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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 5491 of 2014
Sangeeta Kumari ….. Petitioner
Versus
1. The State of Jharkhand
2. Mukul Prasad ….. Respondents
—–
CORAM
HON’BLE MR. JUSTICE RAJESH SHANKAR
—–
For the Petitioner Ms. In Person
For the Respondent No.1: Mr. S.K.Verma
For the Respondent No.2: Mr. A.K.Mehta
—–
13/12.10.2017
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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
(RAJESH SHANKAR, J)
High Court of Jharkhand, Ranchi
Dated 12.10.2017
Satish/A.F.R
