Court: Jharkhand High Court
Bench: JUSTICE RAJESH SHANKAR
Sangeeta Kumari vs The State Of Jharkhand And Anr on 12 October 2017
Law Point:
Order of maintenance both u/s 125 Cr.P.C. and S.24 of Hindu Marriage Act – Claimant entitles to get only higher amount of maintenance out of both the provisions.
JUDGEMENT
1. The present writ petition is being heard along with I.A. No. 854/2017.
2. The present writ petition has been filed for a direction upon the learned Principal Judge, Family Court, Ranchi to give equal opportunity to both the parties in M.T.S No. 12/2011 and also for setting aside M.T.S Case No. 12 of 2011 being not maintainable, as the case was filed by the respondent No.2 prior to 24 months of marriage. I.A No. 854 of 2017 has been filed by the petitioner praying for a direction upon the respondent No.2 to release an amount of Rs.2000/- per month from July, 2015 till January, 2017, which amounts to Rs.38,000/- as arrears alongwith compound interest and litigation cost amounting to Rs.15000/.
3. The factual background of the case, as stated by the petitioner, is that she was married to the respondent No.2 on 06.06.2009 as per Hindu rites and customs. The respondent No.2 filed M.T.S No. 12 of 2011 for divorce under Section 13 of the Hindu Marriage Act, 1955. The petitioner submits that vide order dated 06.03.2013 passed in Matrimonial Title Suit No. 12/2011, the learned Principal Judge, Family Court, Ranchi directed the respondent No.2 to pay a sum of Rs.2,000/- per month to the petitioner as monthly pendente lite alimony from the date of filing of the petition i.e. 14.12.2011 under Section 24 of the Hindu Marriage Act, 1955 and a lump sum amount of Rs.3,000/- as one time litigation cost. The petitioner further submits that so far as the payment of amount of Rs.2,000/- under Section 24 of the Hindu Marriage Act, is concerned, the respondent No.2 made the said payment till June, 2015 and thereafter he stopped making the payment of the said amount to her. However, the respondent No.2 paid Rs.3,000/- as one time litigation cost soon after the order dated 06.03.2013 was passed by the learned Family Court. The petitioner also filed a case for maintenance u/s 125 of Cr.P.C and the learned Principal Judge, Family Court, Ranchi vide order dated 09.07.2015 passed in Maintenance Case No. 149/2012, directed the respondent No.2 to pay Rs.10,000/- per month to the petitioner from the date of filing of the maintenance petition excluding Rs.2000/- per month given in M.T.S No. 12/2011. The respondent No.2 was further directed to make payment of the said maintenance amount of Rs.10,000/- by 10 th of each month. The respondent No.2 challenged the said order of the learned Principal Judge, Family Court, Ranchi by filing Cr. Revision No. 892/2015 before this Court and a Bench of this Court vide order dated 19.07.2016, while quashing the order dated 09.07.2015 passed by the learned Principal Judge, Family Court, Ranchi in Maintenance Case No. 149/2012, remitted the matter back to the said Court to pass a fresh order in accordance with law and, if necessary, by taking further evidence and after giving opportunity of hearing to the petitioner as well as the respondent No.2.
4. Aggrieved by the said order of this Court, the petitioner filed Special Leave to Appeal (Crl.) No. 7907/2016 before the Hon’ble Supreme Court, which was converted into Cr. Appeal No. 1468/2017. The Hon’ble Supreme Court vide order dated 22.08.2017, observed that the cause of justice would be best sub-served, if a sum of Rs.8,000/- per month is paid to the petitioner towards maintenance under Section 125 Cr.P.C by the respondent No.2. The Hon’ble Supreme Court also directed that the arrears on that count shall be computed w.e.f. 01.12.2016, which is to be paid in addition to the current dues within four months. The Hon’ble Supreme Court after noticing the fact that the divorce petition filed by the respondent No.2 in the Court of the learned Principal Judge, Family Court, Ranchi being M.T.S. No. 12/2011 is pending due to the stay granted by this Court in the present writ petition, requested this Court to dispose of the present writ petition by the end of October, 2017.
