Saturday, 23 June 2018

Whether interim maintenance granted under DV Act can be adjusted against maintenance granted U/S 125 of CRPC?

When the interim order came to be passed
under the DV Act, there was no other order in
existence awarding any maintenance to the wife
and the daughter. Therefore, it cannot be said
that the amount, as has been awarded by way of
interim maintenance under the DV Act, is in

addition to the amount of maintenance awarded
under any other provision of law. Had there been
any earlier order in existence awarding some
maintenance to the respondents and in spite of
the said order, if the learned Magistrate dealing
with the proceeding under the DV Act, by
recording reasons, would have granted some more
amount by way of maintenance in addition to the
maintenance already granted in favour of the
aggrieved person, the position would have been
different. In such a case, the adjustment could
not have been permissible. In the instant
matter, since the interim maintenance awarded
under the DV Act is not in addition to the amount
already granted in any other civil or criminal
proceeding, the same is certainly liable to be
adjusted against the amount of maintenance
finally awarded under Section 125 of Cr.P.C. even
though the husband has not challenged the said
order before any higher court.

 It is directed
that while computing the amount of maintenance
payable to the respondents for the period from

27.8.2014 to 26.8.2015, as per the order passed
under Section 125 of Cr.P.C., the learned Judge
of the Family Court shall take into account the
amount of maintenance paid by the husband under
the DV Act for the aforesaid period and adjust
the said amount against the amount payable under
Section 125 of Cr.P.C.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.203 OF 2017

Vishal S/o. Rajesaheb Gore  Vs  Sow.Aparna W/o Vishal Gore


CORAM : P.R.BORA, J.

DATED : 1 3 t h June,201 8




1) Heard finally with consent of the

learned counsel appearing for the parties.
2) The question which falls for
consideration in the present criminal revision
application is, 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.
3) The respondent herein had filed two
different proceedings against the present
applicant; one under Section 125 of Code of
Criminal Procedure (for short, Cr.P.C.) and
another under the provisions of Protection of
Women from Domestic Violence Act, 2005 (for short
DV Act). In an application under Section 125 of
Cr.P.C. learned J.M.F.C. has awarded maintenance
at the rate of Rs.3,000/to
respondent no.1 and
Rs.2,000/to
respondent no.2 from the date of

application. Whereas in the proceeding under DV
Act, by way of interim maintenance, the JMFC
Court has directed present applicant to pay an
amount of Rs.2,000/per
month to respondent no.1
and Rs.1,000/per
month to respondent no.2.
4) The respondents filed an application
seeking recovery of the amount of Rs.61,000/from
the applicant towards arrears of maintenance
of the period from 27.08.2014 to 27.08.2015
awarded under Section 125 of Cr.P.C. Applicant
filed an application in the said execution
proceeding praying that, the amount of
Rs.33,000/paid
by him by way of interim
maintenance under the DV Act shall be adjusted
against the said arrears.
5) The learned Judge of the Family Court,
Latur vide order dated 02.08.2017, rejected the
said application on the ground that the applicant
has not challenged the order passed under DV Act
and that both the proceedings are independent and

hence adjustment as sought by the applicant was
not permissible.
6) Shri Halkude, learned Counsel appearing
for the revision applicant, assailed the impugned
order on various grounds. The learned Counsel,
relying upon the judgment of the Hon'ble Apex
court in the case of Sudeep Chaudhari Vs. Radha
Chaudhari – AIR 1999 SC 536, submitted that
though the ratio laid down in the said judgment
would squarely apply to the facts of the present
case, trial court has erroneously refused to
apply the same. In the aforesaid case, the
Hon'ble Apex court has ruled that, ‘the amount
awarded under Section 125 of Cr.P.C. is
adjustable against the amount awarded in
matrimonial proceeding under Section 24 of the
Hindu Marriage Act as alimony to wife’.
7) Shri Kasliwal, learned Counsel appearing
for the respondent, opposed the submissions made
on behalf of the revision applicant. The learned

