IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2025 of 2008 PIR MOHAMMAD ANSARI @ DR. PIR MOHAMMAD ANSARI Versus KAINAR PARVEEN ----------- 2 4/12/2008 Heard counsel for the petitioner. In view of the facts mentioned in I.A. No. 7104 of 2008 the delay in filing of this Civil Revision Application is condoned. On merits, this Court would find that the husband-petitioner had appeared in the proceedings in the court below under Section 125 Cr.P.C. only on 19.7.2008 and on that date an application was filed for adjourning the proceedings in order to enable him to file show cause. Another application seeking adjournment on the ground of illness also is said to have been filed as is apparent from the impugned order. In view of the fact that such application was not pressed or was not even bearing adequate stamp either of them could have been a good ground for refusing adjournment, but then from the order dated 4.8.2008 of the court below it would transpire that the case was again adjourned even in absence of the 2 petitioner for reconciliation. Obviously, on 9.8.2008 when the impugned order was passed there was nothing on the records to show that the Court had intended to decide the application filed by the wife-opposite party for grant of interim maintenance. That apart, this Court would find that the whole approach of the Principal Judge, Family Court while passing the impugned order was quite mechanical, in as much as, in the application filed by the wife there was nothing very specific as with regard to means of income of the husband-petitioner except a bald statement that the petitioner was a busy dental practitioner and was earning Rs.5,000/- per day. The Court below has, in fact, did not consider any evidence and has allowed maintenance of Rs.6,000/- per month without any basis. Counsel for the petitioner in this regard has taken specific plea that there did not exist any relationship of man and wife after mutual divorce on 26.4.2008 as is recorded before the religious authority under Mohammedan Law. He, therefore, 3 submits that as a matter of fact the proceedings under section 125 of the Code of Criminal Procedure was itself not maintainable and in this context reliance has been placed by the counsel for the petitioner in the case of ‘Usman Khan Bahamani Vs. Fathimunnisa Begum & Ors.’ reported in 1990 Criminal Law Journal 1364. In view of the fact that the petitioner was never heard, and order of interim maintenance has been passed under section 125 of the Code of Criminal Procedure, the petitioner instead of rushing this Court had remedy under section 126(2) of the Code of Criminal Procedure. In view of the fact that the order in question was passed on 9.8.2008 and this Civil Revision Application was filed on 1.12.2008 under misconceived advice, this Court directs the court below to consider the application, if filed by the petitioner within a period of fifteen days from the date of receipt/production of a copy of this order in the court below in 4 terms of section 126(2) of the Code of Criminal Procedure. The petitioner will however be liable to pay the consolidated sum of Rs. 12,000/- for being allowed to press his application under section 126(2) of the Code of Criminal Procedure, which must be heard and disposed of on merits without being influenced with its earlier order dated 9.8.2008, within a period of two months from the date of receipt/production of a copy of this order. With the aforementioned observation this application is disposed of. (Mihir Kumar Jha, J.) Abhay Kumar