Thursday, 14 April 2016

When wife is entitled to get additional maintenance under DV Act than granted under S 125 of crpc?

 If the wife wants to modify an order made under Section 125 of the
Code, seeking enhancement of the maintenance amount, the only option  
available for her is to file a petition under Section 127 of the Code before
the same Magistrate, who passed the order. In other words, the order made
under Section 125 of the Code can be modified or varied only by the same
Magistrate, who passed the earlier order. An order made under Section 125 of
the Code for maintenance by one Magistrate cannot be varied or modified by a
Magistrate acting under Section 20 of the Act. Therefore, it should be noted
that a monetary relief granted towards maintenance under Section 20 of the
Act may be not in modification of the previous order for maintenance passed
under Section 125 of the Code, but it may be in addition to the said order
for maintenance passed under Section 125 of the Code. If an order has already
been made under Section 125 of the Code for maintenance, there can be no 
doubt that the wife had proved either neglect or refusal on the part of the
husband. If the wife wants an order under Section 20 of the Act, in addition
to the order under Section 125 of the Code, she has to prove fresh acts of
the husband constituting the domestic violence subsequent to the passing of
the earlier order under Section 125 of the Code. She cannot rely on the acts
of the husband constituting domestic violence, which happened prior to the
passing of the order under Section 125 of the Code. For getting an order
under Section 20 of the Act, in addition to the earlier order  under Section
125 of the Code, the wife should plead and prove that subsequent to the said
order made under Section 125 of the Code, the husband had caused domestic  
violence and on account of the same, she had suffered loss and thus, she is
entitled for additional amount as maintenance. Thus, it is manifestly clear
that a previous order made under Section 125 of the Code is not a bar for an
aggrieved wife to approach a Magistrate under Section 20 of the Act, for
monetary relief as an additional relief of maintenance, provided subsequent
to the passing of the earlier order under  under Section 125 of the Code, the
husband has committed domestic violence resulting loss to the wife.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED:   28.07.2015  

CORAM   
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU             

CRL.RC.(MD)No.453 of 2014   
and 
M.P.No.1 of 2014 

B.Prakash                                       : Petitioner
                        
Vs.

1.Deepa 
2.Minor Harini                                  : Respondents 
Citation; 2016 ALLMR (CRI) JOURNAL168


        The petitioner is the husband of the first respondent and the father of
the second respondent. The respondent filed M.C.No.107 of 2008, before the
learned Chief Judicial Magistrate, Thiruchirappalli, claiming maintenance
under Section 125 of the Code of Criminal Procedure, [hereinafter referred to
as "the Act"]. The learned Chief Judicial Magistrate, by order dated
19.06.2009, passed an order, directing the petitioner to pay a sum of
Rs.500/- per month to each respondent herein towards their maintenance. As
against the same, the respondents filed Crl.Rc.No.88 of 2009. By order dated
23.05.2011, the learned Additional District and Sessions Judge,
Tiruchirappalli, modified the order of the learned Chief Judicial Magistrate
and directed the petitioner to pay a sum of Rs.2,500/- per month to each
respondent herein towards their maintenance. The petitioner claims that he
has been paying the said amount without any default. While so, the respondent
filed M.C.No.158 of 2009, on 20.01.2009, under Section 20 r/w Section 12 of
the Protection of Women from Domestic Violence Act, 2005, [hereinafter
referred to as ?the Act?], claiming various reliefs under the said Act,
including monetary relief towards their maintenance. The learned Judicial
Magistrate, by order dated 31.01.2012, directed the petitioner to pay a sum
of Rs.2,000/- per month to the first respondent and a sum of Rs.1,500/- to
the second respondent towards their maintenance. Challenging the said order,
the petitioner filed Crl.A.No.17 of 2012. The learned Second Additional
District and Sessions Judge, by order dated 31.01.2014, confirmed the order
of the learned Judicial Magistrate, directing the payment of maintenance. The
said order is under challenge in this Criminal Revision Case.