5. In M.T.S No. 12 of 2011, the respondent No.2 filed a petition on 03.09.2013 stating that the evidence of the respondent No.2 has already been closed on 18.10.2012 and the suit is pending for the evidence of the petitioner, but she has neither filed the list of witnesses, nor examined any witness and has also not filed any time petition seeking adjournment for adducing evidence, hence, the evidence of the petitioner may be closed. On 26.09.2013 the petitioner filed reply to the petition of the respondent No.2 dated 03.09.2013 stating that one witness of the respondent No.2, namely, Anil Kumar (PW-2) was discharged without part cross-examination and he being the material witness, the petitioner is ready to further cross- examine the said witness. The case was fixed on 20.11.2013, but no order was passed on that date and the petitioner’s evidence was started. While the cross examination of the petitioner was in process, the application dated 03.09.2013 was pressed by the petitioner on 16.04.2014 and the same was disposed of by holding inter alia that since the witness of the petitioner has already been cross-examined, the said petition has become infructuous.
6. The petitioner submits that she has not been given ample opportunity to cross-examine the aforesaid witness of the respondent No.2. It is further submitted that the learned Court below did not dispose of the petition dated 03.09.2013 on the date fixed i.e. on 20.11.2013 and suddenly during the evidence of the petitioner, the same was disposed of as infructuous, which is patently illegal. It is further submitted that the witness of the respondent No.2, namely, Anil Kumar is a vital witness and if the petitioner is not allowed to cross-examine him, she will suffer irreparable loss and injury. It is further submitted that the learned Court below wrongly dismissed the execution petition of the petitioner vide order dated 21.03.2016 on the ground of stay of the operation of the present suit and also on the ground that the petitioner is getting Rs.4000/- per month in view of the order in Criminal Revision No. 892 of 2015 and she is not entitled to double bonanza.
7. In support of the above contentions, the petitioner puts reliance on a judgment rendered by the M.P High Court in the case of Ashok Singh Pal Vs. Smt. Manjulata reported in AIR 2008 MP 139.
8. The learned counsel appearing on behalf of the respondent No.2 submits that the petitioner wrongly contended that she has not been given ample opportunity to cross-examine the particular witness of the respondent No.2, rather she neither filed any petition for cross- examination of the witness of the respondent No.2 nor filed any petition praying time and as such finally the respondent No.2 filed a petition dated 03.09.2013 to close the evidence of the petitioner. It is further submitted that since the respondent No.2 started cross- examining the evidence of the petitioner, the petition dated 03.09.2013 was rightly dismissed as infructuous. It is also submitted that the respondent No.2 all along complied the order(s) of the Hon’ble Court with regard to payment of maintenance of the petitioner. Initially the respondent No.2 was directed to pay maintenance of Rs.2000/- per month, which was paid from 14.12.2011 to 02.07.2015. Subsequently, the respondent No.2 was directed to pay a sum of Rs.4000/- to the petitioner vide order passed in Cr. Rev. No. 892 of 2015, which was also paid from September, 2015 to July, 2016. It is further submitted that in view of the interim order passed in S.L.P (Cr.) No. 7907 of 2016, the respondent no.2 paid Rs.5000/- to the petitioner from December, 2016 to February, 2017, hence, he is not at fault in any manner. It is lastly submitted that the petitioner is not entitled to get the maintenance both under Section 125 Cr.P.C and Section 24 of the Hindu Marriage Act, 1955.
9. Heard the petitioner in person, and the learned counsel for the respondent No.2 and perused the materials on record. Initially, the petitioner had made two prayers. One was for setting aside M.T.S No. 12 of 2011, as it was filed within 24 months of marriage and the another was for providing equal opportunity to both the parties to defend their case in M.T.S No. 12 of 2011. Subsequently, during the pendency of the present writ, the petitioner added a prayer for a direction upon the respondent No.2 to release the amount of Rs.2000/- per month u/s 24 of the Hindu Marriage Act, 1955 from July, 2015 to January, 2017. So far as the objection raised by the petitioner with regard to the maintainability of the divorce petition on the ground that the same was filed within 24 months of the marriage, the respondent No.2 submits that the divorce petition has been filed after 12 months of the marriage and under Section 14 of the Hindu Marriage Act, the time prescribed for filing a divorce petition is one year. From the records of the case, it appears that the petitioner has filed a petition dated 16.04.2014 (Annexure-4 to the writ petition) by which she had raised the objection regarding the maintainability of the divorce petition, but it has not been disclosed in the writ petition as to whether the said petition was heard or not. The question regarding the maintainability of matrimonial suit should have been raised/pressed before the learned Family Court itself at the earliest. Moreover, the question regarding the maintainability of the divorce petition filed by the respondent No.2, cannot be raised before the writ Court without pressing the same before the learned Principal Judge, Family Court and in absence of any such determination by the said learned Court on the said issue.
