Basant Ram vs Pushapa Devi and Another

R.N. Prasad, J.—This application has been filed against the order dated 13.12.1996 passed by 1st Additional District and Sessions" Judge, Arrah in Matrimonial Case No. 41 of 1993 whereby the Petitioner was directed to pay main-tenance of Rs. 1000/- per month to Respondent No. 1 to maintain herself and her throe children from the date of passing of the order and also to pay Rs. 2,000/- as litigation cost to her.

The Petitioner was married, with opposite party No. 1 on 23.4.1979. The Petitioner filed matrimonial case No. 41 of 1993 against opposite parly No. 1 alleging therein that opposite party No. 1 is loading adulterous, life with opposite party No. 2. The opposite party No. 1 appeared in the case and filed a petition u/s 24 of the Hindu Marriage Act lot maintenance of Rs. 6,0007- per month for herself and tor her three children and Rs. 20,000-as cost of litigation. It was slated in the poli lion that the three children were born out of the wedlock from the Petitioner. She has no means of earning and is unable to maintain herself and three children. The Petitioner is Stenographer-cum P.A. to the Additional Director Education. Patna and drawing more than Rs. 6,000/- per month as salary. A rejoinder to the said petition was filed by the Petitioner stating therein that she is not entitled to maintenance as she has been allowed maintenance of Rs. 1,000/- per month u/s 125 Code of Criminal Procedure and also that she is leading adulterous life with opposite party No. 2. The court allowed maintenance of Rs. 1000/-per month to opposite party No. 1 and cust of litigation Rs. 2,000/- by. the impugned order.

The admitted position is that the marriage between the Petitioner and opposite party No. 1 was solemnised according to Hindu rites on 23.4.1979. Three children were born from their wedlock. Children are "living with opposite party No. 1. The matrimonial case No. 41 of 1993 was filed by the Petitioner on 23.12.1993. Opposite party No. 1 was allowed maintenance u/s 125 Code of Criminal Procedure at the rate of Rs. 500/- per month for herself and Rs. 500/- per month for her children. She was also allowed maintenance at the rate of Rs. 1000/-per month for herself and for maintenance of her three minor children u/s 24 of the Hindu Marriage Act. Learned Counsel for the Petitioner contended that since she has been allowed maintenance u/s 125 Code of Criminal Procedure the court boiow has committed error in allowing, maintenance u/s 24 of the Hindu Murnage Act.

The provision of Section 125 Code of Criminal Procedure are quite distinct from the provision of Section 24 of the Hindu Marriage Act. u/s 125 Code of Criminal Procedure only one spouse, namely, wife would be entitled for maintenance She can be awanded maintenance if the establishes that she has no ''indenpend of source of income and that she has been refused and neglected maintenace by her husband and her husband has. (sic) means to maintain her; whereas u/s 24 of the Hindu Marriage Act either wife or husband, as the case may be, can be granted maintenance pendente lite and also expense of the proceeding if she or he has no independent source of income sufficient for his or her maintenance or necessary expense of the proceeding. The nature of respective case in both the proceedings is quite different. There can be no difficulty on the part of the wife for pursuing remedy under both the provisions simultaneously as there is no bar under the law. Once jt is shown that she is entitled for maintenance interin alimony the court is requited to consider the economic status and condition of the parties Therefore, it cannot be said that sine. opposite patty No. 1 has been granted maintenance for her and her children u/s 125 Code of Criminal Procedure she cannot maintain a petition u/s 24 of the Hindu Marriage Act and the court c.annot allow interim alimony under the aforesaid provision. In this regard reference may be made to the cases of Hansaben v. Ramesh Kumar Railal Patnri 1992 (3) Cr. L.J. 3688 and Vishwanath Pondlik Chavan v. Nirmal and Ors. 1992 (2) Cr. L.J. 1262.

In the instant case, it appears that the said question was raised before the court below and the court considering the aforesaid aspect allowed interim alinony u/s 24 of the Hindu Marriage Act. The court has taken into consideration the income of the Petitioner and held that he is getting salary more than Rs. 6,000/- per month and opposite party No. 1 has no other means of income. The court has also taken into consideration that three minor children are reading in schools and are living with opposite party No. 1 Accordingly, the court below allowed alimony and cost of litigation. Thus, it cannot be said that the order impugned is bad in Saw. Accordingly, I find no merit in this application. It is, accordingly, dismissed but without cost.