DFVISON BENCH v. Bahur Singh Sahu @ Rajkumar

Smt. Bhaiikumari Sahu wife of Shri Bahur Singh @ Raj Kumar Sahu, resident of viUage Dhaba, Distt. Durg (C.G.). FIRST APPEAL U/S 19 OF 'niE FAMILY COURTS ACT. 1984. Present- Shri T.K. Tiwari, Advocate for the appellant. Shri J.S. Baraik, Advocate for fhe respondent. ORAL- JUDGEMENT (Passed on 17/09/2009) The following judgment of fhe Court was passed by T.P. Sharma, J.

Thls appeal under Section 19 of the Pamily Courts Act, 1984 is directed against fhe judgment and dea-ee dated 21/3/2007 passed by Second Additional Principal Judge, FaaiUy Court, Durg in Case No. 39-A/2007 whereby and where under exparte decree of divorce and permanent alimony has been granted against' the appellant. The permanent alimony part of decree is under challenge before fhis Court.

Leamed coiinsel for fhe parties are heard. ^y^-.... A .n"it4;''^i'.. ^'"f^ ^ Judgment and decree impugned and record of courts below perused. Brief facts giving raise to fhls appeal is appeUant and respondent were husband and wife exparte decree of divorce was passed by the Court below at fhe mstance of respondent, and whfle passing fhe decree of divorce leamed Second Additional Principal Judge, Family Court, Durg has awarded Rs. 1,000/- per month umder Section 25 of the Hindu Mamage Act, 1955 as permanent alimony on the application offhe respondent Leamed counsel for the appellant vehementty ai^ued that previously tfae application for matnteiiance ffled iinder Sectton 125 of the Code of Crimmal Procedure, 1973 (in short the Code) was dismissed by the Judicial Magistrate First Class, Durg in Cr. M.J.C. No. 26/95 vide order dated 18/1/98. The Second Additional Principal Judge, Family Court, Durg has also dismissed the subseaquent application for mauitenance vide order dated3/4/2007 in Cr. M.J.C. N0. 337/07 and claim of maintenance of fhe respondent has been denied by the tovo courts below. Therefore respondent is not entifled for any maintenance in terms of Section 25 of fhe Hindu Marriage Act, 1955. 6, On the other hand, leamed counsel for the respondent opposed fhe appeal and submits fhat consideration for grant of permanent alunony under Section 25 of the ...?f;^^.;' :.,., ^ tKsi^Bt..WSSt -„,.. ..^ i -^ J^ •s;-*'',,.' '">-».""—-<-4 J- Hindu Marriage Act, 1955 and grant of mainteiiance iinder Section 125 of fhe Code not one and same. In case of claim of maintenance under Section 125 of the Code appellant is required to show that she is living separately froin her husband under sonie reasonable cause and she is unable to maintain herself but husband who is having sufEicient means is not maintaining her. In case of permanent alimony ui terms of Section 25 of fhe Hindu Marriage Act, 1955 fhe wife is requlred to see ttiat she is unable to maintain herself had not required to show that she is residing separately under soine reasonable and suf&cient cause.

The judgment and decree and records of court below reveals that on the application filed iinder Section 25 of the Hindu Marriage Act, 1955 by respondent again notice has been issued to the appeUant. Present appellant has subinitted his reply after considering the application and reply of fhe parties leamed Second Additiorfal Princlpal Judge, Family Court, Durg has awarded Rs. 1,000/- permanent alimony under Section 25 of the Htadu Marriage Act, 1955 while passing the decree ~of divorce leamed Second Additlonal Principal Judge, Family Court, DLirg has considered the claua of respondent.

After going fhrough the record of fhe courts below we are of the considered view that leamed Second Addltional / s1*-' . '-I Principal Judge, Family Coiirt, Durg has not commltted any illegality while awardmg the permanent alimony to fhe respondent under Section 25 of fhe Hindu Marriage Act, 1955, we do not find any substance in fhis appeal. Consequentty, fhe appeal is liable to be dismissed and it is hereby dismissed with cost.

Advocate fee as per schedule.

Decree be drawn up accordingly.

I.A. Nos. 3, 4 is also dismissed. Sd/- T.P.Sharma Judge Sd/- Ransnath Chandraitar Judge -1(^