The High Court · 2023

Decision

ORDER 03.11.2023

2. 1. This matter is taken up through hybrid mode.

2. Order dated 28th August, 2023 (Annexure-11) passed by learned Judge, Family Court, Jagatsinghpur in C.P. No. 692 of 2019 is under challenge in this writ petition, whereby a petition to reconsider the grant of pendente lite maintenance under Section 24 of the Hindu Marriage Act, 1955 (for brevity ‘the Act’) has been rejected.

3. Mr. Mohanty, learned counsel for the Petitioner submits that marital relationship between the parties is not disputed. The Opposite Party has filed C.P. No.692 of 2019 for dissolution of marriage by a decree of divorce, which is pending before learned Family Court, Jagatsinghpur. During pendency of the civil proceeding, the Opposite Party filed an application under Section 24 of the Act. Learned Judge, Family Court, Jagatsinghpur vide order dated 17th January, 2023 disposed of the said application directing the Petitioner to pay pendente lite maintenance of Rs.4,000/- per month to the Opposite Party from the date of presentation of the application, i.e. 4th October, 2021. // 2 // Assailing the same, the Petitioner preferred W.P.(C) No. 7273 of 2023, which was disposed of as withdrawn vide order dated 19th April, 2023 (Annexure-9) taking into consideration the submission made by learned counsel for the Petitioner that the Petitioner would move learned Judge, Family Court, Jagatsignhpur for reconsideration of the petition under Section 24 of the Act in view of the decision of Rajasthan High Court in the case of Harish Kumar –v- Manju (Smt.), reported in II (2005) DMC 148.

3.1 It is submitted by Mr. Mohanty, learned counsel for the Petitioner that pursuant to withdrawal of W.P.(C) No.7273 of 2023, the Petitioner filed an application under Annexure-10 for reconsideration of the application under Section 24 of the Act. Although detailed averments have been made stating that the Opposite Party is not entitled to pendente lite maintenance as directed, but learned trial Court without discussing the same rejected the application holding that at the time of adjudication of the petition under Section 24 of the Act, it had taken into consideration the order passed in CRP No. 52 of 2016 under Section 125 Cr.P.C. It is further submitted that in the case of Harish Kumar (Supra), Rajasthan High Court has categorically held that a party is not entitled to double maintenance at para- 8(2) of the said order. In the instant case, admittedly the Opposite Party is in receipt of maintenance of Rs.6,000/- per month in a proceeding under Section 125 Cr.P.C. in CRP No.52 of 2016. As such, a petition under Section 24 of the Act is not maintainable. This aspect was not taken into consideration // 3 // while adjudicating the petition under Annexure-10. Hence, this writ petition has been filed.

4. Heard Mr. Mohanty, learned counsel for the Petitioner and perused the impugned order under Annexure-11.

5. It appears that in course of hearing of W.P.(C) No.7273 of 2023, Mr. Mohanty, learned counsel for the Petitioner stated that while adjudicating the petition under Section 24 of the Act, learned Judge, Family Court, Jagatsinghpur did not take into consideration that the Opposite Party was in receipt of Rs.6,000/- per month as maintenance. Hence, he prayed for withdrawal of the said writ petition to enable him to file an application for reconsideration of the petition under Section 24 of the Act in view of the ratio decided in the case of Harish Kumar (supra). Relevant portion of the case law in Harish Kumar (supra) is quoted hereunder: “8. Thus, for the reasons mentioned above the following preposition of law can be laid down:- (1) That proceedings under Section 24 of the Hindu Marriage Act and under Section 125 CrPC are independent and separate proceedings and order of maintenance can be passed in both of them. (2) But the quantum of maintenance under Section 125 CrPC 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. (3) That maintenance allowance granted under Section 24 of the Act, 1955 should be adjustable towards the amount granted under Section 125 Cr.PC. facts and regard 9. Thus, having circumstances of this case, I am inclined to hold that the amount paid by the petitioner husband to the respondent wife towards her maintenance // 4 // pursuance of the order dated 21.04.2001 passed by the learned Additional District Judge. Didwana under Section 24 of the Hindu Marriage Act, 1995 is liable to be adjusted against the amount payable under Section 125 of CrPC towards her maintenance in pursuance of the Order dated 31.07.2003 passed by the learned Chief Judicial Magistrate, Bikaner. For the reasons mentioned above, the impugned order dated 31.07.2003 passed by the learned Chief Judicial Magistrate, Bikaner by which he granted separate interim maintenance of Rs. 750 pm to the respondent wile is liable to be made subject to the modification to the effect that the amount paid as alimony pendente lite in the matrimonial suit by the petitioner husband the respondent wife be adjusted against the maintenance payable under the impugned order dated 31.07 2003 passed by the Judicial Magistrate, Bikaner. learned Chief However, it is made clear that the petitioner husband has to pay the litigation expenses as ordered by the learned Additional District Judge, Didwana in his order dated 21.04.2001. In the result, the revision petition succeeds and is hereby allowed subject to the modification of the impugned order as directed above."

6. Mr. Mohanty, learned counsel for the Petitioner harped upon Para-8(2) of the said case law in which it is held that a party should not get double maintenance amount from the husband in a separate proceeding. But, in para-8(3) of the said case law, it is categorically held that a party in receipt of maintenance under Section 24 of the Act should be adjusted while considering the grant of maintenance under Section 125 Cr.P.C.

7. In view of the above, this Court is of the considered opinion that while entertaining an application under Section 24 // 5 // of the Act, the Court should take into consideration the order of maintenance, if any, granted in favour of wife. In the instant case, on perusal of the order dated 17th January, 2023 (Annexure-8), it appears that learned Judge, Family Court, Jagatsinghpur had taken into consideration the order passed in CRP No.52 of 2016 under Section 125 Cr.P.C. at para-7 of the said order. It is submitted by Mr. Mohanty, learned counsel that the Petitioner is a bank employee and is receiving a salary of Rs.37,000/- per month. Vide order dated 17th January, 2023, learned Judge, Family Court, Jagatsinghpur directed Petitioner to pay pendente lite maintenance of Rs.4,000/- per month. Thus, I am of the considered opinion that pendente lite maintenance directed to be paid by the Petitioner to the Opposite Party is not excessive or unreasonable as it has been passed taking into consideration the maintenance being received by the Opposite Party-Wife under Section 125 Cr.P.C. As such, the writ petition being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Nov-2023 18:09:38