Counsel submitted that the remedy, as provided
under the provisions of the DV Act, is an
independent remedy in addition to the provisions
under Section 125 of the Cr.P.C. The learned
Counsel read out Section 20(1)(d) of the DV Act,
and submitted that in view of the clear
provision, as aforesaid, in the DV Act, the
request made by the revision applicant to adjust
the amount of interim maintenance awarded under
the provisions of the DV Act, was unsustainable
and hence has been rightly rejected by the
learned Judge of the Family Court. In order to
support his argument, learned Counsel relied upon
the judgment of the learned Single Judge of this
Court in Criminal Writ Petition No.3791/2016
(Prakash Babulal Dangi Vs. The State of
Maharashtra and Anr.) with Criminal Writ Petition
No.3239/2014 delivered on 10th October, 2017. The
learned Counsel also relied on the judgment of
the Hon’ble Gujarat High Court in the case of
Haresh Narayan Jaguja and Ors.Vs. Namrata Haresh
Jaguja and Ors. MANU/
GJ/0768/2015.

8) I have carefully considered the
submissions advanced by the learned Counsel
appearing for the respective parties. I have
also perused the impugned order and the other
material placed on record by the parties.
9) Section 125 of the Cr.P.C., relevant for
deciding the controversy in the present matter,
reads as under, 125.
Order for maintenance of wives,
children and parents – (1) If any
person having 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, as such Magistrate
thinks fit, and to pay the same to

such person as the magistrate may
from time to time direct”
10) I also deem it appropriate to reproduce
herein below Sections 20, 26, and 36 of the DV
Act, which read thus, “
20. Monetary reliefs. (
1) While
disposing of an application under
subsection
(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 subsection
(1) to
the parties to the application and
to the in charge of the police
station within the 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 subsection
(1).
(6) Upon the failure on the part of
the respondent to make payment in
terms of the order under subsection
(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.
26. Relief in other suits and legal
proceedings.(
1) Any relief
available under sections 18,19,20,21
and 22 may also be sought in any
legal proceedings, before a civil
Court, family Court or a criminal
Court, affecting the aggrieved
person and the respondent whether
such proceeding was initiated before
or after the commencement of this
Act.
(2) Any relief referred to in sub

section (1) may be sought for in
addition to and along with any other
relief that the aggrieved person may
seek in such suit or legal
proceeding before a civil or
criminal Court.
(3) In case any relief has been
obtained by the aggrieved person in
any proceedings other than a
proceeding under this Act, she shall
be bound to inform the Magistrate of
the grant of such relief.
36. Act not in derogation of any
other law, The
provisions of the
Act shall be in addition to, and not
in derogation of the provisions of
any other law for the time being in
force.”
11) Section 20(1)(d) of the DV Act makes it
clear that the maintenance, which can be granted
under the said Act, can be in addition to an
order of maintenance under Section 125 of Cr.P.C.
and or any other law for the time being in force.
Whereas subsection(
3) of Section 26 of said Act
enjoins the duty on the aggrieved person to
inform the Magistrate, if she has obtained any
relief available under Sections 18, 19, 20, 21
and 22 in any other legal proceeding filed by her
before the Civil Court, Family Court or criminal

court. It is discernible that the object behind
incorporating the aforesaid specific provision is
that while granting any of the reliefs sought
under Sections 18, 19, 20, 21 and 22 of the DV
Act, the Magistrate shall take into account and
consider, if any similar relief is already
obtained by the aggrieved person. To illustrate,
if the maintenance is sought by the aggrieved
person under Section 20 of the DV Act, she shall
be bound to inform the Magistrate, if she is
already receiving the maintenance under Section
125 of Cr.P.C. or in any legal proceeding before
the civil court. The purpose underlying the said
provision is explicit that the Magistrate must be
in a position to take a reasonable decision while
awarding the maintenance, if any under the
provisions of the DV Act. It is thus evident
that though the proceeding under the DV Act may
be an independent proceeding, the Magistrate
cannot ignore the maintenance awarded, if any, in
any other legal proceeding before the civil court
or criminal court and has to take into account

the maintenance already awarded, if any, while
taking a decision whether in addition to the
maintenance already awarded any more amount is
required to be awarded and if yes, to what extent
? and shall have to record reasons therefor.
12) Admittedly, there is no such provision,
as aforesaid, under Sections 125 of Cr.P.C. The
question is, whether the J.M.F.C. or the Judge
of the Family Court, while deciding the
application filed under Section 125 of Cr.P.C.,
more particularly, while determining the quantum
of monthly maintenance can ignore or/refused to
take into account the order, if any, passed under
DV Act, whereby the aggrieved person has been
already granted certain maintenance or interim
maintenance, as because there is no such express
provision in Cr.P.C.? It appears to me that it
would be wholly unjust, if the Magistrate fails
or refuses to take into account the maintenance
or interim maintenance already awarded under the
provisions of DV Act while determining the

