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Bhagwan S/O. Kisan Janjal vs Anita W/O. Bhagwan Janjal And … on 13 September, 2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.788 OF 2019

Bhagwan s/o Kisan Janjal,
Age : 40 years, Occu.: Pvt. Service,
R/o.: Bajaj Nagar, CIDCO Mahanagar,
Aurangabad. … PETITIONER

VERSUS

1. Anita w/o Bhagwan Janjal,
Age : 35 years, Occu.: Housewife,
R/o.: H. No. Ramnagar, Post Wasadi,
Tq. Kannad, District : Aurangabad.

2. Aryan @ Kartik s/o Bhagwan Janjal,
Age : 8 years, Occu.: Education,
R/o.: H. No. Ramnagar, Post Wasadi,
Tq. Kannad, District : Aurangabad.

3. Aradhya d/o Bhagwan Janjal,
Age : 6 years, Occu.: Minor,
R/o.: H. No. Ramnagar, Post Wasadi,
Tq. Kannad, District : Aurangabad.
(Respondent No.1 is Guardian as a
mother of Respondent Nos. 2 3) … RESPONDENTS


Advocate for Petitioner : Mr. Rahul G. Joshi
Advocate for Respondents : Mr. R.V. Gore

CORAM : MANGESH S. PATIL, J.
RESERVED ON : 05.09.2019
PRONOUNCED ON : 13.09.2019

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JUDGMENT :-

Heard.

2. Rule. The Rule is made returnable forthwith. With the

consent of both sides, the matter is heard finally at the stage of

admission.

3. The petitioner is the husband of respondent No.1. She

filed Criminal Miscellaneous Application No. 507 of 2017 under

Section 125 of the Code of Criminal Procedure claiming

maintenance for herself and her two children. Simultaneously,

the petitioner filed a proceeding for divorce, which was pending

before the learned Civil Judge (Senior Division) in the form of

HMP Petition No. 23 of 2017. In that Hindu Marriage Petition

the learned Civil Judge (Senior Division) awarded her interim

alimony at the rate of Rs.7,000/- per month. He filed

application before learned Magistrate in Criminal Miscellaneous

Application No. 507 of 2017 pointing this fact and sought that

the proceeding be stayed since she was already getting interim

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alimony as directed in the Hindu Marriage Petition. Reliance

was also placed upon the judgment of this Court in the case of

Vijaykumar Gundappa Shetkar (Gandage) Vs. Bhagywati

Vijaykumar Shektkar (Gandge) and others, 2009(1) BCR

(Cri) 799.

4. Learned advocate for the petitioner vehemently submitted

that when respondent No.1 was already getting interim

alimony, it was inappropriated for her to have filed and

prosecuted a proceeding under Section 125 of the Cr.P.C. In

fact the proceeding under Section 125 of the Cr.P.C. ought to

have been stayed in the light of decision of this Court in the

matter of Vijaykumar Shetkar (supra). Learned advocate for

the petitioner also placed reliance upon decision of the

Supreme Court in the matter of Sanjay Kumar Sinha Vs.

Asha Kumari and another, reported in (2018) 5 SCC 333,

wherein in similar set of facts, the wife was not allowed to

continue with the proceeding for maintenance under Section

125 of the Cr.P.C. when divorce petition was pending and

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interim alimony was granted.

5. The learned advocate for the respondents submitted that

the order passed under Section 24 of the Hindu Marriage Act in

Hindu Marriage Petition No.232 of 2017 in a proceeding for

divorce initiated by the petitioner under Section 13 (1)(i-a) of

that Act only permits that Court to grant her maintenance

pendente lite and does not determine her right finally to have

maintenance even after that litigation ends. Whereas by virtue

of provisions of Section 125 of the Cr.P.C. she would be entitled

to claim maintenance for the remainder of her life, rather it

would be a final order. Therefore, it cannot be said that as of

right the petitioner is entitled to seek stay to the proceeding

initiated by her under Section 125 of the Cr.P.C. only on the

ground that simultaneously she has been awarded maintenance

pendente lite under Section 24 of the Hindu Marriage Act.

