2707crn2405.09.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR CRI. APPLICATION NO. 2405 OF 2009 Harish Wamanrao Awari vs. Chetna d/o Rambhau Podey & another ----------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ----------------------------------------------------------------------------------------------------------------- Mr. V. R. Mundra, Advocate for the applicant. CORAM:- R. Y. GANOO, J. DATED :- 27TH JULY, 2009. 1. Heard learned Advocate for the applicant. None for the respondents. The respondent has filed an application under Section 125 of Criminal Procedure Code for maintenance being Miscellaneous Criminal Application No. 474 of 2008 against the petitioner which is pending in the Court of Judicial Magistrate, First Class, Chandrapur. 2. The petitioner has filed detailed reply being reply dated 19/3/2009. 3. Before this Court it was sought to be put up that a decree for divorce has been passed by the Competent Court and the marriage between the petitioner and respondent No. 1 is dissolved, and therefore, application under Section 125 Cri. P. C. filed by the respondent is not maintainable. On the basis of this submission, this petition came to be filed. 2707crn2405.09.odt 2/3 4. After having gone through the submissions made on behalf of the applicant, I am of the view that if an application is filed under Section 125 of Cri. P. C. for maintenance, said application has to be decided on merits. What has been stated to be in the nature of defence and certainly the said defence will have to be decided by the trial Court before whom the said application is pending. It will not open for this Court to test the defence and decide whether the application filed by the applicant is maintainable or not. The contentions which are to be raised by the petitioner can and will have to be raised before the competent Court before whom the application for maintenance is pending. 5. In the present situation, I am inclined to entertain this petition and that I am inclined to allow the petitioner to raise all and whatever contentions which he wants to raise so as to oppose the application for maintenance. Such contentions will have to be decided by the learned Judicial Magistrate and pass appropriate orders in the said application. With these observations, the present application is being disposed of. 6. The present application is not maintainable. The petitioner is permitted to raise before the learned Judicial Magistrate, First Class, Chandrapur in Miscellaneous 2707crn2405.09.odt 3/3 Criminal Application No. 474 of 2008 all points. 7. Needless to mention that the learned Judicial Magistrate, First Class, Chandrapur shall consider the entire matter on merits and pass appropriate orders. Since the application is for maintenance, the same can be disposed of at an expeditious manner. Hence, the learned Judicial Magistrate, First Class is directed to hear and dispose of Misc. Criminal Application No. 474 of 2008 on or before 16/11/2009. Application is disposed of accordingly. 8. It is made clear that no views are expressed in the matter. 9. The petitioner shall receive authenticated copy of this order and shall present the same before the learned Judicial Magistrate, First Class, Chandrapur, for acting upon the same. 10. Writ to go forthwith. JUDGE wwl