quantum of maintenance to be awarded under
Section 125 of Cr.P.C. Section 125 of Cr.P.C.
enjoins the duty on the Magistrate to award fair
and appropriate amount of maintenance, meaning
thereby that it shall not be inadequate or
insufficient and at the same time shall also not
be excessive or unreasonable. In the
circumstances, though there may not be any
express provision under Section 125 of Cr.P.C.,
it may not be impermissible to take into account
the maintenance or interim maintenance, if any,
already awarded to the aggrieved person under the
provisions of the DV Act while finally
determining the quantum of maintenance u/s 125
Cr.P.C. The same principle would apply to the
application u/s 128 of Cr.P.C. and thus the
amount of interim maintenance awarded under DV
Act shall liable to be adjusted in the amount of
maintenance finally awarded u/s 125 Cr.P.C., so
long the aggrieved person is receiving such
amount.

13) In view of the above, it appears to me
that the revision applicant was fully justified
in making a request in the application u/s. 128
of Cr.P.C. to adjust the amount paid by him to
the respondents by way of interim maintenance in
the proceedings under the DV Act, against the
amount of maintenance awarded u/s. 125 of the
Code. The learned Judge of Family Court has,
however, refused to accept the said request on
the ground that the revision applicant has not
challenged the order passed under the DV Act or
has secured any stay to the execution of the said
order.
14) In the case of Sudeep Chaudhary vs Radha
Chaudhary – AIR 1999 SC 536, wife had filed an
application under Section 125 of Code of Criminal
Procedure and was awarded the maintenance @ of
Rs.350/per
month and was subsequently enhanced
to Rs.500/per
month. In the proceeding under
the Hindu Marriage Act, 1955 also interim alimony
was sought by the wife under Section 24 of the

Hindu Marriage Act, 1955. It was granted @ of
Rs.600/per
month and was subsequently enhanced
to Rs.800/per
month. Since, the husband failed
to pay the amount of maintenance as aforesaid,
the wife started recovery proceedings, whereupon
the husband contended that the maintenance amount
under Section 125 of Cr.P.C. should be adjusted
against the interim alimony and the Magistrate,
before whom the recovery proceedings were
pending, upheld the contention. The High Court,
however, held that the Magistrate was in error in
directing the adjustment of the maintenance
amount awarded under Section 125 of Cr.P.C.
against the amount awarded under Section 24 of
the Hindu Marriage Act. The Hon'ble Apex Court
set aside the order passed by the Hon'ble High
Court by observing that the amount awarded under
Section 125 of Cr.P.C. for maintenance was
adjustable against the amount awarded in the
matrimonial proceedings and no maintenance was
liable to be given over and above the same.

15) The aforesaid decision was cited by the
Revision Applicant before the Trial Court. The
Trial Court has however failed in appreciating
the ratio laid down in the said Judgment and has
wrongly held that the Judgment of the Civil Court
is binding on the Criminal Court so far as the
amount of maintenance is concern and not viceversa.
From the Judgment of the Hon'ble Apex
Court it is clear that the Hon'ble Apex Court
allowed the adjustment of the lower amount
(Rs.500/)
awarded by the Magistrate against the
higher amount of Rs.800/,
which was subsequently
enhanced to Rs.1000/,
awarded by the Matrimonial
Court.
16) In the case of Shailendra Nath Gosh vs.
State of West Bangal – 1997 CRI.L.J. 4591, the
Hon'ble Calcutta High Court allowed the
adjustment of maintenance awarded by the
Matrimonial Court under Section 24 of the Hindu
Marriage Act against the maintenance awarded
under Section 125 of Cr.P.C. since the amount of