6. The learned advocate for the respondents also points out

that in the divorce proceeding only respondent No.1 / wife is a

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party and is entitled to claim maintenance pendente lite under

Section 24 of Hindu Marriage Act, whereas the proceeding filed

by respondents under Section 125 of the Cr.P.C., it is not

respondent No.1 / wife alone but even respondent Nos. 2 and

3, who are her children, are entitled to and are claiming

maintenance from the petitioner under Section 125 of the

Cr.P.C. Therefore, when respondent Nos. 2 and 3 are not

beneficiaries of the maintenance granted to respondent No.1 in

the divorce proceeding, the proceeding initiated by them under

Section 125 of the Cr.P.C. cannot be stayed rather staying such

proceeding would deprive them of their right to claim

maintenance. Therefore, unless the petitioner expresses his

willingness to pay some interim maintenance to respondent

Nos. 2 and 3, the proceeding initiated by them under Section

125 of the Cr.P.C. cannot be stayed.

7. The learned advocate for the respondents further

submitted that in the peculiar facts and circumstances, it would

be appropriate to allow the proceeding initiated by the

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respondents under Section 125 of the Cr.P.C. to be decided

finally with a direction to the concerned Magistrate to take into

account the maintenance awarded to respondent No.1 under

Section 24 of the Hindu Marriage Act while finalizing quantum

of maintenance. No prejudice would be caused to the

petitioner if such a course is followed. His concern should be

only to see to it that the respondents are not paid anything

over and above to which they are entitled to, irrespective of the

number of proceedings in which they claim maintenance under

different statutes. The learned Advocate would submit that

the decision in the case of Ravindra Haribhau Karmarkar

Vs. Mrs. Shaila Ravindra Karmarkar, 1992 Cri.L.J. 1845

and Vijaykumar Gundappa Shetkar Vs. Bhagyawati

Shetkar (Supra) are clearly distinguishable on facts. So far

as the decision of the Supreme Court in the case of Sanjay

Kumar Sinha (supra) the learned advocate submits that it is

under the powers conferred on the Supreme Court under

SectionArticle 141 of the Constitution of India that in the similar set of

facts several directions were given to the Family Court, wherein

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the divorce proceeding was going on. By way of interim

arrangement, the husband was directed to pay interim

maintenance to the wife as well as children and the divorce

proceeding was directed to be expedited. Only some

observation was made on the concession to the effect that in

view of the order passed by the Family Court under Section 24

of the Hindu Marriage Act, the order passed under Section 125

of the Cr.P.C. stood superseded. Therefore, the observations

and the conclusions in the case of Sanjay Kumar Sinha

(supra) do not lay down any ratio decidendi or even does not

constitute an obiter dicta.

8. I have carefully gone through the papers. It is indeed an

admitted fact that in Hindu Marriage Petition No. 232 of 2017

initiated by the petitioner for divorce under Section 13(1)(i-a)

of the SectionHindu Marriage Act respondent No.1 claimed

maintenance pendente lite under Section 24 of that Act and by

the order dated 16.10.2018 the petitioner was directed to pay

to her Rs.7,000/- per month from the date of the application

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i.e. 20.12.2017. It is also admitted that the respondents

simultaneously filed Criminal Miscellaneous Application No. 507

of 2017 in the Court of Judicial Magistrate, First Class claiming

maintenance under Section 125 of the Cr.P.C. It is also

admitted that both these proceedings are pending before the

respective Courts.

9. It is trite that when different statutes provided for a

similar remedy, the party may prosecute all such remedies and

even simultaneously. The only precaution that needs to be

taken in such an eventuality is that all such rights should

ultimately be factored in and balanced so that the parties do

not derive the benefit twice over. When the provisions of

Section 125 of the Cr.P.C. and Section 24 of Hindu Marriage Act

empower a wife to claim maintenance, no fault can be found

with her in simultaneously pursuing both the remedies.

However, that does not entitle her to claim twice the

maintenance to which she would otherwise be entitled to. The

only care that is required to be taken is that as and when she is

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awarded maintenance under either of the proceedings, the

quantum of maintenance awarded in such earlier proceeding is

to be taken into account while determining quantum of

maintenance in the subsequent proceeding or the proceeding

to be decided subsequently. In such a manner a balance can

be struck. This is precisely what the decision in Ravindra

Karmarkar and Vijaykumar Shetkar (supra ) seek to

achieve. With respect, this is what has been done by the

Supreme Court in the case of Sanjay Kumar Sinha (supra) .

