1 Cr. W.P. no. 357.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 357 OF 2008 Shaikh Arshad S/o Shaikh Mohammad ... Petitioner V E R S U S Shaikh Sahenaz w/o Shaikh Arshad and another ... Respondents ... Mr. D.S. Manoorkar, Advocate h/f. Mr. S.S. Ladda, Advocate for the Petitioner. Mrs. A.N. Ansare, Advocate for the Respondents. ... CORAM : P.R. BORKAR, J. DATED : 11TH DECEMBER, 2009 PER COURT 1] Heard Shri D.S. Manoorkar, Advocate h/f. Mr. S.S. Ladda, Advocate for the Petitioner and Mrs. A.N. Ansare, Advocate for the Respondents. This is a petition filed by the husband whose application for interim stay in application under section 127 of the Code of Criminal Procedure is dismissed. It is not disputed that the respondent no.1 had married petitioner and respondent no.2 was borne out of the wedlock. Thereafter application was filed by respondent no.1 on behalf of the herself and respondent no.2 for maintenance under section 125 of the Code of Criminal Procedure. Same came to be allowed on 3.1.2008 by the Principal Judge, Family Court, Aurangabad by deciding petition no.E-97 of 2007. 2 Cr. W.P. no. 357.2008 2] It is the case of the present petitioner that he had made application for restitution of conjugal rights and in alternate for divorce before Sadar Dafter Dar-ul-Quzzath Ahle Khidmat-e- Shariya, Aurangabad city. It was case no. 90 of 2007. According to the petitioner, notice of said application was issued to the respondent and ultimately Talaknama was issued and it is dated 28.3.2007 produced at exhibit B with the petition. It is the say of the petitioner that unfortunately the learned Advocate did not bring the said matter to the notice of the Principal Judge, Family Court, Aurangabad while deciding the petition under section 125 of the Code of Criminal Procedure before it on 3.1.2008 and in these circumstances now Criminal Misc. Application no. 13 of 2008 is filed for alteration under section 127 of the Code of Criminal Procedure. In said Criminal Misc. Application no. 13 of 2008 application exhibit 4 is given for stay and the learned Judge was pleased to reject the application exhibit 14. 3] In my considered opinion, whether there was a divorce and as such the present respondent no.1 is a divorcee women, not entitled to maintain is a pure question of fact and that will have to be decided before cancellation of the maintenance awarded in earlier proceedings in favour of the respondent no.1. This is not a thing to be 3 Cr. W.P. no. 357.2008 decided at interim stage and therefore, no interference is called for so far as order passed on exhibit 4. However, considering the facts and circumstances of the case, it is desirable that Criminal Misc. Application no. 13 of 2008 itself should be decided as early as possible and necessary directions can be given. 4] The Writ Petition is therefore dismissed however, the Principal District Judge, Family Court, Aurangabad is directed to decide Criminal Misc. Application no. 13 of 2008 as far as possible, within three months from the date of communication of the order. Sd/- (P.R. BORKAR, J.) arp