-1- MP No.3107/2019
HIGH COURT OF MADHYA PRADESH,
BENCH AT INDORE
M.P NO.3107/2019
(Smt.Aparna @ Sweety w/o Ritesh Chopra vs. Ritesh Chopra
s/o Paras Chopra)
27.01.2020: (INDORE):
Shri Brajesh Pandya, learned counsel for the petitioner.
Ms.Pratiksha Maheshwari, learned counsel for the
respondent.
Heard.
ORDER
Petitioner/wife has filed the present petition being
aggrieved by the order dated 14.05.2018 passed by Ist
Additional District Judge, Shujalpur in HMA Case
No.27/2017 whereby the application filed under section 24
of the Hindu Marriage Act, 1955 has been rejected.
Facts of the case in short are as under:
2. The marriage of present petitioner with respondent
was solemnized on 11.05.2017 under the Hindu customs and
rituals. The respondent/husband filed an application under
section 13 of the Hindu Marriage Act seeking dissolution of
the marriage which is pending as HMA Case No.27/2017
before the Ist Additional District Judge, Shujalpur. In the
said application the present petitioner filed an application
under section 24 of the Hindu Marriage Act seeking
maintenance pendente lite and expenses of the proceedings.
According to the petitioner, she is entitled for maintenance at
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the rate of Rs.20,000/- per month, Rs.10,000/- for house rent,
Rs.30,000/- for counsel fee and Rs.10,000/- for
miscellaneous expenses from the respondent. According to
her, the respondent is earning lakhs of rupees per month by
way of business, therefore, he is in a position to pay the
maintenance amount.
3. The respondent filed a reply by submitting that the
petitioner has initiated the proceedings under the Protection
of Women from Domestic Violence Act, 2005 (hereinafter
referred to as ‘the Domestic Violence Act’) before the JMFC
against him. In the said proceeding, she claimed the
maintenance amount at the rate of Rs.20,000/- per month.
The said application was opposed but the learned Court vide
order dated 03.11.2017 allowed the application and directed
the respondent to pay Rs.10,000/- as interim maintenance
and Rs.10,000/- as house rent per month till the final
decision of the case. Being aggrieved by the aforesaid order
he preferred an appeal under section 29 of the Domestic
Violence Act before the Sessions Court and vide order dated
25.04.2018 the Sessions Court has affirmed the interim
maintenance at the rate of Rs.10,000/- but rejected the claim
of Rs.10,000/- as house rent. Being aggrieved by the
aforesaid order, the respondent preferred a criminal revision
No.3080/2018 before this Court and vide order dated
17.07.2019 this Court has dismissed the revision maintaining
the amount of Rs.10,000/- per month as maintenance.
During the pendency of the aforesaid proceedings the present
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petitioner filed an application under section 24 of the Hindu
Marriage Act seeking maintenance. Learned Court after
considering the aforesaid facts and circumstances has
rejected the application, hence the present petition before this
Court.
4. Shri Pandya, learned counsel appearing for the
petitioner vehemently argued that learned Additional Judge
has wrongly rejected the application on the ground that the
petitioner is already getting maintenance from the
respondent. He submits that the provision of section 24 of
the Hindu Marriage Act is an independent provision for
maintenance to the wife during the pendency of the petition
for divorce. There is no bar under section 24 for entertaining
the application on the ground that the wife is already getting
maintenance under different provisions of law. He further
submits that under section 24 there is a provision for grant of
maintenance as well as expenses of the proceedings which
has not been granted to her by the learned Magistrate in the
proceedings under the Domestic Violence Act, therefore, the
Court has wrongly rejected the application filed by the
petitioner.
5. Ms.Pratiksha Maheshwari, learned counsel appearing
for the respondent submits that the petitioner has already
received an amount of Rs.5 lakhs towards permanent
alimony from the respondent and the remaining amount was
to be paid at the time of final stage of the proceeding but she
did not give consent for the divorce by way of mutual
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consent, therefore, she is already enjoying Rs.5 lakhs and the
respondent is paying maintenance at the rate of Rs.10,000/-
per month which has been affirmed by this Court, therefore,
no further maintenance is liable to be paid to her and no
interference is called for in the impugned order.
