Mangat Ram vs Sita Devi

V.S. Aggarwal, J.

PetitionerMangat Ram was married to respondentSita Devi. Respondent filed an application under Section 125 of the Code of Criminal Procedure seeking maintenance on the ground that she is living with her parents under the compelling circumstances. She asserted that behaviour of the petitioner was cruel and there were persistent demands of dowry. She claimed Rs. 500/ as maintenance. The petitioner contested the claim on the ground that his monthly income is not more than Rs. 1,000/ P.M. He also asserted that a divorce petition is pending in the court of Additional District Judge, Kaithal. He has already fixed Rs. 500/ as maintenance during the pendency of the divorce petition. The learned Chief Judicial Magistrate, Kaithal held that fixation of maintenance pendente lite of Rs. 500/ P.M. has no bearing on the case of the respondent and fixed Rs. 300/ P.M. as maintenance allowance from the date of the application. The petitioner filed a revision petition in the court of Session. The learned Additional Sessions Judge dismissed the revision petition. By virtue of the present petition Mangat Ram seeks quashing of the order alleging that said provision under the Hindu Marriage Act where maintenance has been allowed prevails and further the petitioner cannot be made to make the maintenance twice over.

In the reply filed by the respondent, it was claimed that the second revision petition is not maintainable and is barred under Section 397 Cr.P.C. Respondent''s case is that maintenance can be allowed under both namely the Hindu Marriage Act and Section 125 of the Code of Criminal Procedure. None is dependent on the other.

The short question agitated was as to if when during the pendency of the divorce petition, maintenance has been awarded, the learned Judicial Magistrate was justified in awarding maintenance at Rs. 300/ P.M. or not as interim maintenance.

There is no controversy that if a divorce petition is pending, maintenance pendente lite under Section 24 of the Hindu Marriage Act has been awarded to the wife, it will not be a bar for filing a petition under Section 125 Cr.P.C. Both the petitions are independent to each other. The purpose of Section 125 Cr.P.C. is to provide succour to the destitute wife or other such relative. However, when maintenance already is being given during the pendency of the petition under the Hindu Marriage Act, there is no point of making the payment again. That fact cannot be lost sight of particularly when only interim maintenance had been prayed. Admittedly, Rs. 500/ is being paid to the respondent during the pendency of the petition under the Hindu Marriage Act and thus, the judicial propriety demanded, till such time the said petition under the Hindu Marriage Act was pending, interim maintenance should not have been allowed. Consequently, the order passed by the Chief Judicial Magistrate cannot be sustained.

For these reasons, the petition is allowed and the order passed by the learned Chief Judicial Magistrate is quashed. It is, however, made clear that nothing would restrain the learned Chief Judicial Magistrate from continuing the petition under Section 125 Cr.P.C. If during the pendency of the same, it is brought to the notice of the learned trial court that the interim maintenance that is being granted in the other petition is not being paid or the said order has come to an end, in that event, the respondent would be at liberty to approach the Court for interim maintenance.