Allahabad High Court
Arvind Narayan Acharya vs State Of U.P. And Anr. on 20 September, 2023
Bench: Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:60643
Court No. - 29
Case :- CRIMINAL REVISION No. - 545 of 2021
Revisionist :- Arvind Narayan Acharya
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Laxmi Kant Pathak,Jyotindra Prakash Pathak
Counsel for Opposite Party :- G.A.,Shadab Waheed,Syed Raza Mehdi
Hon'ble Ram Manohar Narayan Mishra,J.
Heard learned counsel for the revisionist, learned counsel for the private respondent and learned A.G.A. for the State and perused the record.
By means of instant criminal revision, revisionist has assailed the judgment and order dated 6.8.2021 passed by learned Additional Principal Judge Family Court, Faizabad in Maintenance Case No. 76 of 2016 (Susham Acharya Vs. Arvind Acharya) under Section 125 Cr.P.C., whereby learned court below has directed the revisionist to pay Rs. 5,000/- as maintenance to the respondent no. 2 from the date of filing of application dated 29.2.2016.
Factual matrix of the case is that applicant Sushma Acharya initially filed a Complaint Case No. 557 of 2011 under Section 12 of Protection of Woman from Domestic Violence Act with averment that her marriage with the opposite party was solemnized on 8.6.2009 according to Hindu rites and rituals. She was send off to her matrimonial home after marriage. She began to discharge her matrimonial obligations, however, relations between the parties became estranged in course of time. The opposite party and his family members subjected the applicant with cruelty and she was victim of domestic violence. She was kicked out from her matrimonial home by opposite party on 20.1.2011 and since then she is residing in her parental place. The opposite party was summoned and learned magistrate after recording statements of witnesses allowed the complaint under Section 12 of the said Act vide order dated 18.7.2014 and awarded Rs. 2,000/- as interim maintenance from the date of judgment to the applicant which is payable by respondent-husband.
Feeling aggrieved by judgment and order of learned magistrate, complainant Sushma filed a criminal appeal under Section 12 of Protection of Women from Domestic Violence Act before Court of Session which was decided by judgment and order dated 1.12.2015 and the appeal was partly allowed. Learned Additional Sessions Judge while affirming the judgment and order dated 18.7.2014 passed by learned magistrate with regard to monetary relief also allowed Rs. 20,000/- as damages to the applicant. The applicant further instituted a maintenance case under Section 125 Cr.P.C. registered as Case No. 76 of 2016 against her husband seeking maintenance from her husband with allegations of matrimonial cruelty and domestic violence who works as conductor in UPSRTC with some allegations which were already taken in proceedings under Section 12 of Act. Learned Additional Principal Judge, after considering the pleadings and evidence of the parties, allowed the application under Section 125 Cr.P.C. and directed that opposite party will pay Rs. 5,000/- interim maintenance to the applicant from the date of filing of application dated 29.2.2016.
Feeling aggrieved by impugned judgment and orders, the opposite party has filed present criminal revision.
Learned Additional Principal Judge in impugned order has observed that the opposite party has admitted in paragraph no. 14 of the written statement that he works as a conductor in UPSRTC and the applicant has stated that her husband earns around Rs. 40,000/- to 50,000/- per month as salary.
Learned counsel for the revisionist also admitted during argument that gross monthly salary of the revisionist is around Rs. 45,000/- per month but he has taken many loans due to which his take home salary is reduced substantially. Learned trial court also gave finding that respondent no. 2 has no independent source of income. Learned court below has also considered in impugned judmgnet that the applicant has been awarded Rs. 20,000/- as monthly interim maintenance in proceedings under Section 12 of Domestic Violence Act vide order dated 18.7.2014 to which applicant filed a criminal appeal which was decided on 1.12.2015 and in compliance of appellate court's order, opposite party paid Rs. 20,000/- as damages to the applicant and according to applicant, she has got only Rs. 22,000/- from the revisionist i.e. Rs. 20,000/- damages and Rs. 2,000/- only towards interim maintenance.
Learned counsel for the revisionist placed reliance on Rajnesh Vs. Neha, (2021) 2 SCC 324, wherein Hon'ble Apex Court issued following directions:-
"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:
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."
Thus Hon'ble Apex Court has laid down that 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 proceedings. Learned court below has considered interim maintenance awarded in proceedings under Section 12 of Domestic Violence Act by orders of magistrate to the respondent and fixed Rs. 5,000/- as monthly maintenance in proceedings under Section 125 Cr.P.C.. Thus, this can be assumed that the amount of maintenance of Rs. 5,000/- has been fixed taking into consideration the interim maintenance Rs. 2,000/- awarded to the applicant in previous proceedings.
Keeping in view the income of revisionist, it cannot be said that only due to the fact that interim maintenance to the tune of Rs. 2,000/- was awarded in previous proceedings under Section 12 of Domestic Violence Act, the amount of Rs. 5,000/- is excessive or beyond financial capacity even adding interim maintenance Rs. 2,000/- with present amount of maintenance. Rs. 7,000/- per month as maintenance awarded to the applicant cannot be taken as excessive as this is a fraction of monthly salary of the revisionist. This is settld law that the applicant's wife is entitled to seek maintenance for sustinance according to standard to which she was living along with her husband after marriage and till their separation.
I find no reason to set off amount of maintenance Rs. 2,000/- per month as awarded by learned magistrate as interim maintenance in proceedings under Domestic Violence Act. Revision is devoid of merit and is liable to be dismissed.
Accordingly, revision stands dismissed.
Order Date :- 20.9.2023
Anand
