Judgment:
ORDER
P.R. Tripathy, J.
1. Heard at length.
2. This criminal revision is disposed of at the stage of hearing on admission on consent and active participation in the hearing by both the parties and upon perusal of the L.C.R.
3. Opposite party filed C.P. No. 688 of 1995 under Section 125, Cr. P.C. which is still sub judice in the Court of Judge, Family Court, Cuttack. Application for interim maintenance filed by the opp. party was allowed by the Family Court vide impugned order dated 10-4-1998 awarding interim monthly maintenance @ Rs. 350/- with effect from December, 1995 in favour of the opposite party as well as the child, who was born in December, 1995. It appears from the L.C.R. that an inquiry was conducted in which oral and documentary evidence was tendered.
3. In short, the case of the opposite party is that she is the legally married wife of the petitioner and she has been deserted after being illtreated. The petitioner has contested the case alleging opposite party's adulterous conduct and staying with one Kalu Bhoi and the child being illegitimate. The prayer for interim maintenance was also contested by the petitioner on the same grounds.
4. During the course of inquiry the opposite party examined herself as P.W.I, whereas the petitioner examined himself besides one witness-named Sarat Ch. Das as G.P.W. No. 2 and relied upon a Panchayat Faisala dated 20-3-1995 marked Ext. 1 relating to alleged customary divorce. Learned Judge, Family Court, on assessment of the evidence on record vis-a-vis the plea advanced, recorded the finding that the child, who took birth in the month of December, 1995, at the stage, cannot be said to be illegitimate child. He further observed that by the date of filing of the application for interim maintenance the child was in mother's womb and now she has already taken birth, and therefore, keeping in view the strained relationship between the parties and admitted situation of separate living and no independent source of income of the opp. party, he allowed the aforesaid interim monthly maintenance
5. While challenging and assailing the aforesaid order, learned counsel for the petitioner states that for disposing of an application for interim maintenance, such a thread bare inquiry was not called for and the findings recorded in that order may influence the merit of the main proceeding.
Learned counsel for the opposite party, on the other hand, argues that it is because of the objection raised by the petitioner that the learned lower Court had to undertake such an inquiry, or else, the petition for interim maintenance could have been disposed of by hearing argument from both sides.
6. After hearing the aforesaid contentions from both sides, this Court is of the view that notwithstanding the contesting attitude adopted by the petitioner, the Judge, Family Court could have avoided inquiry of the present nature and could have asked the parties to file affidavits in support of their contentions, and on the basis of the same, the petition for interim maintenance could have been disposed of. While the petition under Section 125, Cr. P.C. remains for consideration, at that stage if there is any dispute relating to the status or otherwise of the wife and the child, the Magistrate may make a summary inquiry and pass appropriate order and also can pass order for payment of interim maintenance in appropriate case with direction to the claimants of the maintenance to receive the interim maintenance amount on executing bond with or without surety (as the case may be), so that, in the ultimate result, if the claimant fails in proving the case under Section 125, Cr. P.C. in support of the claim for monthly maintenance, the amount could be refunded.
7. Be that as it may, the evidence adduced in the inquiry supports the impugned finding of the learned Judge, Family Court. However, keeping in view the aforesaid submissions of the learned counsel for the petitioner, it may be stated here that while adjudicating the case under Section 125, Cr. P.C, the Judge, Family Court, shall not refer or rely upon evidence recorded during the inquiry and shall not be influenced by any observation made in the impugned order and he shall strictly confine himself to the evidence on record which shall be adduced and shall dispose of the application Under Section 125, Cr. P.C. accordingly.
8. It appears from the L.C.R. that an exparte order of maintenance was granted on 26-4-1996 and thereafter the matter is lingering on trifle grounds relating to payment of cost for adjournments, etc. and no progress whatsoever has been made in the main proceeding under Section 125, Cr. P.C. Had proper efforts been made, the proceeding Under Section 125, Cr. P.C. could have been disposed of in the meantime. Be that as it may, after receipt of the L.C.R. along with a copy of this order, learned Judge, Family Court, shall do well to take up the inquiry of the proceeding Under Section 125, Cr. P.C. and dispose it of within a period of two months from that date. If any of the parties shall not co-operate, the case may proceed in accordance with law notwithstanding such non-participation . The amount of interim maintenance which shall be paid may be received by the opposite party executing a bond for the like amount with one surety, so that, if ultimately, the petitioner succeeds, he may claim for refund of the amount.
Since the order of interim maintenance does not suffer from any illegality or infirmity of law, there is nothing to interfere with the same.
Accordingly, the Crl. revision is not admitted and dismissed. Send back the L.C.R. immediately to the Court below along with a copy of this order.