1. The present C.R.P is filed under Article 227 of the Constitution of India challenging the orders of II Additional Judge, City Civil Court, Hyderabad in I.A No. 723/91 in I.A No. 199/90 in O.P No. 254/89 dated: 6-7-1992.

2. The facts which give rise to the present Petition are that the Petitioner (husband) filed O.P No. 254/89 for dissolution of marriage. The respondent No. 1 (wife) filed application in I.A No. 199/90 under Section 24 of Hindu Marriage Act for legal expenses and interim maintenance. The martimonial Court on 21-9-90 passed orders granting Rs. 500/- towards legal expenses and Rs. 500/- towards legal expenses and Rs. 500/- towards maintenance to wife and child. While so, the Respondent No. 1 wife filed M.C No. 12/90 under Section 125 of Cr. P.C claiming maintenance for herself and her son before the VI Metropolitan Magistrate, Hyderabad. The said application was allowed for Rs. 550/- on 6-2-1991. Aggrieved by the said order the petitioner filed Criminal Revision Petition No. 171/92 before the IV Addl. Metropolitan Sessions Judge, Hyderabad and the same is pending.

3. The petitioner consequent on the orders of Criminal Court in M.C No. 12/90 dated 6-2-1991 filed application before the matrimonial Court to modify the orders dated 21-9-90 passed in I.A No. 199/90. The said application was dismissed holding that the application under Section 151 C.P.C is not maintainable and it is open for the petitioner to seek orders from the appropriate Court. The said order is assailed in this Revision Petition filed under Article 227 of the Constitution of India.

4. The Advocate for the respondents was not present. Keeping in view the general importance of the matter, this Court requested Sri S. Satyanarayana Prasad, Advocate to assist this Court as amicus curaie. He was gracious enough to accept the request and made detailed submissions:

5. The learned counsel for the petitioner submits that the Respondents were granted interim maintenance by the matrimonial Court on 21-9-90. They were also granted maintenance by the Criminal Court by orders dated 6-2-1991 in M.C No. 12/90. Thus, from the date of Criminal Court order the petitioner is being made to pay maintenance twice - one under Section 24 of Hindu Marriage Act and another under Section 125 of Cr. P.C He thus submits that he is liable to pay only one set of maintenance and not both. Hence, the matrimonial Court erred in not modifying the interim maintenance order.

6. On the other hand, Sri Prasad, submits that the order of matrimonial Court and criminal court are quite different and they are pased to achieve different purposes. He further submits that there is no bar for claiming and receiving the maintenance apart from the interim maintenance granted by the matrimonial Court pendente lite. The orders do not overlap each other and that they are required to be executed in accordance with respective provisions of law.

7. The learned counsel for the petitioner relies on Mamta Rani v. Raj Kumar (1) 1985 (1) H.L.R 496 to support his contention that the wife is not entitled for the maintenance twice. I have perused the said decision and I find that there is no discussion on the subject. Mr. Prasad relies on Danda Chanchaiah v. Danda mangamma (2) 1968 II An. W.R 98. In the said case the order of the learned Judicial Magistrate Darsi, and Section 488 Cr. P.C awarding maintenance of Rs. 40/- was challenged on the ground that the husband filed application for restitution of conjugal rights and the same is pending in the Civil Court under Section 24 of the Hindu Marriage Act. Rejecting the contention raised on behal of petitioner, the Court observed thus.

“The object of Section 488, Criminal Procedure Code is the prevention of vagrancy and to provide neglected wives and children a cheap and speedy remedy. This remedy is irrespective of other remedies such neglected wives and children may have under their personal law or under any statute. The existence or other more efficacious remedy is no bar to the maintainability of a petition under Section 488, Criminal Procedure Code. Indeed it is irrelevant. Similarly the pendency of other proceedings where the status of the parties is in question or where a husband seeks some matrimonial relief is no bar to the maintainability of a petition under Section 488, Criminal Procedure Code. Nor can the proceedings under Section 488, Criminal Procedure Code be made to await the result of such other proceedings. Otherwise the object of Section 488, Criminal Procedure Code providing for a cheap and speedy remedy will be frustrated. However, where a competent civil Court declares the rights of the parties, the Magistrate passing an order under Section 488, Criminal Procedure Code is empowered to cancel or suitably vary the order. This is provided under Section 489(2), Criminal Procedure Code and this provision amply protects the rights of the parties as may ultimately be determinmed by the Civil Courts.”

8. In Swarnajyawati v. L.B Munnalal (3) 1971 II An. W.R 351 Madhava Reddy, J., (as he then was) held that the maintenance ordered under Section 24 is only an interim maintenance. Hence an order under Section 488 (1) Cr. P.C cannot be cancelled merely because interim maintenance has been awarded. It is only under Section 488 (2) Cr. P.C when it appears to the Magistrate that in consequence of any decision of a competent civil court, an order made under Section 488 should be cancelled or varied, may cancel the order or as the case may be, vary the same accordingly. Hence order of interim maintenance under Section 24 of Hindu Marriage Act cannot warrant cancellation of order under Section 488 Cr. P.C Therefore the order must necessarily await the final disposal before the matrimonial court.

9. It is to be noted that Section 488 of old Code, is now Section 125 in the new Code, except to the entent covering the parents and quantum of maintenance in the new code.