6. It is not in dispute that the present petitioner is already
getting Rs.10,000/- per month as maintenance which has
been affirmed by this Court as just and proper amount of
maintenance. Para-9 of the order passed by this Court in
CRR No.3080/2018 is reproduced below:
After considering the arguments advanced by the learned
counsel for the parties, this Court is of the opinion that at the
stage of the fixation of interim maintenance, the Court
cannot take all the submissions put forth before this Court.
Moreover, it is an admitted fact that the applicant No.1 is
engaged in business and he has sufficient source of income
to pay the aforesaid amount. The application filed under
Section 12 of the D.V. Act is under adjudication before the
Trial Court and any observation of this Court will prejudice
the pending proceedings. Looking to the fact that
respondent is wife of the applicant No.1 and she is living
separately and she is not having any source of income. This
Court is of the opinion that the trial Court as well as the
appellate Court has not committed any error in fixation of
maintenance amount to tune of Rs.20,000/- per month.
There is no illegality or perversity visible in the impugned
order passed by the Courts below. (the amount of
Rs.20,000/- mentioned in the order has been later on
modified as Rs.10,000/- per month)
7. Before entertaining this petition, this Court has
directed the respondent to deposit Rs.2 lakhs as arrears of
maintenance payable under the Domestic Violence Act.
Learned counsel for the respondent submits that the
respondent has paid the aforesaid amount to the petitioner.
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In response Shri Pandya submits that there was a delay in the
payment of aforesaid amount and by that time eight months’
maintenance has become due i.e. Rs.80,000/- and the same
has not been paid to the petitioner.
8. So far the maintainability of the application under
section 24 of the Hindu Marriage Act before the Family
Court is concerned, as per the provision of section 24 where
in any proceeding under this Act it appears to the Court 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 proceedings, it may, on
application of the wife or husband, order the respondent to
pay to the petitioner expenses of the proceedings 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.
While deciding the application, the Court is required to
examine whether wife or husband, as the case may be, has
any independent income sufficient for her or his support and
the necessary expenses of the proceedings. At the time of
filing the application under section 24 the petitioner was
getting Rs.10,000/- as maintenance from the respondent by
virtue of the order passed by the Court under the Domestic
Violence Act. The petitioner has also received Rs.5 lakhs as
permanent alimony but declined to sign the proceedings
under section 13-B, therefore, she is having independent
income as well as the amount to meet out the expenses of the
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proceeding. There is a provision for grant of maintenance
under section 125 Cr.P.C, under section 24 of the Hindu
Marriage Act and under the Domestic Violence Act. The
intention behind all the aforesaid provisions is that the wife
or husband, as the case may, get the maintenance if she/he
has been deserted without any valid reason. The
maintenance cannot be claimed in all the three provisions at
a time if she/he gets sufficient maintenance in one of the
proceedings. This Court in Criminal Revision No.3080/2018
has already held that Rs.10,000/- per month as maintenance
to the petitioner is just and proper amount of maintenance,
therefore, so far the maintenance is concerned, there is no
reason to take a different view. Section 24 of the Hindu
Marriage Act further provides for payment of expenses of
the proceedings. Since the application under section 24 is
liable to be filed in a proceeding pending under the Hindu
Marriage Act, therefore, the expenses for the proceeding is
liable to be paid under this proceeding. Under the Domestic
Violence Act she is only getting Rs.10,000/- per month as
maintenance, however, not getting any amount to meet tout
the expenses of the proceeding. To that extent, the learned
Court ought to have considered the application under section
24 of the Hindu Marriage Act. The petitioner has claimed
Rs.10,000/- for counsel fee and Rs.10,000/ for miscellaneous
expenses. Since the respondent/husband has filed the
divorce proceeding against her, hence, he is liable to pay
counsel fee as well as miscellaneous expenses to the
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petitioner, therefore, the counsel fee is quantified at
Rs.10,000/- and miscellaneous expenses at Rs.5,000/-.
Accordingly, the application under section 24 is partly
allowed and the respondent is directed to pay the amount of
Rs.15,000/- to the petitioner.
9. Accordingly, the petition is partly allowed.
(VIVEK RUSIA)
JUDGE
Digitally signed by Hari Kumar
Nair
Date: 2020.01.29 17:15:26 +05’30’
hk/
