How to get stay order against section 125 CrPC

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My wife filed a case under section 125 crpc for Maintenance in JMFC Court in the year 2013. It is decided ex-parte and court granted to pay rupees 6000 per month as maintenance. In the meantime, the Family court decided the petition filed under section 24 of the Hindu marriage act.

The Family court has decided to pay monthly allowance rupees 14000 per month as maintenance. She is trying to harass me by filing multiple cases. How could I get stay order?

Question From: Family Law

A wife is not entitled to get dual maintenance. Though it was your duty to inform the court that she has been receiving interim maintenance under section 125 crpc, you failed to do so. Well, at this stage you can request the court to consider both maintenance orders and amend the one with immediate effect. There is a provision under section 127 crpc to modify the maintenance order in consequence of an order of the competent civil court.

You should apply to the concerned Magistrate’s court under section 127 crpc for alteration in ex-parte order. The court may stay its order granted ex-parte under section 125 crpc because an order of maintenance has already passed under section 24 HMA (the Hindu Marriage Act).

Your wife did nothing wrong to filed both petitions simultaneously because she has the right to maintenance either under section 125 crpc or 24 HMA. But eventually, she is entitled to get only one order of maintenance. Therefore, in exceptional condition, the Magistrate can modify the order whenever finds necessary or an order of the competent civil court.

In Sanjay Kumar Sinha v. Asha Kumari, (2018) 5 SCC 333; the Supreme Court has held that passing of maintenance under section 24 HMA stands superseded the order passed under section 125 and now no longer contains the field.

In N. Natikar Vs Neelamma (2015) 1 SCC (Civ) 346; the Supreme Court held that order made under Section 125 CrPC is tentative.

In Pallavi v Sachin 2012 (3) MPLJ; the Madhya Pradesh High Court held that if interim maintenance granted under section 24 of the HMA is in force, the wife would not be entitled to separate maintenance under section 125 CrPC.

After perusal of judgments mentioned above, it is thus evident that ex-parte order of maintenance under section 125 crpc should have stayed.

You should move an application for setting aside the ex-parte order and stay of proceeding by changes in circumstances of the case.

The court may stay the proceeding under section 125 as well as set aside the ex-parte order passed under section 125. Your wife is already receiving adequate maintenance under section 24 of HMA. If she gets dual maintenance, then the object of section 125 CrPC would fail.

In Sumita Ganguly v Debasish Ganguly (2010) 1 Cal LT 442; the Calcutta High Court held that maintenance granted under section 24 HMA then order pass under section 125 CrPC shall be adjusted against each other and the husband is only obliged to pay a higher amount of maintenance.

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