RAMESHCHANDRA SHAMBHUBHAI YADAV DR Vs. DHIRAJGAURI

JUDGEMENT

(1.) The petitioner husband has filed this application under sec. 397 and 401 of the Code of Criminal Procedure (hereinafter called the Code) requesting this court to stay further proceedings in criminal Misc. application no. 1(56 of 1982 filed by the respondent No. 1. wife in the court of the Chief J.M.F.C. Rajkot under sec. 125 of the Code.

(2.) It must be pointed out at the outset that this revision application as such is not maintainable as it is directed against an interlocutory order passed by the learned trial Magistrate refusing to stay further proceedings in an application under sec. 125 of the Code which is pending in his court. When this hurdle was realised by Mr. Patel learned Advocate for the petitioner he made an oral request to permit him to convert this revision application into a special criminal application. I have granted him the said permission and accordingly this application is ordered to be treated as a special criminal application under Article 227 of the Constitution of India and it is being disposed of as such.

(3.) In order to appreciate the grievance of the petitioner it is necessary to note a few relevant facts. The petitioner is a medical officer aged about 32 years and is serving in I. P. C. L. at Baroda. Respondent So. 1 wife is also a graduate in Arts and is aged about 26 years. The marriage between the parties took place on 23-2-1978 and it appears that unfortunately the married life of this young couple got disrupted only after passage of 12 days of matrimonial life. The petitioner-husband filed a petition before the Baroda court under sec. 9 of the Hindu Marriage Act (hereinafter called the said Act) for restitution of conjugal rights on 29-1-1982. In the said proceedings the respondent wife appeared and filed an application under sec. 24 of the said Act for getting suitable alimony from the petitioner. Her application is dated 9-3-1982. It is therefore obvious that respondent No. 1-wife sought interim maintenance from the petitioner by filing the aforesaid application under sec. 24 of the said Act before the Baroda court Within a short time thereafter she pursued an alternative remedy to 26-3-1982 by filing criminal proceedings under sec. 125 of the Code in the court of the learned Chief J. M. F. C. Rajkot. The petitioner submits that respondent No. 1 could not ride two horses at a time and could not be permitted to continue the maintenance proceedings under sec. 125 of the Code when she had already chosen the alternative remedy of getting interim maintenance under sec. 24 of the said Act all which remedy was pursued by her earlier.