IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.506 OF 2008. Shri Sambhaji Bhau Sakate. ..Petitioner. versus Sou.Chhaya Sambhaji Sakate & Ors. ..Respondents. .... Mr.S.M. Mirajkar, for the Petitioner. Mr. V.S.Kapse, for the Respondent Nos.1 and 2. Mr.J.P.Yagnik, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 15th September 2008. : 15th September 2008. : 15th September 2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. In terms of order dated 6th August 2008, the Petition was taken up for final hearing. The submissions of the learned Counsel appearing for the parties were heard. 2. The first and the second Respondents filed an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ’the said Code’). The Petitioner is the husband of the first Respondent. By an order dated 4th August 2007, the Application made by the first and the second Respondents was partly allowed. The Application was rejected in so : 2 : far as prayer made by the first Respondent was concerned and the Petitioner was directed to pay maintenance allowance of Rs.1,500/- per month to the second Respondent from the date of the order. The Criminal Revision Application No.184/2007 was filed by the first and the second Respondents before the Sessions Court for challenging the order of the learned Magistrate. The Criminal Revision Application No.161/2007 was filed by the Petitioner for challenging the same order. The learned Adhoc Additional Sessions Judge, Kolhapur, took up the Criminal Revision Application filed by the first and the second Respondents for hearing and by impugned Judgment and Order dated 8th January 2008, he partly allowed the Revision Application, by holding that the Petitioner is liable to pay maintenance to the first and the second Respondents at the rate of Rs.1,500/- per month each. It appears that the Criminal Revision Application filed by the Petitioner is still pending. 3. The learned Counsel appearing for the Petitioner has made submissions on merits as regards the entitlement to the first Respondent to claim maintenance : 3 : under section 125 of the said Code. He has placed reliance on the decision of the Apex Court in the case of Savitaben Somabhai Bhatiya v/s State of Gujarat and Others [ 2005 Cr.L.J. 2141 ]. He submitted that in any case, when a Revision Application filed by the Applicant against the same order was pending, the learned Adhoc Additional Sessions Judge, Kolhapur, could not have taken up only the Criminal Revision Application filed by the first and the second Respondents for hearing and in fact, both the Criminal Revision Applications ought to have been heard together. 4. The learned Counsel appearing for the first and the second Respondents opposed the Petition by pointing out that it was for the Petitioner to point out to the learned Adhoc Additional Sessions Judge that the Criminal Revision Application preferred by him was pending. He submitted that apart from the fact that on merits the first Respondent is entitled to maintenance, as the Petitioner himself did not point out the pendency of his Criminal Revision Application before the Sessions Court, a grievance cannot be made in this Court that : 4 : both the Criminal Revision Applications ought to have been heard together. He, therefore, submitted that no interference was called for. 5. When this Writ Petition was heard on 28th August 2008, a statement was made by the Advocate for the Petitioner that without prejudice to the rights and contentions of the Petitioner, he will deposit a sum of Rs.8,000/- towards the arrears of the maintenance with the concerned Sessions Court. The learned Counsel appearing for the Petitioner states that thereafter the Petitioner did not contact him and therefore, he could not take further instructions from him as regards the deposit of the said amount. There is nothing on record to show that compliance was made by the Petitioner. 6. It is an admitted position that the Revision Application bearing Criminal Revision Application No.161/2007 filed by the Petitioner was very much pending before the Sessions Court. Propriety required that the Criminal Revision Application filed by the Petitioner and the Criminal Revision Application filed : 5 : by the first and the second Respondents ought to have heard together. It is true that the Petitioner should have pointed out the fact of pendency of his Criminal Revision Application to the Sessions Court and he has not done so. However, the Criminal Revision Application preferred by the Petitioner cannot be allowed become infructuous by separately deciding the Criminal Revision Application preferred by the first and the second Respondents. Therefore, though the Petitioner has committed a blunder by not bringing to the notice of the Court the pendency of his Revision Application, the impugned order will have to be set aside to enable the Sessions Court to hear both the Revision Applications together. 7. The result of the impugned order is that the Petitioner will have to pay maintenance to the first and the second Respondents at the rate of Rs.1,500/- per month each from the date of Application filed by the first and the second Respondents. There is a finding on the appreciation of evidence recorded by the Sessions Court that even the fist Respondent is entitled to : 6 : maintenance. The learned Sessions Judge did not accept the case made out by the Petitioner that he had married to one Vandana prior to solemnization of his marriage with the first Respondent. There is a finding recorded that admittedly the Petitioner is an employee of a Municipal Council. In view of the said finding though the impugned order deserves to be quashed and set aside with a direction that the Criminal Revision Application No.184/2007 shall be heard alongwith the Criminal Revision Application No.161/2007, the Petitioner will have to deposit by way of interim arrangement, maintenance at the rate of Rs.1,500/- per month each payable to the first and the second Respondents from August 2007. An indulgence can be shown to the Petitioner provided he deposits or pays the maintenance amount payable to the first and the second Respondents at the rate of Rs.1,500/- per month each from August 2007 with the Trial Court within a period of four months from today. However, the payment/ deposit of the amounts will be subject to final order which may be passed in the Revision Applications. : 7 : 8. In the circumstances, I pass the following order :- (1) The impugned Judgment and Order dated 8th January 2008 is quashed and set aside and Criminal Revision Application No.184/2007 is restored subject to condition of the Petitioner depositing with the Trial Court interim maintenance payable to the first and the second Respondents at the rate of Rs.1,500/- per month each from August 2007 within a period of four months from today. (2) If compliance is not made by depositing the requisite amount within the stipulated period of four months, the impugned order will stand and the present Petition will stand dismissed. (3) In the event of the Petitioner complying with the said order, the Criminal Revision Application No.184/2007 will be heard afresh alongwith the Criminal Revision Application : 8 : No.161/2007 filed by the Petitioner. In such event, both the Criminal Revision Applications shall be disposed of by the learned Sessions Court on or before 30th April 2009. In such event, till the disposal of the Criminal Revision Applications, the Petitioner will continue to pay interim maintenance of Rs.1,500/- per month each to the first and the second Respondents. (4) It is made clear that the payment of the aforesaid amount at the rate of Rs.1,500/- per month shall be subject to final outcome of both the Criminal Revision Applications. (5) All contentions of the parties on merits are expressly kept open. The Writ Petition is partly allowed in above terms with no orders as to costs. (6) The concerned Court to act upon an authenticated copy of this order. : 9 : ( A.S.Oka,J.) A.S.Oka,J.) A.S.Oka,J.)