        2. I have heard Mr.N.Mohideen Basha, the learned counsel appearing for
the petitioner, Mr.T.Lajapathi Roy, the learned Amicus Curiae, appointed by
this Court to argue the case on behalf of the respondents and perused the
records carefully.      

        3. The foremost contention of the learned counsel for the petitioner is
that a Magistrate, acting under Section 20 of the Act, has got power to grant
maintenance under Section 125 of the Code. 
According to him, Section 125 of the Code and Section 20 of the Act serve two
different purposes and orders could be passed under these provisions on two
different considerations. These two provisions, according to the learned
counsel, are mutually exclusive.

        4. But, Mr.T.Lajapathi Roy, the learned Amicus Curiae appointed by this
Court, would submit that under Section 20(1)(d) of the Act, a Judicial
Magistrate is fully empowered to pass an order for maintenance also. The
learned counsel would further submit that Section 20 of the Act and Section
125 of the Code are not mutually exclusive and they are complementary to each
other. He would further submit that an aggrieved party has got option either
to go before the Magistrate under Section 125 of the Code or under Section 20
of the Act, claiming maintenance.

        5. Before entering into any further discussion, let us have a quick
look into the relevant provisions.      
        
        6. Section 125 of the Code is reads as follows:-
        "125. Order for maintenance of wives, children and parents.
        (1) If any person leaving sufficient means neglects or refuses to
maintain-
        (a) His wife, unable to maintain herself, or
        
        (b) His legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or
        
        (c) His legitimate or illegitimate child (not being a married daughter)
who has attained majority, where such child is, by reason of any physical or
mental abnormality or injury unable to maintain itself, or

        (d) His father or mother, unable to maintain himself or herself,
        A Magistrate of? the first class may, upon proof of such neglect or
refusal, order such person to make a monthly allowance for the maintenance of
his wife or such child, father or mother, at such monthly rate not exceeding
five hundred rupees in the whole, as such magistrate thinks fit, and to pay
the same to such person as the Magistrate may from time to time direct:

        Provided that the Magistrate may order the father of a minor female
child referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor
female child, if married, is not possessed of? sufficient means.

Explanation. For the purposes of this Chapter.

        (a) Minor means a person who, under the provisions of the Indian
Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;

        (b) ?Wife? includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.
        (2) Such allowance shall be payable front the date of the order, or, if
so ordered, from the due of the application for maintenance.

        (3) Person so ordered fails without sufficient cause to company with
the order, any such Magistrate may, for every breach of the order, issue a
warrant for levying the amount due in the manner provided for whole, or any
part of each month?s allowance remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one month or until
payment if sooner made; 

        Provided that no warrant shall be issued for the recovery of any amount
due under this section unless application be made to the court to levy such
amount within a period of one year from the dare on which it became due:

        Provided further that if such person offers to maintain his wife on
condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an 
order under this section notwithstanding such offer, if he is satisfied that
there is just ground for so doing.

        Explanation. If a husband has contracted marriage with another woman or
keeps a mistress, it shall be considered to just ground for his wife?s
refusal to live with him.

        (4) No wife shall be entitled to receive an allowance from her husband
under this section she is living in adultery, or if, without any sufficient
reason, she refuses to live with her, husband, or if they are living
separately by mutual consent.

