Case Note & Summary
In this criminal revision, the Bombay High Court (Aurangabad Bench) examined whether interim maintenance paid under the Protection of Women from Domestic Violence Act, 2005 (DV Act) could be adjusted against arrears of maintenance awarded under Section 125 of the Code of Criminal Procedure, 1973 (CrPC). The revision applicant (husband) had been directed to pay maintenance of Rs.3000/ - and Rs.2000/ - per month to his wife and minor daughter under Section 125 CrPC, while in a separate proceeding under the DV Act, the same court had ordered interim maintenance of Rs.2000/ - and Rs.1000/ - per month. When the wife sought recovery of arrears of the Section 125 maintenance, the husband filed an application requesting adjustment of the interim maintenance already paid under the DV Act. The Family Court, Latur, rejected this application, holding that the two proceedings were independent and that the husband had not challenged the DV Act order. The husband then filed the present revision, contending that the Supreme Court's decision in Sudeep Chaudhari v. Radha Chaudhari permitted adjustment of maintenance awards across different proceedings. The wife opposed this, relying on past rulings that emphasized the independent nature of DV Act remedies. The High Court examined Sections 20(1)(d), 26 and 36 of the DV Act, and Sections 125 and 128 CrPC. It noted that while Section 20(1)(d) allows maintenance under DV Act to be granted in addition to any order under Section 125 CrPC, Section 26(3) imposes a duty on the aggrieved person to inform the court of any prior relief obtained in other proceedings. The court reasoned that this duty is intended to enable the Magistrate to take a holistic view and avoid double payment; ignoring an existing maintenance order would be unjust and could lead to excessive recovery. It therefore held that the JMFC or Family Court, while determining the quantum under Section 125, cannot ignore maintenance already awarded under the DV Act, and that the amount of interim maintenance paid under the DV Act must be adjusted against the final maintenance under Section 125 in execution proceedings. Consequently, the High Court allowed the revision, set aside the Family Court’s order dated 02.08.2017, and directed that the Rs.33,000 - paid as interim maintenance under the DV Act be adjusted against the arrears of maintenance under Section 125 CrPC.
Headnote
A) Maintenance - Adjustment of Maintenance Orders - Interim maintenance under DV Act is adjustable against maintenance awarded under Section 125 CrPC - Protection of Women from Domestic Violence Act, 2005, Sections 20, 23, 26, 36; Code of Criminal Procedure, 1973, Sections 125, 128 - The High Court held that while DV Act proceedings are additional and independent, the court determining maintenance under Section 125 CrPC cannot ignore maintenance already awarded under DV Act; it must consider such prior relief to ensure a fair and non-excessive amount. The amount of interim maintenance paid under DV Act is liable to be adjusted against the final maintenance awarded under Section 125 CrPC in execution proceedings. Held that the Family Court erred in rejecting the application for adjustment without considering the necessity to account for the prior maintenance order. (Paras 11-14)
Issue of Consideration
Whether interim monthly maintenance directed to be paid under Section 23 read with Section 20(1)(d) of the Protection of Women from Domestic Violence Act, 2005 can be adjusted against the amount of maintenance awarded under Section 125 of the Code of Criminal Procedure, 1973?
Final Decision
Revision allowed. The impugned order of the Family Court, Latur dated 02.08.2017 rejecting the applicant's application for adjustment is set aside. The amount of Rs.33,000 paid by the applicant as interim maintenance under the DV Act shall be adjusted against the arrears of maintenance awarded under Section 125 CrPC.
Law Points
- interim maintenance under DV Act is adjustable against maintenance under Section 125 CrPC
- Magistrate must consider any prior maintenance order to avoid double payment
- Section 26(3) DV Act requires disclosure of existing relief
- maintenance under DV Act can be in addition but adjustment is permissible to prevent excessive burden
- execution court under Section 128 CrPC can adjust interim maintenance paid
