The main thrust of the arguments advanced by the learned Counsel for the petitioner is that the application for maintenance preferred by the respondent-wife under the provisions of Section 125 of the Code has been rejected on the ground that the Court found that the respondent was having illicit relations with another person and had deserted the matrimonial home without any justifiable cause. The submission of the learned Counsel for the petitioner is to the effect that the observations of the court passing the order in proceedings under Section 125 of the Code, should be taken into consideration by the Court hearing an application under Section 24 of the Act, and the order passed under Section 125 of the Code rejecting the application, should have a bearing on the proceedings under Section 24 of the Act. From a bare perusal of the provisions of Section 24 of the Act, it is evident that the maintenance granted under the provisions is "pendente lite" i.e. pending the litigation and is admittedly a measure to provide support to the spouse who is found to have no independent income sufficient for his or her support, and for necessary expenses of the proceedings. Maintenance awarded under the provisions of Section 24 of the Act is not of a permanent nature and remains in force up to the passing of an order for permanent alimony and maintenance, under Section 25 of the Act.
7. On the other hand, the provisions of Section 125 of the Code of Criminal Procedure stand on a totally different footing, as in proceedings under Section 125 of the Code, an order for maintenance cannot be passed only on the ground that the wife does not have any independent income sufficient for her support, but she would have to prove that her husband has refused, or neglected to maintain her, which is not the requirement of Section 24 of the Act. An order passed under Section 125 of the Code is in the nature of a final order, whereas an order rendered under the provisions of Section 24 of the Act, remains in force only during the pendency of the litigation between the parties and ceases to exist, once an order of permanent alimony or maintenance is passed under Section 25 of the Act. The scope of proceedings under Section 125 of the Code is, therefore, much wider than those under Section 24 of the Act, as they enable a wife, legitimate or illegitimate minor child and parents, to apply to the Court for grant of an order of maintenance, if a person having sufficient means neglects or refuses to maintain them, whereas the provisions of Section 24 of the Act operate only between either of the spouses.
-Citation: AIR2010Guj79
IN THE HIGH COURT OF GUJARAT
Decided On: 31.08.2009
Appellants: Khanabhai Kasnabhai Parmar
Vs.
Respondent: Beenaben
Vs.
Respondent: Beenaben
Hon'ble Judges/Coram:
Abhilasha Kumari , J.
1. This petition has been preferred under Article 227 of the Constitution of India with a prayer to issue an appropriate writ or order, quashing and setting aside the order dated 15-12-2008 passed by the learned Principal Senior Civil Judge. Godhra in Hindu Marriage Petition No. 60 of 2008 whereby the application below Exh. 5 of the respondent-wife for grant of alimony under Section 24 of the Hindu Marriage Act, 1955, (for short "The Act") has been partly-allowed.
2. Briefly stated, the facts of the case are that the petitioner is the husband of the respondent wife and due to differences between the petitioner and the respondent, the respondent instituted Hindu Marriage Petition No. 60 of 2008 in the Trial Court under Section 13 of the Act, for divorce. Thereafter, the respondent-wife preferred an application below Exh. 5 for grant of maintenance pendentelite under Section 24 of the Act. By way of the impugned order, the Court below has granted an amount of Rs. 1500/- per month as maintenance pendent elite from the date of the application and Rs. 2000/- towards costs of litigation to the respondent. Aggrieved by the above mentioned order, the petitioner has approached this Court by filing the present petition.
3. Mr. N.K. Majmudar, learned Counsel for the petitioner has submitted that the impugned order is erroneous and has been passed without appreciating the aspect that the respondent wife has left the matrimonial home without any reasonable cause. Further, the respondent-wife had preferred an application under the provisions of Section 125 of the Code of Criminal Procedure, 1973 ("The Code" for short), which has been contested by the petitioner and has been rejected by the learned Magistrate, by noticing that the respondent has deserted the petitioner and that she had illicit relations with some other person. That the order passed under proceedings under Section 125 of the Code ought to have been taken into consideration by the Court below while passing the impugned order, and once the Court deciding the application under Section 125 of the Code has come to the conclusion that the respondent wife has illicit relations with some person and has deserted the matrimonial home without reasonable and justifiable cause, this aspect could not have been ignored by the Court below while deciding an application under Section 24 of the Act. As the Court below has totally lost sight of this relevant aspect, the impugned order deserves to be quashed and set aside.
4. I have heard learned Counsel for the petitioner, perused the averments made in the petition, contents of the impugned order and other documents on record.
5. In order to decide the question whether the provisions under Section 24 of the Act have been correctly applied in the present case, it will be helpful to refer to the said Section, which is reproduced below:
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 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.Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.
6. The main thrust of the arguments advanced by the learned Counsel for the petitioner is that the application for maintenance preferred by the respondent-wife under the provisions of Section 125 of the Code has been rejected on the ground that the Court found that the respondent was having illicit relations with another person and had deserted the matrimonial home without any justifiable cause. The submission of the learned Counsel for the petitioner is to the effect that the observations of the court passing the order in proceedings under Section 125 of the Code, should be taken into consideration by the Court hearing an application under Section 24 of the Act, and the order passed under Section 125 of the Code rejecting the application, should have a bearing on the proceedings under Section 24 of the Act. From a bare perusal of the provisions of Section 24 of the Act, it is evident that the maintenance granted under the provisions is "pendente lite" i.e. pending the litigation and is admittedly a measure to provide support to the spouse who is found to have no independent income sufficient for his or her support, and for necessary expenses of the proceedings. Maintenance awarded under the provisions of Section 24 of the Act is not of a permanent nature and remains in force up to the passing of an order for permanent alimony and maintenance, under Section 25 of the Act.