        (5) On proof that any wife in whose favour an order has been made under
this section is living in adultery, or that without sufficient reason she
refuses to, live with her, husband, or that they are living separately by
mutual consent, the Magistrate shall cancel the order".
        7. Section 20 of the Act reads as follows:-
        "20. Monetary reliefs.- (1) While disposing of an application under sub
section (1) of section 12, the Magistrate may direct the respondent to pay
monetary relief to meet the expenses incurred and losses suffered by the
aggrieved person and any child of the aggrieved person as a result of the
domestic violence and such relief may include, but not limited to,-
        (a) the loss of earnings;
        (b) the medical expenses;
        (c) the loss caused due to the destruction, damage or removal of any
property from the control of the aggrieved person; and
        (d) the maintenance for the aggrieved person as well as her children,
if any, including an order under or in addition to an order of maintenance
under Section 125 of the Code of Criminal Procedure, 1973, (2 of 1974) or any
other law for the time being in force.
        (2) The monetary relief granted under this section shall be adequate,
fair and reasonable and consistent with the standard of living to which the
aggrieved person is accustomed. 
        (3) The Magistrate shall have the power to order an appropriate lump
sum payment or monthly payments of maintenance, as the nature and   
circumstances of the case may require.
        (4). The Magistrate shall send a copy of the order for monetary relief
made under sub-section (1) to the parties to the application and to the in
charge of the police station within local limits of whose jurisdiction the
respondent resides.
        (5) The respondent shall pay the monetary relief granted to the
aggrieved person within the period specified in the order under sub-section
(1).
        6. Upon the failure on the part of the respondent to make payment in
terms of the order under sub-section (1), the Magistrate may direct the
employer or a debtor of the respondent, to directly pay to the aggrieved
person or to deposit with the Court a portion of the wages or salaries or
debt due to or accrued to the credit of the respondent, which amount may be
adjusted towards the monetary relief payable by the respondent".

        8. A cursory reading of Section 125 of the Code would go to show that a
wife is entitled for maintenance upon proof that the husband has neglected or
refused to maintain her and further that she is unable to maintain herself.
If these three facts are proved, then, she is entitled for an order for
maintenance against her husband. 
        
        9. If we look into Section 20 of the Act, sub-section (1) states that
an aggrieved is entitled for monetary relief. The said monetary relief could
be ordered to meet the expenses incurred by the loss suffered by the
aggrieved person. The term "monetary relief" has been defined in Section 2(k)
of the Act, which reads as follows:-
        "monetary relief" means the compensation which the Magistrate may order 
the respondent to pay to the aggrieved person, at any stage during the
hearing of an application seeking any relief under this Act, to meet the
expenses incurred and the losses suffered by the aggrieved person as a result
of the domestic violence."

        10. The term "aggrieved" is defined in Section 2(a) of the Act, which
reads as follows:-
        "aggrieved person" means any woman who is, or has been, in a domestic  
relationship with the respondent and who alleges to have been subjected to
any act of domestic violence by the respondent."

        11. In order to get an order for monetary relief, under Section 20 of
the Act, first of all, the claimant should be an aggrieved person as a result
of the domestic violence. The term "domestic violence" is defined in Section
2(g) of the Act, which states that the domestic violence has the same meaning
as assigned to it in Section 3 of the Act.

        12. Section 3 of the Act reads as follows:-
        "3. Definition of domestic violence.- For the purposes of this Act, any
act omission or commission or conduct of the respondent shall constitute
domestic violence in case it-
        (a) harms or injuries or endangers the health, safety, life, limp or
well-being whether mental or physical, of the aggrieved person or tends to do
so and includes causing physical abuse, sexual, verbal and emotional abuse
and economic abuse; or 
        (b) harasses, harms, injuries or endangers the aggrieved person with a
view to coerce her or any other person related to her to meet any unlawful
demand for any dowry or other property or valuable security; or
        (c) has the effect of threatening the aggrieved person or any person
related to her by any conduct mentioned in clause (a) or clause (b); or
        (d) otherwise injuries or causes harm, whether physical or mental, to
the aggrieved person".

        13. Now, the question is as to whether the wife, who has been neglected
by her husband or refused to be maintained, is aggrieved person, as defined
in Section 2(a) of the Act. In other words, whether such neglect or refusal
by the husband would amount to domestic violence as defined in Section 3 of
the Act.

        14. As per the definition of the term "domestic violence", economic
abuse shall also constitute the domestic violence. The term "economic abuse"
has been defined by way of Explanation (1)(iv) of Section 3 of the Act, which
reads as follows:-
        "(a) deprivation of all or any economic or financial resources to which
the aggrieved person is entitled under any law or custom whether payable
under an order of a Court or otherwise or which the aggrieved person requires
out of necessity including, but not limited, to, household necessities for
the aggrieved person and her children, if any, stridhan, property, jointly or
separately owned by the aggrieved person, payment of rental related to the
shared household and maintenance.  
        (b).disposal of household effects, any alienation of assets whether
movable or immovable, valuables, shares, securities, bonds and the like or
other property by virtue of the domestic relationship or which may be
reasonably required by the aggrieved person or her children or her stridhan
or any other property jointly or separately held by the aggrieved person; and
        (c)prohibition or restriction to continued access to resources or
facilities which the aggrieved person is entitled to use or enjoy by virtue
of the domestic relationship including access to the shared household."
        
