Allowed

Smt. Shruti Srivastava v. State of U.P and Another

Allahabad HC5 Feb 2023CRLR/1513/2022

Case brief

AI extract

What is this about?

In criminal revision against an appellate order denying maintenance under the Domestic Violence Act due to a prior rejection under Section 125 Cr.P.C., the Court held that remedies under the DV Act and Section 125 Cr.P.C. are supplementary, not mutually exclusive. The rejection of Section 125 application does not bar a DV Act claim. The impugned order was set aside for remand.

What did the court decide?

The impugned order was set aside and the matter remitted to the appellate court to decide the criminal appeal on merits and pass an order afresh.

Smt. Shruti Srivastava Vs State of U.P and Another — Maintenance and Alimony | Allahabad HC (2023)

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Reserved On: 11.01.2023 Delivered On: 06.02.2023

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Court No. - 88

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Case :- CRIMINAL REVISION No. - 1513 of 2022

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Revisionist :- Smt. Shruti Srivastava Opposite Party :- State Of U.P And Another Counsel for Revisionist :- Praveen Kumar Singh,Aushim Luthra,Sr. Advocate

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Counsel for Opposite Party :- G.A.,Shad Khan

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Hon'ble Raj Beer Singh,J.

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1. Heard learned counsel for the revisionist, learned counsel for the opposite party No.2 and learned A.G.A for the State.

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2. The present criminal revision has been preferred against the judgment and order dated 05.04.2022, passed by the Court of Additional Sessions Judge/ FTC, Court No.2, Varanasi in Criminal Appeal No. 98 of 2019 (Ankit Srivastava vs. Shruti Srivastava), under Section 29 of the Protection of Women from Domestic Violence Act (hereinafter referred as DV Act), P.S. Lanka, District Varanasi, whereby the learned Addl. Sessions Judge has allowed the appeal filed by the opposite party No. 2 and set aside order of maintenance, passed by the Judicial Magistrate Ist, Varanasi in favour of the revisionist.

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3. Learned counsel for the revisionist submits that the revisionist is wife of opposite party No.2 and their marriage has taken place in the year 2014. The revisionist has filed a case under Domestic Violence Act claiming maintenance, wherein by order dated 20.04.2019, the Court of Judicial Magistrate Ist, Varanasi awarded interim maintenance @ Rs. 10,000/- per month in favour of revisionist. The opposite party No.2 has challenged the said order in appeal, which has been allowed by the Court of Additional Sessions Judge/FTC Court No.2, Varanasi vide impugned judgment and order dated 05.04.2022, setting aside the order dated 20.04.2019. Learned counsel submitted that the impugned order is against facts and law and thus, liable to be set aside. The said appeal was allowed by the Court mainly on the basis that earlier the

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application of the revisionist under Section 125 Cr.P.C. claiming interim maintenance was rejected by the Principal Judge, Family Court, Varanasi. It was submitted that the opposite party No.2 is having annual income of Rs. 21 lakhs per annum and that the rejection of application for interim maintenance under Section 125 Cr.P.C cannot be a ground to deprive the revisionist from seeking maintenance under the provisions of D.V. Act. The said order of Family Court, refusing interim maintenance, was passed at initial stage of proceedings under section 125 CrPC and not on the basis of evidence of the parties. It was submitted that in view of aforesaid facts and circumstances, the impugned order is against law and thus, liable to be set aside.

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4. Per contra learned A.G.A. and learned counsel for the opposite party No.2 have opposed the revision and argued that the Court of Principal Judge, Family Court, Varanasi has given a clear finding that the revisionist/wife is capable of maintaining herself, while rejecting her application under section 125 Cr.P.C for interim maintenance and that finding is binding on the Court below and thus, there is no illegality or perversity in the impugned order. It was pointed out that in the affidavit of opposite party No.2 filed before the Court, it was mentioned that the revisionist is getting salary of Rs. 31,000/- per month. Learned counsel submitted that there is no illegality or perversity in the impugned order.

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5. I have considered rival submissions and perused the record.

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6. Perusal of record shows that the revisionist is wife of opposite party No.2 and their marriage has taken place in the year 2014. The revisionist has filed a case under Domestic Violence Act claiming maintenance, wherein by order dated 20.04.2019, the Court of Judicial Magistrate Ist, Varanasi awarded interim maintenance @ Rs. 10,000/per month in favour of revisionist. The opposite party No.2 has challenged the said order in the appeal, which has been allowed by the Court of Additional Sessions Judge/FTC Court No.2, Varanasi vide impugned judgment and order dated 05.04.2022 and thereby the order

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dated 20.04.2019 was set aside on the ground that earlier the application of the revisionist under Section 125 Cr.P.C. claiming interim maintenance was rejected by the Family Court.

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7. Thus, the issue which arises for consideration in this case, is that if in proceedings under section 125 Cr.P.C an application of wife seeking interim maintenance has been rejected, whether such wife is debarred from claiming maintenance or other monetary relief under the provisions of DV Act.

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8. At the outset, it would be appropriate to extract section 20 and 36 of DV Act which read as under:

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"20. Monetary reliefs:

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(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 is not limited to--

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(a) the loss of earnings;

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(b) the medical expenses;

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(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

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(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.

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(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.

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(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."

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‘‘36. Act not in derogation of any other law .—The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in fo rce .’’

