IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
Amutha @ Symaladevi : Petitioner
K.Thirumoorthy @ Thirumalaisamy : Respondent
PRAYER: Revision filed against the order dated 18.09.2008, made in I.A.No.92/2008 in H.M.O.P.No.234/2008 on the file of the Principal Sub Court, Erode.
For petitioner : Mr.B.Dyaneshwaran
For respondent : Mr.C.Prakasam
O R D E R
Whether a pre-existing order for payment of maintenance granted by the Chief Judicial Magistrate under section 125 of Criminal Procedure Code is a bar for maintaining an application under section 24 of the Hindu Marriage Act is the question raised in this civil revision petition.
The facts in outline :-
2.The marriage between the petitioner and the respondent was solemnized on 06.11.2000 as per the Hindu Rites and customs. In the said wed lock a female child was born to the parties in the year 2001. The marriage life was cordial during the inception. However, crack developed in their married life on account of an alleged intimacy between the respondent and one Papathi. Though the petitioner suffered everything for a better tomorrow, the respondent was indifferent. Ultimately, the petitioner was constrained to leave the matrimonial home along with her daughter.
3.The petitioner filed an application for maintenance before the Chief Judicial Magistrate, Erode. The said maintenance petition filed under section 125 Cr.P.C. was registered as M.C.No.63/2006. The application was allowed by the learned Chief Judicial Magistrate as per order dated 29.07.2008 and the respondent was directed to pay a sum of Rs.1,000/- every month to the petitioner and a sum of Rs.500/- to her daughter as maintenance.
4.While the matters stood thus, petitioner filed a petition for divorce under section 13(1)(1A)(1B) of the Hindu Marriage Act [for short, ‘the Act’] before the Principal Subordinate Judge, Erode. The said application was taken on file as H.M.O.P.No.234/ 2006.
5.The petitioner also filed an application in I.A.No.92/2008 under section 24 of the Hindu Marriage Act praying for interim maintenance during the pendency of the matrimonial proceedings.
6.The said application was contested by the respondent by filing counter. Respondent mainly resisted the claim on the ground that the divorce petition itself could be taken up for early hearing and as such, it was not necessary to consider the interlocutory application in the meantime.
The Judgment of the Judge :-
7.The learned Subordinate Judge rejected the application on the ground that the petitioner was awarded maintenance by the Chief Judicial Magistrate in M.C.No.63/2006 and as such, the application invoking Section 24 of the Act was clearly not maintainable.
8.The legality and correctness of the said order is the subject matter in the civil revision petition.
9.The cause of action for filing a petition under section 24 of the Act would arise only when there is a matrimonial proceeding initiated by the husband or wife. Therefore, the primary requirement for claiming maintenance under section 24 of the Act is the pendency of a matrimonial proceeding. This provision was introduced with a laudable object of ensuring maintenance to a party to the proceeding so as to enable him or her to maintain during the pendency of such proceedings. This provision also permits the Court to award reasonable amount for the purpose of conducting the matrimonial proceeding.
Concept of maintenance :-
10.The term “maintenance” has not been defined in the Act. Therefore, the definition given to the term “maintenance” in the Hindu Adoption and Maintenance Act, 1956 assumes significance. Section 3(b) of the Hindu Adoption and Maintenance Act, 1956 gives an inclusive definition to the term “maintenance”. As per the said definition, maintenance includes in all cases, provisions for food, clothing, residence, education and medical attendance and treatment and in the case of an unmarried daughter, reasonable expenditure incidental to her marriage.
11.The concept of maintenance as per Section 24 of the Hindu Marriage Act, 1955, pre-supposes that the party has no independent income sufficient for his or her support. Therefore, the primary requirement for granting maintenance under section 24 of the Act is the absence of any income for the applicant to maintain himself or herself during the pendency of the proceeding. While deciding an application under section 24 of the Act, the Judge was expected to consider the entire factual matrix, which includes the inability of the party to maintain herself or himself during the pendency of the proceeding as well as the income of the opposite party and to arrive at the amount of maintenance which should be just and reasonable. Therefore, this provision is a measure of social justice.
12.The remedy provided under section 125 of the Cr.P.C. is totally for a different purpose. This remedy does not oust the jurisdiction of the Family Court to award maintenance under section 24 of the Act. The scope of the proceeding under section 125 Cr.P.C. is very limited. It is purely a summary proceeding. Section 127 of the Cr.P.C. permits the Court to vary the order. Therefore, Section 125 Cr.P.C. operates in an entirely different sphere.
13.There is no ceiling prescribed for the purpose of granting maintenance under section 24 of the Hindu Marriage Act. Section 24 of the Act seeks to maintain an equilibrium between the two parties to the litigation during the pendency of the proceeding as it makes provision for payment of maintenance for a party who was in a disadvantageous position to maintain and to contest the proceeding on account of poor economic condition.
14.The parties to the proceeding should be in a position to maintain the standard of living consistent with their status. Living does not mean luxurious living. The intention of the parliament was to strike a balance so as to enable the parties to contest the matter effectively. In short, in case of matrimonial proceeding initiated by the husband, the wife should be in a reasonable financial condition to maintain herself during the pendency of the proceeding. In case she was not having the financial resources to maintain herself, naturally, she would be denied of an opportunity to contest the proceeding.
15.The amount awarded under section 125 Cr.P.C. is not static. It could be modified on an application by a party to the proceeding. In case there was a pre-existing order to pay maintenance under section 125 Cr.P.C., the said order could be taken note of by the matrimonial Court in a proceeding under section 24 of the Act. However, currency of such order would not stand in the way of the Court in granting maintenance under section 24 of the Act.
