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2012 DIGILAW 126 (HP)

Vivek Sharma v. Rajni Bala

2012-03-26

KULDIP SINGH

body2012
JUDGEMENT Kuldip Singh, Judge (Oral) This petition has been directed against the order dated 29.7.2011 passed by Sessions Judge, Hamirpur in Criminal Revision No. 14 of 2010 enhancing the maintenance granted by Chief Judicial Magistrate, Hamirpur on 30.9.2010 in petition No. 14 of 2009. 2. The facts in brief are that the respondents had filed petition No. 14 of 2009 on 24.10.2009 against the petitioner under Section 125 Cr.P.C. which was allowed by the Chief Judicial Magistrate, Hamirpur on 30.9.2010. The respondents No. 1 and 2 were granted maintenance at the rate of ! 1000/- per month each with effect from 24.10.2009. 3. The petitioner filed petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage against respondent No.1. In that petition, the respondents filed CMA No. 742 of 2009 on 22.12.2009 under Section 24 of the Hindu Marriage Act, 1955 (for short ‘Act’) which was allowed by the District Judge, Kangra at Dharamshala on 23.6.2010 and fixed maintenance pendente lite at the rate of ! 3000/- to respondent No.1 and at the rate of ! 1200/- to respondent No.2 from the date of filing of the petition under Section 24. In addition, litigation expenses of ! 2000/- were also granted in favour of the respondents. 4. The order dated 30.9.2010 was assailed by the respondents in Criminal Revision No. 14 of 2010 which was allowed by the Sessions Judge, Hamirpur on 29.7.2011. The Sessions Judge modified the order dated 30.9.2010 and directed the petitioner to pay monthly maintenance allowance to respondents at the rate of ! 2,500/- per month each from the date of filing of the revision i.e. 2.11.2010. The petitioner was also burdened with costs of the revision assessed at ! 3,000/-. The order dated 29.7.2011 has been assailed in the present revision. 5. Heard and perused the record. It has been submitted by the learned counsel for the petitioner that the Sessions Judge has erred in allowing maintenance at the rate of ! 2,500/- per month to each of the respondents without taking into consideration the order dated 23.6.2010 passed by the District Judge in the application under Section 24 of the Act. Heard and perused the record. It has been submitted by the learned counsel for the petitioner that the Sessions Judge has erred in allowing maintenance at the rate of ! 2,500/- per month to each of the respondents without taking into consideration the order dated 23.6.2010 passed by the District Judge in the application under Section 24 of the Act. It has been submitted that the maintenance allowed by the District Judge on 23.6.2010 is to be taken into consideration while fixing maintenance under Section 125 Cr.P.C. The learned counsel for the petitioner has relied Sudeep Chaudhary vs. Radha Chaudhary AIR 1999 SC 536 and Sanjay Chopra vs. Shyama Chopra 2001 (1) HLR 481. 6. The learned counsel for the respondents has submitted that the Sessions Judge has rightly fixed the maintenance vide order dated 29.7.2011. The petitioner was drawing salary ! 20,223/- per month when the application was filed but his salary thereafter increased to ! 26,000/- and now he is drawing about ! 28,000/- per month. It has been submitted that the Sessions Judge has committed no illegality in allowing the maintenance at the rate of ! 2,500/- per month to each of the respondents over and above the maintenance allowed by the District Judge, Kangra on 23.6.2010. It has been submitted that proceedings under Section 125 Cr.P.C. and Section 24 of the Act are distinct. 7. In Sudeep Chaudhary (supra) the Supreme Court has observed as follows:- “We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however, not inclined to go into any detailed discussion of the law”. In Sanjay Chopra (supra) the Supreme Court has observed as follows:- “ The appellant is the husband and the respondent is the wife. The husband was directed to pay, under Section 125 of the Code of Criminal Procedure, maintenance to the wife and the child of the marriage in the sums of Rs.300/- and Rs.400/- respectively. Thereafter, by the order under challenge, the High Court directed the husband to pay maintenance, under Section 24 of the Hindu Marriage Act, in the sums of Rs.1,000/- and Rs.800/- respectively. Thereafter, by