Madhya Pradesh High Court
Manish vs Smt. Naina @ Nirmala on 3 November, 2016
WP-2973-2016
(MANISH Vs SMT. NAINA @ NIRMALA)
03-11-2016
Shri Vinod Thakur, learned counsel for the petitioner.
Shri Ishwarlal Chouhan, learned counsel for the respondent.
The petitioner/husband has filed the present petition being aggrieved by the order dated 16.03.2016, passed by the First Additional Family Judge of Family Court by which, application under Section 24 of the Hindu Marriage Act, 1956 was decided in favour of the respondent/wife by directing the husband to pay interim maintenance @ Rs.3,000/- per month for wife and Rs.2,000/- for son along with interim maintenance payable under Section 125 of the Criminal Procedure Code, 1973.
The petitioner has challenged the said order on the ground that he is already paying a sum of Rs.4,000/- as interim maintenance by virtue of order dated 28.12.2012 passed by the same family Court under Section 125 of the Cr.P.C. He submits that while passing the order under Section 24, the said amount ought to have been adjusted by the Court. Shri Ishwarlal Chouhan, learned counsel for the respondent submits that both the orders are for interim maintenance and that can be passed till the final adjudication of the proceedings.
I have heard learned counsel for the parties. It is not disputed that both the provisions i.e. Section 125 of the Cr.P.C. and Section 24 of the Hindu Marriage Act, 1956 deals with the payment of interim maintenance to the wife and children, but Section 127 of the Cr.P.C provides that while passing the order of maintenance under Section 127 of the Cr.P.C., the Court shall take into account the sum which has been paid or recovered by such persons as maintenance allowance or expenses paid by the Court. Section 125 sub- section 4 is reproduced below:
(iv) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuse to live with her husband, or if they are living separately by mutual consent.â In view of above section, the wife is entitled for one maintenance from husband, either from Section 24 of the Hindu Marriage Act or Section 125 of the Cr.P.C. While passing under Section 24 ought to have consider that she is already getting maintenance under Section 125 of Cr.P.C.
Therefore, the impugned order dated 16.03.2016 is partially modified and the petitioner is directed to pay the interim maintenance @ Rs.5,000/- per month to the respondent in compliance of order dated 28.12.2015 and 16.03.2016. With the aforesaid, petition is partly allowed.
(VIVEK RUSIA) JUDGE