1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT Nand Kishore Vs. Sushma (S.B. Civil Writ Petition No.15799/2009) S.B. Civil Writ Petition under Articles 226 & 227 of the Constitution of India. Date of Order :- August 03, 2010 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Ram Rakh Sharma, for the petitioner. Mr.K.S. Rawat, for the respondent. The petitioner has challenged the order dated 22.10.2009, passed by the learned Additional District Judge, Bandikui, District Dausa, whereby the learned Judge has allowed the application filed by the respondent- wife and has directed the petitioner to pay Rs.2,000/- per month as maintenance to the respondent-wife. The brief facts of the case are that on 21.12.2006, the petitioner filed an application under Section 12 of the Hindu Marriage Act , 1955 ('the Act', for short) against the respondent-wife for dissolution of marriage before the learned Additional District Judge, Gangapur City. On 17.05.2007, the said application was decreed ex-parte in favour of the petitioner. Thereafter, in 2 2007, the respondent-wife moved an application under Section 9 Rule 13 CPC. On 26.02.2008, while quashing and setting aside the ex-parte order dated 17.05.2007, the said application was allowed. The proceeding under Section 12 of the Act is still pending before the learned ADJ. In the proceeding under Section 12 of the Act, on 12.05.2008, the respondent filed an application under Section 24 of the Act seeking interim maintenance. The petitioner filed reply to the said application. Vide order dated 18.11.2008, the learned ADJ, Gangapur City dismissed the application filed by the respondent on the ground that since the respondent is getting Rs.2,000/- per month as maintenance in complaint No.164/2007 filed under the provisions of Protection of Women from Domestic Violence Act, 2005, therefore, no maintenance can be awarded under Section 24 of the Act. In complaint No.164/2007, the learned ACJM, Bandikui finalised the matter on 31.08.2009 and awarded a sum of Rs.2,000/- per month as maintenance to the respondent. However, subsequently the respondent has filed an application under Section 9 of the Act for restitution of conjugal rights before the learned Additional District Judge, Bandikui. In the proceedings under Section 9 of the Act, the respondent has moved another application under Section 24 of the Act for maintenance. The 3 petitioner filed reply to the said application and stated that there is already an order for maintenance of Rs.2,000/- in favour of the respondent passed by the learned ACJM, Bandikui and that the application filed by the respondent under Section 24 of the Act has already been dismissed by the ADJ, Gangapur City, thus, the application is not maintainable and the respondent is not entitled to get the maintenance from different courts. However, vide order dated 22.10.2009, the learned Judge allowed the application of the respondent, and awarded a sum of Rs.2,000/- per month as maintenance. Hence, this appeal before this Court. Mr. Ram Rakh Sharma, the learned counsel for the petitioner, has contended that admittedly on 18.11.2008 when the respondent had filed an application under Section 24 of the Act, the said application was dismissed by the ADJ, Gangapur City. Although the said fact was brought to the notice of the learned Judge, he has failed to appreciate this fact and has observed that this is a matter of evidence. Without properly appreciating the fact and contentions raised before him, the learned Judge has erred in directing that an interim maintenance of Rs.2,000/- per month should be paid to the respondent. 4 On the other hand, Mr. K.S. Rawat, the learned counsel for the respondent, has strenuously contended that Rs.2,000/- per month which are paid to the respondent are not by way of maintenance, but are by way of an amount to be paid for attending the proceeding in the court. In rejoinder, the learned counsel for the petitioner has contended that the stand taken by the respondent is unjustified as he has been directed to pay Rs.2,000/- per month; he has not been directed to pay Rs.2,000/- per hearing of the case. Therefore, the amount of Rs.2,000/- per month to be paid by him is obviously by way of maintenance and not by way of expenses for attending the proceedings. Heard the learned counsel for the parties and perused the impugned order. A bare perusal of the impugned order clearly reveals that the order dated 18.11.2009 passed by the ADJ, Gangapur City was certainly brought to the notice of the learned Judge. Instead of considering its consequences, the learned judged has failed to appreciate the entire issue. Instead, he has merely observed that “it is a matter 5 of evidence”. Once an order has been produced before a Court, that too an order passed by a competent court of equal jurisdiction, it is a rather surprising stand to be taken by the learned Judge that such an order “is a matter of evidence”. The learned Judge was legally required to consider the consequences of the order dated 18.11.2008, especially when the said order has achieved finality as it was not challenged by the respondent. Moreover, since the circumstances have not changed between the order dated 18.11.2008 and the order dated 22.10.2009, there was no occasion for the learned Judge to direct that Rs.2,000/- per month should be paid to the respondent by way of maintenance. Lastly, the contentions raised by the learned counsel for the respondent that Rs.2,000/- per month is being paid for as an amount for attending the proceeding before the Court is clearly untenable. In case the proceedings were not to take place for number of months, still the petitioner is required to pay Rs.2,000/- per month to the respondent. Thus, clearly the amount of Rs.2,000/- per month is by way of maintenance and not by way of expenses for attending the proceeding. Therefore, the contention raised by the learned counsel for the respondent is clearly untenable. 6 For the reasons stated above, this petition is, hereby, partly allowed; the order dated 22.10.2009 is modified to the extent that the petitioner need not pay Rs.2,000/- per month to the respondent from the date of filing of the application by her. The rest of the order, however, is, hereby maintained. (R.S.CHAUHAN)J. Manoj Solanki-