MOHD HASAN Vs. KANEEZ FATIMA

JUDGEMENT

(1.) The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 20.08.2016 passed by 2nd Civil Judge Class-I, Sirmour, District Rewa in Civil Suit No. 64- A/2015 whereby the trial Court has allowed the application preferred by the respondent under Section 24 of the Hindu Marriage Act.

(2.) The petitioner/plaintiff filed a civil suit for restitution of conjugal rights before the Civil Judge Class-I, Sirmour, District Rewa. During the pendency of the said civil suit, the respondent/non-applicant filed an application under Section 24 of the Hindu Marriage Act without specifying the enactment for grant of maintenance pendente lite during the pendency of the case and also for legal expenses. The petitioner filed reply to the said application raising plea that the parties are governed by the Muslim Law and, therefore, the provisions of Section 24 of the Hindu Marriage Act is not at all applicable in the present case. The trial Court vide order dated 20.08.2016 has allowed the said application. Being aggrieved by that order, the petitioner has filed the present petition.

(3.) Learned counsel for the petitioner argues that the trial Court has erred in allowing the application filed by the respondent under Section 24 of the Hindu Marriage Act when the parties are governed by the Muslim Law. He further submits that there is no provision like Section 24 of the Hindu Marriage Act under the Muslim Law for claiming the interim maintenance during the pendency of the matrimonial proceedings, therefore, the trial Court has travelled beyond its jurisdiction in allowing the application under Section 24 of the Hindu Marriage Act. He further argues that the trial Court has further erred in invoking the provision of Section 151 of the C.P.C while allowing the application under Section 24 of the Hindu Marriage Act. He submits that the Code of Civil Procedure is a procedural law and did not provide for any substantive rights like one for claiming maintenance. Thus, the impugned order passed by the trial Court is perverse and liable to be dismissed. He further submits that the Family Court has allowed the Cr.R. No. 1444/2017 preferred by the respondent under Section 125 of the C.P.C. and in which she has already getting the maintenance an amount of Rs. 2,500/- per month. Learned counsel for the petitioner relied on the judgment passed by the High Court of Bombay in Criminal Appeal No. 727/1984, decided on August 24, 1984 in the case of Shabbir Ahamed Sheikh Vs. Shakilabanu w/o Shabbir.