Abhay Chandra Chaudhary vs Srimati Shobha Chaudhary @ Runni ...
2025 Latest Caselaw 2232 Patna

Patna High Court

Abhay Chandra Chaudhary vs Srimati Shobha Chaudhary @ Runni ... on 18 March, 2025

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

    IN THE HIGH COURT OF JUDICATURE AT PATNA
     CIVIL MISCELLANEOUS JURISDICTION No.1733 of 2017
======================================================
Abhay Chandra Chaudhary, S/o Late Indukar Chaudhary, Resident of Village-
Chanpura, Purwari Tol, P.S.- Benipatti, District- Madhubani.

                                                              ... ... Petitioner/s
                                  Versus
Srimati Shobha Chaudhary @ Runni Chaudhary, W/o Abhay Chandra
Chaudhary, D/o Sri Chandra Mohan Thakur, Resident of Village- Bhachchi
Thakur Tol, P.S.+ District- Madhubani.

                                          ... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s   :       Mr. Ranjeet Kumar Mishra, Advocate
For the Respondent/s   :       None
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
 Date : 18-03-2025

             The instant civil miscellaneous petition has been filed

 by the petitioner seeking following relief(s):-

                   "(i) Quashing the order dated 2.8.2017 passed by
                   the ld. Principal Judge, Family Court, Madhubani
                   in M.M. Case no. 77 of 2016 (Annexure-7)
                   whereby and whereunder he has allowed the
                   petition of the opposite party/respondent and
                   directed the petitioner to pay Rs. 3500/- and Rs.
                   1500/- for maintenance and expenses of the
                   proceeding monthly during pendency of the case
                   to the opposite party from the date of order.
                   (ii) For directing and holding only maintenance
                   instead of expenses of the proceeding.
                   (iii) For issuance of any other writ/writs,
                   order/orders direction/directions for which the
                   petitioner may be found entitled to."
             2. Shorn of unnecessary details, the case of the

 petitioner is that he has filed the matrimonial case vide M.M

 Case No. 77 of 2016 in the court of learned Principal Judge,
 Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025
                                            2/14




         Family Court, Madhubani under Section 13(1)(1)(a) of the

         Hindu Marriage Act, 1955 for divorce against his wife opposite

         party/respondent, herein on 11.04.2016 on account of desertion

         by the respondent without any reason. The respondent appeared

         and contested the claim of the petitioner. During the pendency

         of the matrimonial case, respondent filed an application under

         Section 125 Cr.P.C. vide M.R Case No. 82 of 2017 before the

         learned Principal Judge, Family Court, Madhubani on

         25.04.2017

seeking maintenance from the petitioner. Thereafter,

the respondent filed an application under Section 24 of the

Hindu Marriage Act, 1955 on 16.06.2017 seeking interim

maintenance. The petitioner filed his rejoinder to the petition

dated 16.06.2017 denying all statements and claims of the

respondent and questioned the maintainability of the petition on

the ground that the maintenance case filed by the respondent has

been pending. The learned Principal Judge, Family Court,

Madhubani, after hearing the parties, allowed the application

dated 16.06.2017 directing the petitioner to make payment of

Rs. 3500/- per month as maintenance pendente lite and Rs.

1500/- per month as litigation expenses to the respondent. The

said order dated 02.08.2017 is under challenge before this

Court.

Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

3. Learned counsel appearing on behalf of the

petitioner vehemently contended that the impugned order is not

sustainable as its suffers from a number of infirmities. Learned

counsel submitted that the impugned order has been passed

without consideration of facts and law applicable in the

background of these facts. The respondent wife of the petitioner

is a cruel lady and she left his matrimonial house on her own

and thereafter has been happily residing at her parental house

leaving behind her two children. Both the children are being

taken care of by the petitioner. The petitioner spends half of his

salary for meeting the expenses of education of his children. The

petitioner works in a private firm and has been earning about

Rs. 15,000/- per month only and out of this meager income, he

has to take care of himself as well as his children. Thus, the

liabilities of these children are being borne by this petitioner and

not by the respondent. The learned counsel further submitted

that the main issue involved in the present case is whether the

respondent can take advantage of her own wrong. She has

deserted the petitioner without any reasonable cause but this fact

was not considered by the learned Principal Judge, Family

Court. Learned counsel further submitted that the respondent

has already filed an application for maintenance and she has Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