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9. A careful perusal of Section 20 of DV Act shows that it provides maintenance to the aggrieved person as well as her children, if any, which would be in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure or any other law for the time being in force. Section 36 of DV Act clearly stipulates that the provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.

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10. Recently in landmark judgment in case of Rajnesh V Neha (2021) 2 SCC 324 , the Apex Court observed as under:

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‘‘Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”) The D.V. Act stands on a separate footing from the laws discussed hereinabove. The D.V. Act provides relief to an aggrieved woman who is subjected to “domestic violence.” The “aggrieved person” has been defined by Section 2(a) to mean any woman who is, or has been, in a domestic relationship with the respondent, and alleges to have been subjected to any act of domestic violence. Section 2(f) defines “domestic relationship” to include a relationship between two persons who live, or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family.’’

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11. It was further held as under:

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‘‘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 D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.’’

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12. The High Court of Bombay in the case of Prakash Babulal Dangi vs. State of Maharashtra and Ors. 2017 SCC OnLine Bom 8897 held that maintenance can be awarded both under the DV Act as well as under Section 125 of Cr.P.C. The relevant para 7 and 8 read as under:

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"7. Now both the proceedings being independent, both the orders will stand independently and, hence, husband will have to pay not only the maintenance awarded under the Domestic Violence Act, which was of an interim nature and taking into consideration that maintenance only, the wife was awarded the maintenance under Section 125 of Cr.P.C. only from the date of the order. It has to be held that this order under Section 125 of Cr.P.C. stands independently and in addition to the maintenance awarded under the Domestic Violence Act.

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8. It has to be held so in view of Section 20(1)(d) of the Domestic Violence Act, which clearly provides that, „in proceedings under the D.V. Act, the Magistrate may direct the Respondent to pay the maintenance to 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 Cr.P.C. or any other law for the time being in force‟. Therefore, the power to award maintenance under D.V. Act is in addition to an order of maintenance under Section 125 of Cr.P.C. or any other law for the time being in force. Section 36 of the D.V. Act makes the things further clear by providing that, „the provisions of the D.V. Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force‟. Therefore, it follows that the amount of maintenance awarded under the D.V. Act cannot be substituted to the order of maintenance under Section 125 of Cr.P.C."

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13. The High Court of Punjab & Haryana in the case of Sanjay Gulati Vs. Harsh Lata reported at MANU/PH/0323/2018, while deciding the question as to whether maintenance can be claimed by the wife under the DV Act, in view of the fact that she is already receiving maintenance under Section 125 of Cr.P.C, held that the provisions of DV Act are supplementary to the other laws. The relevant para 13 reads as under :

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"13. Therefore, the upshot of the discussion would be that the respondent wife would be entitled to claim maintenance under Section 20 of the Domestic Violence Act, even though she is already getting maintenance under Section 125 of the Code of Criminal Procedure. There is no requirement for the aggrieved person, the respondent herein, to file an application under Section 127 of the Code of Criminal Procedure seeking enhancement of maintenance and to prove that they are changed circumstances. An aggrieved person can institute a petition under the Domestic Violence Act, in addition to proceedings under Section 125 of the Code of Criminal Procedure. However, the courts, while deciding quantum of maintenance have to take into account the maintenance being awarded to the aggrieved person under other provisions of law, be it under Section 125 Code of Criminal Procedure, Section 24 of the Hindu Marriage Act or any other provisions applicable thereto, while awarding maintenance."

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14. Thus, considering provisions of DV Act and above referred legal position, it is quite apparent that that monetary relief as provided under the DV Act is different from maintenance, which can be in addition to an order of maintenance under Section 125 of Cr.P.C. or any other law, and can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence.

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15. A conjoint reading of the aforesaid Sections 20, 26 and 36 of DV Act would clearly establish that the provisions of DV Act dealing with maintenance are supplementary to the provisions of other laws and therefore maintenance can be granted to the aggrieved person (s) under the DV Act which would also be in addition to any order of maintenance arising out of Section 125 of Cr.P.C. The right to claim maintenance under the DV Act and those under Section 125 Cr.P.C. are not mutually exclusive and thus, the aggrieved person can seek interim maintenance before the Magistrate while also seeking a permanent maintenance under Section 125 Cr.P.C. The only caveat is that maintenance granted by one court will be taken in to consideration by the other court before granting or refusing maintenance.

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16. In view of aforesaid legal position, this Court is of considered view that if in proceedings under section 125 Cr.P.C, the application of the wife seeking interim maintenance has been rejected by the Family Court, such wife is not debarred from claiming maintenance or other monetary relief, under provisions of D V Act. When the impugned order is tested on the anvil of the legal position stated above, it clearly emerges that the application of revisionist seeking maintenance under

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DV Act was maintainable and thus, the impugned order passed by learned Addl. Sessions Judge, whereby the order of maintenance granted by Magistrate under DV Act was aside on the ground that in proceedings under section 125 CrPC her application for interim maintenance was rejected by the Family Court, is against the law, and thus impugned order is liable to be set aside.

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17. The impugned order is set aside and matter is remitted back to the learned Appellate Court below to decide the criminal appeal No. 98 of 2019 on merits and pass an order afresh in accordance with law.

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18. Revision is allowed in above terms.

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Order Date :- 06.02.2023 A. Tripathi

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Digitally signed by :- AKHILESH TRIPATHI High Court of Judicature at Allahabad

Smt. Shruti Srivastava v. State of U.P and Another

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Smt. Shruti Srivastava v. State of U.P and Another

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