Sunil Kumar Garg, J. - (1.) This revision petition under Section 397, Cr.P.C., has been filed by the petitioner husband on 22/10/2003 against the order dated 31/7/2003 passed by the learned Chief Judicial Magistrate, Bikaner in Criminal Misc. Case No. 28/2003 (Smt. Manju v. Harish Kumar) whereby the learned C.J.M. allowed the application filed by the respondent wife under Section 125 Cr.P.C. and granted interim maintenance to the respondent wife to the tune of Rs. 750.00 p.m. from the date of the application i.e. from 5/2/2003 without there being any order regarding adjustment of maintenance having been granted to the respondent wife to the tune of Rs. 750.00 p.m. under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955) which was passed by the learned Additional District Judge, Didwana vide order, dated 21/4/2001.
(2.) It arises in the following circumstances: (i) That the marriage between the petitioner husband and respondent wife took place on 10/12/1993 and on 27/9/1999 petitioner husband filed a divorce petition under Section 13 of the Act, 1955 on the ground of desertion and cruelty in the 1 Page3of5 Court of Additional District Judge; Didwana against the respondent wife. In that petition, the respondent wife filed an application under Section 24 of the Act, 1955 on 6/1/2001 for grant of interim maintenance and litigation expenses. The learned Additional District Judge, Didwana through order dated 21/4/2001 granted Rs.750.00 per month as interim maintenance to the respondent wife and also granted Rs. 450.00 for each and every date of hearing as litigation expenses. (ii) That further case of the petitioner husband is that the respondent wife filed an application under Section 125 Cr.P.C. before the learned Chief Judicial Magistrate, Bikaner on 5/2/2003 and in that application the respondent wife also sought interim maintenance. The learned Chief Judicial Magistrate through order dated 31/7/2003 granted interim maintenance of Rs. 750.00 to the respondent wife w.e.f. 5/2/2003 i.e. from the date of application. (iii) That the further case of the petitioner husband is that since both the Courts i.e. Additional District Judge, Didwana and Chief Judicial Magistrate, Bikaner have passed orders granting interim maintenance to the respondent wife separately, therefore, the respondent wife cannot be allowed to draw both amounts, as it is settled law that the maintenance allowance in both the proceedings under Section 24 of the Act, 1955 and under Section 125 Cr.P.C. is adjustable and whichever is higher is to be paid, therefore, the subsequent order of interim maintenance dated 31/7/2003 passed under Section 125 Cr.P.C. by the learned Chief Judicial Magistrate, Bikaner should be quashed.
(3.) The learned counsel for the respondent wife has placed reliance on the judgment rendered by Andhra Pradesh High Court in T. Rajender Singh v. Smt. Maya Devi1 and has submitted that the respondent wife is entitled to both interim maintenance one granted under Section 24 of the Act, 1955, and other granted under Section 125 Cr.P.C., since proceedings are different in nature.;