Jharkhand High Court
Indramani Devi vs The State Of Jharkhand on 23 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 53 of 2021
Indramani Devi .... Petitioner(s).
Versus
1. The State of Jharkhand
2. Santosh Khakha .... Opp. Party(s).
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
Through: Video Conferencing
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For the Petitioner(s) : Mr. Sheo Kumar Singh, Advocate.
For the State : A.P.P.
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04/23.02.2021: The lawyers have no objection with regard to the proceeding, which
has been held through video conferencing today at 11:00 A.M. They have no
complaint in respect of the audio and video clarity and quality.
2. Heard the counsel for the parties.
3. In this petition, the petitioner-wife has challenged the order dated
22.9.2020 by which, the Principal Judge, Family Judge, Palamau on an
application under Section 127 Cr.P.C has held that in view of the change of
circumstances, the petitioner is not entitled to get further maintenance under
Section 125 Cr.P.C.
4. It is not necessary to mention the detailed facts, but it would be
suffice to say that the petitioner, being the wife, was receiving maintenance in
terms of Section 125 Cr.P.C. Thereafter pursuant to a judgment dated
19.12.2019, the petitioner received permanent alimony to the tune of Rupees
Four Lakhs. The said order was passed in original Suit No. 79/2017, which was a
suit for divorce.
5. Since the permanent alimony was granted to the wife, the husband
filed an application under Section 127 Cr.P.C with a prayer that in view of order
under Section 25 of the Hindu Marriage Act, the wife is not entitled to get further
maintenance. The Principal Judge, Family Court, Palamau allowed the aforesaid
petition vide order dated 22.9.2020.
6. Being aggrieved by the aforesaid order dated 22.9.2020, the
petitioner-wife has approached this Court only on the ground that since the order
passed under the proceeding under Section 125 Cr.P.C was prior to the order
passed by the Principal Judge, Family Court, Palamau in Divorce Petition
granting permanent alimony under Section 25 of the Hindu Marriage Act, the
petitioner is entitled to go on receiving the maintenance amount, which was
passed under Section 125 Cr.P.C.
7. This issue has been set at rest by the Hon'ble Supreme Court of
India in its judgment passed in Cr. Appeal No. 246-247/2020 (Rakesh Malhotra
Vs. Krishna Malhotra). The issue which fell for consideration before the Hon'ble
Supreme Court of India is that whether after grant of permanent alimony under
Section 25 of the Act, a prayer can be made before the Magistrate under Section
125 Cr.P.C for maintenance over and above what has been granted by the Court
while exercising power under Section 25 of the Hindu Marriage Act. The Hon'ble
Supreme Court after considering the law has held that the application under
Section 125 Cr.PC cannot be filed after an order has been passed under Section
25 of the Hindu Marriage Act. The Hon'ble Supreme Court further held that in
view of Section 25(2) of the Hindu Marriage Act, the wife can file an appropriate
application before the concerned Court. Ultimately the Hon'ble Supreme Court
directed that the application under Section 125 Cr.P.C shall be treated and
considered as application under Section 25(2) of the Hindu Marriage Act.
8. The interpretation of the judgment suggests that once the court has
allowed an application under section 25 of the Hindu Marriage Act granting
permanent alimony, there is no scope for filing application under Section 125
Cr.P.C. This means that the lady is not entitled to get any amount under Section
125 Cr.P.C.
9. Thus, this Court feels that the court below has rightly held that the
petitioner -wife is not entitled to get any maintenance in terms of Section 125
Cr.P.C.
10. Before parting further, I would like to observe that if there is change
of circumstances, the petitioner may take recourse of Sub-section(2) of Section
25 of the Hindu Marriage Act.
11. Accordingly, this petition is dismissed.
Anu/-C.P.-3 (ANANDA SEN, J.)
