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2006 DIGILAW 195 (PAT)

Binod Kumar Thakur v. State Of Bihar

2006-02-27

REKHA KUMARI

body2006
Judgment 1. Heard. 2. Learned counsel for the petitioner submitted that opposite party No. 2 Poonam Devi has been allowed maintenance at the rate of Rs. 400/- per month under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by Sri O.P. Rai, J.M. 1st Class, Muzaffarpur in Case No. 535 of 1995/Tr. No. 159 of 2001 but prior to that an order had been passed under Section 24 of the Hindu Marriage Act in Divorce Case No. 26 of 1995 on 6.6.2000 any by the said order opposite party No. 2 has been receiving Rs. 500/- by way of maintenance pendente lite. Thus, learned counsel for the petitioner submits that the petitioner cannot be directed to pay maintenance under both the provisions and, hence, the impugned order passed by the learned 7th Additional Sessions Judge, Muzaffarpur dated 20.9.2004 issued in a Criminal Revision No. 232 of 2001 upholding the order of the Judicial Magistrate is bad in law. 3. It may be mentioned here that an application under Section 125 of the Code is not barred merely because maintenance has been granted in matrimonial case but if maintenance has been granted both in a case under Section 125 of the Code and the matrimonial case, the wife is not entitled to receive maintenance under both the provisions. She, however, has a right to select as to under which of the two orders she would receive maintenance. Therefore, if opposite party No. 2 has been allowed maintenance under Section 24 of the Hindu Marriage Act and she is receiving the amount of Rs. 500/- she would not be entitled to receive maintenance under Section 125. of the Code but for that reason the impugned order cannot be said to be bad. 4. It may also be mentioned here that the order of the learned Additional Sessions Judge shows that the Divorce Suit filed by the opposite party No. 2 under the Hindu Marriage Act has been dismissed. Therefore, it is evident that the maintenance granted under Section 24 of the Hindu Marriage Act is no more in force. So, on this ground also the impugned order cannot be set aside. 5. Hence, with the above observation, this application is dismissed.