Adjustment of Maintenance granted u.s 24 of HMA and Sec 125 of CrPC. Peculiar case where both the original decisions are decreed by the same judicial officer on the same date.

Adjustment of Maintenance granted u.s 24 of HMA and Sec 125 of CrPC. Peculiar case where both the original decisions are decreed by the same judicial officer on the same date. Releated cases and ratio.

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Madhya Pradesh High Court

Ashok Singh Pal vs Smt. Manjulata on 14 January, 2008

Equivalent citations: AIR 2008 MP 139, 2008 (2) MPHT 275

Author: R Menon
Bench: R Menon

ORDER

Rajendra Menon, J.

1. Challenging the order dated 10.10.07 Annexure P/1 passed by the Principal Judge, Family Court, Gwalior in case no. 531-A/06 (Hindu Marriage Act) rejecting a application for adjustment of interim alimony granted in the proceedings held in the case in question i.e. case no. 531-A/06 pending under the Hindu Marriage Act, petitioner has filed this petition.

2. Facts in brief necessary for disposal of this petition filed under Article 227 of the Constitution are that petitioner/husband has filed a application under Section 13 of Hindu Marriage Act for dissolution of the marriage solemnized between the petitioner/husband and respondent/wife. The proceedings have been registered as case no. 531 A/06 (HMA) and is pending before the Presiding Judge, Family Court, Gwalior. In the said proceedings, respondent/wife filed an application under Section 24 of the Hindu Marriage Act seeking maintenance pendente lite and expenses for the proceedings. In the application filed under Section 24 of the Hindu Marriage Act respondent/wife claimed a sum of Rs. 2000/- per month as maintenance, a sum of Rs. 500/- as litigation expenses. It was her case that petitioner/husband is earning more than Rs. 15000/- per month. Apart from filing this application under Section 24 of the Hindu Marriage Act in the proceedings pending under the Hindu Marriage Act, respondent-wife also filed an application claiming maintenance under Section 125 of Cr.P.C. before the same Family Court which was registered as Misc. Cr. Case No. 647/2006. In this application also respondent-wife claimed a sum of Rs. 2,000/- as maintenance and Rs. 500/- as litigation expenses. Both these applications were decided by the same Presiding Officer of the Family Court on the same day i.e. 13.04.07 vide Annexure P/2 and Annexure P/3 respectively. In both these cases, learned Family Court has directed for payment of Rs. 1,000/- as maintenance and a sum of Rs. 500/- as litigation expenses. Inter alia contending that adjustment of the amounts granted by way of maintenance under Section 125 of Cr.P.C. is not granted while passing order on the application filed under Section 24 of the Hindu Marriage Act, an application was filed before the Family Court, the aforesaid application for adjustment having being dismissed vide order dated 10.10.07, Annexure P/1, petitioner is before this Court in this petition under Article 227 of the Constitution, challenging the rejection of the application for adjustment of the maintenance granted in both the proceedings.

3. Shri R.K. Sharma, learned Counsel for the petitioner argued that respondent-wife was only entitled for one maintenance and when orders were passed by the Family Court on both the applications i.e. under Section 125 of Cr. P.C. so also under Section 24 of the Hindu Marriage Act, adjustment of the amount paid under Section 125 of Cr.P.C. should have been granted. In support thereof, he places reliance in the case of Narayani Rathore (Smt.) v. Ramesh Chandra Rathore 2003(II) M.P.W.N. [151] and also places reliance on a judgment of Supreme Court in the case of Sudeep Chaudhary v. Radha Chaudhary 2000(I)M. P.W. N. [119].

4. Refuting the aforesaid contentions, Shri Sarvesh Chouhan, learned Counsel for the respondent-wife submitted that the scope and object of the proceedings under Section 125 of Cr. P.C. and under Section 24 of the Hindu Marriage Act are different and learned Court can grant relief in both these cases and in the present case learned Court having found entitlement of the respondent-wife to get benefit under both these provisions, passed the order on the same day and refused to grant adjustment. Shri Chouhan, argues that in doing so learned Court has not committed any error warranting interference in these proceedings under Article 227 of the Constitution.

5. Having heard learned Counsel for the parties and on consideration of the provisions of Section 24 of the Hindu Marriage Act and that of Section 125 of Cr. P.C., it is seen that remedies available to an aggrieved person under both these Sections are quite independent. Rejection of application under Section 125 of Cr. P.C. is not a bar for granting maintenance under Section 24 of the Hindu Marriage Act.

6. The Rajasthan High Court and the Bombay High Court in the cases of Virendra Kumar v. Santosh Devi 1988 {1} HLR 373 and Alka v. Vardhaman 2001 {1} HLR 138 have held that Section 24 of the Hindu Marriage Act is a provision for granting temporary alimony to either the wife or to the husband as the case may be in a proceedings pending before the Court under the Hindu Marriage Act. An application can be filed by either of the spouse seeking interim maintenance in a pending proceedings. The court where the proceedings under the Hindu Marriage Act is pending gets jurisdiction under Section 24 of the Hindu Marriage Act as soon as the proceedings are instituted. The benefit granted in a proceedings under Section 24 of the Hindu Marriage Act is purely temporary in nature, which has effect till the proceedings pending under the Hindu Marriage Act are concluded. The question as to whether during the pendency period of a order under Section 24 of the Hindu Marriage Act, benefit under Section 125 Cr.P.C. can also be granted, is considered by the Andra Pradesh High Court in the case of Royendra Singh v. Maya Devi 1996 II DMC 362 {AP}, the Punjab High Court in the case of Satish v. Surjit Singh 1977 Punj. 383 HLR and in the case of Jagadish Kumar v. Neelam Rani 1988 {1} HLR 407 wherein it has been held that an order granting maintenance under Section 488, old Cr.P.C. does not oust the jurisdiction of the Court to order maintenance under Section 24 of the Hindu Marriage Act. Further, it has been held by the Gujrat, Punjab and Haryana and Andra Pradesh High Courts in the cases of Ramesh Chandra v. Dhiraj Gowri 1982 HLR 455 {Guj}, Devinder Kumar v. Asha Rani 1988 {2} HLR 452 {P & H} and Yedukondalu v. Vallabhaneni Nageswaramma 2000 {2} HLR 324 {AP}, that a application for temporary alimony under Section 24 of the Hindu Marriage Act is not a bar merely because an application under Section 125 Cr.P.C. is also allowed.

