Sameena Parveen Mushtaque Patel vs Mushtaque Patel S/O. Yakub Patel
2017 Latest Caselaw 7009 Bom

Citation : 2017 Latest Caselaw 7009 Bom
Judgement Date : 12 September, 2017

Bombay High Court

Sameena Parveen Mushtaque Patel vs Mushtaque Patel S/O. Yakub Patel on 12 September, 2017

Bench: P.N. Deshmukh

                                              1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                    CRIMINAL WRIT PETITION NO.578 OF 2017.


   PETITIONER:                  Sameena Parveen Mushtaque Patel,
                                aged about 21 years, Occu: Household
                                R/o C/o Qutubuddin Thekedar (Gondwale),
                                Chota Plot, Alegaon, Tq.Patur, Distt.Akola.

                                            : VERSUS :

   RESPONDENT:                  Mushtaque Patel s/o Yakub Patel,
                                aged about 32 years, R/o Ambashi, Tq.Patur,
                                Distt.Akola.

   -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   Mr.Mir Nagman Ali, Advocate for the petitioner.
   None for respondent.
   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                                       CORAM:   P.N.DESHMUKH, J.

                                                       DATED:    12th SEPTEMBER, 2017.

   ORAL JUDGMENT:



   1.             Rule.   Rule   is   made   returnable   forthwith.     Heard   learned

counsel for the petitioner. None for respondent. Record reveals that as

nobody was present for respondent even on earlier date, the matter

was adjourned with a view to give an opportunity to respondent to

defend the petition on merits and was adjourned for today. Insptie of

that, none is present for respondent - husband.

2. Challenge in this petition is to order passed by Revisioinal

Court in Criminal Revision No.58 of 2016, whereby learned Additional

Sessions Judge - 2 Akola by allowing the Criminal Revision filed by

respondent reduced the amount of interim maintenance of petitioner to

Rs.1500/- per month and of minor child to Rs.1000/- per month.

Thus, the interim maintenance granted is totalling to Rs.2500/-.

3. The learned trial Court, considering the facts involved in the

application and by reasoned order, had granted amount of Rs.3000/-

per month for petitioner and Rs.2000/- per month for minor child and

thus, granted Rs.5000/- in total as an interim maintenance. Learned

counsel for the petitioner has contended that the Revision itself was

not tenable in view of the fact that the order granting interim

maintenance is "Interlocutory order" and therefore submitted that the

petition is required to be allowed without going into the merits of the

same.

4. In support of above submissions, learned counsel Shri Mir

Nagman Ali appearing for petitioner relied upon the case of

Smt.Mamta w/o A.Vaidya ..vs.. Ashok M.Vaidya reported in 1991

ALL M.R.734, wherein a case of Smt.Parmeshwari Devi Vs.. The

State reported in AIR 1977 SC 403 has been referred in which Their

Lordships have discussed the scope of Section 397(2) of the Criminal

Procedure Code in para no.12 of the judgment as follow :-

"The purpose of S.397 of the new Code is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course, if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his fights. An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or

trial, against whom it is directed."

And on considering facts involved in that petition as well as law as aforesaid, had held that -

"In view of the spirit of the provisions, the Magistrate is empowered either to modify or even to cancel the order passed by him earlier. Considering this fact, granting interim maintenance, pending proceedings under Section 125, Cr.P.C. is an "interlocutory order" and thereby no revision is maintainable under Section 397(2) of the Code of Criminal procedure."

5. In view of facts involved in the petition and having

considered the scope of Section 125 of Code of Criminal Procedure

wherein the Magistrate has power to make an interim order directing

payment of maintenance till the disposal of the application and having

considered the fact that the purpose behind granting such interim

relief, is to pay a reasonable sum by way of interim maintenance

subject to other conditions imposed if any, pending final disposal of

application under Section 125 of Code of Criminal Procedure, the

learned first appellate Court thus, appears to have committed error

while entertaining Criminal Revision No.58 of 2016 and therefore,

order passed in said Criminal Revision is liable to be quashed and set

aside. In the result, Writ petition is allowed. Order passed in Criminal