Madhusmita Samanta vs Rajesh Singh
2021 Latest Caselaw 12991 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No.8439 Of 2019
                           (Through hybrid mode)

        Madhusmita Samanta                     ....             Petitioner

                                                Mr. P. Parija, Advocate

                                   -versus-

        Rajesh Singh                           ....        Opposite Party

                                   Mr. Bibekananda Bhuyan, Advocate


                 CORAM: JUSTICE ARINDAM SINHA
                                  ORDER

Order                            21.12.2021
No.

 13.    1.      Mr. Parija, learned advocate appears on behalf of petitioner

wife. He submits, challenge in the writ petition is against order dated

19th January, 2019. The short point, according to him, is that his client

made error in not bringing to notice of the Court below that there was

order passed, for payment of Rs.35,000/- in a proceeding under section

23 of Protection of Women from Domestic Violence Act, 2005. She

also did not bring to notice of the Court that no money was paid

pursuant to such order. Both omissions were inadvertent errors on part

of his client. As such, there should be direction for reconsideration of

her prayer for interim maintenance made to the Court below.

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2. Mr. Bhuyan, learned advocate appears on behalf of opposite

party husband and relies on judgment of Supreme Court in Rajesh vs.

Neha reported in (2021) 2 Supreme Court Cases 324, paragraph-60.

Said paragraph is reproduced below:

"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 awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.

3. Court has perused impugned order. It is clear that petitioner's

prayer for grant of interim maintenance was rejected by reason of the

learned Court below finding there was suppression. Said Court cannot

be faulted. However, petitioner pleads inadvertent error in omitting to

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disclose not only the order but also her contention that nothing was

paid pursuant thereto. In the circumstances, impugned order is set

aside and the application for interim maintenance made by petitioner,

restored. The Family Court will obtain satisfaction on whether

petitioner was paid any amount pursuant to the order made under the

Act of 2005 and if made, same may be factored into quantum of

maintenance that the Court may grant. If it decides not to grant, said

Court will obviously say so.

4. Mr. Bhuyan submits, there be direction upon the learned Court

below to dispose of the civil proceeding. Said Court is requested to

also dispose of it as expeditiously as possible.

5. With above direction, the writ petition is dispose of.

(Arindam Sinha) Judge Sks