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2005 DIGILAW 163 (KER)

Jagadeesan v. Minimol

2005-02-24

K.HEMA

body2005
JUDGMENT K. Hema, J. 1. Petitioner/husband challenges Ext. P1 order dated 8-8-2003 passed against him in I. A. No. 1422 of 2002 filed by the respondent/wife for interim alimony pendente lite and litigation expenses from the petitioner. As per the order the petitioner was directed to pay interim alimony at the rate of Rs. 1,500/- per ;month as against the claim of Rs. 5000/-. 2. Petitioner and respondent are husband and wife. Husband/petitioner filed M.O.P. No. 131 of 2001 before the Subordinate Court, Palakkad for divorce. In the said O.P., wife/respondent filed I.A. No. 1422 of 2002 for interim alimony pendente lite and litigation expenses from the petitioner at the rate of Rs. 5,000/ - per month. The Court below after considering the rival contentions, directed the petitioner to pay a monthly maintenance at the rate of Rs. 1500/- to the wife/respondent from the date of petition till the disposal of the marriage O.P. as per Ext. P1 order dated 8-8-2003. 3. The petitioner seeks to quash Ext. P1 order mainly on the ground that the respondent made claim for maintenance in another proceedings also and hence this petition is not maintainable. Admittedly, O.P.(HMA) No. 746 of 2001 was filed by the respondent herein before the Family Court, Thiruvananthapuram seeking maintenance from the petitioner. According to the learned counsel appearing for the petitioner both the claims will not lie together and the order passed in the present petition is not maintainable. 4. Let me consider the merit of this contention. I.A. No. 1422 of 2002 is filed under S.24 of the Hindu Marriage Act and O.P.(HMA) No. 746/ 2001 was filed by the respondent before the Family Court, Thiruvananthapuram under S.25 of the Hindu Marriage Act. Both are for maintenance. But, a reading of the above provisions will show that both these provisions confer different nature of rights for maintenance under different situations. One is a claim for maintenance during the pendency of litigation under the Hindu Marriage Act whereas the other is an independent right of maintenance from the spouse under a different situation. 5. As per S.24 if the spouse has no independent income sufficient for her or his support and necessary expenses of the proceeding, the petitioner can claim expenses of the proceeding, and also monthly maintenance having regard to the petitioner's own income and the income of the respondent. 5. As per S.24 if the spouse has no independent income sufficient for her or his support and necessary expenses of the proceeding, the petitioner can claim expenses of the proceeding, and also monthly maintenance having regard to the petitioner's own income and the income of the respondent. The main object of the Section is to provide to the petitioner a provision to meet the expenses during the pendency of the litigation. The primary requirement under the said section is pendency of proceeding under the Hindu Marriage Act before the court and a petition under S.24 will be maintainable only if a proceeding under Hindu marriage Act is pending. Therefore, if the proceedings are terminated due to some reason or other that will be the end of the claim of the petitioner for monthly maintenance. His or her claim under S.24 comes to an end with the termination of the main proceedings. It is only a provision to provide expenses pendante lite that S.24 is introduced into the statute. 6. But S.25 stands on a different footing. A right for maintenance under S.25 is an independent right and it does not depend upon the pendency of another proceeding. A Petition under S.25 can be instituted as an independent proceedings whereas the claim under S.24 can be made only in a pending procedure. The right for maintenance under S.24 will expire on the termination of the procedure and the petitioner will get maintenance only for such period during which the main proceedings are pending. But, once an order is passed under S.25 the petitioner can claim maintenance for future period also and in that sense, the claim can be maintained even after the termination of the procedure. Therefore, both the claims are different in character and nature. The requirement under both the Sections are also different as revealed from the languages of the section. 7. In such circumstances, it cannot be said that pendency of one proceedings will bar the pendency of the other or that a claim made under one section will bar the claim made in the other section. However, for granting alimony under S.24 or 25 the court has to take into consideration the income of the petitioner as well as that of the respondent. Income of both parties are relevant for fixing the quantum of maintenance. However, for granting alimony under S.24 or 25 the court has to take into consideration the income of the petitioner as well as that of the respondent. Income of both parties are relevant for fixing the quantum of maintenance. In the above circumstances, if a claim is adjudicated and decided in one of the proceedings, the quantum fixed in such proceedings will have a bearing while fixing quantum in the other. But, only because of pendency of another petition for maintenance under S.25, claim made under S.24 cannot be rejected. Learned Counsel for respondent placed reliance upon the dictum laid in the decision reported in Vanaja v. Gopu (1991 (2) KLT SN 6)) and Chandra Wati v. Chariderpall (1991 (1) KLT SN 31). Those were cases whether the court was deciding whether there is any bar in making a claim under S.24 of the Hindu Marriage Act when another claim under S.125 is made by the wife. It was held that claim for maintenance under Cr.P.C. will be no ground for declining to entertain the claim for maintenance under the Hindu Marriage Act. 8. Both sides however submitted that they are agreeable for fixing the quantum at Rs. 1200/- per month till the disposal of the M.O.P. No. 131 of 2001 before the Sub Court, Palakkad and modify the order to such extent. There is no ground to reject this request. It is well settled that in a matrimonial dispute, this Court will have to encourage genuine settlement of matrimonial disputes and hence I find that the prayer can only be allowed. 9. Hence Ext. P1 order dated 8-8-2003 passed by the lower court is modified as follows: The petitioner is directed to pay Rs. 1200/- per month towards claim made by the respondent under S.24 of the Hindu Marriage Act from the date of filing of I.A. No. 1422/2002. The writ petition is disposed of in the above terms.