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2014 DIGILAW 548 (PAT)

Shambhu Nath Pathak v. Kanti Devi

2014-05-02

NAVIN SINHA, PRABHAT KUMAR JHA

body2014
JUDGMENT : NAVIN SINHA, J.:–The present Appeal has been filed against order dated 02.04.2007 passed by the Principal Judge, Family Court at Aurangabad in Matrimonial Case No. 03 of 1992/97 of 2006 preferred by the Appellant seeking divorce. 2. The parties were married on 22.04.1984. On that date they were approximately 17 and 16 years of age respectively. The respondent stayed in the matrimonial home till February, 1985 only. She returned on 05.04.1988. A Male and Female child were born. The male child did not survive. The respondent expressed desire to continue with her studies and went back to the parental home on 06.04.1988 never to return. The Appellant filed suit for divorce alleging that she had adulterous relation with another contending that the girl child was born from that relationship. The Principal Judge disbelieved the allegations of adultery but noticed as a matter of fact that relations between the parties had been soured to an extent that there coming together did not appear possible. In the meantime, the respondent filed an application for maintenance under Section 125 Cr.P.C. which was allowed on 22.08.1991. The Appellant filed Criminal Revision No. 133 of 1991 against the same which was dismissed on 25.01.1993. 3. The learned Principal Judge, considering the long 14 to 15 years for which the parties had remained apart, instead of granting divorce passed a decree for judicial separation granting a permanent alimony of one lakh. 4. Learned counsel for the Appellant submits that the respondent had also filed prosecution under Sections 494 and 498A of the Penal Code registered as G.R No. 984 of 1994/ T.R No. 856 of 2009. It has been dismissed on 30.03.2009. No cross appeal has been filed against the amount of permanent alimony awarded. Without prejudice to the same, it is contended that the Principal Judge erred by not granting a decree of divorce. 5. It was next submitted that if permanent alimony has been granted under Section 125 of the Hindu Marriage Act, the Appellant cannot be imposed with a double burden under Section 125 Cr. P.C. also and the latter order will automatically merge with the order of permanent alimony. 6. Counsel for the respondent submitted that the amount awarded is not adequate keeping in mind the daughter born from the marriage also. The respondent is also entitled to the maintenance awarded under Section 125 Cr.P.C. 7. P.C. also and the latter order will automatically merge with the order of permanent alimony. 6. Counsel for the respondent submitted that the amount awarded is not adequate keeping in mind the daughter born from the marriage also. The respondent is also entitled to the maintenance awarded under Section 125 Cr.P.C. 7. We have noticed the fact of the case only for better appreciation of the background of the case. It is not necessary for us to decide any question of law as the Appellant has agreed to pay Rs. 1,00,000/- (one lakh) more making it a double amount of permanent alimony for Rs. 2,00,000/- (two lakhs) only, and which the respondent has agreed to accept in final settlement. We are informed that of the one lakh awarded the amount paid pursuant to Section 125 Cr.P.C. has been adjusted. We find no error with the same as the respondent cannot be entitled to a double bonanza both under Sections 125 of the Hindu Marriage Act and 125 Cr.P.C. 8. The Appellant shall pay the additional amount of one lakh permanent alimony to the respondent within one month from today. The respondent shall be at liberty to enforce the same in accordance with law in the event of failure to pay. 9. With that modification in the order under Appeal, the Appeal is disposed without prejudice to the further rights of the parties under the Hindu Marriage Act.