also applied for interim maintenance. Learned counsel referred

to subsequent development and submitted that maintenance case

filed by the respondent under Section 125 of Cr.P.C. has been

dismissed by the same Family Court on 24.01.2020. If a petition

for grant for permanent maintenance under Section 125 of

Cr.P.C. has been dismissed, no question arises for grant of

interim maintenance under Section 24 of the Hindu Marriage

Act, 1955 during pendency of the proceeding of the matrimonial

case. Thereafter, the petitioner filed an application on

22.01.2021 for recall of the order dated 02.08.2017. The said

application was also rejected by the learned Family Court and

the petitioner was directed to comply the order dated 03.04.2018

passed by this Court since the original order was modified by

the said order of the learned Single Judge by directing the

petitioner to keep on making payment of interim maintenance

amount while the part order of payment of Rs. 1500/- per month

as litigation expenses has been stayed.

4. Learned counsel further submitted that the transient

nature of maintenance granted under Section 24 of the Hindu

Marriage Act need not be emphasized and this arrangement

would come to an end once the matrimonial case is disposed of.

In this regard, the learned counsel referred to the decision of a Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

learned Single Judge of Andhra Pradesh High Court in the case

of Arvind Chenji vs. Krishnaveni, reported in 2009 SSC

OnLine AP 486 : (2010) 1 DLS 545, wherein the learned Single

Judge has held that once the proceeding are disposed of, the

arrangement, as to payment of maintenance also comes to an

end. It has further been held that, however, a party, who was

granted maintenance under Section 24 of the Hindu Marriage

Act, cannot insist on payment thereof, beyond the date of

disposal of the main proceeding.

5. Learned counsel further submitted that the learned

Family Court did not examine the reasonableness of desertion

since a bar is put upon the claim of a person claiming

maintenance under Section 125 (4) and (5) of Cr.P.C. if there is

no reasonable explanation for desertion. Learned counsel also

submitted that it is the duty of both the parents to look after their

children and only because petitioner has been earning, the

respondent does not get absolved of her responsibilities. The

respondent is required to prove that her desertion is justifiable

and unless she does so, she is not entitled to any interim

maintenance.

6. Learned counsel next referred to the decision of the

Hon'ble Supreme Court in the case of Major Ashok Kumar Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

Singh vs. VIth Addl. Sessions Judge, Varanasi & Ors., reported

in AIR 1996 SC 333 on the point that as the petitioner is not

impotent and the respondent wife has deserted him without any

reasons, she is not entitled to seek maintenance from the

petitioner. In the aforesaid case, the Hon'ble Supreme Court

held that if the respondent was entitled to live separately from

the appellant on the ground of his impotency and if the

respondent was unable to maintain herself, she was entitled to

seek maintenance from the appellant. Learned counsel next

referred two more decisions of the Hon'ble Supreme Court in

the case of Roshan Deen vs. Preeti Lal, reported in AIR 2002

SC 33 and in the case of Board of Control for Cricket, India &

Anr. vs. Netaji Cricket Club & Ors., reported in 2005 (4) SCC

741 : AIR 2005 SC 592 with regard to the powers of this Court

under Article 227 of the Constitution of India and the learned

counsel submitted that the said power has been conferred in

order to advance the cause of justice and not to thwart it. The

look out of the High Court is not merely to pick out any error of

law through an academic angle but to see whether injustice has

resulted on account of an erroneous interpretation of law. The

endeavor of the Court should be towards doing complete justice.

