Dismissed

Anil Kumar v. Anita Alias Vitola

Allahabad HC22 Feb 2023/36/2023

Case brief

AI extract

What is this about?

This appeal challenged an order staying Family Court divorce proceedings pending compliance with maintenance expenses ordered under Section 24 of the Hindu Marriage Act. The court dismissed the appeal, finding no illegality. It noted that while maintenance claims under different statutes (e.g., DV Act) are allowed, courts must consider prior awards to avoid double recovery, as per the Supreme Cour

What did the court decide?

The appeal under Section 19(1) of the Family Courts Act was dismissed holding that the Family Court order stayed proceedings pending maintenance compliance was lawful.

Anil Kumar Vs Anita Alias Vitola — Matrimonial and Divorce | Allahabad HC (2023)

¶1

Court No. - 2

¶2

Case :- FIRST APPEAL No. - 36 of 2023

¶3

Appellant :- Anil Kumar Respondent :- Anita Alias Vitola Counsel for Appellant :- Suresh Singh Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Subhash Vidyarthi,J.

¶4

Heard learned counsel for the appellant and perused the records.

¶5

The instant appeal under Section 19 (1) of the Family Courts Act, 1984 has been filed by the appellant-husband challenging an order dated 19.11.2022, passed by learned Additional Principal Judge, Family Court, Pratapgarh staying the proceedings of the suit for divorce filed by the appellant till he complies with the order dated 20.01.2021, passed on an application filed by the respondent-wife in the aforesaid suit seeking litigation expenses and maintenance under Section 24 of Hindu Marriage Act.

¶6

The appellant contends that Misc. Case No.471 of 2015 has been filed by the respondent/wife under Protection of Women from Domestic Violence Act 2005, wherein the Additional Chief Judicial Magistrate, Kunda, Pratapgarh has passed an order for payment of Rs.5,000/- per month as interim maintenance to the respondent-wife and the order dated 20.01.2021 has been passed subsequent to the passing of the aforesaid order.

¶7

Relying upon the judgment of Hon'ble Apex Court in the case of Rajnesh Vs. Neha and another; (2021) 2 SCC 324 , learned counsel for the appellant has submitted that it is well settled principle of law that a person cannot claim maintenance in two separate proceedings.

¶8

In the case of Rajnesh Vs. Neha (supra), the Hon'ble

¶9

Supreme Court has categorically held that " it is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the DV Act and Section 125 CrPC, or under HMA."

¶10

The Hon'ble Supreme Court in the aforesaid case has further held as follows:

¶11

"To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding."

¶12

The Hon'ble Supreme Court has concluded the aforesaid judgment by issuing the following directions regarding issue of overlapping jurisdiction:

¶13

"(a) Issue of overlapping jurisdiction

¶14

128. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

¶15

128.1. Where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set- off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding."

¶16

Therefore, the submission of learned counsel for the appellant that there is an absolute bar against the award of maintenance in two proceedings is without force.

¶17

The record reveals that the order under Domestic Violence Act, directing payment of Rs.5,000/- per month as maintenance to the respondent was passed way back on 22.06.2015. In the objection filed against the application under Section 24 of Hindu Marriage Act, the appellant had made a mention of the aforesaid fact. In the order dated 20.01.2021 passed on the application under Section 24 of Hindu Marriage Act, the Family Court has noted that the appellant is paying monthly maintenance to the respondent under the Court's order since 2018, although the amount of maintenance has wrongly been mentioned as Rs.2,000/- in place of Rs.5,000/-. The Family Court has passed the order dated 20.01.2021, after taking into consideration the fact that the respondent is receiving maintenance under the Court's order since 2018.

¶18

It appears that the order dated 20.01.2021 awarding maintenance under Section 24 of Hindu Marriage Act has not been challenged by the appellant. In case the appellant is aggrieved by the order, it is always open to him to seek redressal of his grievance by initiating suitable proceedings for setting aside or modification of the order, but it is not open for the appellant to simply disobey the order.

¶19

In view of the aforesaid discussions, we do not find any illegality in the order under challenge passed by Family Court. The appeal lacks merit and the same is accordingly dismissed .

¶20

(Subhash Vidyarthi, J.) (D.K. Upadhyaya, J.)

¶21

Order Date :- 22.2.2023 Ram.

¶22

Digitally signed by :- RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

Anil Kumar v. Anita Alias Vitola

Case brief

What is this about?

What did the court decide?

Anil Kumar v. Anita Alias Vitola

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Santosh Singh Vs State of U.P. Thru. Secy. Home Deptt. Civil Sectt. Lko. and Others

State of U.P. Thru. Prin./ Addl. Chief Secy. Home Police Anubhag-I U.P. Civil Secrt.Lko. and Others Vs Dinesh Mani Pandey

Mehbooba Mehboob Jahan Vs State Publie Service Tribunal Lko. and Others

Dr.Vinod Kumar Singh Vs State of U.P.through Secy. Higher Education Lucknow

Dr.Indu Wakhlu Vs State of U.P.through Secy.Medical Education and Training U.P.

Ravi Prakash and Others Vs State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Guards U.P. Civil Sectt. Lko. and Others