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2008(2) JLJ 193
A.M. Naik, J.
Sadhana Singh v. Bhagwan Das Arakh
Writ Petition No.6950 of 2006 (Jabalpur);
Decided on 15.2.2007.
Application of the non-applicant/petitioner under section 24 of Hindu Marriage Act was dismissed on the ground that it was prima facie established that the petitioner herself was residing separately from her husband in a voluntary manner. [Para 1
Held: In view of the object and purpose of section 125 of CrPC even a bodily able 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.
The learned trial Judge has resorted to certain conjectures and surmises in arriving at a prima facie finding that the petitioner is living separately at her own will and is guilty of misconduct/marital offence.
Respondent as per his own averments is a contractual teacher with Rs.2,500/- per month as salary. The petitioner has not been found with any source of income by the learned District Judge. This being so, the petitioner is entitled to maintenance pendente lite under the aforesaid provision. [Para 7
(2) Hindu Marriage Act, 1955 -- S.24 -- Criminal P.C, 1973 -- S.125 -- maintenance -- concept of both the provisions is different -- under S.125 of the Code an able bodied husband may be made liable to pay maintenance to wife irrespective of his income -- under S.24 of the Act pendency of matrimonial case and income of both the parties are to be considered -- neglect or refusal to maintain is not a pre-condition u/s 24 of the Act. AIR1979 Bom.264 relied on. [Para 7
¼1½ fganw fookg vf/kfu;e] 1955 && /kkjk 24 && ekeyk yafcr jgus ds nkSjku eqdn~neckth O;; rFkk Hkj.k&iks"k.k ds fy, vkosnu && vVdyckth vkSj vuqekuksa ij fofuf‘pr ugha fd;k tkuk pkfg, && izFken`"V~;k fu"d"kZ Hkh lac) i{kdkj ij izfrdwy izHkko Mky ldrk gS && izR;FkhZ𝔦 ds ikl vk; dk lzksr && iRuh Hkj.k&iks"k.k rFkk O;; dh gdnkj gS tc mlds ikl vk; dk lzksr ugha gS && Hkj.k&iks"k.k dh mis{kk ;k bUdkj /kkjk 24 ds v/khu iwoZ&‘krZ ugha gS && Hkj.k&iks"k.k ls bl vk/kkj ij bUdkj ugha fd;k tk ldrk fd iRuh LosPNk ls vyx jg jgh gSA
fganw fookg vf/kfu;e dh /kkjk 24 ds v/khu vukosnd&;kph dk vkosnu bl vk/kkj ij [kkfjt fd;k x;k fd og izFken`"V~;k LFkkfir Fkk fd Lo;a ;kph vius ifr ls LosPN;k vyx fuokl dj jgh FkhA ¼iSjk 1
vfHkfu/kkZfjr % naM izfØ;k lafgrk dh /kkjk 125 ds mn~ns‘; rFkk iz;kstu ds n`f"Vxr] ‘kkjhfjd :i ls leFkZ ifr tks viuh iRuh ds Hkj.k&iks"k.k dh mis{kk djrk gS ;k mlls bUdkj djrk gS og mldh vk; dks fopkj esa yk, fcuk Hkj.k&iks"k.k ds lank; dk nk;h cuk;k tk ldrk gSA nwljh vksj] fganw fookg vf/kfu;e dh /kkjk 24 ds v/khu izR;FkhZ dh vk; ij fopkj djus ds i‘pkr~] Hkj.k&iks"k.k dk vkns‘k ikfjr fd, tkus ;ksX; gSA vr%] naM izfØ;k lafgrk dh /kkjk 125 ds v/khu Hkj.k&iks"k.k iznku ;k bUdkj fd, tkus ds le; ifr }kjk iRuh ds Hkj.k&iks"k.k dh mis{kk vFkok bUdkj vko‘;d la?kVdksa esa ls ,d gS] fdarq og fganw fookg vf/kfu;e dh /kkjk 24 ds v/khu iwoZ&‘krZ ugha gS rFkk mi;qZDr mica/k ds v/khu varfje Hkj.k&iks"k.k ls ek= bl vk/kkj ij oafpr ugha fd;k tk ldrk fd iRuh LosPNkiwoZd vius ekrk&firk ds lkFk jg jgh gSA
fo}ku fopkj.k U;k;k/kh‘k us izFken`"V~;k fu"d"kZ fudkyus esa vVdyckth vkSj vuqekuksa dk voyac fy;k gS fd ;kph LosPNk ls i`Fkd~ jg jgh gS rFkk vopkj@oSokfgd vijk/k dk nks"kh gSA
izR;FkhZ Lo;a ds izdFkuksa ds vuqlkj :-2]500@& izfrekl osru lfgr lafonkRed f‘k{kd gSA ,slk gksrs gq,] mi;qZDr mica/k ds v/khu ;kph okndkyhu Hkj.k&iks"k.k dh gdnkj gSA ¼iSjk 7
¼2½ fganw fookg vf/kfu;e] 1955 && /kkjk 24 && naM izfØ;k lafgrk] 1973 && /kkjk 125 && Hkj.k&iks"k.k && nksuksa mica/kksa dh ladYiuk fHkUu gS && lafgrk dh /kkjk 125 ds v/khu ‘kkjhfjd :i ls leFkZ ifr dks mldh iRuh dks Hkj.k&iks"k.k lanÙk djus ds fy, nk;h cuk;k tk ldrk gS && vf/kfu;e dh /kkjk 24 ds v/khu oSokfgd ekeys ds yacu vkSj nksuksa i{kdkjksa dh vk; ij fopkj djuk gksrk gS && mis{kk ;k Hkj.k&iks"k.k ls bUdkj vf/kfu;e dh /kkjk 24 ds v/khu iwoZ&‘krZ ugha gSA , vkb vkj 1979 cacbZ 264 voyafcrA ¼iSjk 7
1. A challenge to order dated 25.1.2006 passed by Shri Praveen Shah, District Judge, Satna (Annexure P-4) in Case No.HM 66A/05 has been made in the present writ petition whereby an application of the non applicant/petitioner under section 24 of Hindu Marriage Act was dismissed on the ground that it was prima facie established that the petitioner herself was residing separately from her husband in a voluntary manner.
2. Short facts involved in the petition are that the petitioner and respondent are Hindu by religion and their marriage was performed on 21st May, 2004. The respondent-husband submitted an application under section 9 of the Hindu Marriage Act for restitution of conjugal rights with the allegations that the marriage was performed without the consent of the petitioner-wife. She had a love affair with a boy residing at Satna. After the marriage, the petitioner accused her husband of making undue demands for dowry and also levelled allegations on his character. She was not prepared to stay with the applicant-respondent. Consequently, the respondent left the petitioner in March, 2005 at her parents' house. He tried to bring her back but the latter did not agree to it. Ultimately, the respondent-husband after issuing a notice submitted a petition for restitution of conjugal rights in the month of May, 2005.
3. It has been stated by the petitioner-wife in the writ petition that immediately after the marriage, the respondent made demand for additional dowry and also made allegation about the character of petitioner inflicting thereby mental torture so it became unbearable for the petitioner to live with respondent. A complaint was also made with the Police Station, Mahila Thana, Satna on 12.4.2005 and 15.4.2005 which are cumulatively placed on record as Annexure P-1.
4. In the proceedings for restitution of conjugal rights, the petitioner-wife submitted an application under section 24 of the Hindu Marriage Act stating therein that she has no source of income and is wholly dependent on her father. Respondent is serving as a contractual teacher and is earning Rs.5,000/- per month as salary. He also earns about Rs.5000/- per month from tuition. Petitioner, thus, prayed for Rs.5,000/- towards maintenance and Rs.3,000/- towards the expenses of litigation. The prayer having been declined, the present writ petition has been preferred by the petitioner-wife.
5. Shri Ravendra Shukla, learned counsel appearing for the petitioner contended that his client has no source of income and is entitled to interim maintenance under section 24 of the Hindu Marriage Act.
6. Shri Parag Chaturvedi, learned counsel for the respondent supported the impugned order. He submitted that his client is prepared to keep the petitioner with him as his wife and has already submitted a petition for restitution of conjugal rights. Petitioner having opted to live separately in a voluntary manner is not entitled to interim maintenance as rightly held by the learned trial Judge.
7. After hearing the submissions and perusing the record, this Court is of the considered opinion that the petition deserves to succeed for the following reasons :
(i) Admittedly, the petitioner is a legally wedded wife of the respondent who has initiated proceedings under section 9 of the Hindu Marriage Act before the Trial Court. With the initiation of the proceedings under Hindu Marriage Act, 1955 (which includes the proceedings for restitution of conjugal rights under Hindu Marriage Act), section 24 -f it gets attracted which reads as follows:
"Maintenance pendente lite and expenses of proceedings. -- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding
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