ASHFAQUE MOHD. Vs. SAIDA QURESHI

JUDGEMENT

(1.) BY this petition, Ashfaq Mohammad seeks interference with the order of the Sessions Judge, Rajgarh of 26 -9 -1979 quashing the order of the Chief Judicial Magistrate of 11.7.1979 and the proceedings in Misc. Criminal Case No. 9 of 1979 initiated' by the petitioner under section 126 (2) of the Criminal Procedure Code for setting aside the exparte order of maintenance passed against him and in favour of respondent No. 1 Saida Qureshi.

(2.) THE petitioner and respondent No. 1 are husband and wife. The wife moved an application under section 125 Criminal Procedure Code against the husband, for being maintained, successfully before the Chief Judicial Magistrate; Rajgarh, who in the absence of the petitioner finding that he inspite of the service of the summons had refused to attend the Court, granted her maintenance at the rate of Rs.200/ - per month. The husband preferred Criminal Revision No. 19 of 1979 before the Sessions Judge, Rajgarh on 2.4.1979 for setting aside the exparte order against him. The learned Sessions Judge by his order of 25 -5 -1979 dismissed it in limine. In the meantime on 13 -4 -1979 the husband had also preferred an application under section 125 (2) Criminal Procedure Code for setting aside the order passed by the Chief Judicial Magistrate on 3 -3 -1979 and inter alia prayed for the staying of the operation of the order granting maintenance to his wife. The wife opposed this application on the grounds that the exparte order passed against the petitioner was proper and that there was no power for staying the operation of the order passed earlier. The learned Chief Judicial Magistrate by his order of 11 -7 -1979 staying the operation of the order for realizing the amount of maintenance from the husband, adjourned the case for further proceeding on 2 -8 -1979.

(3.) THE contention by the learned counsel for the petitioner -husband is that the order of the Magistrate staying the realization of the maintenance allowance was merely an interlocutory order and hence the learned Sessions Judge could not have entertained a revision petition because of the bar contained in section 397 (2) Criminal Procedure Code.