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2016 DIGILAW 981 (MP)

Manish Soni v. Naina @ Nirmala

2016-11-03

VIVEK RUSIA

body2016
ORDER 1. The petitioner/husband has filed the present petition being aggrieved by the order dated 16.3.2016, passed by the First Additional Family Judge of Family Court by which, application under section 24 of the Hindu Marriage Act, 1955 was decided in favour of the respondent/wife by directing the husband to pay interim maintenance @ Rs.3,000/- per month for wife and Rs.2,000/- for son along with interim maintenance payable under section 125 of the Criminal Procedure Code, 1973. 2. The petitioner has challenged the said order on the ground that he is already paying a sum of Rs.4,000/- as interim maintenance by virtue of order dated 28.12.2012 passed by the same Family Court under section 125 of the CrPC. He submits that while passing the order under section 24, the said amount ought to have been adjusted by the Court. Counsel for the petitioner submits that even if Family Court if competentto pass order under section 125 CrPC as well as under section 24 of the Hindu Marriage Act without adjusting the amount then, the petitioner who is earning Rs.8,000/- as held by the Family Court in order dated 28.12.2015 would not be in a position to pay both the maintenance to the petitioner which comes to Rs.9,000/- per month, therefore, under the facts and circumstances of the case, the Court ought to have adjusted the amount while passing the order under section 24 of the Hindu Marriage Act. 3. Shri Ishwarlal Chouhan, learned counsel for the respondent submits that both the both the proceedings are independent proceedings and Court is competent to pass separate order and there is no mandatory condition to adjust the amount of maintenance. 4. I have heard learned counsel for the parties. 5. It is not disputed that both the provisions i.e. section 125 of the CrPC and section 24 of the Hindu Marriage Act, 1955 deals with the payment of interim maintenance to the wife and children, but section 127 of the CrPC provides that while passing the order of maintenance under section 127 of the CrPC, the Court shall take into account the sum which has been paid or recovered by such persons as maintenance allowance or expenses paid by the Court. Section 125 sub-section (4) is reproduced below : (4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuse to live with her husband, or if they are living separately by mutual consent.”� 6. That in case of Ashok Singh Pal v. Manjulata, reported in 2008(I) MPWN 107 =ILR 2006 MP 749, this Court has held that the amount of maintenance can be claimed by resorting both the provisions and the Court is competent under these provisions to grant the relief to a person concerned and the question of adjusting has to be considered after taking into totality all the circumstances and the Court while passing one order could take note of the same and thereafter could grant the adjustment of the amount while passing the other order. Operative part of the aforesaid order is reproduced below :- “9. It is in the back drop of these provisions that the question involved in this petition is to be considered. In the present case, it has to be taken note of that both the orders under section 125 of CrPC and under section 24 of the Hindu Marriage Act are passed by the same Court on the same day and the Court was aware of the pendency of one proceedings while deciding the other and after considering the pleadings, granted maintenance. When the application for adjustment was filed, learned Court has rejected the same and it has been held that the amount of the maintenance granted need not to be adjusted as maintenance is properly granted in both the proceedings after considering the totality of the circumstances. 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. 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 principle 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 grating adjustment or deducting the amount of 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. 11. In the present case, the learned Court, which decided the applications under section 24 of the Hindu Marriage Act and section 125 of CrPC was alive to the situation that proceedings under both these sections are pending and decided the both the applications on the same day by passing two different orders. 11. In the present case, the learned Court, which decided the applications under section 24 of the Hindu Marriage Act and section 125 of CrPC was alive to the situation that proceedings under both these sections are pending and decided the both the applications on the same day by passing two different orders. The Court while passing the one order could take note of the same and thereafter could have granted adjustment of the amount while passing the other order.” 7. In the present case, the petitioner is working as skilled labour in the shop of jewellery and earning Rs.8,000/- per month, as finding recorded by the Family Court in order dated 28.12.2015 and if he is directed to pay Rs.4,000/- per month in compliance of order dated 28.12.2015 and Rs.5,000/- in compliance of order dated 16.3.2016, then it would be more than his monthly income, therefore, the petitioner is entitled for adjustment. 8. This Court can grant adjustment in the interest of justice, therefore, the impugned order dated 16.3.2016 is modified to the extent that petitioner shall pay amount of Rs.5,000/- per month to the respondent in compliance of order dated 28.12.2015 and 16.3.2016. 9. With the aforesaid, the petitioner, partly allowed.