Bombay High Court
Shri Sumit S/O Ramkishor Pande vs Smt Anita W/O Sumit Pande on 26 February, 2021
Bench: A.S. Chandurkar
MCA-20-20 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION (MCA) NO.20 OF 2020
IN
WRIT PETITION NO.5096 OF 2019
Sumit s/o Ramkishor Pande, Maskasath, Itwari, Nagpur
-vs-
Anita w/o Sumit Pande (Anita R. Tiwari), Sector 11, Khulsipar, Bhilai (CG)
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
Shri C. G. Barapatre, Advocate for applicant.
Smt Amruta Ghonge, Advocate for non-applicant.
CORAM : A. S. CHANDURKAR, J.
DATE : February 26, 2021
By the judgment dated 20/11/2019 in Writ Petition
No.5096/2019 which was filed by the non-applicant herein the
present applicant was directed to pay interim maintenance at
the rate of Rs.3000/- per month. The applicant has sought
review of this order on two counts namely, that the learned
counsel for the applicant-respondent in the writ petition was not
heard when the said order was passed and secondly in view of
the fact that in proceedings under Section 125 of the Code of
Criminal Procedure, 1973 (for short, the Code) the non-
applicant was getting an amount of Rs.2000/- as maintenance,
she was not entitled to seek further maintenance from the
Family Court.
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2. The learned counsel for the applicant by placing reliance
on the decisions in Ravindra Haribhau Karmarkar vs Shaila
Ravindra Karmarkar and anr. 1992 (1) Mah L.R 246 submits that
prosecution of two parallel proceedings for grant of
maintenance were not permissible and the non-applicant
having been granted amount of Rs.2000/- per month as
maintenance in proceedings under Section 125 of the Code, the
Family Court had rightly refused to grant any maintenance
under Section 24 of the Hindu Marriage Act, 1955. It was not
permissible for the non-applicant to prosecute two
simultaneous proceedings at the same time. Further though the
applicant had engaged an Advocate to represent him the said
Advocate failed to appear and represent the applicant in the
writ petition. On these counts it is submitted that the judgment
dated 20/11/2019 deserves to be reviewed.
3. The learned counsel for the non-applicant by referring to
the decisions in Gomaji Ghanshyam Mohadikar vs. Yashoda w/o
Gomaji Mohadikar 1996 (1) Mh.L.J. 423 and Alka w/o Vardhaman
Bamb vs Vardhaman alias Pushkaraj alias Narendra s/o Nemichand
Bamb 2000 (3) Mh.L.J. 512 submits that merely because some
amount of maintenance was granted in proceedings under
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Section 125 of the Code, the same would not be a bar to seek
maintenance under Section 24 of the Act of 1955. She further
submits that after noticing the order passed under Section 125
of the Code the direction to pay interim maintenance at the rate
of Rs.3000/- per month has been issued. There is no error
apparent on the face of the record and hence the application is
liable to be rejected.
4. Perusal of the order dated 20/11/2019 passed in Writ
Petition No.5096/2019 indicates that on 04/11/2019 when the
writ petition was considered for admission there was no
representation on the part of the applicant herein. The
proceedings were then adjourned to 20/11/2019 and as on that
date also there was no representation on behalf of the applicant,
the Court proceeded further with its adjudication. As sufficient
opportunity was granted to the applicant there is no reason to
re-open the proceedings on the first ground urged by the
applicant.
5. The order passed in the writ petition indicates that the
fact that an amount of Rs.2000/- per month was granted to the
non-applicant in proceedings under Section 125 of the Code
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was noted and thereafter the non-applicant was found entitled
to grant of interim maintenance at the rate of Rs.3000/- per
month. There is no bar for an applicant to seek maintenance
under any of the enactments that permit the award of
maintenance. This is clear from the recent decision of the
Honourable Supreme Court in Rajnesh vs. Neha and anr. AIR 2021
SC 569. In paragraph 17 it has been observed as under :
" 17. ... It is well-settled that a wife can make a claim for
maintenance under different statues. For instance, there is
no bar to seek maintenance both under the D. V. Act and
Section 125 of the Cr. P. C. or under H. M. Act. It would,
however, be inequitable to direct the husband to pay
maintenance under each of the proceedings, independent of
the relief granted in a previous proceeding. If maintenance is
awarded to the wife in a previously instituted proceedings,
she is under a legal obligation to disclose the same in a
subsequent proceedings for maintenance, which may be filed
under another enactment. While deciding the quantum of
maintenance in the subsequent proceedings, the civil
Court/family Court shall take into account the maintenance
awarded in any previously instituted proceeding, and
determine the maintenance payable to the claimant.
To overcome the issue of overlapping jurisdiction, and
avoid conflicting orders being passed in different proceedings,
we direct that in a subsequent maintenance proceedings, the
applicant shall disclose the previous maintenance proceeding,
and the orders passed therein, so that the Court would take
into consideration the maintenance already awarded in the
previous proceedings, and grant an adjustment or set-off of
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the said amount. If the order passed in the previous
proceeding requires any modification or variation, the party
would be required to move the concerned Court in the
previous proceeding. "
In the light of this settled position, even the second
ground urged by the applicant has no merit.
6. I therefore do not find any error apparent on the face of
the record to exercise review jurisdiction. The application
accordingly stands dismissed.
Digitally signed by JUDGE
Asmita Asmita Bhandakkar
Bhandakkar Date: 2021.02.26
17:18:44 +0530
Asmita
