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1. Challenging the order dated 10.10.07 Annexure P/1 passed by the Principal Judge, Family Court, Gwalior in case no. 531-A/06 (Hindu Marriage Act) rejecting a application for adjustment of interim alimony granted in the proceedings held in the case in question i.e. case no. 531-A/06 pending under the Hindu Marriage Act, petitioner has filed this petition.

2. Facts in brief necessary for disposal of this petition filed under Article 227 of the Constitution are that petitioner/husband has filed a application under Section 13 of Hindu Marriage Act for dissolution of the marriage solemnized between the petitioner/husband and respondent/wife. The proceedings have been registered as case no. 531 A/06 (HMA) and is pending before the Presiding Judge, Family Court, Gwalior. In the said proceedings, respondent/wife filed an application under Section 24 of the Hindu Marriage Act seeking maintenance pendente lite and expenses for the proceedings. In the application filed under Section 24 of the Hindu Marriage Act respondent/wife claimed a sum of Rs. 2000/- per month as maintenance, a sum of Rs. 500/- as litigation expenses. It was her case that petitioner/husband is earning more than Rs. 15000/- per month. Apart from filing this application under Section 24 of the Hindu Marriage Act in the proceedings pending under the Hindu Marriage Act, respondent-wife also filed an application claiming maintenance under Section 125 of Cr.P.C. before the same Family Court which was registered as Misc. Cr. Case No. 647/2006. In this application also respondent-wife claimed a sum of Rs. 2,000/- as maintenance and Rs. 500/- as litigation expenses. Both these applications were decided by the same Presiding Officer of the Family Court on the same day i.e. 13.04.07 vide Annexure P/2 and Annexure P/3 respectively. In both these cases, learned Family Court has directed for payment of Rs. 1,000/- as maintenance and a sum of Rs. 500/- as litigation expenses. Inter alia contending that adjustment of the amounts granted by way of maintenance under Section 125 of Cr.P.C. is not granted while passing order on the application filed under Section 24 of the Hindu Marriage Act, an application was filed before the Family Court, the aforesaid application for adjustment having being dismissed vide order dated 10.10.07, Annexure P/1, petitioner is before this Court in this petition under Article 227 of the Constitution, challenging the rejection of the application for adjustment of the maintenance granted in both the proceedings.

9. It is in the back drop of these provisions that the question involved in this petition is to be considered. In the present case, it has to be taken note of that both the orders under Section 125 of Cr.P.C. and under Section 24 of the Hindu Marriage Act are passed by the same court on the same day and the court was aware of the pendency of one proceedings while deciding the other and after considering the pleadings, granted maintenance. When the application for adjustment was filed, learned court has rejected the same and it has been held that the amount of the maintenance granted need not to be adjusted as maintenance is properly granted in both the proceedings after considering the totality of the circumstances.

10. The Supreme Court in the case of Sudhip Choudhary (supra) relied upon by Shri R.K. Sharma, learned Counsel for the petitioner, does not say that the amount of maintenance granted should be adjusted, it only says that maintenance amount may be adjusted. In the case of Narayani Rathore (supra) after considering the grant of maintenance made, this Court found that amount of maintenance granted under Section 125 Cr.P.C. should be adjusted while considering the question of maintenance and simultaneously adjustment was granted, however, this was so held considering the financial condition of the respondent and the amount of maintenance already granted under Section 125 of Cr.P.C. The principal laid down in all the cases are that maintenance may be granted and the question as to whether the adjustment is to be granted or not, is a discretion exercised by the court concerned before whom the adjustment is sought after considering the totality of the facts and circumstances of each case. There is nothing under the law that is brought to the notice of this Court which lays down as a mandatory requirement the principle for grating adjustment or deducting the amount maintenance or alimony granted in a proceedings under Section 125 Cr.P.C. or under Section 24 of the Hindu Marriage Act or vice- versa. The principle laid down is that maintenance under Section 125 of Cr.P.C. and alimony pendente lite under Section 24 of the Hindu Marriage Act can be claimed by resorting to both these provisions and the court is competent under these provisions to grant relief to the person concerned and the question of adjustment to be granted, has to be decided after taking into consideration the totality of the circumstances, the amount granted and the capacity of the person directed for making the payment. There is nothing to suggest that as a thumb-rule adjustment to the amount is to be granted in each and every case.