Case Note & Summary
The applicant, Manishaben Vijaybhai Shah, married respondent No. 2 on 11.12.2000 and resided at her matrimonial home in Bhavnagar. She alleged she was driven out on 01.08.2007 and has since lived with her parents in Ahmedabad. She filed proceedings under Section 12 of the Domestic Violence Act (Criminal Misc. Application No. 352 of 2016) before the JMFC, Ahmedabad (Rural), which directed respondent No. 2 to pay Rs. 8,000 per month. She also filed an application under Section 125 CrPC (Criminal Misc. Application No. 214 of 2016) before the Family Court, Ahmedabad. The Family Court partly allowed the application on 09.01.2020, directing respondent No. 2 to pay Rs. 15,000 per month as maintenance from the date of application (25.01.2016). However, it further directed that the amount voluntarily paid by respondent No. 2 prior to filing of the application shall be given set-off. The applicant challenged this set-off direction in revision. The High Court held that the direction for set-off of prior voluntary payments is contrary to law, as maintenance under Section 125 CrPC is awarded from the date of application and such payments cannot be deducted. The court allowed the revision application, quashed the set-off direction, and directed respondent No. 2 to pay the arrears of maintenance without any set-off.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Set-off of prior voluntary payments - The Family Court's direction to set off amounts voluntarily paid by the husband prior to the filing of the maintenance application against the awarded maintenance is contrary to law, as maintenance under Section 125 CrPC is awarded from the date of application and prior voluntary payments cannot be deducted. (Paras 4-5)
Issue of Consideration
Whether the Family Court's direction to set off voluntary payments made by the husband prior to filing of the maintenance application against the awarded maintenance is legally sustainable under Section 125 CrPC
Final Decision
The revision application is allowed. The impugned judgment and award dated 09.01.2020 passed by the Family Court, Ahmedabad in Criminal Misc. Application No. 214 of 2016 is modified to the extent that direction no. 3 regarding set-off of prior voluntary payments is quashed and set aside. Respondent No. 2 is directed to pay the arrears of maintenance without any set-off.
Law Points
- Maintenance under Section 125 CrPC cannot be set off against voluntary payments made prior to filing of application
- Maintenance is awarded from date of application
- Voluntary payments prior to application are not deductible
