Court No. - 44
Case :- FIRST APPEAL No. - 477 of 2021 Appellant :- Kuldeep Singh Respondent :- Smt. Chitra Singh Counsel for Appellant :- Ashish Kumar Srivastava Counsel for Respondent :- Ved Prakash Mishra,Pradeep Kumar Mishra
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Krishan Pahal,J.
Both the parties are personally present in the Court.
The instant appeal has been filed against the order dated 1.8.2019 passed by Additional Principal Judge Family Court whereby the respondent wife has been awarded Rs. 3000/- per month towards monthly maintenance both for herself and her minor child, which was reduced to Rs. 2000/- for the wife only vide order dated 8.2.2020 as it had come on the record that the child is living with the appellant husband. There is no dispute about the fact that respondent wife was taking care of her child at the time of moving of the application.
Challenging the order of award of interim maintenance, only contention of the learned counsel for the appellant is that the respondent wife had moved an application seeking interim maintenance by concealment of the correct fact. The fact of grant of monthly maintenance to the tune of Rs. 4000/- per month under Section 125 Cr.P.C. by the order dated 24.5.2019 had been deliberately concealed.
We may note that the application under Section 24 of Hindu Marriage Act Paper No. 8Ga moved in the divorce suit, namely, case No. 154 of 2018 was decided on 1.8.2019 whereby Rs. 3000/- had been initially fixed as monthly maintenance both for wife and the minor child. It was directed that the monthly maintenance shall be paid to the wife in the first week of each month. The said amount was reduced to Rs. 2000/- per month by order dated 8.2.2020. Later, under the order dated 31.8.2021 of this Court, it was directed that the wife shall be entitled to Rs. 3000/- only as against the total amount of Rs. 7000/- awarded to her in both the proceedings. The said order was, however, passed subject to the condition that the appellant husband shall file material to disclose the source of his income as well as statement of accounts. No such disclosure has been made by the appellant herein till date. No argument could be made by the learned counsel for the appellant regarding the financial status of the husband or his inability to pay the maintenance awarded to the wife in both the proceedings.
As regards the submission of the learned counsel for the appellant that the wife had deliberately concealed the factum of award of maintenance under Section 125 Cr.P.C., we may note that the application moved by the husband before the Family Court in this regard had been rejected by the order dated 8.2.2021, which is also subject matter of challenge.
Be that as it may, it is the right of the wife to seek maintenance simultaneously, both under Section 125 Cr.P.C. and Section 24 of Hindu Marriage Act as rights under both the provisions are available to her as these provisions operate in different fields. However, looking to the concept of maintenance in different proceedings, the Apex Court in the case of Rajnish vs. Neha and other reported in 2021(2) SCC 324, has only observed that in case monthly maintenance is awarded to the wife in different provisions it will be open to the Court to adjust the maintenance awarded in previous proceeding while fixing the quantum in the subsequent proceedings, looking to the financial status of the husband and not of the wife. In the instant case, the respondent wife has no means of livelihood.
Both the parties are personally present in the Court. On the query made by the court, the respondent wife has stated that initially from the date of the order i.e. from 24.9.2019 till 31.8.2021, she was getting barely Rs. 4000/- per month fixed under Section 125 Cr.P.C. but it was reduced to Rs. 3000/- under the order of this Court dated 31.8.2021. The monthly maintenance of Rs. 3000/- fixed by this Court, however, is not being paid regularly.
The appellant husband on the query made by the Court as to whether he is regularly paying monthly maintenance to the wife since 31.8.2021, as fixed by this Court to the tune of Rs. 3000/- per month, has kept mum. It seems that apart from the arrears of maintenance @ Rs. 3000/- per month, fixed in the proceeding under Section 24 of Hindu Marriage Act pursuant to the order dated 31.8.2021, regular monthly maintenance has not been paid to the wife from August 2021 till October 2021, as asserted by her.
The computation of arrears, the period for which the maintenance amount is due is not before us.
We, therefore, cannot make any observation as to whether the entire arrears of monthly maintenance to the tune of Rs. 3000/- per month had been paid to the appellant pursuant to the order dated 31.8.2021. We leave this question for examination by the executing court in the pending proceedings.
As regards the payment towards the maintenance fixed by the family Court under Section 125 Cr.P.C. to the tune of Rs. 4000/- per month and the quantum of maintenance fixed by the family court in the present proceeding under Section 24 of Hindu Marriage Act, looking to the fact that the husband has concealed his actual income and did not comply the directions of this Court to bring proof of his income, we are of the view that the amount of Rs. 2000/- fixed by the family court under Section 24 of Hindu Marriage Act cannot be adjusted against the amount of Rs. 4000/- awarded to the wife under Section 125 Cr.P.C. Even otherwise, the maintenance granted under Section 24 of Hindu Marriage Act is only an interim maintenance which is payable till the conclusion of the proceedings.
Further, the meager amount of Rs. 4000/- per month being paid to the wife under Section 125 Cr.P.C. cannot be adjusted against the interim maintenance under Section 24 of the Hindu Marriage Act awarded in the divorce proceeding wherein she has been dragged by the respondent husband.
We may note that the wife had to incur expenditures to appear in this proceeding though she is not getting the maintenance regularly.
From each angle, we do not find any error in the decision of the family court in awarding interim maintenance to the wife by invoking section 24 of the Hindu Marriage Act and refusing to adjust the interim maintenance awarded under Section 125 Cr.P.C.
In view of the above discussion, we do not find any merit in the appeal. The appeal is, accordingly, dismissed at the admission stage itself.
Order Date :- 28.10.2021 SY