IMPORTANT POINT
Order of interim maintenance affects right of a person drastically and substantially and as such it cannot be treated as interlocutory order.

Indrani Datta, J.—The petitioner has assailed the order dated 22.2.2010 passed by the Principal Judge, Family Court, Gwalior in case No. 285 of 2009 by which, petitioner’s application for interim maintenance stood rejected on the ground that the petitioner is engineer and capable to maintain herself while respondent though Engineer, at present he is unemployed, sick and under treatment of doctor.

2. The facts in nut-shall giving rise to the petition are that petitioner wife filed an application under Section 125, Criminal Procedure Code for grant of maintenance against respondent. During the pendency of that petition an application was filed on behalf of petitioner-wife for grant of interim maintenance. Trial Court has held that the petitioner-wife is not entitled to any interim maintenance as she is an engineer and capable to maintain herself while respondent is under treatment for epilepsy and is unemployed because, he has resigned from his service. On these grounds, application for interim maintenance is dismissed by leaned trial Court giving rise to this petition.

3. Manifold submissions have been advanced by learned counsel for the petitioner that the provisions of Section 125, Criminal Procedure Code are meant for benefit of wives and children and such benefit should be liberally extended to them. Petitioner has means to maintain herself but learned trial Court without considering this fact and on the basis of the fact that the petitioner-wife is also an engineer, dismissed the application which is not just and proper as husband is duty bound to maintain her wife. It is further contended that in order to avoid maintenance, respondent has taken false plea of epilepsy while he is physically fit. He is earring from his job as well as from agricultural land. In Income Tax Return, for assessment year 2008-09, respondent has shown his gross total income Rs. 2,28,578. It is further submitted that the trial Court has shifted the burden on the petitioner to show that the respondent has not resigned from his service while, it was duty of the respondent to prove the fact that he is unemployed and he is having no source of income. Hence, order of trial Court rejecting interim maintenance is illegal and deserves to be set aside.

4. Learned counsel for the petitioner placed reliance upon certain authorities i.e. Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. & Ors. AIR 1999 SC 1975 and in the matter of M.K. Thomas and Ors., 2006 Cri. LJ 3843. These citations are distinguishable and not applicable in the present case.

Other authorities upon which, reliance has been placed is Amresh Tiwari v. Lalta Prasad Dubey AIR 2000 SC 1504 in which, the Apex Court has held that interim orders, even thought they may have been confirmed by the Higher Courts, never bind and do not prevent passing of contrary order at the stage of final hearing.

Further reliance has been placed in the case of Smt.Parameshwari Devi v. The State & Anr. AIR 1977 SC 403, the Apex Court has held that the Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of sub-section (2) of Section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay.

Relying on the above citations, it is contended by learned counsel for the petitioner that this order of interim maintenance, is ‘interlocutory’ hence, revision cannot preferred against that order because the Court is not bound by interlocutory order at the time of final decision of the suit.

5. Combating the claim of petitioner, learned counsel for the respondent raised a preliminary objection that the petitioner’s petition under Article 227 of the Constitution of India is not maintainable as the petitioner is having alternative remedy available. The order of interim maintenance is an intermediate or quasi final or