Alimony under the Hindu Marriage Act, 1955 and Maintenance under Section 125 CrPC (Now Section 141 BNSS)

Even where alimony pendente lite is granted by the civil court in matrimonial proceeding under s. 24 of the Hindu Marriage Act in favour of the wife alone, the Magistrate under s. 125, CrPC/141 BNSS can grant higher maintenance for wife and children (Ramesh Chandra v Veena Kaushal 1979 Cr LJ 3 (SC)). 

However, the quantum of maintenance awarded under s. 125, CrPC /141 BNSS is adjustable with the award of alimony pendente lite granted by the Matrimonial Court (Sudip Chaudhary v Radha Chowdhury 1999 Cr LJ 466 (SC).

When the plea of adjustment was not raised then the maintenance ordered under s. 125, CrPC/141 BNSS and alimony pendente lite ordered under s. 24 of the Hindu Marriage Act are payable to the wife and both the orders are required to be complied with till the final decision is rendered by the civil court. After the civil court passes the final order of alimony, the husband can apply for cancellation or variation of the order passed under s. 125, CrPC/141 BNSS (T.Rajinder Singh v Maya Devi 1996 Cr LJ 2384 (AP).

Only because a proceeding under the Hindu Marriage Act 1955 is pending, an application under s. 125, CrPC/141 BNSS cannot be dismissed summarily (Balan v Pankojakhy 1992 Ker LJ 778). Even refusal of granting pendente lite maintenance by the civil court is not binding on the criminal court and the Magistrate can grant maintenance under s. 125, CrPC/141 BNSS in spite of such refusal (Ashok Nath Singh v Upasama Panwar 1994 Cr LJ 998 (H.P). 

In case of dismissal of husband’s petition under any one of the ss. 9 to 14 of the Hindu Marriage Act 1955, alimony under the Hindu Marriage Act cannot be granted. But the wife can maintain a petition under s. 125, CrPC (Now 141 BNSS) – Chand Dhawan v Jawaharlal Dhawan (1993)3 SCC 406; 1993 Cr LJ 2930

Petition for nullity of marriage pending

Even if a petition for nullity of marriage is pending under the Hindu Marriage Act 1955, this will be no ground for refusal of maintenance to the wife under s. 125, CrPC, but in such petition for nullity of marriage, no interim direction has been given Manoj v M. Sindhi 2007 Cr LJ (NOC) 2 (Ker).

Civil Court’s decree is binding on Criminal Court

The question arose that if the husband obtained a decree for divorce on the ground of desertion by the wife, the petition under s. 125, CrPC cannot be dismissed summarily. The Magistrate has to scrutinize the judgment of the civil court to ascertain as to whether there was really any finding recorded by the civil court or not that the wife was guilty of desertion. However, the civil court decree is binding on the criminal court (Jasholal Agarwal v Pushupati 1994 Cr LJ 185 (Ori).

Decree for restitution of conjugal rights

However, despite the decree for restitution of conjugal rights passed against the wife, the wife may file an application under s. 125, CrPC unless it is proved that the person, in whose favour the decree was passed, was willing to discharge the obligation as a husband and has not secured the decree in order to frustrate the order of maintenance under s. 125, CrPC (K. NArayan Rao v Bhagyalakshmi 1984 Cr LJ 276 (Kant); Mr Shakal v Shahina Parveen (1987)1 Crima 115 (Del).

When, in spite of the decree for restitution of conjugal rights, the wife refused to stay with the husband and the husband obtained a decree for divorce on the ground of desertion, the wife is not entitled to apply for maintenance under s. 125, CrPC (In the matter of Rabindra Nath Ray 1995 Cr LJ 1187 (Cal.)

By Bhuvnesh Kumar Goyal
Advocate in Jaipur High Court