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IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW BENCH
ANIL KUMAR, SAURABH LAVANIA, JJ.
Ram Awadh - Appellant
Versus
State of U.P. Thru Prin Secy, Home and Others - Respondent
First Appeal No. 129 of 2017
Decided On : 16-07-2019
Hindu Marriage Act, 1955 – Section 13,24 – Criminal Procedure Code,1973 – Section 125 – 9. Assailing order Counsel for appellant submits that no relief granted to respondent by Family Court – Whether on basis of pleading and evidence, lower court has rightly passed order whereby application under Section 24 of Hindu Marriage Act, was partly allowed – Whether once respondent moved an application under Section 125 Cr.P.C. for interim maintenance before Family Court,then she can also move an application under Section 24 of Act,1955 for interim maintenance/maintenance pendente lite – Held, Both proceedings under Cr.P.C. and Act of 1955 operates in different sphere – No law of limitation applies to these maintenance matters – A wife, who was financially sound, at start of matrimonial proceedings nor disliked to get any financial support from her husband, by quirk of events, subsequently may suffer financial crisis, may need financial support and in such an event, subsequently also she can seek pendente lite maintenance in pending matrimonial proceedings from her husband – In existence of maintenance order passed by Judicial Magistrate, under Section 125 Cr.P.C., Matrimonial Court cannot refuse to entertain maintenance petition under Sections 24, 26 of Act,1955 filed by revision petitioner for pendente lite maintenance – Court concerned not compel woman and children to go said Magistrate and seek enhancement of their maintenance under Section 127 Cr.P.C. – Appeal dismissed. (Paras. 39,44 & 48)
Facts of the case:
Assailing order Counsel for appellant submits that no relief granted to respondent by Family Court – Whether on basis of pleading and evidence, lower court has rightly passed order whereby application under Section 24 of Hindu Marriage Act, was partly allowed – Whether once respondent moved an application under Section 125 Cr.P.C. for interim maintenance before Family Court, Unnao, then she can also move an application under Section 24 of Act,1955 for interim maintenance/maintenance pendente lite.
Findings of the court:
independent to each other and proceedings under both the Acts can be persuaded and court in both the proceedings can pass order granting maintenance – For fixing amount/quantum of maintenance under Section 24, Court concerned can take note amount, if any, awarded in proceedings under Section 125 Cr.P.C – No law of limitation applies to these maintenance matters – A wife, who was financially sound, at start of matrimonial proceedings nor disliked to get any financial support from her husband, by quirk of events, subsequently may suffer financial crisis, may need financial support and in such an event, subsequently also she can seek pendente lite maintenance in pending matrimonial proceedings from her husband – In existence of maintenance order passed by Judicial Magistrate, under Section 125 Cr.P.C., Matrimonial Court cannot refuse to entertain maintenance petition under Sections 24, 26 of Act,1955 filed by revision petitioner for pendente lite maintenance – Court concerned not compel woman and children to go said Magistrate and seek enhancement of their maintenance under Section 127 Cr.P.C.
Result: Appeal dismissed
JUDGMENT :
SAURABH LAVANIA, J.
1. List revised.
2. Heard, learned Counsel for the appellant. The Standing Counsel is present for the State. It appears from the office report that notice upon respondent nos. 2 to 5 is sufficient, but no one present on behalf of the respondent no. 2 to 5.
3. Facts in brief of the present case, as per record, are that marriage between appellant and respondent no. 2 i.e. Mrs. Kiran Devi was solemnized on 30.05.1996 and out of the wedlock of appellant and respondent no. 2, three sons were born namely Mr. Rohit Kumar, Mr. Shobit Kumar and Mr. Sumit Kumar (respondent nos. 3, 4 and 5 respectively).
4. Matrimonial relation between the appellant and respondent no. 2 has become strained and on 28.02.2008 the respondent no. 2 went to her parent house and never came back at her matrimonial home.
5. Thereafter, on 18.09.2013 the appellant filed a divorce suit under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as "Act of 1955"), bearing Matrimonial Case No. 1239/2014 before the Principal Judge, Family Court, Unnao (Ram Awadh Yadav Versus Smt. Kiran Devi).
6. Thereafter, on 13.11.2013, the respondent no. 2 filed an application/case under Section 125 Cr.P.C., registered as Case No. 957 of 2014 and on 16.12.2014 the appellant filed objection against the application moved under Section 125 Cr.P.C. and no relief (interim maintenance)was granted to the respondent No. 2.
7. Thereafter, on 25.02.2015 the respondent no. 2 moved another application under Section 24 of Act of 1955 and on 02.12.2015 the appellant filed the objection against the application moved under Section 24 of the Act of 1955.
8. On 22.08.2017, the Principal Judge Family Court, Unnao, partly allowed the application moved under Section 24 of Hindu Marriage Act, 1955, whereby awarded two thousand towards legal fee and also awarded Rs. 2,000/- per month to the respondent no. 2 and Rs. 1500/- per month to the children as an interim maintenance.
9. Assailing the order dated 22.08.2017, under appeal the Learned Counsel for the appellant submits that no relief was granted to the respondent no. 2 on the application under Section 125 Cr.P.C. bearing Case No. 957 of 2014 by the Family Court, Unnao and therefore on the application moved under Section 24 of Hindu Marriage Act, the order, under appeal, dated 22.08.2017 granting maintenance ought not to have been passed.
Learned Counsel for the appellant further submits that the impugned order is totally illegal and arbitrary and is liable to be set aside for the reasons that:-
(i) for the relief of maintenance two proceedings cannot be initiated and persuaded/preseed i.e. one under Section 125 of Cr.P.C. and another under Section 24 of Act of 1955.
(ii) once the Court below decline to pass an order granting interim maintenance on the application under Section 125 of Cr.P.C. filed by the respondent no. 2 then in that event granting maintenance under Section 24 is unjustified and illegal.
10. We have considered the submissions made by the learned Counsel for the appellant and perused the records.
11. We find that only two points are to be considered i.e. (1) Whether on the basis of pleading and evidence, the lower court has rightly passed the order dated 22.08.2017, whereby application under Section 24 of Hindu Marriage Act, was partly allowed?
(2) Whether once the respondent no. 2 has moved an application under Section 125 Cr.P.C. for interim maintenance bearing Case No. 957 of 2014 before the Family Court, Unnao, then she can also move an application under Section 24 of Hindu Marriage Act, for interim maintenance/maintenance pendente lite?
12. So far as the first point is concerned, it appears from the order dated 22.08.2017 that on the basis of evidence, the lower court found and recorded finding(s) that appellant Ram Awadh is a driver and in addition to the said fact, appellant is a land owner of agricultural land from which he is getting income and he is also doing the business of selling milk and on the b
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