HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 3
Case :- FIRST APPEAL No. – 92 of 2018
Appellant :- Kuldeep Narayan Tiwari
Respondent :- Smt. Anuradha Tiwari
Counsel for Appellant :- Sm Singh Royekwar,Sumeet Tahilramani
Counsel for Respondent :- Shrish Tiwari,Sarita Mishra
Hon’ble Anil Kumar,J.
Hon’ble Saurabh Lavania,J.
Heard, Sri S.M.Singh Royekwar, learned Counsel for the appellant and Sri Shrish Tiwari, learned Counsel for the respondent.
The present appeal under Section 19(1) of the Family Courts Act, 1984, has been filed against the judgment and order dated 10.07.2018, passed by the Principal Judge, Family Court, Sultanpur under Section 24 of the Hindu Marriage Act, 1955 in Regular Suit No. 486 of 2016 (Kuldeep Narayan Tiwari Versus Anuradha Tiwari).
The brief facts of the case are that the marriage between the appellant and respondent was solemnized as per Hindu rites and rituals on 20.05.2001. Thereafter, out of wedlock of the parties a girl child was born on 26.12.2006. After sometime matrimonial relation between the appellant and respondent became strained. As such the appellant has moved an application under Section 9 of the Hindu Marriage Act, 1955 bearing Case No. 330 of 2011, wherein prayed for restitution of Conjugal Rights. On 17.05.2012, the said application was dismissed. Thereafter, a petition under Section 125 Cr.P.C. was filed by the respondent Smt. Anuradha Tiwari for maintenance, bearing Case No. 388 of 2015. On 21.05.2016 the Principal Judge, Family Court Sultanpur, passed a detailed order whereby the court allowed the petition of the respondent and directed the appellant/husband to pay monthly maintenance of Rs. 3000/- towards the respondent-wife and Rs. 750/- towards his daughter till she attains the age of majority, by every seventh day of each month, from the date of the order. The relevant portion of the order dated 21.05.2016 reads as under:-
“izkfFkZuh dk izkFkZuki /kkjk125 n0iz0la0 vkaf’kd :i ls Lohdkj fd;k tkrk gSA foi{kh dqynhi ujk;u frokjh dks vknsf’kr fd;k tkrk gS fd og vkns’k dh frfFk ls izkfFkZuh la[;k 1 Jherh vuqjk/kk frokjh dks 3000 :i;s ¼rhu gtkj :i;s½ ,oa izkfFkZuh la[;k2 dkR;k;uh dks mlds o;Ld gksus rd 750 :i;s ¼lkr lkS ipkl :i;½s izfr ekg Hkj.kiks”k.k] izR;sd ekg dh lkr rkjh[k rd vnk djsaA ”
On 31.05.2016 the appellant has filed a divorce petition bearing Case No. 486 of 2016 (Kuldeep Narayan Tiwari Versus Anuradha Tiwari). In the said petition, the respondent has moved under an application under Section 24 of Hindu Marriage Act, 1955, in which an order dated 10.7.2018 was passed. The operative portion of the order dated 10.07.2018 reads as under:-
“foi{kh dk vUrfje Hkj.k iks”k.k vkosnu /kkjk24 fgUnw fookg vf/kfu;e vkaf’kd :i ls Lohdkj fd;k tkrk gSA ;kph dks vknsf’kr fd;k tkrk gS fd og okn O;; ds :i esa foi{kh dks ,d eq’r /kujkf’k vadu 5]000@ :i;s vnk djsa rFkk okn dkyhu Hkj.k iks”k.k gsrq og foi{kh dks fu;r izfrekg vadu 10]000 :i;s ekg dh lkr rkjh[k rd nkSjku eqdnek vnk djsaA rn~uqlkj vkifRRk fuLrkafjr dh tkrh gSA ikoyh fnukad 08-10-2018 dks tckcnkok gsrq is’k gksA”
Aggrieved by the order dated 10.07.2018 the present appeal has been filed.
It has been stated by the Counsel for the appellant that while allowing the application under Section 24 the Act of 1955 the Court below has not adjusted/adjudicated the amount awarded to the respondent under Section 124 of Cr.P.C. as maintenance i.e. Rs. 3750/- per month.
