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2002 DIGILAW 264 (JK)

Shamsher Singh v. Sunita Devi

2002-08-16

S.K.GUPTA

body2002
I have heard Mr. M.P. Kapoor, learned counsel appearing for the petitioner, as well as Mr.Ajay Abrol, learned counsel for he respondent, in extenso. 2. A short submission made by Mr. M.P Kapoor, learned counsel appearing for the petitioner in this Revision is that, amount of maintenance awarded under Section 488 be adjusted while granting the maintenance under section 30 of the Hindu Marriage Act. There is no dispute with regard to the marriage solemnized between the parties according o the Hindu rites and ceremonies on 26-1-1993. It is also not disputed that a child was born out of this wedlock who happened to be with the respondent at present. The petitioner-husband and the respondent-wife are estranged. The wife filed an application under Section 488 Cr.P.C for maintenance, which was awarded at the rate of 500/- per month. Further that in proceedings under Hindu Marriage Act, the wife sought pendente lite alimony and litigation expenses under section 30 of the Hindu Marriage Act. It was granted at the rate of Rs. 900/- (Rs. 600 in favour of the wife and Rs. 300 /- in the favour of the minor child ) from the date of application, i.e, 15th December, 1998, along with litigation expenses of Rs. 600/. 3. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contented that the maintenance amount granted under Section 488 Cr. P.C. should be adjusted in the pendente lite alimony and the recovery proceedings are pending before the court. Mr. M. P Kapoor, learned counsel appearing for the petitioner, submitted that the Trial Court instead of accepting his contention for adjusting the amount awarded as maintenance under section 488 Cr.P.C. in the interm alimony under Hindu Marriage Act directed the employer of the petitioner to attach the salary and deposit in the Court vide order dated 2-11-2001. The order manifestly is not legally sustainable. This order no where specified as to how much salary has to be attached and deposited in the court and, thus, turn out unsustainably in law. 4. I am of the view that the amount awarded under Section 488 Cr.P.C. was adjustable in the amount awarded in the matrimonial proceeding and was not to be given over and above the same . At the same time, I feel that the claims of the husband and wife are to be balanced. 4. I am of the view that the amount awarded under Section 488 Cr.P.C. was adjustable in the amount awarded in the matrimonial proceeding and was not to be given over and above the same . At the same time, I feel that the claims of the husband and wife are to be balanced. I, therefore, direct that the husband shall pay to the wife as maintenance (which now comprehends both the amount awarded under Section 488 Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1000/- (Rupees one thousand only) per month commencing from the date of application, i.e., 28-7-1999, the date when the application under Section 30 of the Hindu Marriage Act was made, and prior to that only what is awarded under section 488 Cr.P.C. as maintenance. The arrears, if any, shall be paid with in two months. 5. This order will be subject to such order(s) as may be passed at the stage of final disposal of the matrimonial proceedings. 6. The Revision is disposed of in the manner indicated above. Copy of this order be dispatched to the Trial Court immediately for follow up action in the matter.