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Pradeep Mishra @ Pradeep Kumar … vs Sindhu Devi on 10 May, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.307 of 2019

Pradeep Mishra @ Pradeep Kumar Mishra Gender-Male, Aged about 37
years, son of Shri Brihaspati Kumar Mishra, resident of Village-Bishunpura,
PO-Serukahan, P.S. Mashrak, District-Saran.

… … Petitioner
Versus
Sindhu Devi wife of Pradeep Mishra @ Pradeep Kumar Mishra, D/o Suresh
Mishra presently residing at Village-Sidhwalia, PS-Chapra Mufassil, District-
Saran.

… … Respondent

Appearance :

For the Petitioner : Mr.Jitendra Kumar, Advocate
For the Respondent : Mr.

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date : 10-05-2019

This application under SectionArticle 227 of the Constitution

of India has been filed by the petitioner for setting aside the order

dated 28.09.2018 passed by learned Principal Judge, Family Court,

Saran at Chapra in Divorce Case No. 64 of 2016 whereby he has

allowed the petition dated 06.06.2018 filed by the respondent

under Section 24 of the Hindu Marriage Act, 1955 and,

accordingly, directed to pay Rs.2000/- per month as maintenance

pendente lite in favour of respondent under Section 24 of the

Hindu Marriage Act,1955.

2. Learned counsel appearing for the petitioner

submitted that the order dated 28.09.2018 has been passed by the

court below ignoring the fact that the petitioner is paying

Rs.3500/- per month as maintenance to the respondent under the
Patna High Court C.Misc. No.307 of 2019 dt.10-05-2019
2/4

order dated 10.06.2015 passed by the learned Principal Judge,

Family Court, Saran at Chapra in Maintenance Case No. 231 of

2013. He contended that the order impugned is contrary to law and

the amount awarded by the impugned order as maintenance

pendente lite ought to have been ordered to be adjusted against

maintenance already awarded earlier against the petitioner under

Section 125 of the Code of Criminal Procedure, 1973 (for short

‘SectionCrPC’). He contended that the petitioner is a franking machine

operator at Saran Civil Court on contractual basis and he gets

Rs.11,500/- only. Apart from this, he has no other income. From

the said income, he has to maintain his parents, who are quite old

and sick.

3. I have heard learned counsel for the petitioner

and perused the materials available on record.

4. The object behind Section 24 of the Hindu

Marriage Act, 1955 is to provide for maintenance, pendente lite, to

a spouse in matrimonial proceedings so that during the pendency

of the proceedings the spouse can maintain herself/himself and

also have sufficient funds to carry on litigation. During pendency

of the divorce proceeding, if the wife establishes that she has no

sufficient independent income for her support and the husband
Patna High Court C.Misc. No.307 of 2019 dt.10-05-2019
3/4

having sufficient income is not maintaining her, it would be open

to the wife to claim maintenance pendente lite.

5. The aim and object of Section 24 of the Hindu

Marriage Act, 1955 and Section 125 of the CrPC are distinct.

Section 125 of the CrPC provides immediate and speedy remedy

to the wife and children so as to avoid vagrancy of the wife and the

children whereas Section 24 of the Hindu Marriage Act, 1955

provides that either the wife or the husband, as the case may be,

has no independent income sufficient for her or his support and the

necessary expenses of the proceeding, it may, on the application of

the wife or the husband, order the respondent to pay to the

petitioner the expenses of the proceeding, and monthly during the

proceeding such sum as, having regard to the petitioner’s own

income and the income of the respondent, it may seem to the court

to be reasonable. The relevant consideration for grant of

maintenance pendente lite is that the spouse could not have

independent income sufficient for her/his support.

6. In the present case, the respondent pleaded in

her application that she has no independent source of income and

is residing at her parents’ home. She was ousted by her husband

from her matrimonial home. She contended that her parents are

quite old and are not in a position to support her. The petitioner
Patna High Court C.Misc. No.307 of 2019 dt.10-05-2019
4/4

filed a rejoinder in the court below wherein he has not even

whispered that the respondent has sufficient means to support

herself. The contention that the petitioner is a franking machine

operator and is earning Rs.11,500/- and has no other independent

source of income is being made for the first time before this Court.

Such plea had not been advanced in the court below. A plea, which

was not taken at the first instance in the proceeding pending

before the court below, cannot be permitted to be taken as a

ground for challenging an order to be bad. Moreover, the

petitioner has not pleaded that he does not have sufficient means to

support himself or his deserted wife in his rejoinder. In absence of

any pleading on behalf of the petitioner in the court below, no

illegality can be found in the order impugned passed by the court

below whereby it has allowed Rs.2000/- per month as maintenance

pendente lite to the respondent.

7. Accordingly, I am not inclined to interfere with

the order impugned in supervisory jurisdiction under SectionArticle 227

of the Constitution of India. The application is dismissed.

(Ashwani Kumar Singh, J)

kanchan/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 13.05.2019
Transmission Date NA

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