Learned counsel also referred to the decision of the Delhi High Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

Court in the case of Jetender Kumar @ Rajan Vs. Kamlesh @

Ganga & Ors., reported in (2017) 4 JCC 2730 wherein the

learned Single Judge held that both the parents have a legal,

moral and social duty to provide to their children the best

education and standard of living within their means. Thus, the

learned counsel submitted that the impugned order be set aside

and the present petition be allowed.

7. Despite a number of opportunities, no one appeared

on behalf of the respondent to make submission on her behalf

and advance any argument in rebuttal though vakalatnama on

behalf of the respondent has been filed.

8. I have given my thoughtful consideration to the

submission of the learned counsel for the petitioner and have

perused the record. Though a number of objections have been

raised against the impugned order, the issue before this Court

lies in a narrow compass and the same is whether the interim

maintenance granted by the learned Principal Judge, Family

Court, Madhubani under Section 24 of the Hindu Marriage Act

to the respondent is sustainable or not? Now, Section 24 of the

Hindu Marriage Act reads as under:-

"24. Maintenance pendente lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."

9. It is very much clear that the nature of maintenance

granted under Section 24 of the Hindu Marriage Act is

temporary and it is only during pendency of the litigation

between the parties. But it is not that the party in whose favour

this maintenance pendente lite has been granted, would become

remediless as such party can make a claim for permanent

alimony, or an application can be filed under Section 125 of

Cr.P.C. So far as claim of the learned counsel for the petitioner

about maintainability of application under Section 24 of the

Hindu Marriage Act while a claim for maintenance under

Section 125 of Cr.P.C. has already been made is concerned, it is

also made clear that grant of maintenance under Section 125 of

Cr.P.C. on one hand and grant of maintenance under Section 24

of the Hindu Marriage Act on the other hand, are not mutually

exclusive. Reference in this regard could be made to the

decision of the Andhra Pradesh High Court in the case of

Arvind Chenji (supra).

Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

10. So far as claim of the learned counsel for the

petitioner about dismissal of maintenance case debarring the

respondent from claiming any maintenance under Section 24 of

the Hindu Marriage Act is concerned, this issue is no more res

integra. The Hon'ble Supreme Court in the case of Rajnesh Vs.

Neha & Anr. (Criminal Appeal No. 730 of 2020) referring to a

Division Bench decision of Delhi High Court in the case of RD

vs. BD 2019 VII AD (Delhi) 466 : SCC OnLine Del 9526

observed that the legislative mandate envisages grant of

maintenance to the wife under various statutes. It was not the

intention of the legislature that once an order is passed in either

of the maintenance proceedings, the order would debar re-

adjudication of the issue of maintenance in any other

proceeding.

11. In the instant case, no maintenance has been

granted under Section 125 of Cr.P.C. and the perusal of the

order dated 24.01.2020 of the learned Principal Judge, Family

Court, Madhubani shows that the maintenance petition of the

respondent was dismissed in default and for non-prosecution.

When there is no adjudication on merits, the emphasis on

dismissal of the maintenance case for denying the claim of the

respondent under Section 24 of the Hindu Marriage Act would Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

only cause denial of justice. The Hon'ble Supreme Court in the

case of Rajnesh (supra), considering the claim of maintenance

under different statutes, held as under:-

"It is well settled that a wife can make a claim for maintenance under different statutes. 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.A. 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 proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, 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."

12. So even on this point the contention of the learned

counsel for the petitioner is not sustainable. Similar view was

taken earlier by the Madras High Court in the case of Manoj

Vanaja vs. Gopu, reported in (1991) 290 MLJ 1 wherein the

learned Single Judge making a reference to the case of

Kuttappan vs. Thanka reported in 1985 K.L.T. 849 observed Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

that the purpose, nature of right and remedy provided under

Section 125, Cr.P.C. and under Section 24 of the Hindu

Marriage Act, are different and the procedure and method of

recovery are also different and the remedies are not inconsistent

with each other.

