1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.311 OF 1997 Dattatraya s/o Kondiba More @ Ghuge, Age: 48 Yrs., occupation – Service r/o Parbhani. ..APPELLANT (orig.deft.) VERSUS Kantabai Dattatraya More Age: 38 Yrs., occu.Household r/o Khandarban, Tq.Basmath District Parbhani. ..RESPONDENT (orig.Pltf.) --- Mr.AH Kasliwal, Advocate for the appellant. Mr.SK Adkine, Advocate for Respondent. --- CORAM : K.U.CHANDIWAL, J. DATE : 25th June, 2009 *** ORAL JUDGMENT : 1) Heard learned Counsel for the parties. 2) The unsuccessful husband, against decree of maintenance under Section 18 of the Hindu Adoption & Maintenance Act, awarding Rs.1,000/-, is in second appeal. 3) The appeal is admitted on September 24, 1997 under the following arrangement of substantial questions of law. “The question that needs 2 consideration in the present appeal is, as to whether once the matter having been concluded under the provisions of Section 125 Cr.P.C and having once exhausted remedy of enhancement under Section 127 of Cr.P.C., was it permissible for the party concerned to move the Court again under Section 19 (Correct section 18) of the Hindu Maintenance & Adoption Act.” 4) The question formulated by this Court will have to be answered in the negative, as the Scheme enumerated in Section 18 of the said Act proceeds on different pedestal. An order of maintenance under Section 125 Cr.P.C or under Section 127 thereof, having been enhanced, will not foreclose the wife’s remedies, as enumerated under Section 18(2) of the said Act. There is no legal bar in the wife seeking maintenance under Section 18. 5) The proceedings under Section 125 Cr.P.C are summary in nature, while the proceedings under Section 18 is by way of a regular suit, requiring formulation of issues and adducing evidence to that effect. The scope of both the sections cannot be overlapped to each other. The remedies under both the statutes are available to the wife as they are co-existing rather mutually complementary and in aid and in addition to each other. It is difficult to accept that the wife having got maintenance under Section 125 of 3 Cr.P.C will foreclose her right available under Section 18 of the said Act. 6) Section 125 of Cr.P.C comes into picture in terms of breach of clauses A to D therein, which is more leaning to the neglect and refusal of the husband to maintain his wife, while Section 18 of the Hindu Adoption and Maintenance Act brings into its sweep the desertion by the husband or abandoning wife without reasonable cause or willfully neglecting her. In the instances of cruelty, to cause reasonable apprehension in her mind, to live with her husband, she is entitled for maintenance. 7) Then comes the controversy about the excessive maintenance. The counsel for the husband urged that the Court of first instance and the Appellate court were wrong in fixing the maintenance @ Rs.1,000/-, is contrary to record. This submission is difficult to be entertained as before the learned Court of first instance, there was a salary Certificate, Exh.23, disclosing the total earnings of the husband to be Rs.3954/- from which there were deductions of Rs.1617.30 and the net salary, which he carried home, was Rs.2336.70. There was also recurring deposit of Rs.800 and Rs.281.30 were paid towards premium to LIC. It is thus obvious the two deductions were a colourable exercise by the husband, which were for future safeguard, there was no compulsion for such deductions, naturally, they will not come as 4 impediment for grant of maintenance while evaluating the monthly earnings of the husband. Even by calculations at the material time, the learned Judge recorded that monthly earnings of the husband was Rs.2400/-. This was based on the situation as prevalent when the evidence was recorded. Consequently, the order under challenge dated 30th July, 1994 and confirmed by the first Appellate court by order dated 24.4.1997, cannot be said to be perverse or contrary to the record. It is not that the wife is at fault, it was unfortunately bickering between the husband and wife leading to separation of wife, she is provenly dependent on the income of her husband, who is gainfully employed. During the course of submissions, Mr.Adkine for the wife, informed, the husband has entered into second marriage and has two children. I do not wish to advert to this aspect as it is a subsequent development. However, this will be adding to a miserable situation to be faced by the wife Kantabai, In this scenario she cannot be compelled and forced to live in the company of husband who has frustrated her life. 8) The assessment of evidence by both the courts do not warrant any interference. Second Appeal dismissed. No costs. Sd/- ( K.U.CHANDIWAL) JUDGE bdv/sa311.97