AKHTAR HUSAIN KHAN, J. - (1.) PRESENT petition has been moved under section 482 Cr.P.C. by the petitioner Mohd. Nafees @ Guddu with the prayer to quash the order dated 4.1.2011, passed by the VIII Addl. Chief Judicial Magistrate, Lucknow in Case No. 565 of 2010, Smt. Zareena Bano vs. Mohd. Nafees @ Guddu and others, under section 12 (1) of Protection of Women From Domestic Violence Act, 2005, Police Station Thakur Ganj, district Lucknow alongwith the impugned order dated 23.7.2013, passed by the Appellate Court (IV Addl. District and Sessions Judge, Lucknow) in Criminal Appeal No. 130 of 2012 arising out of said order dated 4.1.2011, passed by the Magistrate. I have heard learned counsel for the applicant as well as the learned A.G.A. appearing for State of U.P. None appeared for Opposite Party No. 2 though list was revised.
(2.) LEARNED counsel for the applicant contended that the petition moved by opposite party no. 2 under section 12 (1) of Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as 'Act, 2005') is not maintainable as the opposite party no. 2 herself has admitted in para 11 of the petition, moved under section 12 (1) of the Act, 2005 that the petitioner has already divorced her. As such, the cognizance taken by the Magistrate is without jurisdiction and the impugned order passed by the Magistrate is contrary to law. Learned counsel for the petitioner contended that the appellate court has committed illegality in upholding impugned order passed by the Magistrate.
(3.) LEARNED counsel for the applicant has placed reliance upon pronouncement of the Hon'ble Apex Court rendered in the case of Indrajit Singh Grewal vs. State of Punjab and another, 2012 CrLJ 309 as well as pronouncement of Hon'ble High Court, Delhi rendered in the case of Harbans Lal Malik and others vs. Payal Malik, 2011 1 Crimes(Del) 496 . Learned A.G.A. opposed the petition, moved under section 482, Cr.P.C. and contended that the Magistrate is competent to take cognizance of the application moved under section 12 (1) of the Act, 2005 and impugned order is in accordance with law. I have considered the submissions of learned counsel for the parties and perused the record. After taking cognizance on application of opposite party no. 2 moved under section 12 (1) of the Act, 2005 vide impugned order dated 4.1.2011, learned Addl. Chief Judicial Magistrate, Lucknow, Court No. 32, has allowed interim maintenance to the complainant (here opposite party no. 2) under section 23 of the Act, 2005. Being aggrieved with the order of Magistrate, petitioner filed Criminal Appeal No. 130 of 2012 before the Sessions Court which was decided by the IV Addl. District and Sessions Judge, Lucknow vide judgment and order dated 23.7.2013 and appeal was dismissed. ;