{1} Cri. Application No.2602/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2602 OF 2011 Vijendra Rajendra Rana APPLICANT Age-24 years, Occ-Education, R/o New Shantiniketan Colony, Aurangabad VERSUS 1. Mrs.Priya Vijendra Rana RESPONDENTS Age-22 years, Occ-Service 2. Ms.Vaishnavi Vijendra Rana Age-6 years, Occ-Mino Through respondent No.1 Both R/o Station Road, Chalisgaon, Dist-Jalgaon ....... Mr.Bhumit Agrawal h/f Mr.R.R.Mantri, Advocate for the applicant Mr.H.I.Pathan, Advocate for respondents ....... [CORAM : A.V.POTDAR, J.] DATE: 30 th September 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. {2} Cri. Application No.2602/2011 2. Present application is directed against the order dated 09.05.2011 passed by JMFC, Chalisgaon in Criminal Miscellaneous Application No.138/2005. 3. Such of the facts, as are necessary for the decision of this application, may briefly be stated thus - Respondent No.1 is the wife of the petitioner and respondent No.2 is their daughter. The marital relations between the parties are not under dispute. It appears that respondent No.1 had filed Miscellaneous Criminal Application No.138/2005 seeking maintenance for herself and for the minor daughter u/s 125 of the Criminal Procedure Code. The said application came to be disposed of in April 2005 and maintenance @ Rs.800/- and Rs.600/- respectively to both the respondents was awarded by the JMFC, Chalisgaon. The said order of maintenance is not subjected to challenge before any court by either party. 4. It appears that the petitioner has filed a petition for divorce against respondent No.1 on 10.04.2006 before the Judge, {3} Cri. Application No.2602/2011 Family Court, Aurangabad. Respondent No.1 had filed an application u/s 24 of the Hindu Marriage Act for grant of interim alimony, which was accordingly granted @ Rs.2000/- and Rs. 1000/- respectively in favour of both the respondents. It further appears that the said order of interim alimony was challenged by the applicant in Writ Petition No.5947/2007, which came to be disposed of on 24.01.2008. This Court, in paragraph No.5 of the judgment rendered in Writ Petition No.5947/2007, has observed thus- “5. The Hon’ble Apex Court in the case of Sudeep Chaudhry Vs. Radha Chaudhary reported in AIR 1999 S.C. 536, has held that the maintenance which is granted under section 125 of Cr.P.C. is liable to be adjusted in the maintenance granted under section 24 of Hindu Marriage Act. In that view of the matter, the maintenance which has been granted by the learned Judicial Magistrate (First Class), Chalisgaon, vide order dated 11.04.2005 will have to be adjusted in the maintenance which is awarded by the learned Family Court vide order dated 1.9.2007. It is therefore, directed that the petitioner would be liable to pay only Rs. 2000/- p.m to the respondent wife and Rs.1000/- p.m. to their daughter.” 5. Record shows that the divorce petition, filed by the applicant-husband has been dismissed on 20.06.2008, however, {4} Cri. Application No.2602/2011 though the divorce petition is finally disposed of, no application seeking permanent alimony is moved by respondent No.1. Fact remains that, in law, once the marriage petition is disposed of and no order is passed u/s 25 of the Hindu Marriage Act granting permanent alimony in favour of respondent-wife, the interim arrangement will be restricted only to the period during which the petition was pending i.e. in the present case from 10.04.2006 to 20.06.2008. 6. It further appears that thereafter respondent No.1 filed recovery proceedings u/s 125 (3) of the Criminal Procedure Code in Criminal Miscellaneous Application No.138/2005. In this application, the petitioner appeared and filed an application at Exhibit-62 praying that the petitioner has not only deposited the amount awarded by the Family Court by way of interim maintenance, but he has also deposited an amount of maintenance awarded by the JMFC, Chalisgaon and thus contended that double recovery has been effected by the respondent from him, which is not permissible in law particularly in view of the order passed in Writ Petition No.5947/2007. Learned JMFC has turned down the {5} Cri. Application No.2602/2011 request of the applicant for adjustment of the amount of maintenance, which is impugned in the present application. 7. The only question, which requires consideration is as to whether the respondent is allowed to recover the amount granted by the JMFC u/s 125 of the Criminal Procedure Code during the pendency of the divorce petition before the Family Court. As discussed above, and held by this Court in Writ Petition No.5947/2007, that there shall not be double recovery from the petitioner. A disputed question of recovery of maintenance cannot be decided by this Court and hence, to that extent the parties are given liberty to lead evidence in support of their contention. In the premise, the order impugned requires to be quashed and set aside and requires to be modified to the effect that if the petitioner is able to establish that double maintenance has been recovered from him during the pendency of the marriage petition from 10.04.2006 to 20.06.2008, then on such proof, the amount if found to be doubly recovered, to be adjusted against the amount of maintenance due or to be paid to the respondents. {6} Cri. Application No.2602/2011 8. Consequently, the application is allowed. Rule is made absolute as indicated above. It is made clear that I have not dilated on the evidence led before the trial court and all the questions are kept open to be agitated before the trial court. The trial court to take accounts of the amounts deposited by the applicant into consideration and thereafter to pass necessary orders in accordance with law. [A.V.POTDAR, J.] drp/B11/criapln2602-11