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2023 DIGILAW 795 (JHR)

Debajyoti Sarangi v. Sutapa Sarangi

2023-06-21

ANANDA SEN

body2023
ORDER : 1. By filing this petition, the petitioner has challenged the order dated 24.3.2021 passed by the learned Principal Judge, Family Court, Bokaro, whereby, the learned Principal Judge, in Civil Misc. Case No. 08/2019, arising out of TMS Case No. 182 of 2011, directed the petitioner to pay the arrears of Rs.11,40,000/-to his wife in terms of order passed under Section 24 of the Hindu Marriage Act, in TMS No. 182/2011. 2. Heard the counsel for the parties and I have gone through the record. 3. Counsel for the petitioner submits that TMS Case No. 182 of 2011 was filed by the petitioner husband under Section 13(1)(ia) of the Hindu Marriage Act for dissolution of their marriage. In the said suit an interlocutory application under Section 24 of the Hindu Marriage Act was filed by the wife praying therein for pendente lite maintenance. The trial court on 7.2.2012 passed an order granting Rs.20,000/-per month pendente lite maintenance to the wife. The petitioner-husband withdrew the suit. In the meantime, the wife filed an application under Section 125 of the Cr.P.C which was allowed with a direction to make payment of Rs.20,000/-per month to the wife and Rs.10,000/-per month to the child. He argues that since the aforesaid amount has been paid per month in terms of Section 125 Cr.P.C, the learned Family Judge could not have directed to pay further amount of Rs.20,000/-per month in terms of order passed under Section 24 of the Hindu Marriage Act. It is his contention that the wife cannot be paid maintenance /alimony twice in two proceeding. 4. Learned counsel appearing on behalf of the wife submitted that admittedly the petitioner-husband did not pay the amount in terms of order passed under Section 24 of the Hindu Marriage Act. He further submits that order dated 7.2.2012 directing to pay maintenance in terms of Section 24 of the Hindu Marriage Act, was never challenged and when the said order was not challenged, the petitioner-husband was legally bound to pay the aforesaid amount of Rs. 20,000/-per month. As the same was not paid the wife only preferred an application praying therein to direct the husband to pay the aforesaid amount, which has been allowed by the impugned order dated 24.3.2021. 20,000/-per month. As the same was not paid the wife only preferred an application praying therein to direct the husband to pay the aforesaid amount, which has been allowed by the impugned order dated 24.3.2021. So far as petition filed under Section 125 Cr.P.C. and the order passed therein is concerned, the learned counsel for the respondent submits that the petitioner has not even taken the plea before the Court that he was directed to pay Rs.20,000/-per month in a proceeding under Section 24 of the Hindu Marriage Act. As per the counsel for the respondent, at this stage, the petitioner cannot challenged the aforesaid order. 5. From the submissions of the parties, I find that the facts are admitted in this case. A Title Matrimonial Suit No. 182 of 2011 was filed by the husband-petitioner praying therein for dissolution of marriage. In the aforesaid application, an application under Section 24 of the Hindu Marriage Act was filed by the wife which was allowed on 7.2.2012 by the learned Family Judge granting pendente lite maintenance to the tune of Rs.20,000/-in favour of the wife. Admittedly, the said amount was not paid. The suit was allowed to be withdrawn on 5.2.2019. The husband-petitioner did not comply the interim order dated 7.2.2012 by paying the amount of alimony as fixed by the learned Family Judge under Section 24 of the Hindu Marriage Act. Thus, when the said amount was not paid to the wife, the wife had a right to file an application to recover the aforesaid outstanding amount. On the aforesaid application, the learned Family Judge has allowed the prayer directing the husband to pay arrears of maintenance amounting to Rs.11,40,000/-. 6. Now the question which falls for consideration is about the overlaping of the amount which is to be paid under Section 125 Cr.P.C. The law is well settled in the case of Rajesh Vs. Neha & Another reported in (2021) 2 SCC 324 in which, the Hon’ble Supreme Court has considered the issue and has held that the wife can simultaneously claim maintenance under different enactment. However, it should be inequitable to direct the husband to pay maintenance awarded in each of the said proceeding. Thus, adjustment is made permissible and the same can be allowed of the lower amount against higher amount. 7. However, it should be inequitable to direct the husband to pay maintenance awarded in each of the said proceeding. Thus, adjustment is made permissible and the same can be allowed of the lower amount against higher amount. 7. In this case, admittedly the learned Family Judge directed the petitioner husband to pay Rs.20,000/-also in terms of Section 125 Cr.P.C. However, it is not clear as to whether while ordering the payment of maintenance under Section 125 Cr.P.C , the order passed under Section 24 of the Hindu Marriage Act has been considered or not.If not, the learned Family Judge should have considered the same, of brought to his notice. 8. Thus, I direct the petitioner to approach the competent Court who has passed the order under Section 125 Cr.P.C, bringing on record the order passed under Section 24 of the Hindu Marriage Act including sufficient proof showing that he has paid the aforesaid amount till withdrawal of the suit. The Court then will consider the order passed by the learned Principal Family Judge in TMS Case No. 182 of 2011 and the Original Order dated 24.3.2011 passed in Civil Misc. Case No. 8/2019 and will pass an appropriate order in accordance with law. If any adjustment is necessary, the same will be calculated and an appropriate order will be passed accordingly. The Court will also take into consideration the effective date of the payment to be made under Section 125 Cr.P.C for the said adjustment, if any. 9. With the aforesaid observation and direction, this petition stands.