        15. For the wife, maintenance paid by way of maintenance amount payable 
by the husband is a financial resource for her. Similarly, the denial of
household necessities of the wife is also an economic abuse. The husband is
bound to maintain the wife. If he neglects or fails to maintain, the wife is
deprivation of her financial resources to maintain herself and to meet her
household necessities. Denial of either of these two would amount to economic
abuse. Such economic abuse will amount to domestic violence. The wife, who is
the victim of such domestic violence, is, therefore, entitled for monetary
relief under Section 20 of the Act.

        16. The monetary relief to be ordered under Section 20 of the Act,
should be to meet the expenses incurred and the loss suffered by the
aggrieved as a result of the domestic violence. The loss suffered is nothing
but the loss of financial resources to be paid by the husband towards her
maintenance. Thus, if the husband neglects the wife or refuses to maintain
her, the said act of the husband surely amounts to domestic violence and
therefore, the aggrieved wife is entitled for monetary relief and such
monetary relief may include, but not limited to the maintenance for the wife
as well as to her children. The monetary relief paid by way of maintenance
can be an order under Section 125 of the Code, which is evident from a plain
reading of Section 20(1)(d) of the Act. Thus, it is crystal clear that a
wife, who has suffered domestic violence by the act of the husband in
neglecting or refusing to maintain her is entitled to approach the Judicial
Magistrate seeking an order under under Section 125 of the Code, which itself
is a monetary relief under Section 20 of the Act. Any such maintenance order
made under Section 20 of the Act is appealable to the Court of Sessions under
Section 29 of the Act.

        17. The next question, which arises for consideration, is as to whether
an order for maintenance made by a Magistrate under Section 125 of the Code,
shall be a bar for a Magistrate acting under Section 20 of the Act to pass an
order for maintenance. In this regard, again, we should have a look into the
Section 20(1)(d) of the Act, which states that the monetary relief granted
under Section 20 of the Act may include an order for maintenance, in addition
to an order of maintenance under Section 125 of the Code. Thus, it is crystal
clear that a previous order for maintenance passed by a Magistrate under
Section 125 of the Code, is not a bar for a Magistrate acting under Section
20 of the Act to pass yet another order granting monetary relief under
Section 20 of the Act, by way of maintenance under Section 125 of the Code.
Here, it needs to be noted that the subsequent order made under Section 20 of
the Act is not in any way in modification or variation of the earlier order
made under Section 125 of the Code by a Magistrate. 
        18. If the wife wants to modify an order made under Section 125 of the
Code, seeking enhancement of the maintenance amount, the only option  
available for her is to file a petition under Section 127 of the Code before
the same Magistrate, who passed the order. In other words, the order made
under Section 125 of the Code can be modified or varied only by the same
Magistrate, who passed the earlier order. An order made under Section 125 of
the Code for maintenance by one Magistrate cannot be varied or modified by a
Magistrate acting under Section 20 of the Act. Therefore, it should be noted
that a monetary relief granted towards maintenance under Section 20 of the
Act may be not in modification of the previous order for maintenance passed
under Section 125 of the Code, but it may be in addition to the said order
for maintenance passed under Section 125 of the Code. If an order has already
been made under Section 125 of the Code for maintenance, there can be no 
doubt that the wife had proved either neglect or refusal on the part of the
husband. If the wife wants an order under Section 20 of the Act, in addition
to the order under Section 125 of the Code, she has to prove fresh acts of
the husband constituting the domestic violence subsequent to the passing of
the earlier order under Section 125 of the Code. She cannot rely on the acts
of the husband constituting domestic violence, which happened prior to the
passing of the order under Section 125 of the Code. For getting an order
under Section 20 of the Act, in addition to the earlier order  under Section
125 of the Code, the wife should plead and prove that subsequent to the said
order made under Section 125 of the Code, the husband had caused domestic  
violence and on account of the same, she had suffered loss and thus, she is
entitled for additional amount as maintenance. Thus, it is manifestly clear
that a previous order made under Section 125 of the Code is not a bar for an
aggrieved wife to approach a Magistrate under Section 20 of the Act, for
monetary relief as an additional relief of maintenance, provided subsequent
to the passing of the earlier order under  under Section 125 of the Code, the
husband has committed domestic violence resulting loss to the wife.
        
