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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