IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.45018 of 2009 Shailendra Kumar son of Akhilesh Kumar of Mohalla East Ashok Nagar Road No. 12, P.S. Kankarbagh Dist. Patna Petitioner Versus 1. State Of Bihar 2. Swati Kumari w/o Shailendra Kumar D/o Ghanshyam Prasad Resident of Mohalla Prasad Bigha P.S. Nawada Dist. Nawada Opposite parties ---------------- For the petitioner: Mr Durgesh Nandan, Advocate For opposite party no.2: Mr Nirmal Kumar no.3, Advocate For the State: Mr Jharkhandi Upadhyay, Addl. P.P. -------------- 5 21 .9.2011 The petitioner while invoking the jurisdiction of this court under section 482 of the Cr. P.C, has prayed for quashing the entire proceeding of Maintenance Case no. 27/2007 filed under section 125 of the Cr. P.C pending before the Principal Judge, Family court, Nawada filed by opposite party no.2 for maintenance of herself and her minor son. 2. The brief fact, which lies to file this petition is that opposite party no.2 being legally married wife of petitioner filed maintenance case bearing Maintenance Case no. 27/2007 against the petitioner in the court of the Principal Judge, Family court, Nawada on 4.8.2007 alleging therein that her marriage was solemnized with the petitioner on 12.5.2003 according to Hindu rites and rituals but later on, she was subjected to cruelty and harassment for illegal demand of money and car and she was ousted from her matrimonial home and between the aforesaid period, she gave birth to a son out of the aforesaid wedlock. While she was residing at her natal place, she came to know that matrimonial case bearing Matrimonial case no. 52/2005 had been filed by the petitioner in the court of the Principal Judge, Family court, Patna for restitution of his conjugal right leveling filthy and false allegation against her. In the aforesaid matrimonial case, she expressed her 2 desire to remain with her husband and on account of persuasion of the court she went to Jamner along with her husband but she was again subjected to cruelty and harassment and subsequently, she left Jamner and reached at her Naiher on 8.7.2006 and since then she has been residing along with her baby in a rented house of her father at Nawada but the petitioner has never taken care of food and cloths of her and her baby and accordingly, she sought relief for maintenance for herself as well as her minor son from the petitioner. 3. In Matrimonial suit no. 52/2005 opposite party no.2 appeared through her lawyer on 3.8.2006. The opposite party no.2 filed petition under section 24 of the Hindu Marriage Act in Matrimonial suit no. 52/2005 and she also filed a maintenance petition bearing Maintenance Case no. 27/2007 in the court of learned Principal Judge, Nawada for maintenance of herself as well as her son. It is worth to mention here that as per case of the petitioner, when reconciliation failed in Matrimonial suit no. 52/2005 pending in the court of the Principal Judge, Family court, Patna, the petitioner started sending Rs 1,000/- per month regularly to opposite party no.2 for maintaining opposite party no.2 as well as her son. The aforesaid amount is being sent regularly by the petitioner since 17.8.2006 to opposite party no.2 but opposite party no.2 very cleverly and deliberately suppressed the aforesaid fact not only in a petition filed under section 24 of the Hindu Marriage Act in Matrimonial suit no. 52/2005 but also in Maintenance Case no. 27/2007. In the aforesaid backdrop, the petitioner has sought relief for quashing proceeding of Maintenance Case no. 27/2007. 4. Opposite party no.2 suo moto made her appearance before this court by filing power in favour of her advocate and she also filed 3 counter affidavit denying the allegation levelled against her. She also pointed out in her counter affidavit that she had filed complaint case bearing Complaint Case no.509/2006 against the petitioner for the offence under section 498A of the IPC and 4 of the D.P. Act and in the aforesaid complaint case, the learned Magistrate, having found a prima facie case, ordered to issue process against the petitioner along with his other family members and thereafter the petitioner preferred a revision no. 78/2007 against the order dated 23.6.2007 passed in Complaint case no. 509/2006 in the court of learned Sessions Judge, Nawada but the aforesaid revision was dismissed on 1.9.2007 by the learned Sessions Judge, Nawada. It is further pointed out by her in her counter affidavit that order dated 23.6.2007 was again challenged by the petitioner in Cr. Misc. no. 40828/2007 before this court and having heard the parties, this court dismissed the above stated Cr. Misc. no. 40828/2007 vide order dated 26.3.2010. Therefore, the motive of the petitioner is to harass the opposite party no.2. It is also averred in her counter affidavit that the petitioner is getting Rs 28,314/- per month from the State Bank and only Rs 1,000/- is being sent by him to her only for gaining sympathy of the court and the aforesaid amount is not sufficient for her maintenance her as well as her minor son. She further alleged that the petitioner was fully aware about proceeding of Maintenance Case no. 27/2007 but he never appeared in the aforesaid case as a result of which the proceeding of the aforesaid maintenance case proceeded ex parte and when the aforesaid proceeding was going to be decided, the petitioner has preferred this miscellaneous case before this court with a view to delay the disposal of the aforesaid proceeding as well as with a view to harass her. 4 5. Learned counsel appearing for the petitioner, submits that admittedly, opposite party no.2 has sought maintenance under section 24 of the Hindu Marriage Act in Matrimonial suit no. 52/2005 and furthermore, she has been getting Rs 1,000/- per month as maintenance from the petitioner and, therefore, she can not take aid of section 125 of the Cr.P.C for harassing the petitioner. He further submits that annexure 2 series of this petition shows that she is getting maintenance Rs 1,000/ on each and every month but in spite of that she has not only filed petition under section 24 of the Hindu Marriage Act in Matrimonial Suit no. 52/2005 but has also filed Maintenance Case no. 27/2007 under section 125 of the Cr. P.C and, therefore, the above stated Maintenance Case no. 27/2007 is liable to be quashed because continuance of the aforesaid proceeding is nothing but only an abuse of process of law. 6. On the other hand, learned counsel appearing for opposite party no.2 submitted that there is no bar to seek relief simultaneously under section 24 of the Hindu Marriage Act as well as under section 125 of the Cr. P.C. It is also contended by him that admittedly, petitioner has been drawing salary more than Rs 28,000/- per month but he is sending Rs 1,000/- per month to opposite party no.2 which is a very meager amount to the opposite party no.2 for maintaining herself as well as her son. He further submitted that this petition has been filed by the petitioner against opposite party no.2 with a view to harass her and to debar her for claiming maintenance from the petitioner. 