IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14504 of 2011 Ajay Kumar Singh Versus Krishna Devi ---------------------------------- O R D E R 06. 05.12.2011. 1. I have heard the learned counsel, Mr. Anajani Kumar Sinha No.1, appearing on behalf of the petitioner and the learned counsel, Mr. Adatiya Narayan Singh on behalf of the respondent. 2. This application under Article 227 of the Constitution of India has been filed by the petitioner for setting aside the order dated 15.07.2011 passed by Principal Judge, Family Court, Kaimur at Bhabhua in Matrimonial Case No.8 of 2008 directing the petitioner to pay Rs.5,000/- as maintenance to the respondent per month and further to pay Rs.15,000/- as litigation expenses under Section 24 of the Hindu Marriage Act. 3. The learned counsel appearing on behalf of the petitioner submitted that the petitioner is already paying Rs.3,000/- per month as maintenance under Section 125 Cr.P.C. as directed by the Court and the Court below without considering this fact directed the petitioner to pay the above amount of maintenance. According to the learned counsel for the petitioner, no doubt, the Court has the jurisdiction to direct the - 2 - petitioner to pay maintenance but while fixing the quantum of maintenance, the Court below should have considered the fact that the petitioner is paying regularly Rs.3,000/- per month to the respondent in a proceeding under Section 125 Cr.P.C. The learned Court below considering this fact should be directed to pay a consolidated amount otherwise the petitioner shall be greatly prejudiced and it will be impossible for him to pay he monthly maintenance of Rs.3,000/- and Rs.5,000/- total Rs.8,000/- per month as admittedly, the petitioner is unemployed. 4. On the other hand, the learned counsel, Mr. Adatiya Narayan Singh, on behalf of the respondent submitted that there is no bar in passing the order under Section 24 of the Hindu Marriage Act even if order of maintenance has been passed in a proceeding under Section 125 Cr.P.C. 5. In A.I.R. 1999 SC 536 Sudip Chaudhary Vs. Radha Chaudhary, the Hon’ble Apex Court has held that the amount awarded under Section 125 of the Code of Criminal Procedure is adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. The claims of the husband and the wife are to be balanced. It appears that in that case Rs.500/- per month was awarded as maintenance under Section 125 Cr.P.C. - 3 - Rs.800/- was awarded under Section 24 of the Hindu Marriage Act. The Apex Court granted consolidated amount of Rs.1000/- per month. It appears that during that period Section 125 Cr.P.C. was unamended and the maximum amount was to be awarded at Rs.500/- per month. In the present case at our hand in a proceeding under Section 125 Cr.P.C. Rs.3000/- has been awarded. Admittedly, the petitioner is unemployed. Moreover, the wife is entitled for maintenance u/s 24 only during the pendency of the matrimonial case. In 2006 (2) P.L.J.R. 290 also it has been held by this Court that wife is not entitled to receive maintenance under both the provisions. 6. Considering the above facts and circumstances of the case and the law laid down by the Apex Court and this Court referred to above, in my opinion, the amount of Rs.3,000/- awarded under Section 125 Cr.P.C. should be adjusted in the amount of Rs.5,000/- awarded under Section 24 of the Hindu Marriage Act. Now, therefore, it is held that the petitioner shall pay Rs.5,000/- consolidated amount per month as maintenance to the respondent from the date as directed by the Court below by the impugned order dated 15.07.2011. This payment of Rs.5,000/- per month shall be considered as maintenance in 125 Cr.P.C. proceeding as well as in the matrimonial case - 4 - also. So far the quantum of litigation cost is concerned, I find no reason to interfere with the same. 7. In view of the above discussion, I find no reason to interfere with the impugned order. However, it is held that the respondent is entitled to Rs.5,000/- per month only in both the proceedings and thus with this observation, this writ application is disposed of. Patna High Court, Patna The 5thday of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)