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2002 DIGILAW 544 (PAT)

Krishna Prasad Mandal v. Sabita Devi

2002-04-25

NAGENDRA RAI

body2002
Judgment Nagendra Rai, J. 1. This revision application is directed against the order dated 31.1.2001 passed in Matrimonial Case No. 35 of 1996 by Addl. District Judge 1st, Bhagalpur by which he has allowed the petition filed by the opposite party/wife under Sec. 18 of the Hindu Adoption and Maintenance Act, 1956 read with Secs. 24 and 25 of the Hindu Marriage Act (hereinafter referred to as the Act) and ordered for payment of interim maintenance at the rate of Rs. 1,000.00 per month to her. 2. The facts necessary for disposal of the present application are that the opposite party was married with the petitioner. It appears that the relationship between the parties became strained. An application u/s. 125 of the Code of Criminal Procedure was filed by the opposite party/wife for maintenance, but later on the same was withdrawn. Thereafter an application u/s. 18 of the Hindu Adoption and Maintenance Act, 1956 read with Secs. 24 and 25 of the Act was filed before District Judge and the same has been disposed of by the impugned order. 3. The learned Counsel appearing for the petitioner submitted that the order passed by the Court below is without jurisdiction in the sense that no order for maintenance can be passed u/s. 24 of the Act which speaks of interim maintenance during pendency of any proceeding under the provisions of the Act. As no proceeding was pending before the Court below, no order for maintenance can be passed u/s. 24 of the Act. He further submitted that so far Sec. 25 of the Act is concerned that empowers the Court concerned to pass an order for maintenance after passing a decree as provided under the said Act or thereof. As no decree has been passed under the aforesaid Act, the order for maintenance cannot be passed u/s. 25 of the Act. 4. Learned Counsel appearing for the opposite party on the other hand submitted that the application for interim maintenance was filed before the Court below and it rightly ordered for maintenance u/s. 18 of the Hindu Adoption and Maintenance Act read with Secs. 24 and 25 of the Act. 5. The submission advanced on behalf of the petitioner is well founded. Sections 24 and 25 of the Act are not applicable in this case. sec. 24 and 25 of the Act. 5. The submission advanced on behalf of the petitioner is well founded. Sections 24 and 25 of the Act are not applicable in this case. sec. 24 of the Act provides that only when any proceeding under the Act for divorce, is pending the Court is empowered to pass order for interim maintenance. Here no such case was pending at the time of passing of the order. 6. sec. 25 of the Act empowers the Court to pass an order for maintenance after passing a decree. As admittedly, no proceeding for passing a decree under the Act has been filed the order cannot also be passed u/s. 25 of the Act. 7. So far as sec. 28 of the Hindu Adoption and Maintenance Act, 1956 is concerned that gives substantive right to the wife to claim maintenance but no procedure has been provided under the said Act for maintenance and only remedy available is to file a suit for recovery of the maintenance accrued. 8. Thus, the order passed by the Addl. District Judge 1st, Bhagalpur is without jurisdiction and the same is set aside. However, the opposite party, if so advised may again file an application for maintenance u/s. 125 of the Code of Criminal Procedure or may pursue the other remedy available in law. 9. In the result, the revision application is allowed.