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2002 DIGILAW 545 (PNJ)

Amrik Singh v. Nirmal Kumari

2002-05-15

J.S.NARANG

body2002
JUDGMENT J.S. Narang, J. - After hearing the learned counsel for the parties and perusing the respective pleas taken by them as also the perusal of the salary statement submitted by both the parties. I find that collectively both are earning about Rs. 1,60,000/- per month after deductions. It may be noticed that the deductions made in respect of GPF are not to be taken into consideration while deciding the application for seeking maintenance pendente lite, in the fact of this case the GPF deductions are being made almost equal in amount. Thus, the carry home salary earned by both of them is almost equal i.e. about Rs. 8000/- each. After giving the benefit of their personal expenses, for the education of each child and for incurring expenditures for their existence. It shall be appropriate if both of them are required to contribute Rs. 2000/- each for each child meaning thereby for three children Rs. 6000/- shall be required every month. It is admitted by the parties that all the three children are being looked after by the mother and they are in her custody and that they are studying in their respective schools under her supervision and that she is incurring the expenditure till now single-handedly apart from the amount which has been paid pursuant to the maintenance under Section 125 Criminal Procedure Code 2. Learned counsel for the respondent has argued that the similar application had been filed for seeking maintenance pendente lite before the trial Court and the order passed by the trial Court was challenged by way of C.R. No. 1986 of 1998 decided by this Court vide order dated August 17, 1998. The observations made by the Honble Judge read as under : "After hearing learned counsel for the parties and having regard to the facts of this case, I am of the opinion that no interference is called for with that part of the impugned order whereby a sum of Rs. 3000/- has been granted to the wife on account of litigation expenses. As regards the maintenance pendente lite, I am of the opinion that the minor children are apparently entitled to maintenance pendente lite under Section 24 of the Act, but in the facts and circumstances of this case, they are not entitled to this and the impugned order to that extent deserves to be set aside. As regards the maintenance pendente lite, I am of the opinion that the minor children are apparently entitled to maintenance pendente lite under Section 24 of the Act, but in the facts and circumstances of this case, they are not entitled to this and the impugned order to that extent deserves to be set aside. Concededly, an application was moved on behalf of the minor children under Section 125 Cr. P.C. claiming maintenance from their father and by a consent order, a sum of Rs. 800/- per month was granted to the three minor children. This amount of maintenance was ordered to be paid by the father, the petitioner herein. In case the amount of maintenance granted in proceedings under Section 125 Criminal Procedure Code is not sufficient because of the subsequent events, it is always open to them to again approach the Court of the Magistrate under Section 125 Criminal Procedure Code for enhancement of the amount of maintenance. The minor children having already approached the court under Section 125 Criminal Procedure Code and having already been granted maintenance, cannot seek another remedy before the matrimonial court for the grant of maintenance pendente lite. The position would have been different, if they had not moved under Section 125 Cr. P.C. or the Magistrate had not granted them the maintenance. In Ram Lals case (supra), cited by learned counsel for the petitioner, the wife who was employed and earning some amount by way of salary, had moved an application under Section 24 of the Act before the matrimonial court for the grant of maintenance pendente lite for her minor child. The Division Bench having regard to the facts of that case held that no maintenance to the child could be granted under Section 24 or 25 of the Act. In Dr. R.K. Soods case (supra), a learned Single Judge of this Court after relying upon an earlier judgment of a Division Bench of this Court in Usha v. Sudhir Kumar, 1974 P.L.R. 195, came to the conclusion that a mother can claim maintenance for her minor child under Section 24 of the Act besides claiming maintenance for herself and such a right is fully recognised in law. In my view, both the judgments referred to above are not applicable to the facts of this case because in none of these cases, the maintenance was claimed or granted under the provision of Section 125 Cr. P.C. In the present case, as noticed above, the wife had approached the criminal court for the grant of maintenance for her three minor children and they were granted a sum of Rs. 800/- per month on that count by a consent order which is not the situation in none of the above referred two cases. For the reasons, stated above, the revision petition is partly allowed and the order under Section 24 is modified to the extent indicated above". 3. It is argued by the learned counsel for the respondent that in view of the aforesaid order the present application is not maintainable and deserves to be dismissed accordingly. 4. Learned counsel for the appellant has argued that the order which has been referred to had been passed against the order which was passed by the trial court while seeking the maintenance pendente lite. The case had been decided by the trial Court and the appellant is in appeal against the said order and that the maintenance is being claimed during the pendency of the appeal. 5. After hearing the learned counsel for the parties, I am of the view that the present application is not affected by the order which was passed by this Court, as referred to above. However, it has to be taken into consideration the maintenance which has been awarded under Section 125 Criminal Procedure Code for Rs. 800/- per month. Resultantly, I consider it shall be appropriate if the husband contributes Rs. 3,000/- per month for the upkeep, education etc. of the children. A sum of Rs. 800/- shall be included in the amount as referred to above meaning thereby he shall pay Rs. 2,200/- per month in addition to Rs. 800/- payable under Section 125 Criminal Procedure Code It may be observed that whatever amount has been paid after the filing of the present application under section 24 of the Hindu Marriage Act, shall be appropriated accordingly while paying the amount of Rs. 3,000/- per month by the respondent. The amount paid prior thereto shall not affect the present order. 800/- payable under Section 125 Criminal Procedure Code It may be observed that whatever amount has been paid after the filing of the present application under section 24 of the Hindu Marriage Act, shall be appropriated accordingly while paying the amount of Rs. 3,000/- per month by the respondent. The amount paid prior thereto shall not affect the present order. The respondent shall pay the amount as aforesaid from the date of filing of the application which was filed on September 18, 2000. The arrears so calculated shall be paid in two equated instalments along with the maintenance pendente lite payable every month from now on. The respondent shall pay the maintenance pendente lite as aforesaid on the 7th day of every month to the wife by way of depositing the amount as aforesaid in the account of the applicant bearing A/C No. 01190038795 maintained in State Bank of India at Hoshiarpur. In view of the facts, as referred to above, the litigation expenses are quantified at Rs. 1000/-. CM is disposed of accordingly. Order accordingly.