IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev.No.398 of 2007 Date of Decision:- 04.08.2009 Neelam and others ....Petitioner(s) vs. Vijay ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Sandeep Kotla, Advocate, for the petitioners. Mr.Atul Yadav, Advocate for Mr.G.K.Chawla, Advocate, for the respondent. *** AUGUSTINE GEORGE MASIH, J. (Oral) The present petition has been filed challenging the order passed by the revisional Court to the limited extent wherein it has stayed the recovery proceedings against the respondent-husband during the pendency of the application for setting aside the ex-parte proceedings held against the respondents. A perusal of the record shows that an amount of Rs.600/- was granted as maintenance under Section 125 Cr.P.C. to the wife and Rs.400/- to the minor child Nikhil. It is not in dispute that during the pendency of the proceedings, another child was born and, therefore, now there are two children and one wife which have to be supported by the husband. It is not in dispute that the respondent is the husband of the petitioner Neelam and father of two minor children. The amount of maintenance which has been Crl.Rev.No.398 of 2007 -2- granted by the trial Court is Rs.600/- for the wife and Rs.400/- for the minor child Nikhil. Counsel for the petitioners contends that the trial Court has not taken any decision on an application preferred by the respondent-husband under Section 126 (2) of the Code of Criminal Procedure and the petitioner- wife and the two minor children have been left with no maintenance at all. He submits that the order passed by the learned Additional Sessions Judge Fast Track Court, Gurgaon dated 15.1.2007 be set aside to the limited extent where it puts a stay on recovery of the amount of arrears against the revisionist during the pendency of the application under Section 126 (2) Cr.P.C. preferred by the husband. He further submits that order dated 1.9.2005 passed by the Judicial Magistrate, Ist Class, Gurgaon, granting maintenance to the wife and the minor son be treated as an interim maintenance subject to the final outcome of the application under Section 126(2) Cr.P.C. and in case, the said application is allowed and further proceedings are held under Section 125 Cr.P.C. whatever final amount is decided, the same be adjusted with the interim maintenance. Counsel for the respondent-husband submits that the order passed by the revisional Court is fully justified as the wife is not residing with the husband and has herself moved out of the matrimonial house. He submits that during the proceedings pending in this Court, an effort was made and an offer was given to the wife to cohabit with the husband but she had flatly refused to the same. I have heard counsel for the parties and have gone through the records of the case. It is not in dispute that petitioner, Neelam is the wife of Crl.Rev.No.398 of 2007 -3- respondent-husband Vijay. It is also not in dispute that Nikhil is the son who was born out of the wedlock. Another female child has also been born out of the wedlock. The husband is bound to maintain his wife and children. In the absence of any source of income, the wife and children require sustenance for which the husband-respondent cannot shirk his responsibility. Keeping in view all the factual position and in the interest of the wife and the minor children, the order dated 15.1.2007 passed by the Additional Sessions Judge, Fast Track Court, Gurgaon, is modified to the extent that the recovery which has been stayed during the pendency of the application under Section 126 (2) of the Code of Criminal Procedure shall stand vacated. However, it is made clear that in case the application moved under Section 126 (2) Cr.P.C. by the respondent-husband is allowed and the Court further finally comes to a conclusion and fixes an amount of maintenance, the same shall be adjusted with the amount which is now to be paid to the wife during the pendency of the proceedings under Section 126 (2) as well as Section 125 of the Code of Criminal Procedure. It has been stated by the counsel for the parties that the proceedings under Section 126 (2) Cr.P.C. preferred by the husband have not been decided as yet despite the fact that the matter is pending since January, 2007. Accordingly, a direction is issued to the trial Court to expedite the matter and decide the case preferably within a period of three months from the date of receipt of certified copy of this order. Petition stands disposed of with the above terms. August 04, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE