CAV JUDGMENT

Date : 18-03-2025 The instant civil miscellaneous petition has been filed by the petitioner seeking following relief(s):-

“(i) Quashing the order dated 2.8.2017 passed by the ld. Principal Judge, Family Court, Madhubani in M.M. Case no. 77 of 2016 (Annexure-7) whereby and whereunder he has allowed the petition of the opposite party/respondent and directed the petitioner to pay Rs. 3500/- and Rs. 1500/- for maintenance and expenses of the proceeding monthly during pendency of the case to the opposite party from the date of order.

(ii) For directing and holding only maintenance instead of expenses of the proceeding.

(iii) For issuance of any other writ/writs, order/orders direction/directions for which the petitioner may be found entitled to.”

2. Shorn of unnecessary details, the case of the petitioner is that he has filed the matrimonial case vide M.M Case No. 77 of 2016 in the court of learned Principal Judge, Family Court, Madhubani under Section 13(1)(1)(a) of the Hindu Marriage Act, 1955 for divorce against his wife opposite party/respondent, herein on 11.04.2016 on account of desertion by the respondent without any reason. The respondent appeared and contested the claim of the petitioner. During the pendency of the matrimonial case, respondent filed an application under Section 125 Cr.P.C. vide M.R Case No. 82 of 2017 before the learned Principal Judge, Family Court, Madhubani on 25.04.2017 seeking maintenance from the petitioner. Thereafter, the respondent filed an application under Section 24 of the Hindu Marriage Act, 1955 on 16.06.2017 seeking interim maintenance. The petitioner filed his rejoinder to the petition dated 16.06.2017 denying all statements and claims of the respondent and questioned the maintainability of the petition on the ground that the maintenance case filed by the respondent has been pending. The learned Principal Judge, Family Court, Madhubani, after hearing the parties, allowed the application dated 16.06.2017 directing the petitioner to make payment of Rs. 3500/- per month as maintenance pendente lite and Rs. 1500/- per month as litigation expenses to the respondent. The said order dated 02.08.2017 is under challenge before this Court.

3. Learned counsel appearing on behalf of the petitioner vehemently contended that the impugned order is not sustainable as its suffers from a number of infirmities. Learned counsel submitted that the impugned order has been passed without consideration of facts and law applicable in the background of these facts. The respondent wife of the petitioner is a cruel lady and she left his matrimonial house on her own and thereafter has been happily residing at her parental house leaving behind her two children. Both the children are being taken care of by the petitioner. The petitioner spends half of his salary for meeting the expenses of education of his children. The petitioner works in a private firm and has been earning about Rs. 15,000/- per month only and out of this meager income, he has to take care of himself as well as his children. Thus, the liabilities of these children are being borne by this petitioner and not by the respondent. The learned counsel further submitted that the main issue involved in the present case is whether the respondent can take advantage of her own wrong. She has deserted the petitioner without any reasonable cause but this fact was not considered by the learned Principal Judge, Family Court. Learned counsel further submitted that the respondent has already filed an application for maintenance and she has also applied for interim maintenance. Learned counsel referred to subsequent development and submitted that maintenance case filed by the respondent under Section 125 of Cr.P.C. has been dismissed by the same Family Court on 24.01.2020. If a petition for grant for permanent maintenance under Section 125 of Cr.P.C. has been dismissed, no question arises for grant of interim maintenance under Section 24 of the Hindu Marriage Ac