Dismissed

Vikas Chaturvedi v. State of Uttarakhand through Secretary Home, Dehradun

Uttarakhand HC5 Apr 2023CRLR/204/2023

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision challenging an order granting interim maintenance under the Protection of Women from Domestic Violence Act to a wife. The court held that Section 3 ADJUSTURATION AND SETOFF implies no prohibition against successive applications under different statutes. Although the Supreme Court in Rajnesh directed adjustment or set-off, the court below’s order, granti

What did the court decide?

Revision dismissed in limine; lower court order granting interim maintenance upheld.

Vikas Chaturvedi Vs State of Uttarakhand… — Pension and Retirement Benefits | Uttarakhand HC (2023)

¶1

HIGH COURT OF UTTARAKHAND AT NAINITAL

¶2

Criminal Revision No.204 of 2023

¶3

Vikas Chaturvedi .....Revisionist

¶4

Versus

¶5

State of Uttarakhand & others ….….Respondents

¶6

Present:Dr. Udyog Shukla, Advocate for the revisionist. Mr. V.S. Rathore, A.G.A. for the State.

¶7

Hon’ble Ravindra Maithani, J. (Oral)

¶8

The challenge in this revision is made to the followings:-

¶9

(i) Order dated 17.09.2022, passed in Miscellaneous Case No.105 of 2019, Sujata vs. Vikas, by the court of Additional Chief Judicial Magistrate, Rudrapur, District Udham Singh Nagar (“the case”), by which an application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (“the Act”) has been allowed and the revisionist has been directed to pay Rs.5,000/- as interim maintenance to the respondent no. 2, and;

¶10

(ii) Judgment and order dated 17.02.2023, passed in Criminal Appeal No.241 of 2022, Vikas Chaturvedi vs. State of Uttarakhand & others, by the court of First Additional District & Sessions Judge, Rudrapur, District Udham Singh Nagar. By it, the appeal has been dismissed.

¶11

¶12

Heard learned counsel for the parties and perused the file.

¶13

Facts necessary to appreciate the controversy, briefly stated, are as follows: The respondent no.2, the wife of the revisionist, filed an application under Section 12 of the Act seeking maintenance from the revisionist. The revisionist and the respondent no.2 were married on 03.03.2008. It has been the case of the respondent no. 2 that after marriage, she was harassed and tortured for and in connection with an additional demand of dowry and on 26.06.2016, she was expelled from the house by the revisionist along with her daughter. It is the case of the respondent no.2 that she is not able to maintain herself, whereas, revisionist is a Teacher, who gets Rs. 55,000/- per month.

¶14

In the case, an application for interim maintenance has also been filed. It was objected to by the revisionist, inter alia, on the ground that the respondent no. 2, on her own, had left the company of the revisionist along with her child; she is getting an interim maintenance in the proceedings under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”); the revisionist has a liability of maintaining his old aged parents; the respondent no. 2 is also a Teacher, who gets

¶15

¶16

Rs.20,000/- as salary. After hearing the parties, by the impugned order dated 17.09.2022, the application for interim maintenance was allowed under Section 23 of the Act and the revisionist had been directed to pay Rs.5,000/- per month. This order was challenged in the appeal, which has also been rejected.

¶17

Learned counsel for the revisionist would raise the following points:-

¶18

(i) The respondent no.2 is already getting maintenance under Section 125 of the Code at the rate of Rs.10,000- per month; she could have moved an application for enhancement of the maintenance, but the application under the provisions of the Act seeking maintenance could not have been entertained.

¶19

(ii) According to the respondent no.2, she had been staying separate since 2016, and the application under Section 12 of the Act was filed long thereafter, which is barred by Section 468 of the Code.

¶20

(iii) The private respondent is already receiving Rs.10,000/- per month, as maintenance, under Section 125 of the Code. Therefore, additional

¶21

¶22

amount could not have been paid. It could have been adjusted or set off, as directed by the Hon’ble Supreme Court in the case of Rajnesh vs. Neha & another; (2021) 2 SCC 324. In fact, in the case of Rajnesh (Supra), the Hon’ble Supreme Court comprehensively discussed the law on the point of maintenance, etc. and in Para 128.1, observed as hereunder:-

¶23

“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.” .

