1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.139 OF 2008 Parveen Bano w/o Amin Shaikh Applicant versus Mohammed Amin Sheikh and another Respondents B.P.Jakhade for applicant. M.U.Khan for respondent no.1. Miss A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 24th June 2009 PC :- 1. Rule. Learned advocate for the first respondent waives service. Learned APP waives service for the State. Considering the nature of the impugned order, the revision application is immediately taken-up for final disposal. Considering the averments made in the application, a case for condonation of delay is made out and the delay is condoned. 2. The revision applicant is the wife. She filed an application for maintenance under section 125 of the Code of Criminal Procedure, 1973 against the first respondent before the learned Judge of the Family Court. By order dated 27th June 1997 the said petition was allowed. A direction 2 was given to pay the maintenance to the petitioner and to the minor son. An application was made by the first respondent-husband in April 2006 under section 127 of the said Code of 1973 for cancellation of earlier order of maintenance on the ground that he had given `Talaque' to the first respondent on 29th September 2005. Reliance was placed in the said application on various documents. By impugned order dated 25th October 2007, the said application has been allowed by the learned Judge of the Family Court. The applicant did not file reply and did not appear in the said application. The learned Judge of the Family Court, therefore, came to the conclusion that the applicant is deemed to have admitted the averments made in the application filed by the first respondent. Therefore, by accepting the case of divorce pleaded by the first respondent, the application under section 127 of the said Code of 1973 was allowed. 3. The learned counsel for the revision applicant invited my attention to the averments made in clause (I) of paragraph 2 of the revision application. She pointed out that from 7th April 2007 to 13th September 2007, the petitioner was unwell. Reliance has been placed on large number of documents relating to medical treatment taken by the applicant from 7th April 2007 to 13th September 2007. She also invited my attention to clause (J) of paragraph 2 of the revision application in which it is stated that the applicant appeared before the learned Judge of the Family Court on the date of the judgement and sought short time to file reply but that request was not accepted. She, therefore, submitted that an 3 opportunity deserves to be granted to the applicant to contest the matter. The learned counsel for the first respondent -husband supported the impugned order. He contended that the application of the first respondent was filed in the year 2006 and the same remained pending till 25th October 2007. Therefore, the applicant had enough opportunity to appear and contest the said application. He submitted that no case for interference is made out. 4. I have carefully considered the submissions. A perusal of the averments made in the application and documents produced at Exhibit-I collectively show that the applicant was taking medical treatment from 7th April 2007 atleast till 13th September 2007. Various documents such as x-rays, investigation reports, electro-cardiogram, discharge card etc. have been placed on record. The application filed by the first respondent has been decided on 25th October 2007., The documents annexed to the revision application show that for a period of about five months and more in the year 2007 the applicant was under medical treatment. There is no reply filed to the revision application. Considering these factual aspects, an opportunity deserves to be granted to the applicant to contest the said application. 5. Hence, I pass following order :- (a) The impugned judgement and order dated 25th October 2007 passed in Criminal Miscellaneous Application NO.33 of 2006 is quashed 4 and set aside and Criminal Miscellaneous Application No.33 of 2006 is restored to the file of Family Court; (b) The parties are directed to appear before the learned Judge of the Family Court on 21st July 2009 at 11.00 a.m.. It is made clear that the applicant will file reply to the application on 21st July 2009 and no further time will be granted to the applicant; (c) It is made clear that no notice of the application shall be served to the applicant and she will be under an obligation to remain present before the Judge of the Family Court on the date fixed by this Court; (d) The learned Family Court will endeavour to dispose of the Criminal Miscellaneous Application No.33 of 2006 as expeditiously as possible and preferably on or before 30th November 2009; (e) All contentions on merits are expressly kept open; (f) The revision application is partly allowed in the above terms. (A.S.OKA, J.)