        19. In this regard, we may also take note of Section 36 of the Act,
which states that the provisions of this Act shall be in addition to and in
derogation of the provisions of any other law, for the time being in force,
which means Section 20 of the Act is not in derogation of Section 125 of the
Code. It also needs to be clarified that as and when there is neglect or
refusal on the part of the husband to maintain the wife, she has got option
either to seek remedy under Section 125 of the Code or under Section 20 of
the Act. If she elects to make a claim under Section 125 of the Code, on the
same cause of action, she cannot, simultaneously, make a claim under Section 
20 of the Act and vice versa. On the said cause of action, if the Magistrate
dismisses the claim made by the petitioner under Section 125 of the Code,
then, on the same set of allegation and cause of action, the wife cannot
change her course and make a claim under Section 20 of the Act. Similarly,
having elected to approach the Court under Section 20 of the Act, after
having failed in her attempt to get maintenance, on the same set of
allegations and cause of action, she cannot make a fresh allegation under
Section 125 of the Code for maintenance. Having chosen one forum, if the
aggrieved wants to approach the other forum, such approach could be made only 
on fresh grounds, which occurred subsequent to the order passed by the other
forum.

        20. In the case on hand, the respondents filed M.C.No.101 of 2008, on
the file of the learned Chief Judicial Magistrate, Trichirappalli, on
19.06.2009. The revision filed by the petitioner for enhancement of the
maintenance amount was disposed of by the learned Second Additional District
and Sessions Judge, Trichirappalli, on 23.05.2011. Thus, the said
proceedings, under Section 125 of the Code, was under contest from the year
2008 till 23.05.2011. When the same was so pending, the petitioner,
simultaneously, filed M.C.No.158 of 2009, before the learned Judicial
Magistrate, No.II, Trichirappalli, under Section 20 of the Act, on
20.01.2009, i.e., even before the order of the learned Chief Judicial
Magistrate in M.C.No.101 of 2008. Thus, the respondents had approached two 
different forums, viz., the learned Chief Judicial Magistrate,
Trichirappalli, as well as the learned Judicial Magistrate, No.II,
Trichirappalli, under Section 125 of the Code as well as under Section 20 of
the Act, on the same set of allegations and cause of action. This, in my
considered view, is not legally permissible and the same would amount to
clear abuse of process of Court. The order under challenge was not made on
any fresh grounds constituting the domestic violence, which occurred
subsequent to M.C.No.101 of 2008. 

        21. In such view of the matter, the impugned order is liable to be set
aside. If the respondents have got reasons to seek modification of the
earlier order made under Section 125 of the Code, it is always open for them
to approach the very same Magistrate under Section 127 of the Code for such
modification so as to have the maintenance amount enhanced or if the
respondents have got any fresh grounds, constituting the domestic violence,
which happened subsequent to the passing of the order under Section 125 of
the Code, they are at liberty to approach the Magistrate under Section 20 of
the Act to get an order for maintenance in addition to an order of
maintenance already passed under Section 125 of the Code. 

        22. In view of the above, this Criminal Revision Case is allowed and
the order of the learned Judicial Magistrate No.II, Thiruchirappalli, made in
M.C.No.158 of 2009, dated 31.01.2012, is set aside, however, with liberty, as
indicated above. Consequently, connected Miscellaneous Petition is closed.

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