7. I have already heard both the parties as well as learned Addl. Public Prosecutor and in my view, this petition can be disposed 5 off on admission stage itself. 8. Undisputedly, opposite party no.2 is legally wedded wife of petitioner and presently, she has been residing separately and furthermore, minor son of the petitioner is also residing with opposite party no.2 9. It is an admitted position that the petitioner has filed Matrimonial Suit no. 52/2005 against opposite party no.2 in the court of learned Principal Judge, Family court, Patna on 25.2.2005 and the learned Principal Judge, Patna took pain to patch up the dispute of the parties but he could not succeed in his attempt and accordingly, reconciliation between the petitioner and opposite party failed and after failure of reconciliation the opposite party no. 2 filed a petition under section 24 of the Hindu Marriage Act on 3.8.2006. 10. It is also an admitted position that on 4.8.2007, opposite party no.2 filed Maintenance case bearing Maintenance Case no. 27/2007 under section 125 of the Cr.P.C against the petitioner in the court of learned Principal Judge, Family court, Nawada and the said proceeding is still pending. 11. The only question falls for consideration as to whether opposite party no.2 can claim maintenance for herself as well as her minor son against the petitioner in two different proceedings or not, particularly, in the circumstances, when she has already been receiving Rs 1,000/- per month from the petitioner in lieu of her maintenance. 12. Before discussing the question involved in this petition, I would like to refer section 24 of the Hindu Marriage Act which 6 runs as follows: “Maintenance pendente lite and expenses of proceedings:- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable”. 13. From bare perusal of the Section 24 of the Hindu Marriage Act, it is manifest that section 24 of the Hindu Marriage Act has been enacted for alimony pendente lite. Section 24 of the Hindu Marriage Act enacted to provide temporarily relief by way of maintenance and litigation expenses to a spouse unable to maintain itself during the pendency of the proceeding. 14. I would further like to refer the section 125 of the Cr.P.C which runs as follows: Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself , or (b) his legitimate or legitimate minor child, whether married or not, unable to maintain itself, or © his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks, fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of 7 a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation-------------- 15. From bare perusal of the above stated section 125 of the Cr.P.C, it is clear that in section 125 of the Cr.P.C, the person against whom order of maintenance has been passed in the aforesaid section, is bound to make payment to his wife till her life time, if she is not living in adultery or if without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent. So, it is apparent from perusal of section 125 of the Cr.P.C that the maintenance under section 125 of the Cr.P.C is of permanent nature. 16. Now avert to the present case, admittedly, petitioner has filed matrimonial suit under section 9 of the Hindu Marriage Act for restitution of his conjugal right and the aforesaid suit is being contested by opposite party no.2 and furthermore, the opposite party no.2 has filed a petition under section 24 of the Hindu Marriage Act seeking expenses of the proceedings as well as her maintenance during pendency of the aforesaid proceeding. The question whether the opposite party no.2 has any sufficient cause for residing separately or not would require deeper investigation and it can be considered only after considering the evidences of the parties. Moreover, maintenance of under section 24 of the Hindu Marriage Act is not of permanent nature and so far as maintenance of section 125 of the Cr.P.C is concerned, the same is of permanent nature subject to conditions as referred in the aforesaid section and, therefore, mere pendency of petition under section 24 of the Hindu Marriage Act does not debar opposite party no.2 8 from filing petition under section 125 of the Cr.P.C 17. It is an admitted position that opposite party no.2 has been getting Rs 1,000/- per month from the petitioner but mere accepting Rs 1,000/- per month by the opposite party no. 2 from the petitioner does not debar her from seeking relief under section 24 of the Hindu Marriage Act as well as under section 125 of the Cr.P.C because the quantum of maintenance amount shall always be decided by the court and not by the petitioner himself. 18. On the basis of the aforesaid discussions, I am of the opinion that both the proceedings i.e. under section 24 of the Hindu Marriage Act, 1955 as well as proceeding under section 125 of the Cr.P.C can go simultaneously and this petition does not have any merit and liable to be dismissed on admission stage itself. 19. In view of the aforesaid discussions, this petition is, hereby, dismissed. 20. It is needless to say that stay granted by this court in Matrimonial case no. 27/2007 pending in the court of learned Principal Judge, Family court, Nawada by order dated 4.8.2011 shall stand vacated. 21. Let this order be sent to the court to the Principal Judge, Family court, Nawada in connection with Matrimonial case no. 27/2007 forthwith for needful. Shahid ( Hemant Kumar Srivastava,J)