¶24

In support of his contention, learned counsel has placed reliance on the principles of law, as laid down in the case of Inderjit Singh Grewal vs. State of Punjab & another; (2011) 12 SCC 588, N. Prasad vs. Harithalakshmi in 2020 SCC OnLine Mad. 1767 and Rachna Kathuria vs. Ramesh Kathuria, 2010 SCC OnLine Del. 2929

¶25

In Para 32 of the judgment, in the case of Inderjit Singh Grewal (Supra), the Hon’ble Supreme Court

¶26

¶27

noted arguments with regard to time for taking cognizance and observed as hereunder:-

¶28

“32. Submissions made by Shri Ranjit Kumar on

¶29

the issue of limitation, in view of the provisions of Section 468 CrPC, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of CrPC applicable and stand fortified by the judgments of this Court in Japani Sahoo v. Chandra Sekhar Mohanty , (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388: AIR 2007 SC 2762 and NOIDA Entrepreneurs Assn. v. NOIDA , (2011) 6 SCC 508 : (2011) 2 SCC (Cri) 1015”.

¶30

In the case of N. Prasad (Supra) , the Hon’ble High Court of Madras, taking note of the observations made by the Hon’ble Supreme Court in the case of Inderjit Singh Grewal (Supra), found that in that case, the proceedings under the provisions of the Act could not have been sustained.

¶31

In the case of Rachna Kathuria (Supra), the Hon’ble Delhi High Court inter alia observed that “If a

¶32

woman living separate from her husband had already

¶33

¶34

filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women From Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed.”

¶35

The law nowhere mandates that if maintenance is awarded in any proceedings under any statute, successive applications under other statutes cannot be entertained. In fact, in the case of Rajnesh (Supra), the

¶36

¶37

Hon’ble Supreme Court has taken note of it and in para 128.1, as quoted hereinabove, directed as to what course of action should be taken in such cases.

¶38

Section 20 of the Act makes provision with regard to monetary relief. It is as hereunder:-

¶39

“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,—

¶40

(a) the loss of earnings;

¶41

(b) the medical expenses;

¶42

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

¶43

(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.

¶44

(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.

¶45

¶46

(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.

¶47

(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 the local limits of whose jurisdiction the respondent resides.

¶48

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

¶49

(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.”

¶50

A bare perusal of Section 20(1) Clause (d) makes it abundantly clear that despite an order under Section 125 of the Code, an application under Section 20 of the Act may be entertained.

¶51

¶52

It has been argued that the application under Section 12 of the Act is time barred. Learned counsel for the revisionist has taken reference to the judgment in the case of Inderjit Singh Grewal (Supra).

¶53

It is true that in the case of Inderjit Singh Grewal (supra), the Hon’ble Supreme Court has made observation with regard to limitation. It was done while taking note of the arguments, as advanced on behalf of one of the parties in that case. A bare reading of para 32 of the judgment in the case of Inderjit Singh Grewal (supra) makes it abundantly clear that, in fact, the Hon’ble Supreme Court did not lay down a law as to what would be the limitation for an application under Section 12 of the Act. The Hon’ble Supreme Court has only made an observation, which is “Submissions made by..........seem to be preponderous in view of the provisions of...........” A probability has been expressed by the Hon’ble Supreme Court.

¶54

Section 28 of the Act prescribes procedure for dealing with an application under Section 12 of the Act. According to it, the procedure shall be governed by the provisions of the Code.

¶55

¶56

Section 32 of the Act deals with cognizance and

¶57

proof of the offences under Section 31(1) of the Act. Section 31 of the Act provides, punishment for breach of protection order. It reads as hereunder:-

¶58

“31. Penalty for breach of protection order by respondent.— (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

¶59

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.

¶60

(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”

¶61

Rule 15 (6) of the Protection of Women From Domestic Violence Rules, 2006, also elaborates the procedure for dealing with offences under Section 31 of

¶62

¶63

the Act and, according to it, the procedure shall be as given under the provisions of the Code.

¶64

Section 468 of the Code makes provisions with regard to limitation for taking cognizance. It reads as hereunder:-

¶65

“468. Bar to taking cognizance after lapse of the period of limitation .—(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

¶66

(2) The period of limitation shall be—

¶67

(a) six months, if the offence is punishable with fine only;

¶68

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

¶69

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

¶70

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.”

