Alok Vs. Pushpabai

- madhya pradesh uchcha nyayalaya (khand nyaypeeth ko appeal) adhiniyam (14 of 2006)section 2 & m.p. general clauses act, 1957, section 12: [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] appeal to division bench against judgment of single judge - application for restoration/revival of letters patent appeal under clause 10 - held, the legal effect of the 1981 adhiniyam was that with effect from 1st july 1981, all appeals under clause 10 of the letters patent were abolished except appeals which were pending before high court on date immediately preceding date of commencement of 1981 adhiniyam on 1st july 1981. it will be clear from sub-section 92) of section 1 of the 2005 adhiniyam that the 2005 adhiniyam was to come into force with retrospective effect from first day of july, 1981 i.e., with effect from the date from which the appeals under clause 10 of the letters patent were abolished by the 1981 adhiniyam. it will be further clear from section 2 of the 2005 adhiniyam that under the 2005 adhiniyam, appeal was provided for only from a judgment and order passed by a single judge in exercise of original jurisdiction under article 226 of the constitution of india to a division bench comprising of two judges of the high court and no appeal was provided for from the judgment and order passed by a single judge of high court in exercise of any other jurisdiction of the high court. it will also be clear from section 4 of the 2005 adhiniyam that sub-section (1) of section 4 repealed the 1981 adhiniyam. therefore by the repeal of the 1981 adhiniyam by section 4(1) of 2005 adhiniyam, appeals under clause 10 of the letters patent against judgment and decree passed by the single judge in exercise of its jurisdiction under section 96 of the code of civil procedure would not be revived as 2005 adhiniyam does not provide for any such revival. a reading of section 12 of the m.p. general clauses act, 1957, would show that the legislature must expressly state that the repealed act..........of the evidence adduced by both the parties, decreed the suit and granted judicial separation and permanent alimony of rs. 200/- per month to the respondent.5. the appeal proceeded ex-parte against the respondent as she did not appear, despite service of notice.6. counsel for the appellant has contended that the appellant has been paying rs. 350/- to the respondent as maintenance under section 125 of the code of criminal procedure. the appellant receives a meagre salary of rs. 400/- and there are four dependents on him. therefore, the appellant has no means to pay permanent alimony to the respondent. the parents of the respondent have sufficient means to maintain the respondent. this aspect of the case was not considered by the learned trial court and the learned trial court has wrongly decreed the suit.7. mr. thakur, counsel for the appellant, has very fairly conceded that there is no document to show that the appellant has been paying rs. 350/- to the respondent as a maintenance under section 125 of the code of criminal procedure.8. admittedly the respondent is the lawfully wedded wife of the appellant. it is also admitted that the respondent has been turned out from her matrimonial home and there is no relationship between them as husband and wife from the year 1983. it is further admitted that the appellant has married another lady during the subsistence of the marriage with the respondent.9. it is well settled that taking a second wife by the husband during subsistence of the first marriage amounts to cruelty to the wife and she is entitled to live separately and to get permanent alimony.10. on careful consideration of the case and the evidence available on record, i do not find any reason to interfere with the judgment and decree under appeal. there is no merit in this appeal. it is dismissed accordingly.