Sandeep Mehta, J. - (1.) The instant misc. petition has been filed on behalf of the petitioner challenging the order dated 3.11.2012 passed by the learned Judge, Family Court, Udaipur, whereby, the application under Section 125(4) Criminal Procedure Code filed by the petitioner has been rejected.
(2.) In this case, the respondent has filed an application under Section 125 Cr.P.C. claiming maintenance from the petitioner. The learned trial Court by order dated 11.1.2010 directed the petitioner to make payment of Rs. 1500/- per month as interim maintenance to the respondent. The petitioner did not challenge the said order, as such, the same attained finality.
(3.) Now, an application under Section 125(4) Cr.P.C. has been moved by the petitioner in the Family Court, Udaipur on 29.9.2012 claiming that the respondent is not entitled to receive interim maintenance and the proceedings under Section 125 Cr.P.C. be dropped. Learned counsel for the petitioner has placed reliance on a decision of this Court rendered in the case of Kamlesh (Smt.) v. Rajendra Singh, reported in 2012(4) Cr.LR. (Raj.) 2138 . In the said case, which has been cited by learned counsel for the petitioner a decree under Section 9 of the Hindu Marriage Act was passed in favour of the husband and despite that the wife refused to perform her conjugal duties and thus the final order of maintenance passed in favour of the wife was set aside. In this case, the order of interim maintenance was passed three years back and was not challenged by the petitioner and, thus, the same attained finality. It is not the case of the petitioner that no order under Section 9 of the Hindu Marriage Act has been passed in his favour. The petitioner in this case has claimed that the competent Court has granted divorce in his favour, as such, the wife is not entitled for grant of maintenance. Learned counsel thus submits that the respondent does not deserve any maintenance under Section 125 Cr.P.C. because she is living separately without any justification. This aspect of the matter has to be considered, evaluated and decided by the learned trial Court when the main application under Section 125 Cr.P.C. is being considered finally. Section 125(4) Cr.P.C. merely provides a guideline to the Court considered the application under Section 125(1) Cr.P.C. as to in what circumstances, the wife should not be awarded maintenance. Section 125(4) Cr.P.C. also empowers the Court to deny interim maintenance to a wife when the circumstances set out in the said subsection exist. But in the present case, the prayer of the petitioner before the trial Court was not for setting aside the order of interim maintenance but to drop the proceedings under Section 125 Cr.P.C. as a whole. Such consideration can only be done by the trial Court at the final stage. Thus, the trial Court was right in rejecting the application filed by the petitioner.;