P.C.

1. Heard rival submissions on this application for condonation of delay of about 348 days in preferring the revision petition. The present application is filed by the husband asking for condonation of delay. The applicant has also filed another application being No.145 of 2014 for stay to the execution of the impugned judgment and order dated 2nd January, 2013 passed by the Family Court No.IV at Bandra, Mumbai.

2. Petition No.E/123 of 2009 preferred by the present respondent No.1 - wife under section 125 of Criminal Procedure Code was finally heard and disposed of by the Family Court No.IV, Bandra, Mumbai by an order dated 2nd January, 2013. By the said order, peculiar directions are given by the Family Court while partly allowing the said application. Also the reasoning given by the trial Court and the answers to the points arrived at for determination are also absurd, inasmuch as point no.1 is to the effect "whether the petitioner proved that she is unable to maintain herself" The answer to this point is "in the negative". In spite of this, the points for determination bearing Nos.2, 3, 4 and 5 were accordingly answered. For the sake of ready reference, all the said points for determination are reproduced hereunder:-SR NO.POINTSFINDINGS

1)Whether petitioner proved that she is unable to maintain herselfIn negative

2)Whether petitioner proved that the respondent refused and/or neglected to maintain herIn affirmative

3)Whether petitioner proved that respondent is having sufficient meansIn affirmative

4)Whether petitioner proved that she is entitled for maintenanceIn affirmative

5)If yes, what would be the just and reasonable quantum@ Rs.5000/-per month

6)What orderPetition is partly allowed.





3. Now, again the second absurdity of the order is that answer to point no.5 is "@ Rs.5000/- per month". As against this, the final operative part of the order mentions that the respondent/husband was directed to pay Rs.3000/- per month to the wife towards her maintenance from the date of filing of the application i.e. 25th February, 2009 till further orders. Again, here another absurdity is crept in. When the entire application under Section 125 of Criminal Procedure Code was disposed of, there could not have been any further orders to be passed unless any application is made by the party on changed circumstances. Fourthly, there is grave absurdity appearing in the final order. In paragraph 3 of the final order following is mentioned.

"The respondent shall be liable to pay the amount in only one proceeding i.e. in this proceeding or in DV proceeding."

4. Considering the tenor of the reasoning given by the Family Court, Bandra, it is certain that the concerned Court has not applied its mind to the material produced and had passed such an order from which nothing can be gathered, whether the application under Section 125 of Criminal Procedure Code preferred by the respondent/wife has been allowed or rejected in toto.

5. In any event, in the opinion of this Court, so far as the present application for condonation of delay is concerned, same is required to be allowed. Thus, consequently, taking up the criminal revision for final adjudication at this stage itself with specific directions that the matter is required to be remanded back to the trial Court without wasting much time. Considering that the application of the wife is for getting the maintenance under section 125 of Criminal Procedure Code. As such, in the interest of justice, it is necessary that the present application for condonation of delay is required to be allowed and same is accordingly allowed. Criminal Revision Application be numbered accordingly.

6. In view of the above observations, in the opinion of this Court, even the criminal revision application is required to be disposed of at the admission stage itself and same is being done with the following orders.

7. Criminal revision is allowed. The impugned order dated 2nd January, 2013 is quashed and set aside. The matter is remanded back to the Family Court, Mumbai with specific directions to the Principal Judge Family Court, Bandra to allot the remanded matter to any other Judicial Magistrate other than who had passed the said order dated 2nd January, 2013, for disposal of the petition No.E/123 of 2009, in accordance with law.

8. If either party or both of them choose to file any additional evidence, they are at liberty to do so. Of course, such application shall be dealt with in accordance with law by the concerned Family Court. Also, the specific directions are given to the concerned Family Court to deal with the matter expeditiously and dispose of the same within a period of six months from the receipt of these directions by the Court.

9. In view of the order of remand of the matter, distress warrant earlier issued against the present applicant husband stand cancelled.

10. The present order is effective only on the payment of costs quantified at Rs.10,000/-(rupees ten thousand) to be paid to the present respondent/wife by the present applicant/husband within a period of two weeks from today. With these directions application for condonation of delay and also the criminal revision are disposed of. Consequently, the application for stay has become redundant and same is accordingly disposed of.

11. The parties to appear before the concerned Family Court at Bandra on 10th December, 2014 to which the matter shall be allotted by the Principal Judge, Family Court, Mumbai.