1. - This Misc. Petition has been filed against the order dated 9th April, 2003 whereby the learned Magistrate has awarded maintenance to non petitioners under Section 125 Criminal Procedure Code of an amount of Rs. 2,000/-. The said maintenance has been awarded from the date of application. Being aggrieved of the said order, the petitioner had preferred a revision petition wherein the primary contention raised was that the service of notice of trial Court had not been duly served on him. The learned revisional Court having considered the contention of the petitioner, allowed the revision petition and remanded the matter back to the trial Court. However, the learned revisional Court had imposed the condition that the petitioner shall pay interim maintenance of Rs. 1,000/- to the non-petitioner upto 30th April, 2001 and thereafter of Rs. 3,000/- per month.

2. Having regard to the facts and circumstances of the case and on careful perusal of the orders passed by the learned courts below, I am of the considered opinion that so far as the order of the learned Magistrate is concerned, the same has already been set aside by the revisional court, rightly so, on the ground that the petitioner was not duly served and as such, he did not have the opportunity of hearing before the learned trial court. But the Impugned order passed by the revisional Court, wherein it has Imposed the condition of interim maintenance prior to the date of order passed by the learned Magistrate i.e. 9th April, 2003 is illegal, as the same is contrary to the principle laid down by the Apex Court in the case of Shail Kumari Devi & Anr. v. Krishan Bhagwan Pathak alias Kishun B. Pathak reported in 2008 AIR SCW 5063.

3. Therefore, I deem it proper to set aside the order passed by the revisional Court to the extent of payment of interim maintenance as a condition for remanding the matter before the learned Magistrate. The petitioner or his counsel shall appear before the learned Magistrate on 30th March, 2009. As a matter of fact, both the parties shall I appear before the learned trial Court and thereafter, the learned Magistrate shall decide the application for maintenance afresh. It is made clear that in case the petitioner or his counsel does not appear before the learned Magistrate, Nawalgarh Distt. Jhunjhunu on 30th March, 2009, then the order passed by the learned revisional Court shall stand revived.

4. In view of the facts and circumstances of the case and the subject matter which pertains to the award of maintenance, the learned Magistrate is directed to decide the application for maintenance expeditiously, preferably within a period of six months.With the aforesaid observations, this Misc. Petition is disposed of. Order according.

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