In rebuttal learned Counsel for the respondent submitted that the court below has rightly awarded the interim maintenance which is in view of the fact that the appellant is a teacher and is getting admittedly Rs. 39,000/- per month.
We have considered the submissions of learned Counsel for the parties and perused the records.
The question which is to be considered that before awarding maintenance in the application filed under Section 24 of Hindu Marriage Act, the court shall consider the fact that maintenance has already been granted by the Family Court in the petition filed under Section 125 Cr.P.C., in favour of the respondent-wife.
In this regard, the Hon’ble Supreme Court in the case of Sudeep Chaudhary Versus Radha Chaudhary reported in (1997) 11 SCC 286, has held as under:-
“1. Leave granted. This appeal is filed by the husband against the final judgment and order dated 27.10.2016 passed by the High Court of Judicature at Patna in SectionSanjay Kumar Sinha v. Asha Kumari whereby the High Court dismissed the application filed by the appellant herein and upheld the order dated 15-7-2016 passed by the Principal Judge, Family Court, Begusarai in Divorce Case No. 42 of 2010.
2. The respondent wife has been served by substituted service but does not appear
3. The appellant husband and the respondent wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs 350 p.m. with effect from 3-7-1990, and was subsequently enhanced to Rs 500 p.m.
4. In proceedings under the SectionHindu Marriage Act the wife sought alimony. It was granted at the rate of Rs 600 p.m. on 11-8-1987, and the amount thereof was subsequently enhanced to Rs 800 p.m.
5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the CrPC against the amount awarded under Section 24 of the Hindu Marriage Act.
6. We are of the view that the High Court was in error. The amount awarded under Section 125 of the CrPC for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however, not inclined to go into any detailed discussion of the law.
7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the CrPC and the amount awarded in the matrimonial proceedings) the sum of Rs 1000 p.m. commencing from 3-7-1990. The arrears, if any, shall be paid within 8 weeks.
8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.9. The appeal is disposed of accordingly.
10. No order as to cost.”
In the case of Sanjay Kumar Sinha Versus Asha Kumar and another reported in (2018) 5 SCC 333 the Hon’ble Supreme Court has held as under:-
“9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dispose of the appeal finally as under:
9.1. First, the Family Court shall decide the main Divorce Case No. 42 of 2010 preferably within 6 months on merits.
9.2. Second, consequent upon passing of the maintenance order dated 15-7-2016 under Section 24 of the Act by the Family Court, the order passed by the Family Court, Samastipur under Section 125 CrPC stands superseded and now no longer holds the field. Indeed, this fact was conceded by the learned counsel appearing for the respondent wife.
9.3. Third, the appellant husband shall, during pendency of main divorce case, continue to pay in cash a sum of Rs 8000 p.m. (Rs 6000 to the wife and Rs 2000 to the daughter) and for the balance sum i.e. Rs 4000 p.m., the appellant would furnish security.
9.4. Fourth, depending upon the outcome of the main case, appropriate orders towards permanent maintenance and its arrears be also passed.
9.5. Fifth, the arrears towards monthly maintenance be paid by the appellant to the respondent wife within one month from the date of this order, if any, at the rate fixed by this Court above.
9.6. Sixth, payment of monthly maintenance amount, as fixed by this Court, be paid on 1st of every month by the appellant to the respondent.
9.7. Seventh, security for the balance amount (at the rate of Rs 4000 per month) be furnished within one month to the satisfaction of the Family Judge after calculating the monthly maintenance and arrears liability.”
Thus, in view of the law laid down by the Hon’ble Supreme Court in the case of Sudeep Chaudhary (Supra) and Sanjay Kumar Sinha (Supra), the judgment and order dated 10.07.2018, passed by the Principal Judge, Family Court, Sultanpur under Section 24 of the Hindu Marriage Act, 1955 in Regular Suit No. 486 of 2016 (Kuldeep Narayan Tiwari Versus Anuradha Tiwari), is hereby modified. The maintenance amount of Rs. 10,000/- per month which is to be paid by the appellant to the respondent is modified to the extent of Rs. 6250/- per month. However, remaining portion of the order dated 10.07.2018, shall remain the same.
With the aforesaid observations, the appeal is partly allowed.
(Saurabh Lavania,J.) (Anil Kumar,J.)
Order Date :- 23.10.2019
Jyoti/-
