Madhya Pradesh High Court
Smt. Jyoti Raghuvanshi vs Surendra Raghuvanshi on 30 March, 2017
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Writ Petition No.14907/2016
30.3.2017.
Shri Amit Shukla, learned counsel for the petitioner.
Shri Ishteyaq Husain, learned counsel for the respondent.
With consent of learned counsel for the parties, the matter is finally heard.
Petitioner takes exception to an order-dated 11.7.2016 passed in Civil Suit No.6A/2015, whereby, an application under Section 24 of the Hindu Marriage Act, 1955 filed by the petitioner for grant of maintenance pendente lite and for legal expenses, has been dismissed.
The Civil Suit is a proceeding instituted by the respondent under Section 13 of 1955 Act for divorce. During pendency whereof, petitioner filed an application for grant of maintenance and legal expenses, on the ground that she has no independent source of income and is dependent on her parents. Whereas, the respondent is a software engineer placed in a reputed company earning Rs.50,000/- per month and is economically very well of.
Pertinent it is to note at this stage that the petitioner had earlier filed an application under Section 125 CrPC for maintenance which was dismissed by the trial Court on the finding that the petitioner of her own volition having chosen to live separately from her husband therefore, she is not entitled for the :: 2 ::
Writ Petition No.14907/2016
maintenance.
The trial Court taking que from the order passed on an application under Section 125 CrPC, rejected the application by impugned order on the similar findings as in application under Section 125 CrPC.
Criticizing the order, it is urged on behalf of petitioner that the trial Court committed grave error of justice in treating the proceedings under Section 125 CrPC as similar to those under Section 24 of 1955 Act. It is urged that as the petitioner has no independent source of income, incumbent it is upon the respondent to meet the expenses towards maintenance and legal expenses.
Respondent, on his turn, supports the order under challenge.
Considered the rival submissions.
Section 125(1) CrPC obligates any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, to pay monthly allowance. Whereas, Section 24 of 1955 Act envisages that in any proceeding under 1955 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 :: 3 ::
Writ Petition No.14907/2016
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.
These two provisions operate in a different fact situation. Whereas, Section 125 CrPC is attracted where a person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself. Thus, there has to be a positive act of refusal or neglect. Whereas, under Section 24 of 1955 Act, in any proceeding under 1955 Act either the the wife or the husband, as the case may be, having no independent income sufficient for her or his support and to meet out the necessary expense of the proceeding, is the cause for invoking Section 24 of 1955 Act. The applicability of Section 24 thus, does not warrant a positive act of refusal or neglect.
In this context, reference can be had of the decision in Ashok Singh vs Smt. Manjulata 2008 (2) MPLJ 533, wherein, while relying on the decision by another co-ordinate Bench of this Court in Naresh Kumar Rai vs Smt. Mamta Rai 2003 (2) MPLJ 137, wherein it has been held : "5... the nature of proceedings under the Hindu Marriage Act and that of :: 4 ::
Writ Petition No.14907/2016 maintenance proceedings under the Code of Criminal Procedure are different ...".
In view whereof, the decision by the trial Court cannot be approved of.
Consequently, the impugned order-dated 11.7.2016 is set aside. Application under Section 24 of 1955 Act is allowed. Petitioner is held entitled and the respondent liable to pay Rs.5000/- per month towards maintenance from the date of application. In addition, the petitioner is entitled for expenses to and fro sleeper class Express Train to attend the case at Sohagpur on production of ticket. Petitioner is also entitled for Rs.500/- on each date fixed in the Court on which she appears to meet out legal expenses.
The petition is allowed to the extent above. No costs.
(SANJAY YADAV)
vinod JUDGE