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Pritam Singh Vs. Rajinder Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. Nos. 2888 and 3178 of 1982
Judge
Reported inAIR1983P& H239
ActsHindu Marriage Act, 1955 - Sections 13 and 24; Code of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantPritam Singh
RespondentRajinder Kaur
Cases ReferredGurmail Singh Harijan v. Bhuchari Harijan
Excerpt:
.....powers of superintendence under article 227 of the constitution. - tirath singh (1977) 79 pun lr 621: (air 1978 punj & har 112) and ultimately came to the conclusion that at best, the wife can be expected to earn about rs. for payment of maintenance does not oust the jurisdiction of the civil court to allow maintenance pendente lite under section 24 of the act, but the said case is clearly distinguishable on he facts of the present case......of any type of maintenance etc. left against the husband moreover, argued he learned counsel, the wife is entitled to one maintenance only which has been allowed to her under section 125, cr. p. c. having once allowed the maintenance and the amount having been paid in lump sum, the wife is estopped from claiming the maintenance again under section 24 of the act. the judgment in surjit kaur's case (supra) relied upon by the trial court according to the learned counsel is not applicable to the facts of the present case.4. it was next contended on behalf of the husband, that in any case, the maintenance could be allowed on the basis of his income and not on surmises and conjectures assuming that the husband being an able-bodies person was in a position to earn rs. 12/- per day on the.....
Judgment:
ORDER

1. This order will dispose of Civil Revision No. 288 of 1982 and Civil Revision No. 3178 of 1982 as both of them have been filed against the same order of the trial Court.

2. In proceedings under Section 13 of the Hindu Marriage Act, 1955(hereinafter called 'the Act') the wife filed an application under Section 24 of the Act for grant of litigation expenses and maintenance pendente lite. It was contended the she has no independent source of income and is unable to bear the expenses of the litigation. It was allege that her husband Pritam Singh earns about Rs. 1000/- from his job as a Granthi. She also mentioned that in proceedings under Section 125 Criminal P. C. instituted on 27th Feb. 1978 maintenance allowance at the rate of Rs. 150/- per month was allowed on 27th Oct. 1979 which was payable in compliance with the said order and consequently, she is entitled to Rs. 800/- as litigation expenses and Rs. 300/- as maintenance pendente lite. In reply the husband took to the plea that his wife earns about Rs. 200/- per month from tailoring. He further discloses that in the execution proceedings of the order f maintenance passed by the Judicial Magistrate, all past, present and future claims of maintenance were compromised between the parties, when a lump sum of Rs. 9000/- was paid to Rajinder Kaur in complete and total satisfaction of al claims. The factum of having received Rs. 9000/- in lump sum on account of compromise D/- 18th Sept. 1981 was admitted on these allegations, the learned Additional District Judge came to the conclusion that even though a lump sum of Rs. 9000/- has been paid to the wife by way of compromise in the proceedings under Section 125, Cr. P. C./ but that does not disentitle her to claim maintenance under Section 24 of the Act In this behalf, he relied upon Surhit Kaur v. Tirath Singh (1977) 79 Pun LR 621: (AIR 1978 Punj & Har 112) and ultimately came to the conclusion that at best, the wife can be expected to earn about Rs. 900/- per annum as interest on the amount of Rs. 9000/- and in this manner, her income therefrom comes to Rs. 75/- per month. But keeping in view the trend of rise in prices, the said amount is not sufficient to maintain her and she can safely ask for further grant of maintenance allowance which was allowed @ Rs. 75/- per month by the learned trial Court In addition thereto, a sum of Rs. 300/- was allowed as litigation expenses, Dissatisfied with the same, both the parties have filed these two separate petitions.

3. According to the learned counsel for the husband, after making the payment of a sum of Rs. 9000/- by way of compromise in the proceedings under Section 125, Cr. P. C. the wife was not entitled to any maintenance under Section 24 of the Act. According to the learned counsel, in the compromise entered into between the parties, the copy of which has been fled along with the revision petition, it was specifically stated that after that day there would be no claim of any type of maintenance etc. left against the husband Moreover, argued he learned counsel, the wife is entitled to one maintenance only which has been allowed to her under Section 125, Cr. P. C. Having once allowed the maintenance and the amount having been paid in lump sum, the wife is estopped from claiming the maintenance again under Section 24 of the Act. The judgment in Surjit Kaur's case (supra) relied upon by the trial Court according to the learned counsel is not applicable to the facts of the present case.

