Prakash Babulal Dangi vs The State Of Maharashtra And Anr
2017 Latest Caselaw 7980 Bom

Dixit
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL WRIT PETITION NO.3791 OF 2016
                                         ALONG WITH
                       CRIMINAL APPLICATION NO.296 OF 2017

        Prakash Babulal Dangi,                             ]
        Age : 35 Years, Occ.: Business,                    ]
        Having premises at Carpenter Point,                ]
        L.G. - 73½, Opp. Kamgar Nagar,                     ] .... Petitioner /
        Kurla (East), Mumbai 400 024.                      ]    Applicant
                        Versus
        1. The State of Maharashtra,                       ]
           Through the Public Prosecutor,                  ]
           High Court (Cr. A.S.)                           ]
                                                           ]
        2. Rekha Prakash Dangi,                            ]
           Age : 26 Years, Occ.: Housewife,                ]
           At present residing at :                        ]
           C/of Roshan Lal Sanghavi,                       ]
           A/09, 1st Floor, Daneshkunj Building,           ]
           Nehru Road, Santacruz (E), Mumbai.              ] .... Respondents

                                         ALONG WITH
                    CRIMINAL WRIT PETITION NO.3239 OF 2014

        Rekha Prakash Dangi,                               ]
        Age : 26 Years, Occ.: Housewife,                   ]
        At present residing at :                           ]
        C/of Roshan Lal Sanghavi,                          ]
        A/09, 1st Floor, Daneshkunj Building,              ]
        Nehru Road, Santacruz (E), Mumbai.                 ] .... Petitioner
                        Versus
        1. The State of Maharashtra,                       ]
           Through the Public Prosecutor,                  ]
           High Court (Cr. A.S.)                           ]


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        WP-3791-16-&-3239-14.doc

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 2. Prakash Babulal Dangi,                             ]
   Age : 35 Years, Occ.: Business,                    ]
   Having premises at Carpenter Point,                ]
   L.G. - 73½, Opp. Kamgar Nagar,                     ]
   Kurla (East), Mumbai 400 024.                      ] .... Respondents


Ms. Ratna R. Jaiswal for the Petitioner-Applicant in WP/3791/2016
a/w. Criminal Application No.296 of 2017, and for Respondent No.2
in WP/3239/2014.

Mr. P.H. Gaikwad, A.P.P., for Respondent No.1-State in both the
Petitions.

Mr. Ranjit Singh, i/by Mr. Kishore Maru for Respondent No.2 in
WP/3791/2016 and for the Petitioner in WP/3239/2014.


                   CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                   DATE          : 10 TH OCTOBER 2017.


ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, by

consent of learned counsel for both the parties.

2. These are two counter Petitions filed by the parties to the

matrimonial proceedings. Writ Petition No.3239 of 2014 is filed by

the wife; whereas, Writ Petition No.3791 of 2016 is filed by the

husband. The only small issue, which appears to be raised by the

parties, pertains to the confusion as to which order is to be followed;

'whether the order of maintenance passed in the proceedings filed

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under Section 125 of Cr.P.C. is to be followed, or, whether the order

passed in the proceedings filed under Domestic Violence Act, is to be

followed ?'

3. It is a matter of record, that the wife has filed a Petition,

bearing No.E-253 of 2010, for maintenance under Section 125 of

Cr.P.C. and the said Petition, though filed in the year 2010, came to

be decided on 20th January 2016. While allowing the said Petition,

the husband was directed to pay maintenance @ Rs.6,000/- per

month to wife and Rs.4,000/- per month to the minor daughter; in

all, Rs.10,000/- per month, from the date of the order.

4. It is also a matter of record, that, meanwhile, the wife has also

filed a Petition, under Domestic Violence Act, bearing C.C.

No.9/DV/2012. In the said Petition, she has filed an application for

interim maintenance to the tune of Rs.20,000/- per month for

herself and Rs.15,000/- per month for her daughter. The said

application for interim maintenance filed by wife came to be allowed

partly on 26th July 2012 and husband was directed to pay an

amount of Rs.8,000/- per month to the wife and Rs.5,000/- per

month to the daughter.