16.Therefore, the Family Court, in an application under section 24 of the Act, was entitled to consider the order passed by the Magistrate under section 125 Cr.P.C. for the purpose of arriving at the interim maintenance. The maintenance under section 24 of the Act is interim in nature, which would be in operation till the disposal of the matrimonial proceedings. Therefore, the maintenance proceedings initiated under section 125 Cr.P.C. cannot be dismissed on the ground of a pre-existing order under section 24 of the Act. In all such cases, the respective Courts had to exercise the discretion in accordance with the legal principles and the quantum has to be fixed after taking into account the prior proceedings initiated by the parties for the purpose of maintenance. In any case, the proceeding under section 24 of the Act cannot be dismissed on the ground of currency of an order under section 125 Cr.P.C.
The legal principles :-
17.The Supreme Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 :: AIR 1978 SCC 1807, held that Social justice is not constitutional claptrap but fighting faith which enlivens legislative texts with militant meaning. Mr.Justice V.R.Krishna Iyer in His Lordship’s inimitable style observed thus :-
“9.This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause the cause of the derelicts.”
18.The Supreme Court in Sudeep Chaudhary vs. Radha Chaudhary, [AIR 1999 SC 536] held that the amount awarded under section 125 Cr.P.C. by way of maintenance was adjustable against the amount awarded in the matrimonial proceeding.
19.The question as to whether a prior application for maintenance was a bar for a subsequent application under section 24 of the Hindu Marriage Act was considered by a learned Judge of this Court in Manoj Vanaja vs. Gopu [1991 MLJ 290] and the legal position was explained thus :-
“It is necessary in this connection to remember that the right conferred under Section 24 of the Hindu Marriage Act, is in the nature of a special right, arising on initiation and during the pendency of the proceedings by one or the other of the parties to the marriage, under the provisions of that Act. Under Section 24 of the Hindu Marriage Act, the pendency of proceedings under that Act, is an essential condition for the exercise of the right either by the wife or the husband, as the case may be, to seek an order for payment of the expenses of the proceeding and a monthly sum sufficient for his or her support. It is thus clear that the right to claim maintenance or litigation expenses under Section 24 of the Hindu Marriage Act, is not made available generally to the parties to a marriage, but only when a proceeding between the spouses is pending under that Act, and in that respect, the right conferred under Section 24 of that Act, is in the nature of a special statutory right not in any manner outside the provisions of Section 24 of the Hindu Marriage Act. The purpose behind Section 24 of the Hindu Marriage Act is that parties to a matrimonial cause should not take undue and unfair advantage of a superior financial capacity to defeat the rightful claims of a weaker party and the proceedings under Section 24 of that Act serve a limited purpose, i.e., during the pendency of proceedings under that Act, to enable the weaker party to establish rights without being in any manner hindered by lack of financial support. If the special nature of the statutory right under Section 24 of that Act and its purpose, are borne in mind, it is at once clear that the enforcement of that right, cannot in any manner be hedged in by a consideration of proceedings otherwise initiated, either under Section 125, Cr. P.C. or under the ordinary law. Further more, in this case, the finding recorded by the court below is to the effect that the respondent had not paid to the petitioner even the amounts of maintenance awarded in the proceedings under Section 125, Cr. P.C. and there can, therefore, be absolutely no justification whatever for declining to countenance the claim of the petitioner for maintenance on the ground of the prior proceedings under Section 125, Cr. P.C. It may also be pointed out that in proceedings under Section 125, Cr. P.C. the power of the Magistrate is limited to an award of monthly maintenance not exceeding Rs.500 in the whole, and under Section 127(2) and (4), Cr. P.C. provision is made for the cancellation or variation of the magisterial order, as a consequence of a decision of a competent civil court and for the civil court to take into account the amount paid to or recovered by a person, pursuant to an order under Section 125, Cr. P.C. The aforesaid provisions do not in any manner impinge upon the specifical statutory right conferred under Section 24 of the Hindu Marriage Act. Upon the parties to a proceeding under the provisions of that Act. It would, therefore, follow that the prior proceedings under Section 125, Cr. P.C, cannot be put against the petitioner, as a ground for declining to entertain her claim for maintenance in enforcement of her statutory right under Section 24 of the Hindu Marriage Act.”
20.The learned Counsel appearing for the respondent placed reliance on a Judgment of this Court in G.Ramanathan Vs. Revathy [1989 Crl. L.J. 2037] in support of his contention that it was not permissible to maintain two parallel proceedings. In the said case, a proceeding for divorce was pending before the Civil Court and without filing an application for interim maintenance, the petitioner approached the Magistrate invoking Section 125 Cr.P.C. The learned Judge observed that if an Order regarding maintenance is passed by the Civil Court, the Magistrate has to set aside the Order granting maintenance and therefore, the proper course should be to approach the Civil Court itself where the proceeding was pending. The said Judgment is not an authority for the proposition that a pre-existing Order for maintenance dis-entitles a party to file an application under Section 24 of the Hindu Marriage Act.
21.The learned Trial Judge has committed a jurisdictional error in dismissing the application filed by the petitioner under section 24 of the Act on the ground of a pre-existing order under section 125 Cr.P.C. Therefore, the order impugned in this revision petition is liable to be set aside, and is accordingly set aside. The matter is remitted to the learned Trial Judge for fresh consideration on merits and as per law.
22.The civil revision petition is allowed accordingly. No costs. M.P.No.1/2008 is closed.