¶71

¶72

The provisions of Section 468 of the Code are explicitly clear that it bars taking cognizance of an offence beyond a period. It speaks of an offence. Seeking monetary relief under Section 20 of the Act, by way of filing an application under Section 12 of the Act, can by no stretch of imagination be treated as taking cognizance of an offence.

¶73

On a query posed by the Court, the learned counsel for the revisionist would submit that the period of limitation for proceedings under the provisions of the Act would begin when a woman leaves the company of her husband.

¶74

This Court has already noted that Section 468 of the Code makes provisions with regard to taking cognizance of the offences only. It does not deal with applications. Seeking maintenance, by way of filing an application under Section 12 of the Act, is not a complaint with a view to punish some offenders. Instead, it is an application seeking maintenance.

¶75

If viewed from another angle, the claim for maintenance is not a terminal point. It continues every moment, the claimant claims maintenance. It is a continuous cause to claim maintenance. Each moment it

¶76

¶77

survives. Therefore, this Court is of the view that the arguments on the point of limitation have less force for acceptance.

¶78

It has been argued that the respondent no. 2 has been working and earning Rs. 20,000/- per month. The court below has noted that the revisionist could not clarify it, that, the respondent no. 2, would be able to maintain herself.

¶79

It has been argued that the amount of maintenance in successive claims under different statutes has to be in the manner of “set off” of an adjustment. Reference in this respect has been made to the case of Rajnesh (Supra). In para 128.1 of the judgment, as discussed above, it is true that the Hon’ble Supreme Court has directed that the Court would consider an adjustment or a set off of the amount awarded in the previous proceedings. The purpose is that, without considering the earlier amount of maintenance granted to the claimant, successive claims should not be entertained.

¶80

There may not be any doubt to the proposition that if under a different statute, maintenance be awarded to a wife without taking into consideration any other

¶81

¶82

amount of maintenance that is payable to a wife by the husband, it may create a chaos. The amount, which is payable to the wife by the husband under any law is definitely to be taken into consideration while awarding maintenance under a different statute.

¶83

What is being argued on behalf of the revisionist is that in a proceeding under Section 20 of the Act, the earlier amount of maintenance has to be adjusted.

¶84

In fact, it is using phrases in different manner. In the case of Rajnesh (supra) , the Hon’ble Supreme Court has categorically held that any amount of maintenance that is already being received by the wife has to be adjusted or setoff.

¶85

That is what has been done in the instant case. The revisionist is a teacher. The applicant was awarded Rs. 10,000/- in the year 2020, in a proceeding under Section 125 of the Code. There could have been a different mode of writing the order. The court could have passed an order that the revisionist would pay Rs. 15,000/- per month as interim maintenance to the applicant, with a further direction that the amount of Rs. 10,000/-, which the applicant had already been receiving

¶86

¶87

shall be adjusted in this amount. Resultantly, the applicant would have received Rs. 5,000/-. Instead of writing so, what the court below has written is that in addition to Rs. 10,000/-, which the applicant is already receiving under Section 125 of the Code, she would receive Rs. 5,000/- more.

¶88

In the instant case, the court below has taken note of the fact that the private respondent has been getting Rs.10,000/- per month, as maintenance, under Section 125 of the Code. Merely, because the court has not used the word ‘adjustment’ or ‘set off’, it does not make the order illegal, improper or incorrect. In fact, the order is in accordance with the direction of the Hon’ble Supreme Court in the case of Rajnesh ( supra ).

¶89

Having considered, this Court is of the view that there is no reason to make any interference. Accordingly, the criminal revision deserves to be dismissed at the stage of admission.

¶90

The criminal revision is dismissed in limine .

¶91

(Ravindra Maithani, J.) 05.04.2023

¶92

Vikas Chaturvedi v. State of Uttarakhand through Secretary Home, Dehradun

Case brief

What is this about?

What did the court decide?

Vikas Chaturvedi v. State of Uttarakhand through Secretary Home, Dehradun

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

Vanmala Agrawal Vs State of Uttarakhand

Tanveer Beg Vs District Magistrate Haridwar

Amarnath Vs State of Uttarakhand

Urmila Vs State of Uttarakhand

Dinesh Tamta Vs State of Uttarakhand through Secretary Home Government of U.K. Dehradun

Deepak Kumar Vs State of Uttarakhand