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5. When this order under Section 125 of Cr.P.C. was passed in

Petition, bearing No.E-253 of 2010, the order of interim

maintenance, passed in the application filed in the Petition, under

Domestic Violence Act, bearing C.C. No.9/DV/2012, was brought to

the notice of the said Court. Paragraph No.28 of the order dated 20 th

January 2016, passed in the Petition bearing No.E-253 of 2010,

reads as follows :-

"28. It is a matter of record and admitted fact that Petitioner has filed a case under Domestic Violence Act and there was an order of maintenance of Rs.5,000/- p.m. for herself and Rs.3,000/- p.m. for her daughter, in all, Rs.8,000/- p.m. The Petitioner, in her cross- examination, has admitted that the Respondent is paying this amount to her. The order was, admittedly, an interim order."

6. Thus, after taking into consideration this order, which was

passed in the proceedings filed under Domestic Violence Act,

granting interim maintenance @ Rs.8,000/- per month to the wife

and her daughter, while deciding the proceedings filed under Section

125 of Cr.P.C., the Family Court, Mumbai, has awarded the

maintenance @ Rs.6,000/- per month to the wife and Rs.4,000/- per

WP-3791-16-&-3239-14.doc

month to the minor daughter. It is clear that, while allowing such

application, the Family Court has not granted maintenance from the

date of application, though the application was filed in the year

2010, but only from the date of the order i.e. 20 th January 2016,

having regard to the fact that, in the Domestic Violence Act, wife

was getting the interim maintenance. It is true that, this order

passed by the Family Court in the proceedings filed under Section

125 of Cr.P.C., does not make it clear whether this amount of

Rs.10,000/- per month was to be paid in addition to the interim

maintenance awarded to the wife in the proceedings filed under the

Domestic Violence Act. But, if it was so, that it was not to be paid in

addition but it was substituting, then, the Family Court would have

stated so, specifically. However, the Family Court has not stated that

this order of maintenance passed in the proceedings filed under

Section 125 of Cr.P.C. will replace the order passed in the

proceedings filed under the Domestic Violence Act.

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

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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.

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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9. This inference can be further strengthened from the fact that

Criminal Revision Application No.151 of 2016 preferred by the

husband, against the order of interim maintenance passed under

Section 125 of Cr.P.C., is dismissed by this Court vide its order dated

25th July 2016. Perusal of the said order reveals that, in the said

Revision Application also, the husband has specifically raised a

contention that, as he has paid the amount of maintenance, as

awarded under the Domestic Violence Act, he is not liable to pay the

amount of maintenance, as awarded under Section 125 of Cr.P.C. In

the said Writ Petition, the husband has also produced the receipt of

payment of the maintenance awarded under the Domestic Violence

Act. However, his contention was flatly rejected by this Court and it

was held that, the husband has to comply with the order passed in

the proceedings filed under Section 125 of Cr.P.C. It was further held

that, as the husband has not complied with the order of the Family

Court passed in the proceedings filed under Section 125 of Cr.P.C.,

he cannot be heard in the matter and his Revision Application,

therefore, was dismissed.

10. Thus, in view of this order dated 25 th July 2016 passed by this

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Court in Criminal Revision Application No.151 of 2016, there

remains absolutely no scope as to the confusion between the parties

as to which order is to be obeyed. It follows that, as both the orders

are passed by two different Forums in two different proceedings,

both the orders are binding on the Petitioner-husband and

Respondent-wife and they have to comply with both the orders,

unless they are varied or set aside.

11. In view thereof, with these clarifications that both the orders;

the one passed under the provisions of Domestic Violence Act and

another passed under Section 125 of Cr.P.C., are required to be

complied, both these Writ Petitions stand disposed off.

12. In view of the above, Criminal Application No.296 of 2017,

having become infructuous, stands disposed off.

13. Rule is discharged.

14. Parties to act on the authenticated copy of this order.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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