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Writ Petition No.14907/2016
30.3.2017.
Shri Amit Shukla, learned counsel for the petitioner.
Shri Ishteyaq Husain, learned counsel for the respondent.
With consent of learned counsel for the parties, the matter
is finally heard.
Petitioner takes exception to an order-dated 11.7.2016
passed in Civil Suit No.6A/2015, whereby, an application under
Section 24 of the Hindu Marriage Act, 1955 filed by the petitioner
for grant of maintenance pendente lite and for legal expenses,
has been dismissed.
The Civil Suit is a proceeding instituted by the respondent
under Section 13 of 1955 Act for divorce. During pendency
whereof, petitioner filed an application for grant of maintenance
and legal expenses, on the ground that she has no independent
source of income and is dependent on her parents. Whereas, the
respondent is a software engineer placed in a reputed company
earning Rs.50,000/- per month and is economically very well of.
Pertinent it is to note at this stage that the petitioner had
earlier filed an application under Section 125 CrPC for
maintenance which was dismissed by the trial Court on the finding
that the petitioner of her own volition having chosen to live
separately from her husband therefore, she is not entitled for the
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Writ Petition No.14907/2016
maintenance.
The trial Court taking que from the order passed on an
application under Section 125 CrPC, rejected the application by
impugned order on the similar findings as in application under
Section 125 CrPC.
Criticizing the order, it is urged on behalf of petitioner that
the trial Court committed grave error of justice in treating the
proceedings under Section 125 CrPC as similar to those under
Section 24 of 1955 Act. It is urged that as the petitioner has no
independent source of income, incumbent it is upon the
respondent to meet the expenses towards maintenance and legal
expenses.
Respondent, on his turn, supports the order under
challenge.
Considered the rival submissions.
Section 125(1) CrPC obligates any person having sufficient
means neglects or refuses to maintain his wife unable to maintain
herself, to pay monthly allowance. Whereas, Section 24 of 1955
Act envisages that in any proceeding under 1955 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 proceeding, it may, on the
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Writ Petition No.14907/2016
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.
These two provisions operate in a different fact situation.
Whereas, Section 125 CrPC is attracted where a person having
sufficient means neglects or refuses to maintain his wife, unable
to maintain herself. Thus, there has to be a positive act of refusal
or neglect. Whereas, under Section 24 of 1955 Act, in any
proceeding under 1955 Act either the the wife or the husband, as
the case may be, having no independent income sufficient for her
or his support and to meet out the necessary expense of the
proceeding, is the cause for invoking Section 24 of 1955 Act. The
applicability of Section 24 thus, does not warrant a positive act of
refusal or neglect.
In this context, reference can be had of the decision in
Ashok Singh vs Smt. Manjulata 2008 (2) MPLJ 533,
wherein, while relying on the decision by another co-ordinate
Bench of this Court in Naresh Kumar Rai vs Smt. Mamta Rai
2003 (2) MPLJ 137, wherein it has been held : “5… the nature
of proceedings under the Hindu Marriage Act and that of
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Writ Petition No.14907/2016
maintenance proceedings under the Code of Criminal Procedure
are different …”.
In view whereof, the decision by the trial Court cannot be
approved of.
Consequently, the impugned order-dated 11.7.2016 is set
aside. Application under Section 24 of 1955 Act is allowed.
Petitioner is held entitled and the respondent liable to pay
Rs.5000/- per month towards maintenance from the date of
application. In addition, the petitioner is entitled for expenses to
and fro sleeper class Express Train to attend the case at Sohagpur
on production of ticket. Petitioner is also entitled for Rs.500/- on
each date fixed in the Court on which she appears to meet out
legal expenses.
The petition is allowed to the extent above. No costs.
(SANJAY YADAV)
vinod JUDGE