4. It was next contended on behalf of the husband, that in any case, the maintenance could be allowed on the basis of his income and not on surmises and conjectures assuming that the husband being an able-bodies person was in a position to earn Rs. 12/- per day on the minimum side and thus his income can be taken to be Rs. 375/- per month, In support of his contentions, the learned counsel for the contentions the learned counsel for the husband relied upon Kaushalya Devi v. Masat Ram. 1981 Hindu LR 442: (AIR 1981 Him Pra 63) Devraj v. Smt. Harjit Kaur 1982 Marriage LJ 24; Smt Lila Devi v. Tarlok Chand (1978) 80 Pun LR 744, Anand Parkash Sharma v. Smt. Vijay Mudgil. 1978 Marriage LJ 335, Gurjeet Singh v. Smt. Vajinder Kaur. 1979 Marriage LJ 453. On the Kaur. 1979 Marriage LJ 453. On the other hand, learned counsel for the wife contended that she was entitled to the maintenance irrespective of the order obtained by her under Section 125. Cr. P. C. He only relied upon the judgment reported as Surjit Kaur's case (AIR 1978 Punj & Har 12)(supra) as referred to in the order of the trial Court./ On the other contention as to how to assess the amount of maintenance, he referred to the Division Bench decision of this Court reported as Gurmail Singh Harijan v. Bhuchari Harijan 1980 Cur LJ (Civ) 193: (AIR 1980 Pun & Har 120) wherein it has been observed that for the grant of maintenance allowance it would be a relevant consideration that an able-bodied person is capable of working as a labourer.

5. I have herd the learned counsel for the parties and have also gone through the case law cited at the bar. In Surjit Kaur's case (supra) though it has been held that a mere pre-existing order under the Cr. P. C. for payment of maintenance does not oust the jurisdiction of the Civil Court to allow maintenance pendente lite under Section 24 of the Act, but the said case is clearly distinguishable on he facts of the present case. Here, admittedly the wife got a lump sum amount of Rupees 9000/- in execution of the order passed in her favour under S. 125, Cr. P. C. At the time when this amount was paid t her, only a sum of Rs. 6450/- was due to her. But the husband in order to settle the matter finally paid a sum of Rs. 9000/- and got an under taking from the wife that now she would not claim any type of maintenance etc. Against him i.e. her husband,. it was on account of this undertaking that the amount which was not even due at time was paid to he wife. In vie of that undertaking, the wife could not claim separate maintenance under Section 24 of the Act, though she may be entitled to the litigation expenses which is not disputed on behalf of the husband. Somewhat similar matter arose in Kaushalya Devi's case (supra) wherein it was held that when the wife undertakes that in case decree of divorce is passed in her favour she would not claim maintenance from her husband even if she remains unmarried, the said undertaking would be binding on her. It is to be borne in mind that under S. 24 of the Act, the wife or he husband as the case may be is entitled to the maintenance during the pendency of the proceedings and not afterwards. In the proceedings and not afterwards. In the present case, as observed earlier not only the amount was paid but more amount than was due was paid in lump sum because the wife undertook not to claim any maintenance in future from her husband. In view of that undertaking the wife deprived her self of claiming any maintenance from her husband. in that situation, it becomes immaterial whether now the same is being claimed under S. 24 of the Act. in that view of the mater the approach of the trial Court that the lump sum of the trial Court that the lump sum to reopen the issue at any subsequent stage, is wrong and unwarranted. The parties are always bound by the undertaking given by them in Courts.

6. If once it is so held that in view of the said under taking the wife is not entitled to any maintenance, then the question of assessing the amount of maintenance under S. 24 of the Act becomes irrelevant.

7. As a result of the above discussion, the petition filed on behalf of the husband i.e. C. R. No. 2888 of 1982 is allowed the order of the trial Court allowing the maintenance pendente lite at the rate of Rs. 75/- per month is set aside,. However, the wife will be entitled to the litigation expenses as allowed by the trial Court. The Civil Revision No. 3178 of 1982 stands dismissed with no order as to costs.

8. Revision dismissed.


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