1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal WP No. 257 of 2011 Rajesh v. Sau Atula and ors -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr Mahesh Rai, Advocate for petitioner Mr D.T. Pandey, Adv for respondents Coram: A. P. Bhangale, J Dated: 9th August 2011 1. Petitioner has questioned the order dated 11.1.2011 passed by the Judge, Family Court, Nagpur in Petition No. E-344 of 2010 granting interim maintenance of Rs. 4000/- to respondent no. 1-wife Atula. 2. Learned counsel for the applicant submits that maintenance has been refused to children since son has become major and applicant-husband is maintaining daughter. 3. Learned counsel for the applicant-husband contends that in law, respondent no. 1 is not entitled to any maintenance allowance since the spouse is living separately by mutual consent. He contends that applicant and respondent no. 1 have already executed “Sodchitthi” in presence of members of Grievances Cell for Women and witnesses. He contends that the respondent no.1-wife has admitted in the “Sod-chitthi” that she has love affairs with one Raju Tarachand Samrit. 2 4. As against this, learned counsel for respondent-wife contends that the alleged “Sod-chitthi” has no meaning in the eye of law. It was obtained per force from the respondent-wife and respondent is entitled to claim maintenance since applicant- husband has failed to maintain her having sufficient means. He submits that respondent-wife has no source of income and she is unable to earn her livelihood. 5. Section 125 (4) of the Code of Criminal Procedure provides that no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding as the case may be from her husband under the said section if she is living in adultery or if without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent. It is apparent from the order that the learned Judge of Family Court has not borne in mind the above provision contained in Section 125 (4) Cr. P. C. which has to be taken into account even while passing order on the application for interim maintenance. 6. Hence, the impugned order is set aside. Without observing anything on merits of the application filed by respondent-wife, the matter is remitted back to the Judge, Family Court, Nagpur with direction to decide the application afresh by determining the points : (1) Whether prima facie it is proved that the respondent-wife claiming interim maintenance is living in adultery ? (2) Whether it is prima facie established that the spouse is living separately by mutual consent ? and such 3 other points which the learned Judge, Family Court, Nagpur deems fit and proper to frame. Petition stands disposed of accordingly. JUDGE joshi