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2013 DIGILAW 418 (GAU)

Smita Goswami v. Rajib Kalita

2013-06-17

I.A.ANSARI, INDIRA SHAH

body2013
I A. Ansari, J. This matrimonial appeal is directed against the order, dated 10.2.2012, passed, in Misc. Case No. 88/2011, under section 24 of the Hindu Marriage Act, 1955 (in short, ‘the Act’), which arose out of FC (Civil) No. 419/2011, the FC (Civil) No. 419/2011 having been instituted, under section 13 of the Act, by the appellant herein (as the petitioner), seeking a decree of dissolution of her marriage with the respondent herein. 2. The material facts, leading to the present appeal, may, in brief, be set out as under: (i) On the basis of an application, made by the applicant, (i.e., the appellant herein), under section 13 of the Act, seeking a decree of dissolution of her marriage with the respondent, FC (Civil) 419/ 2011, aforementioned, came to be registered. (ii) During the pendency of the suit, which came to be so instituted by the appellant, the appellant made an application, under section 24 of the Act, seeking maintenance of a sum of Rs. 25,000, per month, as maintenance pendente lite, and another sum of Rs. 40,000 as expenses of the proceeding on the ground that she does not have any independent source of livelihood to either maintain herself or to meet the expenses of the proceedings. The application, so made, gave rise to Misc. Case No. 88/2011 aforementioned. (iii) The application, so made by the appellant, which had given rise to Misc. Case No. 88/2011, was resisted by the respondent herein by pointing out that his parents were dependent upon him and he also had a younger brother to look after and educate. (iv) In the proceeding, which had been started on the basis of the application made under section 24 of the Act, it was also pointed out, on behalf of the respondent, that the petitioner, (i.e., the appellant herein) had made an application, under section 125 Cr.PC, seeking maintenance from her husband, (i.e., the respondent herein), which had given rise to FC (Crl) 312/2011, and a sum of Rs. 3,000, per month, had been granted, in the said maintenance proceeding, as interim maintenance. (v) At the conclusion of the hearing of the application, made under section 24 of the Act, the learned Court below, while granting, by order, dated 10.2.2012, a sum of Rs. 3,000, per month, had been granted, in the said maintenance proceeding, as interim maintenance. (v) At the conclusion of the hearing of the application, made under section 24 of the Act, the learned Court below, while granting, by order, dated 10.2.2012, a sum of Rs. 20,000 as expenses of the proceeding, declined to order payment of any maintenance pendente lite on the ground that the petitioner, (i.e., the appellant herein) had already been receiving interim maintenance of a sum of Rs. 3,000, per month, under section 125, Cr.PC. (vi) Aggrieved by the order, so made on 10.2.2012, the petitioner, as appellant, has filed this appeal. 3. We have heard Mr. P.C. Goswami, learned counsel for the appellant. We have also heard Mr. K. Agarwal, learned counsel for the respondent. 4. While considering the present appeal, it needs to be noted that, in FC (Crl.) 312/2011, which arose out of the application made by the appellant under section 125, Cr.PC, the interim maintenance has been enhanced to a sum of Rs. 10,000 per month. What is, however, of immense importance to note is that the pendency of a maintenance proceeding, under section 125, Cr.PC, and/or any order, passed on an application, made under section 125, Cr.PC, seeking maintenance, does not per se debar the person, who seeks maintenance, or is granted maintenance, from making an application, under section 24 of the Act, for obtaining maintenance pendente lite. 5. As a proposition of law, therefore, the conclusion,-reached by the learned court below, that since the petitioner, (i.e., the appellant-herein) had been receiving maintenance in a proceeding under section 125, Cr.PC, she was not entitled to claim maintenance pendente lite, on the strength of her application under section 24 of the Act, is, in our view, legally not sustainable. 6. Notwithstanding the fact that a wife has been receiving interim maintenance in a proceeding under section 125, Cr.PC, she is entitled to seek maintenance pendente lite under section 24 of the Act and it is for the court to decide as to what shall be the amount of maintenance pendente lite. 6. Notwithstanding the fact that a wife has been receiving interim maintenance in a proceeding under section 125, Cr.PC, she is entitled to seek maintenance pendente lite under section 24 of the Act and it is for the court to decide as to what shall be the amount of maintenance pendente lite. If the court finds that the amount of maintenance pendente lite shall be more than what has been receiving by the wife as maintenance under section 125, Cr.PC, she has to be granted the amount, which the court decides she is entitled to receive as maintenance pendente lite, and, in such a case, out of the amount, so decided by the court as maintenance pendente lite, the amount, which is being received by the wife as interim maintenance, under section 125, Cr.PC, shall be deducted. 7. In the case at hand, since the learned Court below has not decided as to whether the petitioner-appellant is or is not entitled to receive maintenance pendente lite, under section 24 of the Act, the matter, in our considered view, needs to be remanded to the court below for a decision, in accordance with law, on the application made, under section 24 of the Act, by the petitioner, who is the appellant herein. On receiving the proceeding, on remand, the learned court below has to determine if the sum of Rs. 10,000, per month, which the petitioner-appellant has, now, been receiving, as interim maintenance, in the proceeding under section 125, Cr.PC, is adequate or not and, should the learned court below decide a higher sum of money payable to the petitioner-appellant as maintenance pendente lite, then, the sum of Rs. 10,000, per month, which the petitioner-appellant has already been receiving as interim maintenance, has to be deducted from the amount, which the petitioner-appellant is found entitled to be paid as maintenance pendente lite. 8. Situated, thus, this appeal is partly allowed, the impugned order, dated 10.2.2012, is hereby set aside to the extent that the same declines to direct payment of any maintenance pendente lite on the ground that interim maintenance had been made available to the petitioner-appellant in the proceeding under section 125, Cr.PC and the proceeding, arising out of the application, made under section 24 of the Act, is hereby remanded to the learned court below. 9. 9. On receiving the proceeding, on remand, the learned court below shall decide the question as to what sum of money shall be payable to the petitioner-appellant as maintenance pendente lite and, in this regard, if the finding of the learned court below be that the sum of Rs. 10,000, which the petitioner-appellant has been receiving as interim maintenance in the proceeding under section 125, Cr.PC, is an adequate sum of money, no further maintenance pendente lite needs to be ordered; but, if the sum of Rs. 10,000, mentioned hereinbefore, is found to be low or unreasonable as maintenance pendente lite, the learned Court below shall remain free to take appropriate decision, in the matter, in accordance with law. 10. With the above observations and directions, this appeal shall stand disposed of. 11. No order as to costs. _______________