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Cites 12 docs - [View All]
Section 125 in The Code Of Criminal Procedure, 1973
Section 24 in The Code Of Criminal Procedure, 1973
The Hindu Marriage Act, 1955
Manohar Lal @ Manohar Singh vs Maya on 31 March, 2003
Khem Chand vs State Of H.P on 14 September, 1993

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Rajasthan High Court
Harish Kumar vs Manju (Smt.) on 28 May, 2004
Equivalent citations: II (2005) DMC 148, RLW 2004 (3) Raj 2047, 2004 (4) WLC 109
Author: S K Garg
Bench: S K Garg



JUDGMENT

 

Sunil Kumar Garg, J.

1. This revision petition under Section 397 Cr.P.C. has been filed by the petitioner husband on 22.10.2003 against the order dated 31.07.2003 passed by the learned Chief Judicial Magistrate, Bikaner in Criminal Misc. Case No. 28/2003 (Smt. Manju v. Harish Kumar) WHEREBY THE learned C.J.M. allowed the application filed by the respondent wife under Section 125 Cr.P.C. and granted interim maintenance to the respondent wife to the tune of Rs. 750/- p.m. from the date of the application i.e. from 5.2.2003 without there being any order regarding adjustment of maintenance having been granted to the respondent wife to the tune of Rs. 750/- p.m. under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act, 1955) which was passed by the learned Additional District Judge, Didwana vide order dated 21.4.2001,

2. It arises in the following circumstances:

i) That the marriage between the petitioner husband and respondent wife took place on 10.12.1993 and on 27.09.1999 petitioner husband filed a divorce petition under Section 13 of the Act, 1955 in the ground of desertion and cruelty in the Court of Additional District Judge, Didwana against the respondent wife. In that petition, the respondent wife filed an application under Section 24 of the Act, 1955 on 06.01.2001 for grant of interim maintenance and litigation expenses. The learned Additional District Judge, Didwana through order dated 21.04.2001 granted Rs.750/- per month as interim maintenance to the respondent wife and also granted Rs. 450/- for each and every date of hearing as litigation expenses.

ii) That further case of the petitioner husband is that the respondent wife filed an application under Section 125 Cr.P.C. before the learned Chief Judicial Magistrate, Bikaner or 05.02.2003 and in that application the respondent wife also sought interim maintenance. The learned Chief Judicial Magistrate through order dated 31.07.2003 granted interim maintenance of Rs. 750/- to the respondent wife w.e.f. 05.02.2003 i.e. from the date of application.

iii) That the further case of the petitioner husband in that since both the Courts i.e. Additional District Judge, Didwana and Chief Judicial Magistrate, Bikaner have passed order granting interim maintenance to the respondent wife separately, therefore, the respondent wife cannot be allowed to draw both amounts, as it is settled law that the maintenance allowance in both the proceedings under Section 24 of the Act, 1955 and under Section 125 Cr.P.C. is adjustable and whichever is higher is to be paid, therefore, the subsequent order of interim maintenance dated 31.07.2003 passed under Section 125 Cr.P.C. by the learned Chief Judicial Magistrate, Bikaner should be quashed.

3. The learned counsel for the respondent wife has placed reliance on the judgment rendered by Andhra Pradesh High Court in T. Rajender Singh v. Smt. Maya Devi (1), and has submitted that the respondent wife is entitled to both interim maintenance one granted under Section 24 of the Act, 1955, and other granted under Section 125 Cr.P.C. since proceedings are different in nature.

4. I have heard both an perused the case file.

5. This Court had got the occasion earlier to speak on the similar issue in a case Shanti Devi (Smt.) v. Mathura Lal (2), wherein this Court give following observations:-

"That the amount of ad-interim maintenance granted in favour of the petitioner by the learned District Judge, Tonk under Section 24 of the Hindu Marriage Act shall be adjusted in the maintenance amount granted, under Section 125 Cr.P.C. It is true that proceedings under Section 24 of the Hindu Marriage Act and under Section 125 Cr.P.c. are independent and separate proceedings. But the quantum of maintenance under Section 125 Cr.P.C. has to be determined keeping in view the various sources of income of the party. A party should not get double maintenance amount from the husband passed in separate proceedings. The learned Additional Sessions Judge keeping in view the admitted fact that the petitioner was granted ad-interim maintenance under Section 24 of the Hindu Marriage Act, did not commit any illegality in ordering that the said amount shall be adjusted in the maintenance amount granted by the learned Magistrate."

Therefore, the arguments submitted by the learned counsel for the petitioner husband appear to be appreciable.

6. Apart from this, the view taken by this court in Shanti Devi case (supra) further gets support from two other High Court. The Calcutta High Court has also taken the same view in a judgment reported in Shailendra Nath Ghosh v. State of West Bengal (3) and Similarly the Allahabad High Court has also taken the same view (1) in a judgment reported in Pushpa Devi v. Anup Singh (4), and (ii) Khem Chand v. State (5).

7. Since, when there is a law of this court as stated above, the law laid down by Andhra Pradesh High Court in T. Rajendra case (supra) cannot be given effect to by this Court. Hence, arguments submitted by the learned counsel for the respondent wife cannot be appreciated.

8. Thus, for the reasons mentioned above, the following preposition of law can be laid down:-

(1) That proceedings under Section 24 of the Hindu Marriage Act and under Section 125 CrPC are independent and separate proceedings and order of maintenance can be passed in both of them.

(2) But the quantum of maintenance under Section 125 CrPC has to be determined keeping in view the various sources of income of the party. A party should not get double maintenance amount from the husband passed in separate proceedings.

(3) That maintenance allowance granted under Section 24 of the Act, 1955 should be adjustable towards the amount granted under Section 125 Cr.P.C.

9. Thus, having regard to the facts and circumstances of this case, 1 am inclined to hold that the amount paid by the petitioner husband to the respondent wife towards her maintenance in pursuance of the order dated 21.04.2001 passed by the learned Additional District Judge, Didwana under Section 24 of the Hindu Marriage Act, 1995 is liable to be adjusted against the amount payable under Section 125 of CrPC towards her maintenance in pursuance of the Order dated 31.07.2003 passed by the learned Chief Judicial Magistrate, Bikaner.

For the reasons mentioned above, the impugned order dated 31.07.2003 passed by the learned Chief Judicial Magistrate, bikaner by which he granted separate interim maintenance of Rs. 750/- p.m. to the respondent wife is liable to be made subject to the modification to the effect that the amount paid as alimony pendente lite in the matrimonial suit by the petitioner husband to the respondent wife be adjusted against the maintenance payable under the impugned order dated 31.07.2003 passed by the learned Chief Judicial Magistrate, bikaner. However, it is made clear that the petitioner husband has to pay the litigation expenses as ordered by the learned Additional District Judge, Didwana in his order dated 21.04.2001. In the result, the revision petition succeeds and is hereby allowed subject to the modification of the impugned order as directed above.