Pushpraj Jain vs Sarika Jain

C.V. Sirpurkar, J.—Heard on admission.

This revision petition is directed against the order dated 20.12.2014 passed by the Court of Principal Judge, Family Court, Jabalpur in Misc. Case No. 121/2014 [Smt. Sarika Jain and another vs. Pushpraj Jain], whereby learned Principal Judge has allowed the application for interim maintenance under section 125 of the Code of Criminal Procedure filed on behalf of respondents Smt. Sarika Jain and her daughter Priyanka and directed applicant Pushpraj Jain to pay a sum of Rs. 5000/- per month to respondent Sarika and Rs. 2500/- per month to respondent Priyanka by way of interim maintenance till the disposal of respondents'' case filed under section 125 of the Code of Criminal Procedure. It was further directed that in case the respondents were receiving any amount by way of interim maintenance under Hindu Marriage Act, the same shall be adjustable against aforesaid amount.

The impugned order has been assailed mainly on the ground that applicant husband had filed a proceeding against the respondents under section 9 of the Hindu Marriage Act for restitution of conjugal rights. In that case, learned Principal Judge, Family Court, Indore, had passed an order under section 24 of the Hindu Marriage Act directing the applicant to pay a sum of Rs. 3000/- per month to respondent Sarika and a sum of Rs. 1000/- to respondent Priyanka by way of interim maintenance. Relying upon the principles laid down by a Co-ordinate Bench of this High Court in the case of Pallavi vs. Sachin, 2012(3) MPLJ 167, learned counsel for the applicant has argued that the learned Principal Judge Family Court had no jurisdiction to grant interim maintenance under section 125 of the Cr.P.C., as long as the order of interim maintenance under section 24 of the Hindu Marriage Act is in force and respondents were not entitled to separate maintenance in a proceeding under section 125 of the Code.

In support of aforesaid argument, learned counsel for the applicant has also placed reliance upon the order passed by Punjab and Haryana High Court in the case of Mamta Rani vs. Raj Kumar reported in Divorce and Matrimonial Cases-I (1985) DMC 141. However, it has been held by the Supreme Court in the case of Sudeep Chaudhary Vs. Radha Chaudhary, that amount awarded under section 125 of the Code of Criminal Procedure is adjustable against the amount awarded in matrimonial proceedings under section 24 of the Act as alimony to wife. In the case of Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, , the Supreme Court held that broadly stated; a final determination of a civil right by a civil Court must prevail against a like decision by a criminal Court; however, this principle has no application to a case where, pending proceedings under section 125 of the Code of Criminal Procedure, a Civil Court has passed an interim order of maintenance for the wife in a proceeding for divorce by the husband because it is not a final determination under the Hindu Adoptions and Maintenance Act but only an order pendente lite under section 24 of the Hindu Marriage Act.

A Co-ordinate Bench of this Court in the case of Ashok Singh Pal Vs. Smt. Manjulata, has held that under section 125 of the Code of Criminal Procedure, alimony pendente lite under section 24 of the Hindu Marriage Act, can be claimed by resorting to both these provisions and the Court is competent under these provisions to grant relief to the person concerned and the question of adjustment to be granted, has to be decided after taking into consideration the totality of the circumstances, the amount granted and the capacity of the person directed for making the payment. The same view was taken by this Court in the case of Mamta Vs Madhusudan, 2008 (III) MPWN Note 52.

In view of the aforesaid pronouncement, it is manifest that a Court does not lose its jurisdiction to direct payment of maintenance under section 125 of the Code of Criminal Procedure simply because an order of interim maintenance under section 24 of the Hindu Marriage Act is in operation; however, while passing such an order the Court has to take into account the amount already being received under section 24 of the Hindu Marriage Act.

A perusal of the impugned order reveals that the learned Principal Judge has already included a caveat in the order to the effect that if the respondents are receiving any interim maintenance in the case under section 9 of the Hindu Marriage Act, that amount shall be adjustable against the amount directed to be paid by way of interim maintenance under section 125 of the Code of Criminal Procedure.

No other ground has been raised during the argument on admission.

In aforesaid view of the matter, the impugned order does not suffer from any illegality, irregularity or impropriety, warranting interference.

Consequently, this revision petition is dismissed in limine.