1 Cri-WP-304 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Writ Petition No.304 of 2010 Prakash Mahadeo Kshirsagar .. .. Petitioner v/s. Padma Prakash Kshirsagar & anr. .. .. Respondents Mr.S.G. Deshmukh with Mr.A.J. Kandarkar for Petitioner. Mrs.R.V. Newton for State. None for Res.No.1. ------ CORAM : SMT.ROSHAN DALVI, J. DATED : 10th February 2011 P.C. : 1.Respondent and Advocate absent despite service. Notice of this Petition has been served through Court upon Respondent No.1 on 23rd October 2010. Respondent No.1 has failed to appear. 2.Rule. Rule is made returnable forthwith. 3.Counsel on behalf of the Petitioner has drawn my attention to two maintenance orders passed by two separate Courts in favour of Respondent No.1/wife. She applied initially before the Civil Judge, Senior Division under Section 18 of the Hindu Adoption and 2 Cri-WP-304 Maintenance Act, 1956 (HAMA). The maintenance of Rs. 1500/- came to be granted in that suit on 10th February 2005. That order was not complied. The wife sought execution of the order of maintenance. The salary of the Petitioner/husband came to be attached. Considering the various deductions from his gross salary, the net salary came to be seen to be Rs.6,000/-. One third of the amount thereof came to be attached under Section 60 of the Code of Civil Procedure. Consequently, the salary of the husband came to be attached for Rs. 2,000/- for payment of arrears until the arrears are wiped out. 4.Counsel on behalf of the Petitioner/husband states that the amount is being deducted from his salary and paid to the wife regularly. 5.Before the order in execution came to be passed, the wife filed an application under Section 125 of the Criminal Procedure Code before the learned Magistrate. The learned Magistrate has granted an amount of Rs. 1500/- to the wife. This order does not take into account the previous orders passed under Section 18 of the HAMA, though both parties were represented through their Advocates before the learned Magistrate. 6.The Petitioner/husband herein challenged the order of 3 Cri-WP-304 the learned Magistrate before the Sessions Court. The Sessions Court has dismissed his revision and confirmed the order of the learned Magistrate. The Petitioner has filed this Petition challenging the order of the Sessions Court. The Petition is essentially upon the ground that two orders of maintenance cannot be passed and cannot be executed together. This is correct except if a second order is passed taking into account the first order and giving credit for the amount already given by way of maintenance. When an order under Section 125 is passed, which is in a summary proceeding, the wife is not precluded from filing the civil suit under Section 18 of HAMA to claim the amount of maintenance to be permanently granted to her based upon her complete oral and documentary evidence. Such an order can be passed upon giving credit for the order already passed under Section 125 of the Criminal Procedure Code. However, in this case, the order of permanent maintenance under HAMA came to be passed prior to the order under Section 125 of the Criminal Procedure Code. 7.It is seen that though both the orders have been passed, the order in the execution application has taken into account only the order under HAMA. That is correct in view of the aforesaid position. 4 Cri-WP-304 8.Consequently, Respondent No.1/wife would be entitled to maintenance at the rate of Rs.1500/- per month as directed by the learned Civil Judge, Senior Division, which order came to be final. Since the husband was in arrears, his salary is rightly deducted to pay off Rs. 2,000/- instead of Rs.1500/- which would be Rs.1500/- for each month and Rs.500/- towards the arrears of maintenance. Other than that, no amount is paid or is shown to be payable. It is clarified that Rs.2,000/- shall be continued to be deducted from the salary of the husband and paid to the wife. Respondent No.1/wife would be entitled to have the said deductions made and the amount to be paid to her. Save and except that amount, Respondent No.1/wife would not be entitled to any further amount of maintenance. Consequently, the orders of the learned Sessions Judge as also the learned Magistrate granting maintenance under Section 125 of the Criminal Procedure Code cannot be separately enforced. 9.Rule is granted and the Writ Petition is disposed of in terms thereof. 10.Copy of the notice served upon the wife through the Court shall be kept in this proceeding. (SMT.ROSHAN DALVI, J.) 5 Cri-WP-304