Court No. - 3
Case :- FIRST APPEAL No. - 751 of 2017 Appellant :- Yashwant Singh Respondent :- Smt. Indu Counsel for Appellant :- Irfan Chaudhary Counsel for Respondent :- Razaullah Khan
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard Sri Irfan Chaudhary, learned counsel for the appellant husband and Sri Sanjay Singh, learned counsel appearing for the respondent wife.
The appeal is directed against the order dated 4.5.2017 passed by the Family Court on an application under Section 24 of the Hindu Marriage Act, 1955.
The facts of the case reveal that the respondent wife instituted a suit under Section 9 of the Act for restitution of conjugal rights . In the said suit he moved an application purported to be under Section 24 of the Act and the same has been allowed by the impugned order dated 4.5.2017 by the Family Court. The appellant husband has been directed to pay Rs. 25,000/- as lump sum amount towards litigation expenses and Rs. 200/- per day for attending the Court. He has also been directed to pay Rs. 3,000/- per month as pendente lite maintenance.
In challenging the aforesaid order, the submission of learned counsel for the appellant husband is that in the application filed under Section 24 of the Act, no relief for pendente lite maintenance was claimed and therefore the Family Court has illegally awarded the maintenance going beyond the jurisdiction of the relief claimed. Secondly, the respondent wife is already getting interim maintenance of Rs. 7,000/- per month for herself and daughter under Section 125 Cr.P.C which has recently been enhanced to Rs. 20,000/- per month.
We have perused the application of the respondent wife moved under Section 24 of the Act. The aforesaid application inter alia prays for grant of lump sum amount of Rs. 35,000/- as litigation expenses and Rs. 200/- for attending the court for every day. No relief has been claimed therein with regard to pendente lite maintenance. In the absence of any such relief claimed by the respondent wife, it was not open for the Family court to have awarded pendente lite maintenance particularly when the respondent wife is getting interim maintenance under Section 125 Cr.P.C.
It may not be out of context to mention here that that the substantive provision for claiming maintenance is under the Hindu Adoptions and Maintenance Act, 1956 and that under Section 125 Cr.P.C, only interim maintenance is granted whereas under Section 24 of the Act maintenance is permissible during the pendency of the litigation between the parties.
The respondent wife can not claim maintenance simultaneously in all the three proceedings and that the highest of the amount allowed in any of the proceedings may be permitted to her at her choice.
In view of the above, as the respondent wife had not claimed for maintenance under Section 24 of the Act, the impugned order passed by the Family Court is absolutely without jurisdiction.
Accordingly, grant of pendente lite maintenance @Rs. 3,000/- per month is set aside with the direction to Family Court to proceed and decide the suit under Section 9 of the Act most expeditiously keeping in mind the mandate of Section 21-B of the Act. The respondent wife however would continue to get the interim maintenance as has been permitted under Section 125 Cr. P.C.
The lower court record may be sent back to the Family Court immediately.
The appeal is allowed as aforesaid with no order as to costs.
Order Date :- 25.4.2018 SKS