10. The prayer of the petitioner for issuance of direction to the learned Family Court to provide equal opportunity to both the parties to defend the case is a vague prayer, without any specific instance to suggest that she has not been provided equal opportunity to defend her case. From perusal of the records, it appears that the evidence of the respondent No.2 was closed on 18.10.2012 and the petitioner did not file any petition for recall of any witness of the respondent No. 2 to cross-examine and only on the petition of the respondent No.2 dated 03.09.2013 to close the evidence of the petitioner, she filed reply by stating that one witness, namely, Anil Kumar was examined by the respondent no.2 as P.W.2, but had been discharged without full cross- examination. However, in that reply also, the petitioner did not request the learned Family Court to recall the P.W.2 for further cross- examination. Be that as it may, it may be possible that the same was not filed due to the ignorance of the procedure of the Court. The object behind introduction of the Family Court is to simplify the procedural part of the case to deal with the family matters. No hard and fast rule can be adopted in such matters, otherwise, the object of the Family Court will frustrate. Since the practicing lawyers are debarred from appearing, unless allowed by the Court, it clearly indicates that the procedure is not required to be strictly adhered to. It is claimed by the petitioner that cross-examination of P.W.2 – Anil Kumar was not complete who, as per her, is the relevant witness of the case. The learned Principal Judge, Family Court is well within jurisdiction to recall any witness either suo motu or on the application of either of the parties whose evidence is necessary for the determination of the suit. The respondent No.2 has failed to state any prejudice that may be caused to him by permitting the petitioner to cross-examine P.W.2 – Anil Kumar. Since the stage of evidence has not yet completed, in the ends of justice, the said prayer of the petitioner is allowed.
11. So far as the prayer for a direction to the respondent no.2 to pay the interim alimony amount of Rs.2000/- per month from July, 2015 to January, 2017 is concerned, the Hon’ble Supreme Court in the case of Sudeep Choudhary Vs. Radha Choudhary reported in (1997) 11 SCC 286 has held as under:
“5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr. P. C. against the amount awarded under Section 24 of the Hindu Marriage Act.”
“6. We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr. P. C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however, not inclined to go into any detailed discussion of the law.”
12. In the aforesaid case, the Hon’ble Supreme Court has held that the order of maintenance under Section 125 Cr.P.C is adjustable against the awarded amount of interim alimony in the matrimonial proceedings and is not to be given over and above the same.
13. In the case of Ashok Singh Pal Vs. Smt. Manjulata (Supra), a Single Bench of the Madhya Pradesh High Court having taken into consideration the fact of the said case that both the orders under Section 125 Cr.P.C and Section 24 of the Hindu Marriage Act have been passed on the same day by the same Court without any order of adjustment, has held that adjustment cannot be made. Since the said case was decided in completely different facts and circumstances, the same cannot be made applicable in the facts of the present case.
14. In the case of Sanshya Kumari Vs. State of Bihar reported in 2000 (1) PLJR 1066 a Bench of Patna High Court in para 4 held as under:-
4. The second reason assigned by the teamed Magistrates also seems to be misconceived one in view of the fact that the scope of Sec. 125, Cr.P.C. as well as Sec. 24 of the Hindu Marriage Act stand on different footing. It is true that the maintenance granted under the Hindu Marriage Act can be adjusted out of the amount granted under Sec. 125, Cr.P.C. I am supported by a decision in the case of Sudeep Chaudhary V/s. Radha Chaudhary, reported in AIR 1999 SC 536, wherein it has been held that when the wife is granted interim alimony both under Sec. 24 of the Hindu Marriage Act and under Sec. 125, Cr.P.C., in that event, the maintenance amount granted under Sec. 125, Cr.P.C. is to be adjusted against the amount awarded in matrimonial proceeding. Admittedly, not a single farthing has been paid to the petitioner as yet in terms of the decree passed by the Civil Court. In that view of the matter, the petitioner, being a wife though divorced one, is still entitled to the maintenance in terms of Sec. 125, Cr.P.C. However, the amount of maintenance allowed under the provisions of Hindu Marriage Act is subject to adjustment of the amount granted in terms of Sec. 125, Cr.P.C.
