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Dinesh Kumar Soni vs Smt.Shobha Soni on 29 January, 2018

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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

SINGLE BENCH : RAJEEV KUMAR DUBEY, J

M.Cr.C.No.11664/2007
Dinesh Kumar Soni
Vs.
Smt. Shobha Soni Another

Shri Pramod Kumar Thakre, learned counsel for the applicant.
None for the respondents.

ORDER

Passed on 01/02/2018

This petition has been filed under Section 482 of the Cr.P.C. against
the order dated 16/11/2007 passed by I Additional Sessions Judge,
Hoshangabad in Cr.R.No.214/2007, whereby learned ASJ rejected the
revision filed by the applicant and affirmed the order dated 25/11/2005
passed by Judicial Magistrate, First Class, Itarsi in Cri. MJC No.136/05,
whereby learned JMFC rejected the applicant’s prayer that the amount
paid by the applicant in pursuance of order passed by this Court in
FA.No.468/02 be adjusted in the amount which has to be paid by the
applicant to the non-applicant no.1 in MJC No.126/06.

2. Brief facts of the case are that the non-applicant No.1/wife filed an
application under Section 125 of the Cr.P.C. against the applicant for
getting maintenance for her daughter and herself before Judicial
Magistrate, First Class, which was registered as Cri.MJC No.03/04 and
allowed by the learned Judicial Magistrate, First Class, vide order dated
15/09/2004, and directed the applicant to pay Rs.1,000/- to non-applicant
no.1/wife and Rs.500/- to non-applicant no.2/daughter as maintenance.

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Against which applicant filed Cr.R.No.83/04, which too was dismissed by
the Court. The applicant also filed a Civil Suit for getting divorce from the
non-applicant No.1, which was decreed by the learned II Additional
Session Judge, Hoshangabad, against which non-applicant No.1 filed
FA.No.468/02 before this Court. During pendency of FA.No.468/02 non-
applicant No.1 filed an application under Section 24 of the Hindu
Marriage and vide order dated 05/02/04 this Court allowed the application
and directed the applicant to pay Rs.1,500/- as alimony to non
applicant/wife till final disposal of the appeal. Thereafter, on 25/11/05
non-applicant No.1 filed an application under Section 125(3) of the
Cr.P.C. before JMFC against applicant for recovery of due maintenance
amount which was registered as MJC No.136/05. During pendency of this
recovery proceeding the applicant raised objection that the amount given
by the applicant to the non-applicant/wife in compliance of this Court’s
order dated 05/02/04 as alimony be adjusted in maintenance amount. That
prayer was rejected by the Judicial Magistrate, I Class. Against which
applicant filed Criminal Revision No.214/07, which was again dismissed
by Ist ASJ, Hoshangabad vide order dated 16/11/07. Being aggrieved by
the said order applicant preferred present petition.

3. Learned counsel for the applicant submitted that vide order dated
05/02/04 passed in FA.No.468/02 this Court directed the applicant to pay
Rs.1,500/- as alimony to non applicant/wife till final disposal of the
appeal. That amount is being paid continuously by the applicant to non-
applicant no.1. She also filed an application against the applicant under
Section 125 of the Cr.P.C. and that application was allowed by the Judicial
Magistrate First Class directing the applicant to pay Rs.1,000/- to the non-
applicant No.1 and Rs.500/- to the non-applicant No.2 as maintenance. At
that time applicant was not aware with the fact that this Court had already
granted maintenance in favour of non-applicant no.1 vide order dated
05/02/04. So in the proceeding of Judicial Magistrate, First Class under
Section 125 of the Cr.P.C. the applicant could not point out about the same
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and the learned Magistrate had also granted maintenance to the non-
applicant no.1 without considering the fact that she was already getting
maintenance as alimony in FA.No.468/02. Therefore, applicant filed an
application under Section 125(3) of the Cr.P.C. on the ground that he is
regularly depositing the amount in compliance of the order passed by this
Court, so the recovery of maintenance amount under Section 125(3)
should be stopped and the amount which applicant already paid to the
non-applicant as alimony be adjusted, while learned JMFC has wrongly
rejected the prayer of the applicant and committed error in holding that
the non-applicant No.1 is entitled to receive the maintenance in two
proceedings simultaneously, so the order be set aside.

4. This Court has gone through the record and arguments advanced by
the learned counsel for the applicant.

5. The scope of Section 125, Cr.P.C. as well as Section 24 of the
Hindu Marriage Act stand on different footing. Applicant is entitled to get
maintenance amount even he has received alimony amount from the
applicant under Section 24 of the Hindu Marriage Act. The learned JMFC
who passed the maintenance order under Section 125 of Cr.P.C. did not
mention in his order that whatever payment has been made by the
applicant under Section 24 of Hindu Marriage Act to non applicant no.1
would be deducted out of the said maintenance amount. This order of the
JMFC was affirmed by the Revisional Court, against which applicant did
not file any petition before this Court. So that order becomes final and
binding on applicant.

6. This Court in the case of Ashok Singh Pal Vs. Smt. Manjulata,
2008 (2) MPHT 275 held that maintenance under Section 125 of CrPC
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 persons 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
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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.

7. So, in the considered opinion of this Court learned trial Court did
not commit any mistake in rejecting the applicant’s prayer.

8. Even otherwise learned trial Court under Section 125 of the Cr.P.C.
only awarded Rs.1,000/- as maintenance to non applicant no. 1/wife and
in FA.No.468/02 also this Court awarded a sum of Rs.1,500/- as alimony
and total amount comes to Rs 2,500/-, which is also not on higher side. So
in the considered opinion of this Court learned trial Court as well as
revisional Court did not commit any mistake in rejecting the prayer made
by applicant for adjusting the alimony amount awarded in FA.No.468/02
in the maintenance amount awarded by the Judicial Magistrate, First Class
in MJC No.3/04 vide order dated 15/09/05.

9. Accordingly, M.Cr.C. is dismissed.

(Rajeev Kumar Dubey)
JUDGE

as/

Digitally signed by ANURAG SONI
Date: 2018.02.03 12:54:59 +05’30’

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