HANSABEN RAMESHKUMAR PATANI Vs. RAMESHKUMAR RATILAL PATANI

JUDGEMENT

(1.) This revision application under Sec. 397 read with Sec. 401 of the Code of Criminal Procedure, 1973, ('Code' for short hereinafter), the petitioner-original applicant, wife, has questioned the legality and validity of the composits order passed by the learned Additional Sessions Judge, at Mehsana, on 30-10-1985, in Criminal Revision Application Nos. 163 of 1984 and 74 of 1985. The resume of the material fact giving rise to the present revision, may be, shortly stated at this stage so as to appreciate the merits of the present revision and challenge against it. The petitioner is the original applicant-wife, who initiated legal battle by filing a Criminal Miscellaneous Application No. 42 of 1982 in the Court of learned Judicial Magistrate First Class, at Patan, under Sec. 125 of the Code for her maintenance, against the respondent No. 1, Rameshkumar Ratilal Patani, who is the Original opponent-husband. They arc hereinafter referred to as "husband" and "wife" for the sake of convenience and brevity.

(2.) The marriaee of spouses took place, on 29-5-1975, according to the Hindu rites, at Patan. The wife thereafter went to her husband's house at Mount Abu, where her husband was serving as an Officer at that time. On account of disharmony and dissatisfaction between the spouses, the wife went to the place of her parents. The husband instituted a petition for divorce against the wife under Sec. 13 of the Hindu Marriage Act in District Court, at Pali. in Rajasthan. The wife Hansaben resorted to the provisions of Sec. 125 by filing aforesaid application for her maintenance alleging that she is entitled to maintenance as she is neglected and refused maintenance by her husband. The husband resisted the same application. On perusal of the facts and circumstances and evidence, the learned trial Magistrate was pleased to fix maintenance at the rate of Rs. 1251- per month by passing an order, on 27- 5-1983. There is no dispute about the fact that High Court of Rajasthan in a divorce petition under the Hindu Marriage Acc had also fixed an interim alimony at the rate of Rs. 125.00 per month and had directed the husband to pay the same to the wife. The wife thereafter was constrained to file an application bearing No. 103 of 1983 for the enforcement of the maintenance order passed in her favour in Criminal Misc. Application No. 42 of 1982. It was filed, on 14-12- 1983, under Sec. 125 (3) of the Code In which she has contended that her husband failed to comply with the order of maintenance and she claimed an amount of Rs. 750/- by way of arrears of maintsnance and Rs. 60.00 by way of cost of the maintenance application as awarded by the trial Magistrate. Thus in all she claimed Rs. 810/- under Sec- 125(3) of the Code from her husband. After hearing both the parties the learned trial Magistrate was pleased to pass an order that opponent has to pay the maintsnance amount as per the order passed under Sec. 125 of the Code, which reads as follows :

(3.) It appears that the clarification of the learned Additional Sessions Judge in the final order has created confusion. The clarification made by the learned Additional Sessions Judge in the final order as aforesaid is also not legal and valid. It was not open for the learned Additional Sessions Judge to clarify in the manner as it is done. Opponent husband would not be entitled to set off any amount deposited by him in Rajas-than Court or paid by him to the wife pursuant to an order passed under Sec. 24 of the Hindu Marriage Act by way of interim alimony in a divorce petition under Sec. 13 of the Hindu Marriage Act. It appears that the leaned Additional Sessions Judge, with due respect to him, over locked the relevant provisions. An order under Sec. 125 of the Code for maintenance and an order under Sec. 24 of the Hindu Marriage Act, are distinct orders in separate proceedings. It is not open for the Court under Sec. 125 to grant set off any amount paid by the opponent husband to the wife or deposited in any Court against the substantive order passed under Sec. 125 of the Code. Order under Sec. 24 of the Hindu Marriage Act is for interim alimony which would terminate on termination of the proceedings. Order under Sec. 125 of the Code is substantive order which can be terminated or altered only in the light of the provisions under Sec. 125(3) or under Sec. 127 of the Code. Mere passing of an order under Sec. 24 of the Hindu Marriage Act for interim alimony would not operate as set off against the order of maintenance under Sec. 125 of the Code. There can be no difficulty on the part of the wife for pursuing remedies under both the provisions simultaneously. This proposition of law is very well settled. It appears that the attention of the learned Additional Sessions Judge was not drawn to this proposition of law. The nature of the respective case in both these proceedings are different. Under Sec. 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 shown, interim alimony can be awarded, keeping in mind the economic status and conditions of the respective parties. While in so far as the provision under Sec. 125 of the Code are concerned only one spouse, namely, the wife would be entitled to maintenance. She can be awarded maintenance if she can show that she has no independent sources of income of her own. Of course, she has to show that she is refused and neglected maintenance by her husband and her husband has sufficient means to maintain her. In the facts and circumstances both the proceedings could be pursued by the wife and there is no ban or bar in any one of the provisions unlike provision under Sec. 10 of the Civil Procedure Code, whereas, subsequent proceedings can be stayed if conditions under Sec. 10 are established.