7. On the other hand, the provisions of Section 125 of the Code of Criminal Procedure stand on a totally different footing, as in proceedings under Section 125 of the Code, an order for maintenance cannot be passed only on the ground that the wife does not have any independent income sufficient for her support, but she would have to prove that her husband has refused, or neglected to maintain her, which is not the requirement of Section 24 of the Act. An order passed under Section 125 of the Code is in the nature of a final order, whereas an order rendered under the provisions of Section 24 of the Act, remains in force only during the pendency of the litigation between the parties and ceases to exist, once an order of permanent alimony or maintenance is passed under Section 25 of the Act. The scope of proceedings under Section 125 of the Code is, therefore, much wider than those under Section 24 of the Act, as they enable a wife, legitimate or illegitimate minor child and parents, to apply to the Court for grant of an order of maintenance, if a person having sufficient means neglects or refuses to maintain them, whereas the provisions of Section 24 of the Act operate only between either of the spouses.
8. This Court, in Dr. Rameshchandra S. Yadav v. Dhirajgavri MANU/GJ/0153/1982 : 1982 GLH 899, has dealt with an identical issue which came up before it, in the following terms:
6. It is not possible to accept the aforesaid contention of Mr. Patel. A party may have various alternative remedies to get the desired relief and if such alternative remedies are pursued simultaneously, it cannot be said that by itself, the said action would amount to abuse of the process of the Court. It is necessary to note at this stage that the scope of proceedings under Section 24 of the Hindu Marriage Act is entirely different from the scope of proceedings under Section 125 of the Code. In the proceedings under the said Act, either spouse has a right to apply to the matrimonial Court; while under Section 125 of the Code, only wife or concerned destitute parents or legitimate or illegitimate minor child whether married or not and unable to maintain itself, through his or her guardian can apply for maintenance. The nature of the respective cases which are required to be pleaded and proved in both these proceedings would also differ. Under Section 24 of the Hindu Marriage Act, the concerned spouse has only to show that he or she has no independent source of income sufficient for his or her maintenance. Once this is established, interim alimony amount has to follow, keeping in mind the economic condition of the respective spouses. While in Section 125 proceedings under the Code, only because the wife alleges that she has no independent source of income, her application cannot be automatically granted. She has to further prove that her husband having sufficient means has neglected or refuses to maintain her. Order of interim alimony under Section 24 of the Hindu Marriage Act is an interim order during the pendency of main proceedings while order under Section 125 of the Code is a final order. Under these circumstances, it is not possible to agree with the broad submission of Mr. Patel for the petitioner that once the wife had applied in the Baroda Court for interim alimony under Section 24 of the said Act, she could not have filed proceedings under Section 125 of the Code at Rajkot. It is also necessary to note at this stage that the Code does not contain parallel provision like Section 10 of the Civil Procedure Code wherein subsequently instituted proceedings involving similar issues between the same parties are required to be stayed.
9. The contention of the learned Counsel for the petitioner that once an application under Section 125 of the Code has been rejected, the said order should be taken into consideration by the Court hearing an application under Section 24 of the Act, is not sustainable, in view of the principles of law laid down in Dr. Rameshchandra S. Yadav v. Dhirajgavari (supra). The said contention cannot be accepted, as such a proposition would change the very nature and scope of Section 24 of the Act, and would nullify the purpose for which it has been enacted by the Legislature. Such a course would also amount to enlarging the scope of Section 24, far beyond what is intended by the law-makers, by reading into its provisions, something that has neither been enacted, contemplated nor intended, which is not permissible in law. The order passed under Section 25 of the Act will not have a bearing on the provisions of Section 24 of the Act, as the scope of both provisions of law is different and they operate in different spheres. The effect of orders passed under Section 24 of the Act and Section 125 of the Code are also different. Though both empower the Courts concerned to grant maintenance to the persons who can claim it under each of these provisions, yet, the scope of the two provisions, and the effect of orders rendered under them is not the same. Each is independent of the other. In short, there is no overlapping between the nature and scope of Section 24 of the Act, and Section 125 of the Code. The nature of orders passed under the said provisions cannot be equated. In the light of the aforesaid discussion, the Trial Court has rightly, in the view of this Court, not considered the order rejecting the application of the respondent under Section 125 of the Code, while granting maintenance pendente lite to her, under Section 24 of the Act.
10. It has been found by the Trial Court that though the respondent is a teacher, she does not have sufficient means of income to look after her two minor children and, therefore, maintenance at the rate of Rs. 1500/- per month and costs of litigation quantified at Rs. 2000/- has been granted.
11. It is noteworthy that the impugned order has not been challenged before this Court on the ground that the interim maintenance that has been granted, is excessive. As the Trial Court has recorded cogent reasons for granting the above-mentioned amount of maintenance, and considering that the respondent has two minor children to support and she does not have sufficient income to make two ends meet, the amount of maintenance granted is a very reasonable one.
12. As the impugned order does not suffer from any legal infirmity or error, the interference of this Court is not warranted. The petition deserves to be dismissed. It is, accordingly, dismissed. Notice is discharged. The interim relief stands vacated. There shall be no orders as to costs.
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