the order under challenge, the High Court directed the husband to pay maintenance, under Section 24 of the Hindu Marriage Act, in the sums of Rs.1,000/- and Rs.800/- respectively. It is the submission on behalf of the husband that the amounts of maintenance granted under Section 125, as aforesaid, should be adjusted against the maintenance granted under Section 24 by the impugned order. This is, fairly, not disputed.2.Accordingly, the order of the High Court is modified to the aforesaid extent. The effect will be that the husband will now only be liable to pay maintenance to the wife and the child in the sums of Rs.1 ,000/- and Rs.800/- respectively”. 8. It is thus clear that the maintenance fixed in 125 Cr.P.C. and the amount fixed under Section 24 of the Act are to be taken into consideration while granting maintenance. In the present case, the District Judge, Kangra vide order dated 23.6.2010 has allowed maintenance at the rate of ! 3,000/- per month and ! 1,200/- per month to each of the respondents. The Chief Judicial Magistrate in the order dated 30.9.2010 has noticed that the District Judge has already granted ! 4,200/- to the respondents under Section 24 of the Act. The Chief Judicial Magistrate has observed that the amount of proceeding under Section 125 Cr.P.C. is adjustable against the amount awarded in matrimonial proceedings and not to be given over and above the same. The Chief Judicial Magistrate ultimately allowed the maintenance at the rate of ! 1,000/- each respectively to the respondents from the date of filing of the petition i.e. 24.10.2009. The Chief Judicial Magistrate has adjusted ! 4,200/- (! 3,000/- + !1 ,200/-) maintenance allowed by the District Judge. The learned counsel for the parties have stated that the order dated 23.6.2010 has not been assailed by either party and it has become final. 9.The respondents challenged the order dated 30.9.2010 of the Chief Judicial Magistrate and the Sessions Judge on 29.7.2011 has increased the amount to ! 2,500/- per month to each of the respondents from the date of filing of the revision petition. The Sessions Judge in the order dated 29.7.2011 has not noticed that the District Judge under Section 24 of the Act has allowed maintenance at the rate of ! 4,200/- (‘ 3,000/- + ‘ 1,200/-) in favour of the respondents. 2,500/- per month to each of the respondents from the date of filing of the revision petition. The Sessions Judge in the order dated 29.7.2011 has not noticed that the District Judge under Section 24 of the Act has allowed maintenance at the rate of ! 4,200/- (‘ 3,000/- + ‘ 1,200/-) in favour of the respondents. In other words, the Sessions Judge has allowed the maintenance of ‘ 2,500/- per month to each of the respondents over and above the amount allowed by the District Judge in the order dated 23.6.2010. This is not permissible. The parties are not entitled to maintenance under different provisions separately. The party is entitled to maintenance but while fixing amount, the amount of maintenance awarded in one proceeding is to be taken into consideration in the other proceeding. In the present case, the Sessions Judge has not taken into consideration the amount fixed by the District Judge on 23.6.2010. In these circumstances, order dated 29.7.2011 is not sustainable and it requires modification. 10. In the facts and circumstances, the respondents are entitled to maintenance as fixed by the Sessions Judge, Hamirpur on 29.7.2011 but it will include the amount fixed by the District Judge, Kangra at Dharamshala on 23.6.2010 in CMA No. 742 of 2009. The order dated 29.7.2011 is modified to that extent only. The modified maintenance shall be paid by petitioner to respondents from 24.10.2009 the date of filing of the petition in the Court below. 11. In view of above, the petition is disposed of in terms of the observations made above. Cr.M.P.No. 230 of 2012 12. The amount of ‘ 28,800/- deposited by the petitioner in the Registry of this Court be released in favour of respondent No.1 alongwith up-to- date interest by remitting the same in her bank account mentioned in the application. The application stands disposed of. of above, the revision is dismissed. The bail bonds of the petitioner are cancelled. The petitioner is directed to surrender to serve out the sentence imposed