DAYABHAI PITHABHAI SOLANKI Vs. JYOTSNABEN

JUDGEMENT

(1.) Heard learned Advocate Shri G.A. Pathan appearing for the petitioner. Rule. Learned APP Mrs. Vallikarimwala waives service of rule on behalf of respondent State. With the consent of the learned advocates appearing for the parties, the matter is finally decided.

(2.) The petitioner has challenged the legality and propriety of the order passed by learned Additional Sessions Judge, Surat, in the proceedings of Criminal Revision Application No. 118 of 1997.

(3.) It is the case of the petitioner that respondent No. 1 had filed Criminal Misc. Application No. 56 of 1995 in the Court of learned JMFC, Court No. 3, Surat, claiming maintenance under Sec. 125 of the CrPC. According to the petitioner, present respondent No. 1 is not the lawful married wife of the petitioner. It was the defence of the present petitioner in the said maintenance proceedings that respondent No. 1 had started living with the present petitioner during the subsistence of marriage with one Dhaniben and thereby allegation of lawful marriage was false and respondent No. 1 was not entitled to claim any maintenance from present petitioner. It is noteworthy that as per the case of respondent No. 1 in the maintenance proceedings she had also claimed maintenance of two minor daughters alleged to have been born out of married life with the present petitioner. That learned JMFC had decided the application Exhibit 3 moved by present respondent No. 1 to claim interim maintenance. That on the contention raised by present petitioner that respondent No. 1 not being a lawful married wife, is not entitled to maintenance; the learned JMFC has rejected the application for interim maintenance not only of present respondent No. 1 but also of minor children. That being aggrieved by said order of learned JMFC, respondent No. 1 has preferred said Criminal Revision Application No. 118 of 1997 before the Court of Additional Sessions Judge, Surat. That learned Additional Sessions Judge, Surat vide, order dated 21.1.1998, which is the impugned order in the present proceedings, set aside the order of learned JMFC dated 6.10.1997 passed in the proceedings of Criminal Misc. Application No. 56 of 1995 and remanded the matter and directed the JMFC to decide the Application Exhibit 3 moved by the present respondent No. 1 as applicant of the said proceedings afresh after giving opportunities to both the parties to produce the documents. 3. Shri Pathan has urged that learned Additional Sessions Judge has erred by awarding cost of Rs. 250/- to the present respondent No. 1 and cost of Rs. 250/- to the State of Gujarat while deciding the impugned order. It is also submitted by Shri Pathan that order of rejecting the application-Exhibit 3 for interim maintenance being an order in the nature of interlocutory order, no Revision Proceedings under Criminal Procedure Code could lie and thereby learned Additional Sessions Judge has erred in law by entertaining the said Criminal Revision Application No. 118 of 1997.