The High Court directed the Family Court to consider a prior Domestic Violence Act order for maintenance adjustment in the applicant's Section 125 CrPC petition, citing Supreme Court guidelines on overlapping jurisdictions.
Petitioner directed to seek adjustment of prior maintenance from the Family Court without quashing the proceedings.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 19TH DAY OF JULY 2023 / 28TH ASHADHA, 1945
CRL.MC NO. 1660 OF 2023
AGAINST THE ORDER/JUDGMENT IN MC 366/2020 OF FAMILY COURT, TIRUR
PETITIONER/S:
NOUSHAD
AGED 41 YEARS
S/O BEERANKUTTY,
KADEKKAL, CHIRAMANGALAM,
VIA PARAPPANANGADI, TIRURANGADI TALUK,
MALAPPURAM DISTRICT, PIN - 676303
BY ADVS.
M.VIVEK RABINDRANATH
V.T.MADHAVANUNNI
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 SALEENA
W/O.NOUSHAD,
KADEKKAL, CHIRAMANGALAM,
PARAPPANANGADI POST, TIRURANGADI TALUK,
MALAPPURAM DISTRICT, PIN - 676303
3 MUHAMMED SHAMIL
SHAMIL,S/O.NOUSHAD,
AGED 10 YEARS, MINOR,
REPRESENTED BY MOTHER AND NEXT FRIEND SALEENA,
W/O.NOUSHAD,
KADEKKAL, CHIRAMANGALAM,
PARAPPANANGADI POST, TIRURANGADI TALUK,
MALAPPURAM DISTRICT, PIN - 676303
SRI. VIPIN NARAYAN, SR. PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 19.07.2023, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
CRL.MC NO. 1660 OF 2023
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ORDER
The petitioner is the husband of the 2nd respondent herein. The 3rd respondent is his minor son. The petitioner has been arrayed as the respondent in M.C. No. 366/2020 on the file of the Family Court, Tirur, which is instituted under Section 125 of the Code of Criminal Procedure
(“the Code” for the sake of brevity), seeking maintenance from 05.02.2017.
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CRL.MC NO. 1660 OF 2023
2,500/- per mensem to his minor son. In terms of the directions issued by the learned Magistrate, the petitioner has been paying maintenance from 18.02.2017 onwards. According to the learned counsel, it was by suppressing the above fact that M.C. No. 366/2020 was filed before the Family Court, Tirur, alleging that she has not been paid maintenance from 05.02.2017.
4 It is on these assertions that this petition is filed seeking to quash Annexure-A2 proceedings in M.C. No. 366/2020 on the file of the Family Court, Tirur.
Hon’ble Apex Court had made it clear that it is mandatory for the applicant to disclose the previous proceeding and the orders passed thereon in the subsequent proceeding. The failure to disclose the earlier
application is fatal, contends the learned counsel.
1 ( 2021) 2 SCC 324
4
CRL.MC NO. 1660 OF 2023
by the petitioner is covered by the law laid down in Mahinkutty & others v. Anshida2 .
127 and 128 had dealt with the issue of overlapping jurisdiction. The following directions were issued:
“127. In view of the foregoing discussion as contained in Part B — I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India.
(a) Issue of overlapping jurisdiction
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:
2 (2021) 3 KLT 230
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CRL.MC NO. 1660 OF 2023
128.1. (i) 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.
128.2. (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding.
128.3. (iii) If the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding.”
CRL.MC NO. 1660 OF 2023
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petition filed before the Family Court. Section 20 of the Domestic Violence Act speaks of monetary relief. It lays down that while disposing of the application under Section 12, the Magistrate may direct the respondent to pay to meet the expenses incurred and losses suffered by the aggrieved person and any child of the said 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 or any other law for the time being in force. Such 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. As rightly submitted by the learned counsel, the party respondent was bound to disclose the passing of the order in the earlier proceeding before the court at the time of filing of the application under Section 125 of the Code. It would not be permissible for the wife to claim the amount of maintenance
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CRL.MC NO. 1660 OF 2023
awarded in each of the said proceedings independently. If the wife has not disclosed the earlier proceeding, it would be open to the petitioner to claim adjustment of the amount awarded while the 2nd proceeding is being considered.
earlier proceeding and grant relief accordingly.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE
avs
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CRL.MC NO. 1660 OF 2023
APPENDIX OF CRL.MC 1660/2023
PETITIONER ANNEXURES
Annexure A1 A CERTIFIED COPY OF THE JUDGEMENT IN M.C
NO..21/2017 ON THE FILE OF THE J.F.C.M COURT,
PARAPPANANGADI
Annexure A2 A TRUE COPY OF THE M.C. NO.366/2020 ON THE FILE OF THE FAMILY COURT, TIRUR. Annexure A3 A COPY OF THE COUNTER FILED BY THE PETITIONER
IN M.C. NO.366/2020
Annexure A4 A CERTIFIED COPY OF THE DIARY EXTRACT OF THE J.F.C.M. COURT, PARAPPANANGADI IN M.C.NO.21/2017 SHOWING PAYMENT OF MAINTENANCE TO THE RESPONDENTS FROM 18/02/2017 TO 30/10/2018 Annexure A5 A CERTIFIED COPY OF THE DOCKET ORDER IN
C.M.P.NO.1807/2021 IN M.C.NO.21/2017 OF THE
J.F.C.M.PARAPPANGADY
2 issues framed by the court
Whether a petitioner can seek to quash maintenance proceedings where the respondent failed to disclose a prior protection order under the Domestic Violence Act.
Whether maintenance awards under different statutes require an adjustment or set-off to prevent double dipping.
Colour shows how this judgement treated each authority
Rajnesh v. Neha & Anr.Relied on¶24
(2021) 2 SCC 324 · Who else cites this
Mahinkutty & others v. AnshidaReferred¶31
(2021) 3 KLT 230
4 provisions across 3 enactments
Noushad
State of Kerala Represented by Public Prosecutor
Saleena
Muhammad Shamil
Raja Vijayaraghavan V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Raja Vijayaraghavan V
Parties & counsel