maintenance awarded by the Matrimonial Court was
lower than the amount awarded by the Magistrate's
Court under Section 125 of Cr.P.C.
17) In Sanjay vs. Swati – 2006 DMC 731
Bombay, the maintenance was awarded to the wife
in the proceeding under Hindu Marriage Act under
Section 24 of the said Act and also in an
application filed by her under Section 125 of
Cr.P.C. The maintenance @ of Rs.1500/was
awarded under Section 125 of Cr.P.C.; whereas,
maintenance was awarded @ 2000/per
month under
Section 24 of the Hindu Marriage Act. The wife
had filed an application before the Family Court
for recovery of the arrears of maintenance
ordered under Section 125 of Cr.P.C. In the said
application the husband claimed that he was not
bound to pay the amount of maintenance under
Section 125 of Cr.P.C. since he was already
paying higher amount of maintenance in compliance
with the order passed under Section 24 of the
Hindu Marriage Act. The Family Court rejected

his request and hence the husband approached the
High Court. The learned Single Judge of this
Court set aside the order passed by the Family
Court and clarified that the respondent wife
shall not be entitled to claim execution of the
order under Section 125 of the Cr.P.C. until she
receives or continue to receive the amount of
maintenance under section 24 of the Hindu
Marriage Act.
18) What I intend to emphasize is the fact
that the adjustment is permissible and the
adjustment can be allowed of the lower amount
against the higher amount. Though the wife can
simultaneously claim maintenance under the
different enactments, it does not in any way mean
that the husband can be made liable to pay the
maintenance awarded in each of the said
proceedings.
19) The wife and children can claim
maintenance under Section 125 of the Code of

Criminal Procedure, under Section 18 and 20 of
the Hindu Adoption and Maintenance Act, 1956 and
also under Section 20 read with 23 of the D.V.
Act. The wife additionally can claim interim
alimony under Section 24 of the Hindu Marriage
Act. Even if all these remedies are
simultaneously pursued by the wife and some or
the other order is passed in each of the said
proceedings, it would not be permissible for the
wife to claim the amount of maintenance awarded
in each of the said proceedings independently.
Firstly, the propriety demands that if any
similar relief is granted in the earlier
proceedings, the person in whose favour such
relief is granted has to disclose the said fact
in the subsequent proceedings. For a moment even
if it is presumed that no such discloser was made
or in a hypothetical situation, all the
proceedings are simultaneously decided, the
husband will definitely have a right to claim
adjustment of the amount awarded in the said
proceeding and can not be subjected to

independently pay the amount of maintenance
awarded under each of the said proceedings.
20) In the case of Sudeep Chaudhary (cited
supra) the Hon'ble Apex Court has laid down a law
that the amount awarded under Section 125 of
Cr.P.C. is adjustable against the amount awarded
in matrimonial proceedings under Section 24 of
the Hindu Marriage Act as alimony to wife. No
narrow meaning can be given to the law laid down
by the Hon'ble Apex Court in the aforesaid
judgment by interpreting the same to mean that
the amount awarded by the Criminal Court only can
be adjusted against the amount awarded by the
Civil Court in the proceeding before it. The
Judgment read and interpreted in proper spirit
lays down a law that the lower amount is to be
adjusted against the higher amount. As noted
earlier, in the case of Shailendra Gosh (cited
supra) the Hon'ble Calcutta High Court allowed
such request by permitting the adjustment of the
maintenance awarded under Section 24 of the Hindu

Marriage Act by the Civil Court against the
amount of maintenance awarded by the Criminal
Court under Section 125 of Cr.P.C., since the
amount awarded under Section 125 of Cr.P.C. was
higher than the amount awarded under Section 24
of the Hindu Marriage Act.
21) In the case of Merchandise Vs. State –
(1990) 1 DMC 38, the Hon'ble Allahabad High Court
was hearing a revision by the husband directed
against the order granting maintenance allowance
to the wife under Section 125 of Cr.P.C. and it
was contended on behalf of the respondent that he
has already filed a petition for divorce and in
that divorce proceeding, he has been directed to
pay maintenance to the wife. In the
circumstances, the High Court directed adjustment
of the amount paid towards the maintenance in the
matrimonial proceeding against the maintenance
payable under section 125 of Cr.P.C. The Court
held that double payment of maintenance is not
intended by law and that if any money has been

