Shanti Devi vs Mathura Lal

Rajendra Saxena, J.—Heard, Perused the record of the lower Courts.

This revision petition has been filed against the order dated 4.12.93 passed by the learned Additional Sessions Judge, Tonk in Criminal Revision Petition No. 11/93, whereby, while rejecting the husband non-petitioner''s revision petition against the order dated 3.11.91 of the learned Munsif and Judicial Magistrate, Tonk, whereby u/s 125, Cr.P.C., he granted maintenance to the petitioner at the rate of Rs. 400/- per month w.e.f. 9.1.89, was affirmed, but the lower Court''s order was modified to the extent that the amount of maintenance granted in favour of the petitioner u/s 24 of the Hindu Marriage Act shall be adjusted in the maintenance granted by him. It has been strenuonsly canvassed on behalf of the petitioner that the learned Additional Sessions Judge while exercising the power of revision was only empowered to look into the legality, correctness and propriety of the learned Magistrate''s order and that he had no jurisdiction to modify the lower Court''s order especially when the revision petition was dismissed.

The parties are not at dispute that the learned District Judge, Tonk in a proceeding u/s 24 of the Hindu Marriage Act granted alimony in favour of the petitioner. The petitioner also filed a petition u/s 125 Cr.P.C., wherein after due enquiry the learned Munsif & Judicial Magistrate, Tonk vide order dated 23.11.91 held that the petitioner had no independent source of income, that the non-petitioner''s monthly pay was Rs. 1766/- and that he also maintains his parents, younger brothers and sisters and taking in view the facts and circumstances of the case, granted maintenance in favour of the petitioner @ Rs. 400/- per month. The fact regarding the alimony granted by the learned District Judge was not brought to the notice of the learned Magistrate. However, the non-petitioner in his memo of revision petition specifically mentioned that the learned District Judge vide order dated 26.4.89 had also granted ad interim maintenance at the rate of Rs. 200/- per month to the petitioner and that the said amount is being paid by him to the petitioner and that the learned Magistrate had committed illegality in not adjusting the said amount. The revision petition was agitated before the learned Additional Sessions Judge, who concurring with the findings of the learned Magistrate about the income of the non-petitioner but keeping in view the factum of the alimony granted to the petitioner by the learned District Judge, modified the order of the learned Trial Magistrate and directed that the amount of ad interim maintenance granted in favour of the petitioner by the learned District Judge, Tonk u/s 24 of the Hindu Marriage Act shall be adjusted in the maintenance amount granted u/s 125 Cr.P.C. It is true that proceedings u/s 24 of the Hindu Marriage Act and u/s 125 Cr.P.C. are independent and separate proceedings. But the quantum of maintenance u/s 123 Cr.P.C. has to be determined keeping in view the various sources of income of the party. A party should not get double maintenance amount from the husband passed in separate proceedings. The learned Additional Sessions Judge keeping in view the admitted fact that the petitioner was granted ad-interim maintenance u/s 24 of the Hindu Marriage Act, did not commit any illegality in ordering that the said amount shall be adjusted in the maintenance amount granted by the learned Magistrate. In my considered opinion the learned Additional Sessions Judge had the power to pass an appropriate order in its revisional jurisdiction.

Shri Pawan Sharma submits that the District Judge vide judgment dated 31.5.94 has granted the divorce dissolving the marriage of the parties and thus the order passed u/s 24 of the Hindu Marriage Act has also come to an end. In such circumstances, petitioner shall be entitled to get Rs. 400/- per month as maintenance from the non-petitioner u/s 125 Cr.P.C. w.e.f. 1.6.94.

With these observations, this petition stands disposed off. The record of the lower Court could be sent back.