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Madhya Pradesh High Court · body

2008 DIGILAW 1027 (MP)

Mamta Bharadwaj v. Madhusudan Bharadwaj

2008-08-14

P.K.JAISWAL

body2008
ORDER 1. Heard. This writ petition under Article 227 of the Constitution of India has been filed by the petitioner/non-applicant against the order dated 5.4.2008 passed by the Additional Principal Judge, Family Court, Gwalior, in Suit No. 117-Al07 (HMA), whereby the learned Family Court rejected the application for grant of maintenance pendente lite filed by the petitioner under section 24 of the Hindu Marriage Act, 1955 (for short the "Act") and awarded Rs. 1,500/- only towards litigation expenses. 2. Brief facts of the case are that the respondent-husband has filed an application under section 13 of the Act for dissolution of marriage solemnized between the petitioner-wife and respondent-husband. The· proceedings have been registered as Case No. 117 -Al07 (HMA) and is pending before the Additional Principal Judge, Family Court, Gwalior. In the said proceedings, petitioner-wife filed an application under section. 24 of the Hindu Marriage Act seeking maintenance pendente lite and expenses for the proceedings. The respondent-husband is working at SRF Malanpur and his monthly income is Rs. 10,562/-. He is having agricultural land at Village Chhareta, from which his income is Rs. 35,000/- per annum. He is also having house at Saraswati Nagar, the valuation of which is Rs. 50.00 lacs, 200 sq. mtr. plot at SADA, 74.30 sq.mtr. land at Mahalgaon, near Govindpuri and 1,250 sq.ft. land at Mehra Gwalior. No reply of this application was filed by the respondent. The petitioner wife also filed an application claiming maintenance under section 125, CrPC, in which maintenance was awarded to the petitioner @ 2,000/per month vide order dated 7.12.2007. It is also not in dispute that the petitioner is getting maintenance @ Rs. 2,000/- per month. An objection was raised before the Family Court that the petitioner-wife was only entitled for one maintenance and no maintenance pendente lite in an application filed under section 24 of the Act can be granted by the Family Court. 3. The Family Court considered the said objection and held by the impugned order that the petitioner is getting maintenance @ Rs. 2,000/per month and therefore there is no need for grant of further maintenance in an application filed under section 24 of the Act. In respect of litigation expenses, the Family Court awarded a sum of Rs. 1,500/- to the petitioner. 4. 2,000/per month and therefore there is no need for grant of further maintenance in an application filed under section 24 of the Act. In respect of litigation expenses, the Family Court awarded a sum of Rs. 1,500/- to the petitioner. 4. It is submitted by the learned counsel for the petitioner that scope and object of the proceedings under section 125, CrPC and under section 24 of the Hindu Marriage Act are different. There is no bar that if an application under section 125, CrPC is allowed, then the application filed by the petitioner under section 24 of the Act is not maintainable. 5. It is submitted by the learned counsel for the petitioner that there are consistent views of various Courts that both the proceedings of section 24 of the Act and section 125 of CrPC can be invoked seeking maintenance and alimony pendente lite by either of the spouse and therefore the learned Family Judge committed an error in not granting alimony pendente lite. She further submitted that the grant of adjustment, therefore, is a matter to be decided by the Family Court after considering the documents filed by her regarding the income of the respondent-husband. This question was cropped up for consideration before this Bench in the case of Ashok Singh Pal v. Smt. Manjulata [ 2008 (I) MPWN 107 ] para 10 is relevant, which reads as under: "10. The Supreme Court in the case of Sudhip Choudhary (supra) relied upon by Shri R.K. Sharma, learned counsel for the petitioner, does not say that the amount of maintenance granted should be adjusted, it only says that maintenance amount may be adjusted. In the case of Narayani Rathore (supra) after considering the grant of maintenance made, this Court found that amount of maintenance granted under section 125, CrPC should be adjusted while considering the question of maintenance and simultaneously adjustment was granted, however, this was so held considering the financial condition of the respondent and the amount of maintenance already granted under section 125 of CrPC the principles laid down in all the cases are that maintenance may be granted and the question as to whether the adjustment is to be granted or not, is a discretion exercised by the Court concerned before whom the adjustment is sought after considering the totality of the facts and circumstances of each case. There is nothing under the law that is brought to the notice of this Court which lays down as a mandatory requirement the principle for granting adjustment or deducting the amount maintenance or alimony granted in a proceedings under section 125 CrPC or under section 24 of the Hindu Marriage Act or vice-versa. The principle laid down is that maintenance under section 125 of CrPC and alimony pendente lite under section 24 of the Hindu Marriage Act can be claimed by resorting to both these provisions and the Court is competent under these provisions to grant relief to the person concerned and the question of adjustment to be granted, has to be decided after taking into consideration the totality of the circumstances, the amount granted and the capacity of the person directed for making the payment. There is nothing to suggest that as a thumb-rule adjustment to the amount is to be granted in each and every case." 6. In view of the law laid down by the Bench of this Court in the case of Ashok Singh Pal (supra), the maintenance and expenses can be granted to the petitioner under both the provisions. The Court, while passing the one order in an application under section 24 of the Act, could take note of the grant of maintenance in a proceedings under section 125 of CrPC and thereafter could have granted adjustment of the amount while passing the other order. In the case of Sadhana Singh v. Bhagwan Das Arakh [ 2008 (2) JLJ 193 ] it has been held by the learned Single Judge that in view of the object and purpose of section 125 of CrPC, husband who neglects or refuses to maintain his wife may be made liable to pay maintenance irrespective of his income. On the other hand, an order for maintenance under section 24 of the Hindu Marriage Act is liable to be passed after taking into consideration the income of the respondent. Thus, neglect by a spouse or refusal to maintain the spouse is one of the necessary ingredients while granting or declining the maintenance under section 125 of CrPC, but this is not a pre-condition under section 24 of the Hindu Marriage Act and interim maintenance under the said provision cannot be denied merely on ground that the wife is living with her parents in a voluntary manner. 7. 7. Considering the above facts and circumstances the learned Family Court has committed an error in rejecting the application on the ground that in view of the order passed in the proceedings under section 125, CrPC, she is not entitled for maintenance pendente lite. 8. After considering the documents filed by her alongwith the application, the impugned order passed by the Family Court is not sustainable and is accordingly quashed. Parties are directed to appear before the Family Court on 8.9.2008. Learned Family Court, on the basis of the documents filed by the petitioner, shall decide the application under section 24 of the Act on merits keeping in view the principle laid down by this Court in the case of Sadhna Singh (supra) and Ashok Singh Pal (supra) and decide the same expeditiously as early as possible within a period of one month thereafter. 9. In the result, the writ petition is allowed with costs of Rs. 5,000/towards litigation expenses. Counsel's fee as per schedule.