aggrieved by the order passed by the Ld. ASJ on 22.01.2018 in the appeal
preferred by the respondent-husband under Section 29 of the Protection of
Women from Domestic Violence Act (DV Act). Before the learned ASJ,
the petitioner-wife had contended that the appeal under Section 29 of the
DV Act – against the order granting interim maintenance, was not
maintainable in the light of the decision of a learned Single Judge of this
Court in Rajeev Preenja v. Sarika & Ors., (2009) 159 DLT 616, which

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directs that the appellant-husband should be required to deposit the complete
arrears of interim maintenance (awarded under Section 125 Cr.P.C.) before
the revisional remedy (under Section 399 read with Section 401 Cr.P.C.) is
entertained. The judgment of another learned Single Judge in Brijesh
Kumar Gupta v. Shikha Gupta & Anr., 2015 SCC Online Del 7086 was
placed before the learned ASJ wherein it was, in effect, held that the
statutory remedy of appeal under Section 29 of the DV Act could not be
curtailed by imposition of such a condition. The Ld. ASJ by the said order
rejected the submission of the petitioner- wife that the subsequent decision
in Brijesh Kumar Gupta (supra), is per incurium the decision in Rajeev
Preenja (supra). He held that the two decisions were mutually reconcilable.
The Ld. ASJ held that the statutory appeal under Section 29 of the DV Act
was maintainable, as the appellant-husband had cleared arrears of
maintenance up to the extent of 50%, till the date of filing of the appeal.

Source: Indian Kanoon

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