7. That being so, it is seen that the consistent view of various Courts have been that both the provisions of Section 24 of the Hindu Marriage Act and Section 125 of the Cr.P.C. can be invoked seeking maintenance and alimony pendente lite by either of the spouse. However, a bench of this Court in the case of Deepak Shukla v. Savita Shukla 1999 {2} HLR 631 has held that court can grant adjustment of the amount determined in a proceedings under Section 125 of Cr.P.C. while deciding the question of granting alimony pendente lite in a proceedings under Section 24 of the Hindu Marriage Act. Grant of adjustment, therefore, is a matter to be decided by the court after considering the facts and circumstances of each case and on consideration of the question of maintenance claimed and granted in the proceedings.

8. After relying on a judgment of the Gujrat High Court in the case of Hansa Ben v. Ramesh Kumar reported in 1992 Cr.L.J. 3688, a Bench of this Court in the case of Naresh Kumar Rai v. Smt. Mamta Rai and Anr. 2003{2} M.P.L.J. 137 has held as under:

|  5. …that the nature of proceedings under Hindu
|  Marriage Act, and that of maintenance proceedings
|  under Code of Criminal Procedure, are different and
|  hence a wife can pursue both the remedies
|  simultaneously. It is also found explained that the
|  amount of maintenance under Section 125 of the
|  Criminal Procedure Code, cannot be set of against the
|  alimony awarded under a different proceedings and
|  order of maintenance under Section 125 of the Code,
|  can only be modified, altered or set aside under
|  Section 125(4),(5) and/or under Section 127 of the
|  Code….

9. It is in the back drop of these provisions that the question involved in this petition is to be considered. In the present case, it has to be taken note of that both the orders under Section 125 of Cr.P.C. and under Section 24 of the Hindu Marriage Act are passed by the same court on the same day and the court was aware of the pendency of one proceedings while deciding the other and after considering the pleadings, granted maintenance. When the application for adjustment was filed, learned court has rejected the same and it has been held that the amount of the maintenance granted need not to be adjusted as maintenance is properly granted in both the proceedings after considering the totality of the circumstances.

10. The Supreme Court in the case of Sudhip Choudhary (supra) relied upon by Shri R.K. Sharma, learned Counsel for the petitioner, does not say that the amount of maintenance granted should be adjusted, it only says that maintenance amount may be adjusted. In the case of Narayani Rathore (supra) after considering the grant of maintenance made, this Court found that amount of maintenance granted under Section 125 Cr.P.C. should be adjusted while considering the question of maintenance and simultaneously adjustment was granted, however, this was so held considering the financial condition of the respondent and the amount of maintenance already granted under Section 125 of Cr.P.C. The principal laid down in all the cases are that maintenance may be granted and the question as to whether the adjustment is to be granted or not, is a discretion exercised by the court concerned before whom the adjustment is sought after considering the totality of the facts and circumstances of each case. There is nothing under the law that is brought to the notice of this Court which lays down as a mandatory requirement the principle for grating adjustment or deducting the amount maintenance or alimony granted in a proceedings under Section 125 Cr.P.C. or under Section 24 of the Hindu Marriage Act or vice- versa. The principle laid down is that maintenance under Section 125 of Cr.P.C. and alimony pendente lite under Section 24 of the Hindu Marriage Act can be claimed by resorting to both these provisions and the court is competent under these provisions to grant relief to the person concerned and the question of adjustment to be granted, has to be decided after taking into consideration the totality of the circumstances, the amount granted and the capacity of the person directed for making the payment. There is nothing to suggest that as a thumb-rule adjustment to the amount is to be granted in each and every case.

11. In the present case, the learned court, which decided the applications under Section 24 of the Hindu Marriage Act and Section 125 of Cr.P.C. was alive to the situation that proceedings under both these Sections are pending and decided the both the applications on the same day by passing two different orders. The court while passing the one order could take note of the same and thereafter could have granted adjustment of the amount while passing the other order. The petitioner may be right in contending that the Court overlooked the question of adjustment. However, when the petitioner filed the application seeking adjustment of the amount, by the impugned order learned court has considered the circumstances and has held that as the award is made individually in both these cases, the application for adjustment was rejected. It is, therefore, clear that learned court after evaluating the totality of the circumstances found that maintenance granted in each case i.e. under Section 125 of Cr.P.C. and Section 24 of the Hindu Marriage Act is sufficient and no adjustment of the amount is necessary, accordingly, dismissed the application. In doing so, I am of the considered view that learned court has not committed any error of law or jurisdiction which warrants interference in these proceedings under Article 227 of the Constitution.

12. Accordingly, finding no merit in the contentions advanced by learned Counsel for the petitioner, petition stands dismissed without any order so as to cost.

source

indiankanoon.org

 

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