Allahabad High Court
Ramakant (Family Court) vs Smt. Neelam @ Santoshi on 29 May, 2017
Bench: Devendra Kumar Arora, Ravindra Nath Mishra-Ii
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. 17
First Appeal Defective No.79 of 2017
Ramakant ......Appellant
Versus
Smt. [email protected] Santoshi ......Opposite party
Hon'ble Dr. Devendra kumar Arora, J.
Hon'ble R.N.Mishra,II J.
Heard.
As sufficient cause has been shown, the delay in filing the appeal is condoned.
The instant First Appeal under Section 28 of the Family Court Act has been filed against the order dated 18.4.2017 passed by the Principal Judge,Family Court in Case No. 438 of 2015 whereby the application (14 Ga) preferred by Smt. Neelam for meeting the expenses of the case and towards the study of the child has been allowed and the appellant has been directed to pay Rupees eight thousand in lump sum towards the expenses of the case and Rupees five hundred per date.
From the records it comes out that the marriage between the appellant and the respondent took place about 20 years ago. Since 15.6.2003, the opposite party [wife] is living with her parents without any justifiable reasons. The appellant has earlier filed an application under Section 9 of the Hindu Marriage Act and the same was decreed in favour of the appellant vide order dated 8.4.2010 but till date the opposite party has not come to live with the appellant. Later on, the appellant has filed a petition under Section 13 of the Hindu Marriage Act for dissolution of the Marriage. In the said case, the opposite party had put in appearance but later on moved an application for interim maintenance on 3.3.2017.
According to the learned Counsel for the appellant, the Court below in a most callous manner allowed the said application by the impugned order dated 18.4.2017 and ordered the appellant to give Rs. 8000/- in all and Rs. 500/- per date overlooking the fact that the opposite party is being paid maintenance regularly in view of the order passed in proceedings under Section 125 CrPC. It has also been pointed out that the appellant is an Advocate and has no regular source of income.
Section 24 talks about interim relief which can be granted during the pendency of proceedings in Hindu Marriage Act. Once the case is over, Section 24 benefits will automatically stop. It is available only for Hindus. Section 125 CrPC is a permanent maintenance relief. Even though this section is provided in criminal procedure code, it has got civil nature but the proceedings are conducted similar to criminal case, i.e., a little bit quicker. The relief once provided in Section 125 is valid till the wife remarries. It is applicable to all religions.
While dealing with the question whether a pre-existing order for payment of maintenance under Sec.125 of CrPC is a bar for maintaining an application under Sec.24 of the Hindu Marriage Act, the Courts are of the uniform view that it is not a bar and both the reliefs are independent of each other. It is well settled that a claim under Sec.24 of the Hindu Marriage Act is a relief of interim maintenance during the pendency of matrimonial proceedings. Initiation of a legal proceedings under the Hindu Marriage Act is a condition precedent whereas the claim under Sec.125 CrPC is a social relief. The civil courts granting maintenance have to only take into consideration of the pre-existing order of such payment of maintenance by the criminal court.
The remedy provided under section 125 of the CrPC is totally for a different purpose. This remedy does not oust the jurisdiction of the Family Court to award interim maintenance under section 24 of the Act. The scope of the proceeding under section 125 CrPC is very limited. It is purely a summary proceeding. Section 127 of the CrPC permits the Court to vary the order. Therefore, Section 125 CrPC operates in an entirely different sphere.
A spouse unable to maintain himself/herself is entitled to maintenance on the principle of equi-status and respect that the spouse would have enjoyed if he/she continued to live with each other spouse. It is pertinent to mention that the provisions of Section 24 are beneficent in nature and the power is exercised by the Court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse. The Court is called upon to make a summary consideration of amount which the applicant is to be awarded by way of maintenance pendente-lite and litigation expenses in accordance with the financial resources of the parties.
Having considered the material on record, we are of the view that obligation of the husband to pay such expenses cannot be deferred till final adjudication of the suit. The order sheet annexed with the appeal shows that the appellant had paid a sum of Rs. 4800/- towards maintenance from December, 2016 to March, 2017 in proceedings under Section 125 CrPC. The order sheets further shows that the appellant was not regular and punctual in making payment causing serious mental tension and harassment to the opposite party who not only has to maintain herself but a school child too. The impugned order shows that the appellant has been directed to pay Rs. 8000/- in lump sum towards the expenses of the litigation and Rs. 500/- per date, which in our opinion, is perfectly justified in these hards days where the cost of everything is rising every day. However, while awarding aforesaid amount, certain riders have been put like when the opposite party fails to appear on the date fixed, the appellant would not be liable to pay the amount. Similarly, if the opposite party adopts delaying tactics in disposal of the case or seeks adjournment at the drop of the hat, then in that eventuality for one adjournment, the respondent would be liable to return ten percent of the amount given in lump sump towards litigation expenses. Similar, liability has been fastened upon the appellant. It may be noted that while allowing the application of the opposite party, the court below has not granted any amount under the head of education expenses of the child. Therefore, it cannot be said that the impugned order is arbitrary or has not been passed without application of mind, rather the same has been passed considering the attending circumstances and the difficulties which are being faced by the wife in day to day life.
Accordingly, we find no infirmity or irregularity in the impugned order. The instant appeal is dismissed.
Order Date:29.05.2017
akverma [R.N.Mishra-II,J.] [Dr. D.K.Arora,J.]