13. There could be no quarrel with the contention of

the learned counsel for the petitioner about the power and

jurisdiction of this Court under Article 227 of the Constitution

of India which is for the purpose of advancement of justice

under Article 227 of the Constitution. The power and

jurisdiction has been conferred on this Court for

superintendence over all courts, tribunals throughout its territory

and the said power is to keep the courts and tribunals within

their bounds and to see that they do not exceed their jurisdiction

and this power is to be used very sparingly and in order to

promote the cause of justice and not to thwart the same. Under

its superintendence power, this Court would not look into the

disputed question of facts or re-appreciate the facts to arrive at a

different finding than the trial court. Even the mere erroneous

orders are not to be interfered with in its supervisory jurisdiction

under Article 227 of the Constitution. The Hon'ble Supreme

Court in the case of Jai Singh & Ors. Vs. M.C.D. & Anr. Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

reported in (2010) 9 SCC 385 observed that the High Courts

cannot act like "bull in China shop" and the exercise of

jurisdiction must be within the well recognized constraints.

Unless there is some perversity apparent on face of record or

there is any error of jurisdiction requiring any interference by

this Court, this Court would be most reluctant to interfere with

any interlocutory order passed by the learned trial court. So the

contention raised by the learned counsel for the petitioner

regarding desertion of the respondent wife without any valid

and reasonable ground calls for appreciation of facts and is a

matter which is required to be looked into by the learned Family

Court and this Court could not express any opinion at this stage.

14. Though the learned counsel for the petitioner has

raised a number of issues, he has failed to point to any infirmity

in the impugned order to draw the attention of this Court to the

need of making interference in the impugned order except for

the fact that the children have been staying with the petitioner

and he has also to take care of the needs of the children. As this

issue has been raised before the learned trial court and

considered by the learned trial court, the same can not be re-

appreciated by this Court. Another point raised by learned

counsel for the petitioner is with regard to grant of litigation Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

expenses on monthly basis which carries some merit as the

impugned order could not be said to be a speaking order on this

aspect since the learned trial court has not furnished any reasons

for passing such order and this aspect of the impugned order

needs interference by this Court.

15. Other contentions and the authorities cited by the

learned counsel for the petitioner are not much relevant for the

purpose of disposal of the present petition. Moreover, the

impugned order is an order pendente lite and it should be

endeavor of the parties to get the matrimonial case disposed of

and it appears from the record that the matrimonial case has

been proceeding at the stage of evidence of the present

respondent. Once the matrimonial case is disposed of, the

interim order would come to an end and, therefore, instead of

pursuing his case before this Court challenging interim order,

the petitioner would be well advised to diligently prosecute his

matrimonial case. It is to be borne in mind that maintenance

laws have been enacted as a measure of social justice to provide

succour to dependent wife and children and prevent them from

falling into vagrancy and destitution.

16. Therefore, in the light of discussion made

hereinbefore, I am of the considered opinion that there is no Patna High Court C.Misc. No.1733 of 2017 dt.18-03-2025

infirmity in the impugned order which has been passed after due

consideration of facts and circumstances and the same is

affirmed but with slight modification that the litigation cost

awarded on monthly basis shall be revised by the learned

Principal Judge, Family Court, Madhubani by passing orders

afresh during pendency of the Matrimonial Case No. 77 of 2016

after assessing the legal expenses of the respondent in attending

the Court.

17. Accordingly, the present petition stands disposed

of with the aforesaid direction.

18. Having regard to the fact that the matrimonial case

has been instituted in the year 2016, the learned Principal Judge,

Family Court, Madhubani would take steps for its early disposal

without granting unnecessary adjournments to the parties.

19. Pending Interlocutory Application, if any, stands

disposed of.

(Arun Kumar Jha, J) balmukund/-

AFR/NAFR                AFR
CAV DATE                23.01.2025
Uploading Date          18.03.2025
Transmission Date       NA