Smt. Nurabati Barik vs Hemanta Barik
2025 Latest Caselaw 3833 Ori

Citation : 2025 Latest Caselaw 3833 Ori
Judgement Date : 11 February, 2025

Orissa High Court

Smt. Nurabati Barik vs Hemanta Barik on 11 February, 2025

Author: B.P. Routray

Bench: B.P. Routray, Chittaranjan Dash

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          : Mr. J.R. Deo, Advocate

                                               For Respondent         : None


                                                 CORAM: JUSTICE B.P. ROUTRAY
                                                        JUSTICE CHITTARANJAN DASH
                                                                 JUDGMENT

th 11 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.

Signed by: BASANTA KUMAR BARIK

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

Signed by: BASANTA KUMAR BARIK

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

Signed by: BASANTA KUMAR BARIK

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

Signed by: BASANTA KUMAR BARIK