Case Note & Summary
This criminal revision application arose from two maintenance proceedings between a husband (applicant) and wife and children (respondents). The applicant challenged an appellate order that had upheld interim maintenance awarded under the Protection of Women from Domestic Violence Act, 2005, contending it should be adjusted against maintenance already awarded by the Family Court. On 19 June 2019, the Judge, Family Court, Pune, granted maintenance of Rs.7,000 per month each to the respondent-wife and two children, totaling Rs.21,000 per month, from the date of application until disposal of the main petition. About a month later, on 24 July 2019, the Judicial Magistrate First Class, Pune, awarded interim maintenance of Rs.20,000 per month collectively to the wife and two minor children under Section 20 read with Section 23 of the D.V. Act. Aggrieved by the Magistrate's order, the applicant husband filed Criminal Appeal No.405/2019 under Section 29 of the D.V. Act. The Additional Sessions Judge, Pune, dismissed that appeal on 1 January 2020, holding that power to award maintenance under the D.V. Act is in addition to an order under Section 125 CrPC or any other law and that it was not subject to adjustment or set-off. The husband then filed the present revision under Section 397 read with Section 401 of the Code of Criminal Procedure. The High Court framed two questions: whether maintenance granted under Section 20(1)(d) of the D.V. Act is in addition to an order under Section 125 CrPC or any other law; and whether, while deciding the quantum of maintenance under Section 12 of the D.V. Act, the court should take into account maintenance awarded in previous proceedings. The applicant's counsel relied on Sudeep Chaudhary v. Radha Chaudhary, Sanjay Pundilkrao Niranjane v. Swati Sanjay Niranjane, and Rajnesh v. Neha & Anr., arguing that maintenance awarded in matrimonial proceedings or under Section 125 CrPC must be adjustable against maintenance granted under the D.V. Act. He contended the Sessions Judge erred in declining adjustment and sought modification of the Magistrate's order. The respondent's counsel argued that a conjoint reading of Section 20(1)(d) and Section 36 of the D.V. Act shows maintenance under the D.V. Act is in addition to other reliefs, and adjustment would defeat the Act's object. He also submitted that Rajnesh was decided after the appellate order and could not be applied. The High Court referred to Vishal v. Aparna, where it was held that Section 26(3) of the D.V. Act obliges the aggrieved person to inform the Magistrate of relief obtained in other proceedings, and the Magistrate must consider similar relief. It noted that the Supreme Court in Rajnesh v. Neha settled that in subsequent maintenance proceedings, the court must consider maintenance already awarded and grant adjustment or set-off. Although the D.V. Act proceedings are independent, the court cannot ignore prior maintenance awards. The court observed that the Family Court had awarded Rs.21,000 per month, and a month later the Magistrate awarded Rs.20,000 per month without considering the earlier order. The law laid down in Vishal was holding the field but was not brought to the appellate court's notice. The High Court set aside the impugned order passed by the Additional Sessions Judge in Criminal Appeal No.405/2019 and directed the Judicial Magistrate First Class, Pune, to suitably modify the order dated 24 July 2019 in M.A. No.5223/2017, taking into consideration the maintenance already awarded by the Family Court in Petition No.A-371 of 2018. The revision was allowed and rule made absolute.
Headnote
A) Family Law - Maintenance - Overlapping Maintenance Proceedings - Protection of Women from Domestic Violence Act, 2005, Sections 12, 20(1)(d), 26(3), 36; Code of Criminal Procedure, 1973, Section 125; Hindu Marriage Act, 1955, Section 24 - The court examined whether maintenance granted under the D.V. Act was in addition to maintenance under other laws and whether adjustment or set-off was required. It held that in a subsequent maintenance proceeding, the court must take into consideration maintenance already awarded in previous proceedings and grant adjustment or set-off of that amount, and the appellate court erred in holding that D.V. Act maintenance was not subject to adjustment. Held, the impugned order was set aside and the Magistrate was directed to modify the D.V. Act maintenance order accordingly (Paras 5-14). B) Criminal Procedure - Revision - Scope of Revisional Jurisdiction - Code of Criminal Procedure, 1973, Sections 397 and 401 - The High Court exercised revisional jurisdiction to correct the Sessions Judge's erroneous interpretation of Sections 20(1)(d) and 36 of the D.V. Act. Held, the revision was maintainable and the order passed by the Additional Sessions Judge dismissing the appeal was set aside (Paras 3, 13-14). C) Evidence/Procedure - Statutory Duty to Disclose Prior Proceedings - Protection of Women from Domestic Violence Act, 2005, Section 26(3) - The court relied on Vishal v. Aparna and Section 26(3) to hold that an aggrieved person must inform the Magistrate if she has obtained any relief in other proceedings; the Magistrate cannot ignore prior maintenance awards while granting relief under the D.V. Act. Held, this duty ensures adjustment or set-off of prior maintenance (Paras 10-12). D) Maintenance - Overlapping Jurisdiction - Applicability of Supreme Court Direction in Rajnesh v. Neha - Protection of Women from Domestic Violence Act, 2005, Section 20(1)(d); Code of Criminal Procedure, 1973, Section 125 - The court held that the law laid down in Rajnesh v. Neha settled the controversy as regards maintenance awarded under different Acts, including adjustment of previous maintenance in subsequent proceedings; even though Rajnesh was delivered after the appellate order, the principle was applied. Held, the subsequent maintenance order must be modified to give set-off (Paras 11-13).
Issue of Consideration
Whether the maintenance granted under Section 20(1)(d) of the D.V. Act is in addition to an order under Section 125 of the Code of Criminal Procedure or any other law for the time being in force; Whether, while deciding the quantum of maintenance under Section 12 of the D.V. Act, Court shall take into account, maintenance awarded in the previous proceedings instituted between the parties.
Final Decision
Revision allowed. Impugned order in Criminal Appeal No.405/2019 passed by Additional Sessions Judge, Pune set aside. Learned Judicial Magistrate First Class, Pune directed to suitably modify the order dated 24 July 2019 in M.A. No.5223/2017 taking into consideration the maintenance already awarded by Judge, Family Court, Pune in Petition No.A-371 of 2018. Rule made absolute.
Law Points
- maintenance under D.V. Act is subject to adjustment against prior maintenance orders
- subsequent maintenance proceeding must consider previous maintenance and grant set-off
- Section 26(3) D.V. Act imposes duty to disclose prior relief
- Section 20(1)(d) D.V. Act not an absolute bar to adjustment
- Rajnesh and Vishal followed