deposited towards the payment of maintenance in
the divorce proceeding, the same was liable to be
adjusted in the payment of maintenance ordered
under section 125 of Cr.P.C.
22) There may be different enactments, to
which I have referred to herein above, containing
some or other provision providing maintenance to
wife and children, but the object behind every
such provision is common; to prevent vagrancy and
destitution. Such a provision in all these
enactments is meant to achieve a social purpose
and a measure of social justice specially
incorporated to protect women and children. It
falls within the constitutional sweep of Article
15(3) reinforced by Article 39 of the
Constitution. However, as I have discussed
herein before, these provisions cannot be
interpreted to mean that the husband can be made
liable to pay maintenance/interim maintenance
awarded under each of the said provisions
independently and cannot be permitted to seek

adjustment of the amount of maintenance awarded
in the earlier proceeding against the amount
awarded in the subsequent proceeding or vice
versa.
23) In the instant matter, two proceedings
were filed by the wife with a gap of one day.
The application under the DV Act was filed on 26th
August, 2014; whereas the application under
Section 125 of Cr.P.C. was filed on 27th August,
2014. In the proceeding under the DV Act,
interim order came to be passed on 16th January,
2015 whereby the husband was directed to pay
interim maintenance to the present respondents @
Rs.2,000/and
Rs.1,000/respectively.
The
application under Section 125 of Cr.P.C. was
finally decided later on, i.e. on 1.9.2015. The
learned Magistrate awarded the maintenance @ Rs.
3,000/to
the wife and @ Rs.2,000/to
the
daughter and the husband was directed to pay the
said amount from the date of application, i.e.
27.8.2014.

24) The fact that the interim maintenance
was awarded under the DV Act was not brought to
the notice of the learned Magistrate while
deciding the application under Selection 125 of
Cr.P.C. either by the wife or by the husband.
The learned Magistrate held the proved income of
the husband to the tune of Rs. 15,000/per
month
and accordingly granted maintenance to the wife @
Rs.3,000/and
to the daughter @ Rs.2,000/per
month. The wife has not challenged the
order passed under Section 125 of Cr.P.C.
Therefore, it can be reasonably inferred that the
amount of maintenance awarded by the learned
Magistrate is adequate and sufficient to meet her
requirements to lead life of her standard.
25) When the interim order came to be passed
under the DV Act, there was no other order in
existence awarding any maintenance to the wife
and the daughter. Therefore, it cannot be said
that the amount, as has been awarded by way of
interim maintenance under the DV Act, is in

addition to the amount of maintenance awarded
under any other provision of law. Had there been
any earlier order in existence awarding some
maintenance to the respondents and in spite of
the said order, if the learned Magistrate dealing
with the proceeding under the DV Act, by
recording reasons, would have granted some more
amount by way of maintenance in addition to the
maintenance already granted in favour of the
aggrieved person, the position would have been
different. In such a case, the adjustment could
not have been permissible. In the instant
matter, since the interim maintenance awarded
under the DV Act is not in addition to the amount
already granted in any other civil or criminal
proceeding, the same is certainly liable to be
adjusted against the amount of maintenance
finally awarded under Section 125 of Cr.P.C. even
though the husband has not challenged the said
order before any higher court.
26) Though the learned Counsel for the

respondents sought to rely upon the decision of
the learned Single judge of this Court in the
case of Prakash Babulal Dangi (cited supra), it
is brought to my notice that the Hon'ble Apex
Court in SLP (Cree.) No.1028010281/
2017 has
stayed the operation of the said order and has
directed the husband to continue to pay the
maintenance as awarded under the DV Act. It is
not in dispute that in the aforesaid case, the
amount of maintenance awarded under the DV Act is
higher than the amount awarded under Section 125
of Cr.P.C. Thus, the higher amount only is made
payable by the Hon'ble Apex court.
27) In view of the facts, circumstances and
legal provisions discussed herein above, the
impugned order passed by the learned Judge of the
Family Court, Latur, cannot be sustained and
deserves to be quashed and set aside. It is
accordingly quashed and set aside. It is directed
that while computing the amount of maintenance
payable to the respondents for the period from

27.8.2014 to 26.8.2015, as per the order passed
under Section 125 of Cr.P.C., the learned Judge
of the Family Court shall take into account the
amount of maintenance paid by the husband under
the DV Act for the aforesaid period and adjust
the said amount against the amount payable under
Section 125 of Cr.P.C.
28) The Criminal Revision Application thus
stands allowed in the aforesaid terms.
(P.R.BORA)
JUDGE

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