10. Faced with the situation, the learned advocate for the

respondents sought to salvage some ground by making

distinction on facts by pointing out that under Section 24 of the

Hindu Marriage Act it is only respondent No.1 being the wife

who is entitled to claim maintenance and has been awarded

Rs.7,000/- per month, whereas in the proceeding under

Section 125 of the Cr.P.C. even respondent Nos. 2 and 3, who

are the children, are claiming maintenance which they

otherwise are not entitled to claim under Section 24 of the

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SectionHindu Marriage Act. Therefore, though respondent No.1 can be

said to have been benefited by the order under Section 24 of

the Hindu Marriage Act, respondent Nos. 2 and 3 are not

getting anything and directing the proceeding initiated by them

under Section 125 of the Cr.P.C. even to their extent to be

stayed would result in unnecessary hardship.

11. At the first blush, the submission of the learned advocate

for the respondents does appear to be attractive. However, a

careful perusal of the order passed under Section 24 of the

Hindu Marriage Act would reveal that while deciding quantum

of maintenance pendente lite, not only the requirement of

respondent No.1 / wife has been taken into consideration but

even the expenses which she is required to incur for

maintenance of her two children that is respondent Nos. 2 and

3 has also been taken into consideration. The observations in

paragraph Nos. 9 and 10 are relevant and read thus :

“9. It is evident that respondent is unable to
maintain herself and the petitioner has source of
income. Her sons are residing with her.

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Petitioner has not submitted any document to
show that he is providing any type of
maintenance amount to respondent and his sons.
In these circumstances, the applicant is entitled
for the maintenance for herself and her children
and certain expenses towards litigation.

10. Having regard to the source of income and
needs of the respondent, I think if amount of
Rs.7,000/- per month is granted towards the
maintenance for herself and her two children
including litigation expenses ends of justice
would meet. Accordingly, point No.3 is answered
in the affirmative”.

12. Therefore, although it is only the wife, who is entitled to

claim maintenance pendente lite under Section 24 of the Hindu

Marriage Act, in fact respondent No.1 has been granted

maintenance at the rate of Rs.7,000/- per month for her

maintenance as well as maintenance of respondent Nos. 2 and

3. Though no separate and independent order was passed in

favour of respondent Nos. 2 and 3 as was case in the case of

Sanjay Kumar Sinha (supra) the fact situation is exactly

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similar. In that case, the wife was awarded Rs.8,000/- per

month, whereas her minor daughter was awarded Rs.4,000/-

per month by the Family Court in the divorce proceeding under

Section 24 of the Hindu Marriage Act. Since proceeding under

Section 125 of the Cr.P.C was already finally decided wherein

the wife was awarded Rs.4,000/- per month and the daughter

was awarded Rs.2,000/- per month, it was observed that the

order passed under Section 125 of the Cr.P.C. stood superseded

by the order passed by the Family Court under Section 24 of

the Hindu Marriage Act. While directing the husband to

continue to pay maintenance to the wife and the daughter

during pendency of the divorce case and directing him to

expedite the divorce case it was further directed to the Family

Court that depending upon the outcome of the divorce

proceeding appropriate order for payment of permanent

maintenance and its arrears be passed. It is in such peculiar

circumstances the aforementioned observations regarding

supersession of order under Section 125 of the Cr.P.C. have

been made.

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13. Since as no final order has been pronounced in the matter

in hand in respect of proceeding under Section 125 of the

Cr.P.C. and since the order passed under Section 24 of the

Hindu Marriage Act is only an interlocutory order which would

terminate with the termination of the main proceeding, with

respect the course followed in the case of Sanjay Kumar

Sinha (supra) cannot be adopted. It would be in the fitness of

things appropriate to allow the proceeding under Section 125 of

the Cr.P.C. to be decided finally with a direction to the

concerned Magistrate to take into account the maintenance

granted to the respondent no.1-wife while determining the

quantum of maintenance to all the three respondents. Issuing

such direction would strike the desired balance.

14. The writ petition is therefore dismissed. Criminal

Miscellaneous Application No. 507 of 2017 preferred by the

respondent under Section 125 of the Cr.P.C. may proceed.

However, while fixing the quantum of maintenance, the learned

Magistrate shall take into account the amount of maintenance

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pendente lite granted in Hindu Marriage Petition No. 232 of

2017 under Section 24 of the Hindu Marriage Act.

15. Rule is accordingly made absolute.

(MANGESH S. PATIL, J.)
vsm/-

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