1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 622 OF 2008 Mr. Ankit Harin Shah ... Applicant. V/s. 1. Mrs. Rupali Ankit Shah & Ors. ... Respondents. ----- Mr. M. B. Shirsat for the Applicant. Mr. Sndeep V. Marne for the Respondent no. 1. Mr. H.T. Dedhia, APP for the State. ----- CORAM : A. S. OKA, J. DATED : JUNE 19, 2009 P.C. : 1. Heard the learned counsel appearing for the applicant, learned counsel appearing for the first respondent and the learned APP for the State. 2. The first respondent had filed an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code). The said application was disposed of by the learned Judge of the Family Court by directing the applicant to pay maintenance of Rs. 2000/- per month 2 to the first respondent wife and Rs.1000/- per month to the second respondent (minor son). A Revision application was preferred by the first respondent against the said order. The revision application was disposed off by granting enhanced maintenance. The maintenance payable to the first respondent was enhanced to Rs. 3,500/- and the maintenance payable to the second respondent was enhanced to Rs. 2,500/-. An application was made by the applicant before the Family Court under section 127 of the said Code for modification/cancellation of the earlier order. The said application was made on the basis of alleged subsequent events. 3. The order under challenge is dated 6th September, 2008. Paragraph 11 of the said order reads thus : “11. Under the facts and circumstances emerging on record, I have no hesitation to hold and conclude that it is not at all desirable to modify order of maintenance which was subsequently confirmed by the Honourable High Court and that too at this interim stage. The application for modification of the order of maintenance at interim stage therefore, stands rejected. Case to proceed further.” 3 The learned counsel appearing for the first respondent pointed out the averments made in the reply filed by the first respondent and in particular paragraph 3 of the said reply filed on 12th January, 2009. Paragraph 3 of the reply read thus : “3. At the further outset, I submit that the order dated 06.09.2008 passed by the Family Court, Pune is an interim order rejecting the interim prayer of the Applicant for modification of amount of maintenance. The evidence sought to be produced by the Applicant in support of his contention that I was employed is yet to be substantiated by him by cross examining of witnesses. Therefore, it is not at all necessary for this Hon’ble Court to entertain the present Revision Application.” 4. The submission of the learned counsel for the first respondent is that as the main application under section 127 of the said Code is still pending, there is no reason to interfere with the impugned order. The learned counsel appearing for the revision applicant stated that what is decided by the impugned order is the application under section 127 of the said Code and the 4 order impugned is not an interim order. There is a statement on oath of the first respondent that what was rejected by the impugned order was interim prayer made by the applicant for the modification of the order of maintenance. Though the said affidavit is filed on 12th of January, 2009, there is no rejoinder filed by the applicant raising dispute about the said factual statement. Apart from this, paragraph 5 of the impugned order reads thus : “5. The only point for my consideration is, Whether the order of maintenance passed by this Court which was subsequently enhanced by the Honourable High Court in criminal revision is required to be modified at this interim stage?.” Even paragraph 9 of the impugned order indicates that the main application under section 127 of the said Code has not been disposed of by the impugned order. In paragraph 10 of the impugned order, the learned Judge of the Family Court has referred the petition for divorce filed by the applicant and the second petition filed by the applicant for custody of the minor son. Thereafter, the learned Judge has observed that all the three petitions were ripe for hearing. Obviously, the reference to the third petition was to the 5 application under section 127 of the said Code. 5. The order passed by the learned Judge of the Family Court on application under section 125 of the said Code was modified by this court. It is true that if a case is made out under section 127 of the said Code, the learned Judge of the Family Court can always exercise powers under the said section. However, pending the final disposal of the application under section 127 of the said Code, normally no order can be passed which will have effect of modifying earlier order granting maintenance which has attained finality. Only after the evidence is adduced by the applicant in application under section 127 for establishing the change in the circumstances there can be exercise of power under section 127 of the said Code. Therefore, no interference at this stage is called for. 6. Revision application is rejected. However, all contentions raised by the applicant are kept open which will be naturally dealt with when the application under section 127 of the said Code is finally disposed of. (A.S.OKA,J)