10. Mr. Prasad takes me to the case in Capt. Ramesh Chandra Kaustal v. Mrs. Veena Kaustal (4) (1978) 4 SCC 70 : A.I.R 1978 S.C 1807. The Supreme Court observed in the said case as follows:

“Broadly stated and as an abstract proposition, it is valid to assent, that a final determination of a civil right by a civil court must prevail against a like decision by a criminal court. But this principle has no application to a case where pending proceedings under Section 125 Cr. P.C a civil court passed an interim order of maintenance of the wife in proceedings for divorce by the husband. The reasons are (1) the directions by the civil court is not a final determination under the Hindu Adoption & Maintenance Act, but an order pendente lite under Section 24 of Hindu Marriage Act (2) the amount does not include the claim for maintenance of the children although the orders does advert to the fact that the wife had their custody.”

11. Thus, it is held by the Supreme Court that an order under Section 24 of Hindu Marriage Act is not final determination of the case.

12. In G. Ramanathan… v. Mrs. Revathy…. (5) 1989 Crl. L.J 2037 the learned single Judge of Madras High Court held that when a competent civil court is seized of the matter with regard to obtaining relief of maintenance, the wife approaching the criminal court is against the scheme of law. Para 4 of the order reads thus:

“When a competent Civil Court has already (sic) of the matter and when it is possible without incurring any expenditure or any other inconvenience to approach, by way of a simple petition, the Civil Court so as to obtain maintenance, it is not proper on the part of the wife to go before the Magistrate for an order. The proper course is to approach Civil Court which is already seized. Further under Section 127 of the Cr. P.C if an order regarding maintenance is passed by the competent Civil Court, the Magistrate should have to set aside its own order which is more in the nature of a temporary measure made after a summary hearing to meet an emergent situation. Therefore the fact of seizing the Magistrate when the competent Civil Court has been already seized would cause only judicial waste of time since the order obtained is ultimately liable to be cancelled. I therefore come to the conclusion that the institution of a proceeding under Sec. 125, Cr. P.C when a civil proceeding is already pending between the parties under the Hindu Marriage Act is against the scheme of law contemplated under the Hindu Marriage Act, 1955 and Chapt. IX of the Cr. P.C”

13. I am afraid, I am not able to subscribe to the view of the learned Judge. The scope and purpose of two proceedings are different and distinct. The proceedings under the Hindu Marriage Act are quite independent inasmuch as the interim maintenance granted under Sec. 24 of the Hindu Marriage Act is only for a temporary period during the pendency of the proceedings before the matrimonial court, whereas the amount awarded by the Judicial Magistrate under Sec. 125 is not for a limited period, but is for a period during which the wife and other dependants of the husband are neglected. It is only after final verdict of the Civil Court, declaring of their respective rights, the husband may approach the Criminal Court to cancel or vary the order of maintenance. Kerala High Court in Kuttappan v. Thanka (6) observed, thus:

“Jurisdiction of the Act can be invoked only in a matrimonial dispute of the nature contemplated under the provisions of the Act is before the matrimonial court. Relief of permanent alimony or maintenance pendente lite can be claimed by either spouse. In the case of permanent alimony, what is to be considered mainly is income or other property of the parties atong with the conduct of parties and other circumstances of the case. What is to be considered for the purpose of interim maintenance under Section 24 of the Act, income of either party. Order passed by the Matrimonial Court are enforceable in the like manner as decrees and orders of civil courts. Various restrictions available in regard to an order under Section 125 of the Code are absent under Sec. 24 of the Act, Ceiling provided in Sec. 125 of the Code is also absent under Sec. 24 of the Act. Object of Sec. 24 is to ensure that the party to a marriage which is in a disadvantageous position must be enabled to maintain himself or herself during the pendency of the proceeding and also enabled to spend for the litigation. Where one party to a marriage has no independent income sufficient for support and the other party has, by virtue of Sec. 24 of the Act, they are to be put as far as possible on a position of equality. This is to ensure the parties before the Matrimonial Court can fairly present their respective cases before the I court without being disabled by poverty or lack of means. Purpose of Sec. 125 of the Code, nature of right and remedy provided thereunder are different from the purpose of Sec. 24 of the Act and the nature and remedy provided thereunder. Procedure and mode of recovery are also different. Remedies are not alternate and not inconsistent with each other.”

14. Considering the pronouncements of the Supreme Court and various High Courts. It is clear that the proceedings under Section 24 of Hindu Marriage Act and under Sec. 125 Cr. P.C are different and that they are invoked for different purpose before the courts of competent jurisdiction. They do not overlap over the other. The proceedings under Sec. 24 of Hindu Marriage Act are only invoked to meet a special situation where the proceedings are pending before the matrimonial court and to withstand the litigation the uncared wife is provided with succour (maintenance) pendente lite. The benefit granted under Section 24 is purely temporary in nature and gets extinguished after the matter is finally decided. It is only after the rights of the parties are finally decided, the party seeking cancellation or variation can approach the criminal court under Sec. 127 of the Cr. P.C Therefore I am of the opinion that during the operation of the order of interim maintenance under Sec. 24 of Hindu Marriage Act, the maintenance granted by the Criminal Court under Sec. 125 Cr. P.C shall also continue to be paid. In that way the petitioner is required to comply with both orders of matrimonial court and criminal court ??? the final decision is rendered by the civil court. Thus, there is no illegality with the impugned order of the matrimonial court and accordingly the C.R.P is dismissed. No costs.

15. This Court places on record the valuable assistance rendered by Sri S. Satyanarayana Prasad, learned advocate, who is endowed with specialised knowledge in family law. He had assisted the Court ably and efficiently.

16. His services as amicus curate are greatly appreciated.