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Surjit Kaur Vs. Tirath Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 144 of 1977
Judge
Reported in(1979)81PLR732
ActsHindu Marriage Act - Sections 24; Code of Criminal Procedure (CrPC) , 1973 - Sections 488
AppellantSurjit Kaur
RespondentTirath Singh
Cases ReferredHarbans Lal v. Ganga Devi
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........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 application of the wife of 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 was seem to the court to be reasonable.'a plain reading of the provision shows that the only condition precedent for the grant of maintenance pendente lite to any of the parties to a proceeding under the act is that the applicant has no independent income sufficient for his or her support. if it is found that the applicant has sufficient income for.....
Judgment:
ORDER

1. The Court of Shri M. L. Mirchia, District Judge, Faridkot, has declined to consider on merits the claim and prayer of the petitioner for grant of maintenance pendente lite under S. 24 of the Hindu Marriage Act (hereinafter called the Act) on the sole ground that she has already been allowed maintenance by a Criminal Court and that her maintenance could not be fixed twice. The amount fixed by the criminal Court in proceedings under S. 488 of the Cr.P.C., is stated to be Rs. 50/- per mensem. Section 24 of the Act reads as below.

'24. Maintenance pendente lite and expenses of proceedings.--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 proceeding, it may, on the application of the wife of 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 was seem to the court to be reasonable.'

A plain reading of the provision shows that the only condition precedent for the grant of maintenance pendente lite to any of the parties to a proceeding under the Act is that the applicant has no independent income sufficient for his or her support. If it is found that the applicant has sufficient income for his or her support, no amount can be allowed as maintenance under S. 24 of the Act. If however, it is found that the applicant either has no independent income or his or her income is not sufficient for his or her support, the Court is duty--bound to allow his or her application and grant him or her suitable maintenance pendente lite.

2. As to the quantum of the maintenance, the requirements of the applicant have to be balanced against the income of the respondent. In determining the quantum of monthly maintenance pendente lite the statute requires the Court to have regard to (i) the petitioner's own income and (ii) the income of the respondent. The mere fact that the applicant has some income, however meagre, does not justify the dismissal of the application under S. 24 of the Act. The finding of the learned Distract Judge to the effect that the petitioner was having an income of Rs. 50 per month (on the assumption that the respondent was regularly paying the amount to her under the order of the Criminal Court) indicates that impliedly the Court has found that she has no other income. If that be the finding, a duly was cast on the learned District Judge to go into the question whether the income of Rs. 50 per month is or is not sufficient for the petitioner's support. If the learned District Judge comes to the finding that Rs. 50 per month is sufficient for maintaining the petitioner, he may decline her request for enhancing the amount. If, however, he finds that in these days of rising prices the sum of Rs. 50 per month is not sufficient for the petitioner's to maintain herself, he must fix the amount of maintenance pendente lite under S. 24 of the Act having regard to the maintenance already fixed by the Criminal Court (which is her income) and the income of the respondent. The learned District Judge has refused to exercise jurisdiction vested in him under S. 24 of the Act on the assumption that his jurisdiction under that provision to allow maintenance is ousted by the mere grant of maintenance by a Criminal Court under S. 488 of the old Code or S. 125 of the new Cr.P.C. Mr. Jagdev Sharma, the learned counsel for the petitioner, has brought to my notice the Single Bench judgment of this Court in Harbans Lal v. Ganga Devi, 1976 Chand LR 250 which was a converse case. The prayer of the husband for staying proceedings under S. 125 of the new Code of Criminal Procedure on the ground that maintenance pendente lite had been fixed by the High Court under S. 24 of the Act was declined by the Single Bench on the ground that wife has an independent right to claim maintenance under S. 125 of the new Cr.P.C. even if she has been allowed maintenance pendente lite under S. 24 of the Act. It was observed in Harbans Lal's case that the mere grant of maintenance under S. 24 of the Act is no ground for staying proceedings under S. 125 of the Cr. P.C. it was held that the remedy available to both the spouses is independent of each other. Applying the analogy Lal's case, it appears to me that the converse of the proposition is equally correct and that a mere pre--existing order under the Criminal Procedure Code for payment of maintenance does not oust the jurisdiction of the Civil Court to allow maintenance pendente lite under S. 24 of the Act. The order under revision cannot, in view of what has been stated above, be maintained.

3. I accordingly allow this petition, set aside that part of the order of the learned District Judge whereby he has declined to grant the petitioner maintenance pendente lite in addition to the amount determined to be payable to her by the Criminal Court. I further direct the learned District Judge to find out whether the petitioner is in fact receiving the sum of Rs. 50/- from the respondent or not and, in either event, determine how much amount would be enough for the petitioner to maintain herself and then to proceed to fix the amount of maintenance to which she is entitled under S. 24 of the Act in the light of the principles laid down above.

4. The learned counsel for the petitioner submits that the main case may not be decided till the petitioner's application for maintenance pendents lite is disposed of in pursuance of this order. This is a fair request and I grant the same. Since no one has appeared to contest the petition, there is no order as to costs of the proceedings in this Court.

5. Petition allowed.


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