15. In the case of Mahuya Nanda Vs. Tapan Nanda & Anr. reported in 2008 SCC Online Cal 742, a Bench of the Culcutta High Court has held as under:
“7. I have given my anxious consideration to the rival submissions of the parties. Having gone through the impugned order, I am unable to sustain the same. Merely because in connection with a matrimonial suit, a Civil Court has passed order awarding maintenance in favour of the wife and child that would never operate as a bar in maintaining a proceeding under section 125 of the Code of Criminal Procedure. Both the proceedings are independent of each other and can continue simultaneously. However, the husband is not at all obliged to pay maintenance twice, once in terms of the order passed by the Civil Court and then in terms of the order passed in connection with a proceeding under section 125 of the Code of Criminal Procedure. He is only required to pay such amount of maintenance which is higher amongst the two, meaning thereby if the amount of maintenance granted in connection with matrimonial suit and the amount of maintenance granted in connection with proceeding under section 125 of the Code of Criminal Procedure are different, the husband is only obliged to pay the higher amount out of the same not to pay both in terms of the order passed by the Civil Court as well as the Criminal Court.”
16. From perusal of the aforesaid judgments, it would emerge that although the provision for granting maintenance under Section 125 Cr.P.C and Section 24 of the Hindu Marriage Act are different, the husband is not obliged to pay maintenance twice rather he is only required to pay higher amount amongst the two. Thus, the argument of the petitioner that the amount of Rs.2000/- per month ordered to be paid by the respondent No.2 to the pertinent under Section 24 of the Hindu Marriage Act, 1955 in M.T.S No. 12/2011 is not adjustable against the award of maintenance granted under Section 125 Cr.P.C, is not tenable. The maintenance awarded under Section 24 of the Hindu Marriage Act is a maintenance pendente lite and after the conclusion of the matrimonial case, the same will have no effect, however, the maintenance granted under Section 125 Cr.P.C will continue till the same is altered on the changed circumstances as has been mentioned under section 127 of the Cr.P.C. Mere filing of a petition under Section 24 of the Hindu Marriage Act or grant of maintenance thereunder, does not preclude a person to file a petition under Section 125 Cr.P.C. However, when there are orders of maintenance both under Section 125 Cr.P.C and Section 24 of the Hindu Marriage Act, 1955, the claimant shall not be entitled to get maintenance simultaneously, rather, he/she would be entitled to get only the higher amount of maintenance out of both the provisions. Section 24 of the Hindu Marriage Act, 1955 has been introduced with a laudable object of ensuring maintenance to a party to the proceeding so as to enable him/her to maintain during the pendency of such proceedings. Section 125 of the Cr.P.C has also been introduced to ensure maintenance to women, children as also old and infirm poor parents who are unable to maintain themselves. Thus, the object of both the sections are to provide maintenance. If the interim alimony under Section 24 of the Hindu Marriage Act, 1955 is allowed to be paid to the claimant by the other party over and above the amount being paid under Section 125 Cr.P.C, the purpose of granting maintenance would itself frustrate overburdening the person against whom the said order has been passed.
17. In the present case, it is an admitted fact that the petitioner has got maintenance of Rs.4000/- u/s 125 of Cr.P.C from September, 2015 to July, 2016 in view of the order passed in Cr. Revision No. 892 of 2015 and Rs.5000/- from December, 2016 to February, 2017 as per the interim order passed in S.L.P (Cr.) No. 7907 of 2016. Since during the relevant period, the petitioner has been receiving maintenance under the provision of Section 125 Cr.P.C, in my considered view, she is not entitled to get the interim alimony of Rs. 2000/- as claimed under Section 24 of the Hindu Marriage Act.
18. Under the aforesaid facts and circumstances and in view of the discussions made hereinabove, the present writ petition including I.A. No. 854/2017 is disposed of with the following observations/directions: i. The respondent No.2 is directed to produce the PW-2, namely, Anil Kumar, for further cross-examination by the petitioner before the learned Principal Judge, Family Court, Ranchi on 08.11.2017 and on that day, learned Principal Judge, Family Court, Ranchi shall allow the petitioner to cross-examine the said witness.
ii. The petitioner is not entitled to the maintenance/interim alimony under Section 24 of the Hindu Marriage Act, 1955 during the period she has been getting the maintenance under Section 125 Cr.P.C. iii. The learned Principal Judge, Family Court, Ranchi shall provide due opportunity to the petitioner to adduce evidence in support of her case. Both the parties shall fully cooperate in the disposal of matrimonial suit and no unnecessary adjournments shall be sought by either of the parties.
iv. The learned Principal Judge, Family Court, Ranchi shall make due endeavour to expedite the trial of the matrimonial suit (M.T.S. No. 12/2011) and conclude the same preferably within a period of three months from the date of receipt/production of a copy of this order.
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