K.C. Dbuliya, J.@mdashThis Criminal Revision has been filed by Smt. Pushpa Devi against the judgment and order of VII Additional Sessions Judge, Aligarh dated 20-10-1981 in Criminal Revision No. 234 of 1981.
2. The facts in brief are that Smt. Pushpa Devi and opposite party, Anup Singh, are wife and husband and were married in accordance with Hindu Law. Smt. Pushpa Devi filed an application before the Judicial Magistrate u/s 125, Code of Criminal Procedure for maintenance allowance. During the course of proceedings before the Judicial Magistrate, Anup Singh filed an objection on the ground that in Divorce Petition Smt. Pushpa Devi is already getting monthly allowance at the rate of Rs. 170/-. The Magistrate rejected the application of opposite party, Anup Singh on 30-7--1981.
3. Aggrieved by the order of the Magistrate, Anup Singh filed a Revision before the Sessions Judge. Learned VII Additional Sessions Judge took up the stand that since the applicant is already getting maintenance allowance in Divorce Petition, as alloxed u/s 24 of the Hindu Marriage Act, the application u/s 125 is dismissed.
4. Learned Counsel for the applicant has contended that the allowance awarded to the applicant u/s 24 of Hindu Marriage Act is for a temporary period during the pendency of the Divorce case. Apart from the fact that that allowance cannot be considered to be the maintenance allowance, in as much as that covers the part of the expenses
5. In my opinion the proceedings u/s 125, Code of Criminal Procedure are quite independent proceedings, even if she has been allowed maintenance pendentilite u/s 24 of Hindu Marriage Act. The maintenance allowance u/s 24 as observed by me above is for a temporary period. It is true that the Magistrate while passing an order may give such direction so that the amount awarded by the Civil Court u/s 24 of the Hindu Marriage Act may be adjusted, during such period for which the maintenance allowance so awarded u/s 24 subsists. The provisions of Section 24 of the Hindu Marriage Act cannot override the provisions of Section 123, Code of Criminal Procedure. Section 24 of Hindu Marriage Act is for a period during which the matrimonial proceedings are pending in the Civil Court. Whereas the allowance which is awarded by the Judicial Magistrate u/s 125, Code of Criminal Procedure is not for a limited period, but is for a period during which the wife or other dependent of the husband are neglected by him and the wife refuses to live with her husband. The view that I am taking is supported by a decision of this Court in
6. The decision referred to by the learned Sessions Judge in 1980 ACrR 70, is not applicable to the facts of the present case. That was a case in which the application of Premwati was rejected by the Magistrate and her Revision was dismissed and Hon''ble Deokinandan, J. while dismissing the Criminal Misc. Application u/s 482 Code of Criminal Procedure has made reference that since divorce proceedings have been filed in the Civil Court, it will be better that the maintenance allowance is availed in that proceeding. With respect I do not agree with the view that was taken by Hon''ble Deokinandan, J. but since this Revision application stands on a different ground, I do not think it proper to refer the case for the decision by a larger bench.
7. The Revision that was filed against the order of the Magistrate dated 30th July, 1981 before the Sessions Judge, in my opinion, is an interlocutory order. The proceedings were pending before the Magistrate, and during the course of proceedings an objection was raised by Anup Singh that In a Divorce case Rs. 170/- per month had already been allowed against him, in favour of Smt. Pushpa Devi. Learned Magistrate rejected the application of the opposite party. Sub-section (2) of Section 397 Code of Criminal Procedure clearly creates a bar for entertaining the Revision against interlocutory order by the Sessions Judge.
8. In view of the above discussion this application succeeds and the case is remanded back to the Trial Magistrate for expeditious hearing. However, it is made clear here that the Trial Court will give due weight to the order passed u/s 24 of the Hindu Marriage Act, as indicated above.
Application allowed.
