GANPATRAO Vs. JYOTI

JUDGEMENT

(1.) The applicant Ganpatrao married with non-applicant No. 1 Jyoti on 1-12-1977. Non-applicants Nos. 2 and 3 Rashmi and Sonali are the daughters out of the wedlock. In 1983, applicant husband filed matrimonial proceedings claiming divorce from non-applicant Jyoti on the ground of cruelty. In the said proceedings under Sec. 24 non- applicants were awarded maintenance pendente lite. The non-applicants in the meanwhile filed application under Sec. 125 of the Code Criminal Procedure and the learned Magistrate on 12-3-1985 awarded a compensation at the rate of Rs. 210.00 p.m. The applicant husband however did not comply with the order passed by the Criminal Court. The non-applicants, therefore, initiated proceedings for recovery under Sec. 125(3) of the Code. In these proceedings, the applicant husband raised one of the contentions that the non-applicant wife has been awarded compensation in matrimonial proceedings and as such he has been imposed with a liability of paying maintenance twice. The submission so made did not find favour with the learned Magistrate. The applicant, therefore, presented revision application before the learned Sessions Judge, Chandrapur. The learned Sessions Judge observed that the applicant may claim adjustment in Hindu Marriage Petition by showing the payment he has made in pursuance of order under Sec. 125, of the Code. 'I he learned Sessions Judge by order dated 22-4-1987 rejected the revision application of the husband.

(2.) I heard Shri P.V. Holey, the learned counsel for the applicant. Shri Holey did not dispute before me that proceedings under Sec. 125 of the Code for maintenance is maintainable even if the matrimonial Court considers the claim for such grant under Sec. 24 of the Hindu Marriage Act. Shri Holey, however, submitted that unfortunately maintenance awarded under Sec. 24 of the Hindu Marriage Act by matrimonial Court on 7th Feb. 1985 was brought to the notice of the Criminal Court while awarding the compensation. However, this order dated 12-3 1985 was not questioned by filing revision and as such this order has become final and binding on the applicant husband. According to Shri Holey, the matrimonial proceeding registered vide Hindu Marriage Petition No. 240 of 1983 is still pending and the maintenance granted by the Civil Court vide order dated 7-2-1985 is interim and during the pendency of the proceedings. As such, according to me, the applicant can approach the Civil Court for claiming adjustment in case any question regarding the payment of maintenance arose as observed by the learned Sessions Judge. The order of the learned Sessions Judge is just and proper and needs no interference. Shri Holey made a submission though the objection was raised in a proceeding initiated by wife under Sub-section (3) of Sec. 125. The learned Magistrate ought to have treated the same as one under Sec. 127. I am unable to accept this submission. It would not have been in the fitness of things The applicant ought to have moved the Court for any alteration or modification of the quantum in view of the maintenance awarded by the Civil Court. The learned Magistrate was, therefore, justified in not taking into account the contention in a proceeding initiated by wife under Sub- section 3 of Sec. 125 of the Code. Hence this application is rejected.