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Rajesh Jivram Tank vs Divyaben Narottambhai Jethawa … on 17 December, 2019

C/SCA/17422/2018 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 17422 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE A.G.URAIZEE

1 Whether Reporters of Local Papers may be allowed to
see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the
judgment ?

4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?

RAJESH JIVRAM TANK
Versus
DIVYABEN NAROTTAMBHAI JETHAWA W/O RAJESH JIVRAM TANK

Appearance:
CHETANKUMAR V DARJI(9309) for the Petitioner(s) No. 1
MR B U MODI(6069) for the Respondent(s) No. 1
NISHIDHKUMAR M PATEL(8335) for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE

Date : 17/12/2019

ORAL JUDGMENT

1. Rule. Learned advocate Nishidhkumar M. Patel wavies
service of Rule on behalf of the respondent.

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C/SCA/17422/2018 JUDGMENT

2. Heard Mr. C.V. Darji, learned advocate for the petitioner
and Mr. Nishidkumar Patel for the respondent. With the
consent of the learned advocates for the parties, the matter is
taken up for final disposal as the issue lies in narrow compass.

3. The petitioner and respondent happens to be husband
and wife. The petitioner has preferred Hindu Marriage Petition
No.17 of 2013 in the Court of learned Additional Senior Civil
Judge, Anjar at Kutch, under Section 9 of the Hindu Marriage
Act (“HM Act” for short) for restitution of the conjugal rights.
The respondent submitted application Exhibit 8 under Section
24 of the HM Act for maintenance pendent lit, which was partly
allowed by the trial Court and the petitioner was ordered to
pay a sum of Rs.5,000/- to the respondent towards
maintenance. He was also directed to pay Rs.5,000/- for legal
expenses incurred by the respondent. The petitioner
challenged the order of the learned trial Judge in the Court of
learned Additional District Judge, Anjar, by preferring Civil
Appeal No.10 of 2017, which was dismissed vide order dated
08.01.2018, which is impugned in this petition.

4. Sole contention raised by Mr. Darji, learned advocate for
the petitioner is that the respondent is also getting
maintenance of Rs.7,000/- under Section 125 of Code of
Criminal Procedure (“Code” for short). He therefore, urged that
the petitioner cannot be made to pay maintenance to the
respondent under order and the learned trial Judge ought to
have directed that the maintenance, which the respondent is
getting by virtue of any other order to be adjusted against the
maintenance under impugned order.

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C/SCA/17422/2018 JUDGMENT

5. In support of his contention, Mr. Darji, learned advocate
relied upon the decision of the Hon’ble Supreme Court in the
case of Sudeep Chaudhary Vs. Radha Chudhary reported
1997 11 SCC 286.

6. Mr. Patel, learned advocate for the respondent though
supported the impugned order of the learned trial Judge could
not dispute the proposition that the wife cannot get
maintenance under multiple orders.

7. It is undisputed fact that the respondent is allowed
maintenance of Rs.5,000/- under Section 125 of Code of
Criminal Procedure, whereas by impugned order, the learned
trial Judge has granted a sum of Rs.5,000/- as monthly
maintenance to the respondent under Section 24 of the HM
Act. The Hon’ble Supreme Court in para 6 of the decision in the
case of Sudeep Chaudhary (Supra), has held as under:

“6. We are of the view that the High Court was in
error. The amount awarded under Section 125 of
the Cr.P.C. for maintenance was adjustable against
the amount awarded in the matrimonial proceedings
and was not to be given over and above the same.
In absence of the wife, we are, however, not inclined
to into any detailed discussion of the law. ”

8. It is thus, eminently clear that the wife (respondent)
cannot get maintenance under multiple orders and the
submission of Mr. Darji, learned advocate that the trial Judge
ought to have ordered that if the respondent is getting
maintenance under any other order including Section 125 of
the Code, is to be adjusted against the maintenance granted to
her under impugned order. I am of the view that the impugned

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C/SCA/17422/2018 JUDGMENT

order passed by the learned trial Judge to the limited extent is
required to be modified.

9. In view of the foregoing, the order passed by the learned
the order passed by the learned 3rd Additional District Judge,
Anjar – Kutch in Civil Appeal No.10 of 2017 dated 14.02.2017 is
hereby quashed and set aside and the order passed by the
learned Senior Civil Judge, Anjar below Exhibit 8 in Hindu
Marriage Petition No.17 of 2013 dated 14.02.2017 is hereby
modified and it is directed that the maintenance awarded to
the respondent under the said order is subject to adjustment
against the maintenance order under Section 125 of the Code
and / or any other order for maintenance.

Rule is made absolute to the aforesaid extent.

(A.G.URAIZEE, J)
YNVYAS

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