IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.381 of 2009 SMT.PRITI DEVI …PETITIONER Versus PRASIDH KUMAR SINGH …OPPOSITE PARTY For the petitioner :Mr. Ranjan Kr. Sinha For o.p.(Husband) :Mr.Shankar Dayal ----------- 09. 07.12.2010 Heard counsel for the parties. Petitioner is the applicant-wife. She is aggrieved by the order dated 21.02.2007, passed by learned Addl. Principal Judge, Family Court, Patna in Maintenance Case No. 88(M)/1998 (Smt. Priti Devi vs. Prasidha Kumar Singh), whereby learned court below after having considered the materials on record did not allow any maintenance amount in favour of the applicant-wife on the ground that she is already being paid a sum of Rs. 3000/- as permanent alimony in a proceeding bearing no.190/98 instituted by the husband (o.p.no.2) seeking divorce. Relevant facts necessary for disposal of the case may first be indicated. Petitioner-wife was neglected by the husband and, as such, she preferred an application vide case No.88(M) of 98 under section 125 of the Code of Criminal Procedure (for short „the Code‟) seeking maintenance. It appears that the husband (o.p.no.2) also filed a suit bearing Matrimonial Case No. 190/98 seeking divorce. The husband appeared in the proceeding under section 125 of the Code and contested the same. Said matter was being heard by a different court wherein 2 certain orders were passed directing the husband to produce the salary chart/slip. Subsequently, it appears that this proceeding was also transferred to the court of learned Addl. Principal Judge, Family Court, where matrimonial suit seeking divorce was pending. Learned Addl. Principal Judge by a proceeding dated 13.12.2006 allowed the prayer of the husband seeking divorce and directed for payment of permanent alimony in the sum of Rs.3000/- per month. It is admitted position that the petitioner-wife was/is in receipt of the aforesaid amount regularly. It further appears that subsequent to the disposal of the aforesaid case (Matrimonial Suit No.190/98), the present matter was taken up and by order impugned learned Principal Judge Family Court, after having found that the applicant-wife was entitled to maintenance, refused to grant the same on the ground that she is already in receipt of permanent alimony. This is what the court below has observed: “It is not desirable for me to allow the petitioner to get maintenance again in this case when I have already said that she is entitled to get the maintenance. The petitioner has already been allowed to get permanent alimony of Rs.3,000/- per month in the divorce case, therefore, no further maintenance allowance again is felt to be ordered again.” Learned counsel for the petitioner while assailing the order, submits that the stand taken by the court below is contrary to law. Referring to a judgment of the Bombay High Court since reported in 1992 CRI. Law Journal, 1262 (Vishwanath Pundik Chavan vs. Nirmala & Ors.), it is 3 submitted that grant of permanent alimony would not be an obstacle in granting maintenance in a proceeding instituted under section 125 of the Code. It is thus the submission of the petitioner that impugned order may be set aside and the matter be remanded back to the court below for fixing adequate maintenance in favour of the petitioner on the finding(s) already recorded by him in the impugned order. Learned counsel for o.p.no.2 (husband), on the other hand, submits that aggrieved by the decree of divorce granted by the court below, the petitioner-wife approached this Court in M.A.No.57/2010 (Smt. Priti Devi vs. Prasidha Kumar Singh & Anr.). The said appeal has already been admitted to hearing and records have been called for. During the pendency of the said appeal, the husband has been directed to pay the amount fixed under the decree and the permanent alimony (Rs.3000/-) is being regularly paid to the wife. Learned counsel for o.p.no.2 has produced before this Court certified copy of the order dated 01.10.2010, passed in M.A.No.57/2010 in order to show that this Court has already granted liberty to the wife to seek enhancement of the permanent alimony during the pendency of the aforesaid appeal by filing an interlocutory application. Said order is taken on record, marked as „X‟. It is thus the submission that the petitioner would be well-advised to approach the appellate court in miscellaneous appeal for enhancement of alimony if she is at all dissatisfied with the quantum of permanent alimony. It is, however, admitted by learned counsel 4 for o.p.no.2(husband) that proposition of law in this regard is settled beyond cavil that grant of permanent alimony will not bar grant of maintenance in a proceeding under section 125 Cr.P.C. Learned counsel for the petitioner submits that petitioner-wife would not be approaching the appellate court in appeal for enhancement of permanent alimony as granted under the impugned decree, Having considered the submissions advanced on behalf of the parties and after going through materials on records, this Court finds that the view taken by learned court below in the impugned order is contrary to law. Reference in this regard may be made to the judgment rendered in the case of Ramesh Chander vs. Veena Kaushal since reported in AIR 1978 SC 1807. In that view of the matter, this Court is satisfied that impugned order requires interference. Consequently, the order dated 21.02.2007, passed in Maintenance Case No.88 (M)/1998 by learned Addl. Principal Judge, Family Court, and Patna is quashed and set aside. The matter goes on remand to the learned court below for consideration of the amount of maintenance to be granted in favour of the applicant-wife on findings already recorded by the said court. The issue of grant of litigation cost is also left open to be raised/agitated by the parties. hr ( Kishore K. Mandal )