1 Criminal Rev.Appl.No.44 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.44 OF 2010 Shaikh Junaid S/o.Shaikh Badar, Age-30 years, Occu-Service, R/o.H.No.1-17-16/03, Juna Bazar, Aurangabad APPLICANT VERSUS Shaikh Umar S/o.Shaikh Junaid, Age-7 years, u/g. Of mother namely Shireen Begum W/o.Sk.Junaid, Age-25 years, Occu-Service R/o.C/o.Ibrahim Khan S/o.Karim Khan, Peer Bazar, Osmanpura, Aurangabad. RESPONDENT Mr.Mujtaba Gulam Mustafa, learned counsel for the applicant. Mr.R.R.Shaikh, learned counsel for respondent. (CORAM : A.V.POTDAR, J.) DATE : 10/10/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. The present criminal revision is directed against the judgment and order dated 14/01/2010 passed in Misc.Cri.Appl.No.26/2009, which was filed by the respondent herein praying for enhancement of 2 Criminal Rev.Appl.No.44 of 2010 the monthly maintenance from Rs.700/- to Rs.1,500/-. 3. I have heard learned counsel for the applicant also learned counsel for the respondent/original applicant in Criminal Misc.Application. It appears that this application was filed by the son of the present applicant who is minor. Earlier maintenance was awarded in the sum of Rs.700/-. Earlier maintenance was awarded in the year 2003 and considering the hike in prices of essential commodities after the earlier application was decided, an application was moved u/s. 127 of The Cr.P.C. for enhancement of the maintenance amount. It appears that after service of notice, the applicant herein appeared in that matter, but when the evidence was recorded, he was not present before the Court and the petition came to be decided in his absence. It is brought to the notice of this Court that the father of the present applicant was suffering from cancer and was under treatment from April 2009. As the applicant required to attend his ailing father, he was unable to attend the court on the dates given for recording of evidence and hence the application was decided in his absence. In support of this contention, he has filed the relevant record about the medical treatment and his attendance at hospital. This fact is not contradicted by filing counter affidavit by the present respondent. Considering this aspect, it is prayed that the matter be remanded back to the Trial Court in the interest of justice to give fair opportunity to the applicant to lead his evidence and then to decide the application in accordance with Law. 3 Criminal Rev.Appl.No.44 of 2010 4. Even though, learned counsel appearing for the respondent vehemently oppose these submissions, admittedly, he has not filed affidavit in reply disputing the facts about the ailment of the father of the applicant and the fact that the applicant was attending his ailing father since April 2009 till his demise in Nov.2009. As this fact was not brought to the notice of the Lower Court, in absence of applicant herein, the petition for enhancement of maintenance came to be decided. Hence now in the interest of justice, it is necessary to quash and set aside the order impugned and the matter needs to be remanded back to the Trial Court with certain directions. 5. In view of this, the revision application is allowed. The impugned order dated 14/01/2010 is hereby quashed and set aside. Parties to appear before the Lower Court on 14/11/2011. After appearance of the parties, learned Trial Court to dispose of the Cri.M.A.No.26/2006 within the period of 3 months. 5. Even though the matter is remanded back to the Trial Court for its disposal and the applicant herein is in arrears of the amount of maintenance enhanced by virtue of the order dated 14/01/2010, the applicant is hereby directed to deposit 50% of the amount of the arrears and continue to pay Rs.400/- by way of interim maintenance till disposal of the maintenance application, before the Lower Court. In case, the applicant failed to comply these directions, he would not allow to participate before the Lower Court. 4 Criminal Rev.Appl.No.44 of 2010 6. Rule thus made absolute. The amount, if any deposited before the Lower Court, respondent is allowed to withdraw that amount. (A.V.POTDAR, J.) khs/OCT.2011/cri.rev.44-10