Smt. Nirmal Kaur vs Sardar Harbhajan Singh

R.K. Saksena, J.—The Petitioner moved an application u/s 125 Code of Criminal Procedure against her husband for maintenance allowance alleging that she was unable to maintain herself and that she had been treated with cruelty by the husband who resisted the claim on a variety of grounds. There is no dispute that before initiation of this proceeding, the husband had filed a suit praying for a decree for divorce against the Petitioner and in that case a sum of Rs. 100/- p. m. as was granted as interim maintenance u/s 24 of the Hindu Marriage Act with effect from 25-7-81. The magistrate dismissed the application observing that because the wife was already receiving maintenance allowance in pursuance of an order passed by the Civil Court, she was not entitled to get any other order for maintenance allowance. This order dated 5-10-83 was assailed by the wife by means of a revision but she was unsuccessful. The revisional Court (II Additional Sessions Judge, Nainital) endorsed the view expressed by the magistrate. The revision was accordingly dismissed by an order dated 28-6-84.

This petition has been moved by the wife u/s 482 Code of Criminal Procedure for quashing the orders referred to above passed by the Magistrate and the Additional Sessions Judge, Nainital.

I have heard the learned Counsel for the parties. The view taken by both the Courts below suffers from infirmity. Interim maintenance was granted to the wife by the Civil Court in a petition for divorce and after the termination of that proceeding the wife cannot get maintenance allowance on the basis of the interim order passed by the Civil Court exercising powers u/s 24 of the Hindu Marriage Act whereas the order granting maintenance allowance u/s 125 Code of Criminal Procedure continues till the prayer u/s 127 Code of Criminal Procedure by the husband for modification in (or) cancellation placing reliance on any subsequent event is accepted. Dismissal of application for maintenance allowance may act as a bar for the subsequent petition for maintenance allowance by another application of identical nature after the disposal of civil suit. Both the Courts below have lost sight of this aspect of the matter and also the fact that the proceedings u/s 125 Code of Criminal Procedure are entirely different and are based on different facts. The Courts below could have find maintenance allowance, to which the wife is entitled and should then have given a direction for adjustment of the amount received as interim maintenance allowance from Civil Court. By not adopting this course, both the Courts below have committed an error which has to be set aside in the ends of justice.

The petition is allowed. The impugned orders are set aside. And it is directed that the magistrate should dispose of the application given by the wife according to law on the basis of the material already on record and also in the light of the observations made above.