The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Feb-2025 15:36:21 IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.25 of 2022 (From the judgment dated 27.12.2021 passed by learned Judge, Family Court, Sambalpur in C.P. Case No.26 of 2019) Smt. Nurabati Barik …. Appellant -versus- Hemanta Barik …. Respondent Advocate(s) appeared in this case:- For Appellant
Legal Reasoning
: Mr. J.R. Deo, Advocate For Respondent : None CORAM: JUSTICE B.P. ROUTRAY JUSTICE CHITTARANJAN DASH JUDGMENT 11th February 2025 B.P. Routray, J. 1. Heard Mr. J.R. Deo, learned counsel for the Appellant-Wife. 2. None appears on call for Respondent-Husband despite notice is made sufficient against him and name of the lawyer is indicated in the cause list. 3. Present appeal has been directed by the Wife against impugned judgment dated 27.12.2021 passed by learned Judge, Family Court, Sambalpur in C.P. Case No.26 of 2019. MATA No.25 of 2022 Page 1 of 5 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Feb-2025 15:36:21 4. The Wife preferred an application under Section 25 of the Hindu Marriage Act praying for permanent alimony after divorce was granted at the instance of the Husband in C.P. No.22 of 2014. The learned Judge, Family Court rejected the same mainly on two grounds, Viz. she was getting maintenance of Rs.3000/- per month in a proceeding under Hindu Adoption and Maintenance Act and secondly, petition under Section 25 of the Hindu Marriage Act after grant of divorce is not permitted in view of the continuity of the maintenance granted under the Hindu Adoption and Maintenance Act. 5. It is well settled in law that, payment of maintenance under different statutes are at the choice of the party subject to adjustment of the amount of maintenance granted in any other proceeding. The maintenance application decided under one statute would not foreclose the claim for maintenance under another statute. If maintenance has been awarded under one of the statutes that by itself though would not preclude the claimant from raising claim for maintenance under a different statute, but the rider is that the claimant has to disclose all such facts in the subsequent proceeding, and in such case the court entertaining the prayer for maintenance in subsequent proceeding had to adjust and take into consideration the amount of maintenance MATA No.25 of 2022 Page 2 of 5 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Feb-2025 15:36:21 already awarded earlier under another statute. Particularly in the present case, the Wife preferred the petition under Section 25 of the Hindu Marriage Act after grant of divorce at the instance of Husband, where no alimony was paid in favour of the Wife. Thus the statutory right is there in her favour to exercise her discretion for grant of permanent alimony in terms of Section 25 of the Hindu Marriage Act, but subject to adjustment of such amount got in any other proceeding for maintenance. 6. In Rajnesh v. Neha and another, (2021) 2 SCC 324, it is held that;- “Directions on overlapping jurisdictions 60. It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/Family Court shall take into account the maintenance MATA No.25 of 2022 Page 3 of 5 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Feb-2025 15:36:21 awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant. 61. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the court concerned in the previous proceeding.” 7. In the case at hand, admittedly, a direction has been passed in favour of the Wife (Appellant) to receive maintenance of Rs.3000/- in a proceeding under Section 18 of the Hindu Adoption and Maintenance Act, i.e. C.P. No.57/162 of 2012. Since in the meantime, the marriage has been dissolved by a decree of divorce granted in C.P. No.22 of 2014 and only the question of grant of permanent alimony is the dispute between the parties, we feel it apposite to fix the amount of monthly maintenance to Rs.10,000/- taking note of the income of both Husband and Wife disclosed in their respective affidavits furnished before this Court. We make it clear that, the Appellant’s claim for maintenance in C.P. No.57/162 of 2012 shall merge and be adjusted MATA No.25 of 2022 Page 4 of 5 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Feb-2025 15:36:21 with the present claim of permanent alimony under Section 25 of the Hindu Marriage Act. 8. In the result, the appeal is disposed of with a direction to the Respondent-Husband to pay monthly maintenance of Rs.10,000/- (rupees ten thousand) towards permanent alimony in favour of the Wife on or before 10th of every month, w.e.f. the date of filing of the petition under Section 25 of the Hindu Marriage Act (C.P. No.26 of 2019). The arrear maintenance shall be cleared within a period of three months from today. Failure to pay the arrear or current maintenance on the part of the Husband, the Wife is at liberty to realize the same in accordance with law. (B.P. Routray) Judge (Chittaranjan Dash) Judge B.K. Barik/Secretary MATA No.25 of 2022 Page 5 of 5