Sangeeta Kumari vs The State Of Jharkhand And Anr on 12 October, 2017

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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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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
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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

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