Madras High Court
R.Usha vs S.Umapathy on 24 November, 2021
C.R.P. (PD) No.1088 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Civil Revision Petition (PD) No.1088 of 2021
R.Usha .. Petitioner
Vs.
S.Umapathy .. Respondent
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, praying to set aside the fair and decreetal order dated 17.07.2018
passed by the learned Principal Sub Judge, Vellore in I.A.No.43 of 2016 in
HMOP No.67 of 2016.
For Petitioner : Mr. D.Thirumoorthy
for M/s.S.P.Arthi
For Respondent : Mrs. Deepika B.Revanth
1/6
https://www.mhc.tn.gov.in/judis
C.R.P. (PD) No.1088 of 2021
ORDER
The wife whose application under Section 24 of the Hindu Marriage
Act, was dismissed on the ground that she has been favoured with an order
for maintenance under Section 125 of the Criminal Procedure Code in
M.C.No.6 of 2011 is on Revision.
2. The original proceeding in HMOP No.67 of 2016 has been initiated
by the husband seeking divorce on the ground of cruelty. The wife filed an
application under Section 24 of the Hindu Marriage Act, seeking
maintenance at Rs.10,000/- for herself, Rs.10,000/- for her minor son and
Rs.10,000/- as litigation expenses.
3. This application was resisted by the husband contending that the
Judicial magistrate in MC No.6 of 2011 had granted a sum of Rs.1,500/- to
the petitioner and a sum of Rs.2,000/- to the child. It was also contended
that an Appeal against the said order, the same was modified granting
Rs.1,500/- each to the wife and the child. The learned Subordinate Judge,
Vellore, who heard the application, dismissed the application, concluding
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C.R.P. (PD) No.1088 of 2021
that once the Judicial Magistrate has granted maintenance, the wife cannot
invoke Section 24 and seek interim maintenance.
4. Mr.D.Thirumurthy, learned counsel appearing for the petitioner
would contend that a grant of maintenance under Section 125 cannot bar the
wife from filing an application under Section 24 of the Hindu Marriage Act.
He would rely upon the judgment of this Court in Deepa V. Balaji, reported
in 2017 SCC Online Mad 20701, wherein this Court had held as follows:
“24. An order passed under Section
125 Cr.P.C. will not take away the jurisdiction of
the Matrimonial Courts/Civil Courts to grant
pendent lite maintenance to the wife and children
under Sections 24, 26 of the Hindu Marriage Act.
An order of maintenance passed under Section
125 Cr.P.C shall not bar the wife and the children
to recourse to Sections 24, 26 of the said Act and
seek maintenance in a pending matrimonial
proceedings. They can seek such a relief in a
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C.R.P. (PD) No.1088 of 2021
matrimonial proceedings initiated either by the
husband or by the wife herself.”
In view of the above categorical pronouncement of this Court, I do not think
that the order of the learned Subordinate Judge dismissing the application
could be sustained. The Revision therefore succeeds and the order of the
learned Subordinate Judge is set aside. The application in IA No.43 of 2016
is restored to file and the same is remitted to the Trial Court.
5. The learned Subordinate Judge will consider the application on its
merits and decide on the maintenance after taking into account the
maintenance awarded by the Judicial Magistrate under Section 125 Cr.P.C.
The learned Subordinate Judge is required to dispose of the application
within a period of four months from the date of receipt of a copy of this
order. The parties are required to file their respective affidavits of assets
and liabilities, as directed by the Hon’ble Supreme Court in Rajnesh v.
Neha and another, reported in (2021) 2 SCC 324.
jv 24.11.2021
https://www.mhc.tn.gov.in/judis
C.R.P. (PD) No.1088 of 2021
Index: No
Internet: Yes
Speaking order/Non Speaking order
To
1. The Principal Sub Judge,
Vellore.
2. The Section Officer,
V.R.Section,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
C.R.P. (PD) No.1088 of 2021
R.SUBRAMANIAN, J.
jv
Civil Revision Petition (PD) No.1088 of 2021
24.11.2021
https://www.mhc.tn.gov.in/judis
