Provided further that, such order for payment of
interim maintenance may, in an appropriate case,
also be made by the Magistrate ex-parte, pending
service of notice of the application, subject, however,
to the condition that such an order shall be liable to be
modified or even cancelled after the respondent is
heard in the matter:
[Vide Maharashtra Act 21 of 1999 sec.2 (w.e.f.20-4-
1999).] Ed. These amendments have been made prior
to the enactment of the Code of Criminal Procedure
(Amendment) Act, 2001 (Central Act 50 of 2001)
whereby the words "not exceeding five hundred
rupees in whole" have been omitted by sec.2 (w.e.f.24-
osk 9-wp-1703-2017.odt
9-2001)".
9] Much emphasis is laid by learned counsel for the
Petitioner on the Provisions under Clause (ii) which says that such
application for payment of interim maintenance can be allowed by
the Magistrate being satisfied that there is prima facie ground for
making such order and then allow a reasonable amount of interim
maintenance to the applicant pending the final disposal of the main
application for maintenance.
10] Here in the case, according to learned counsel for the
Petitioner, there was absolutely no prima facie ground for making
such order of interim maintenance, as the Respondents were already
awarded interim maintenance under the D.V. proceedings. He fairly
concedes that if the facts were otherwise like the Respondents were
awarded interim maintenance under Section 125 of Cr.P.C.. then in
view of the provisions of Section 20 of D.V. Act relating to Monetary
Relief specially sub Clause (d) thereof, Respondents would have been
entitled for the maintenance in those proceedings in addition to an
amount of maintenance awarded under Section 125 of Cr.P.C.
However, the provisions of Section 125 of Cr.P.C., Maharashtra
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Amendment, do not contain similar such provision. Conversely, it
categorically provides that only when prima facie ground is made
out, such order of payment of reasonable sum of maintenance can be
passed by the Court under Section 125 of Cr.P.C.. Therefore it does
not empower the Court to pass an order of interim maintenance
which is in addition to amount of maintenance already awarded
under D.V.Act.
11] However, in this respect, as rightly pointed out by
learned counsel for the Respondents, the provisions of Section 36 of
the D.V. Act clearly provide that the provisions of the said Act shall
be in addition to and not in derogation of the provisions of any other
law for the time being in force; thereby indicating that merely
because order of maintenance is passed under the provisions of D.V.
Act, it will not take away the right of the applicant-wife to get
maintenance under any other provisions of law, including the
provisions of Section 125 of Cr.P.C.. This Section 36 of D.V.Act
therefore, makes it clear that whatever amount of maintenance is
granted under the D.V. Act is in addition and not in any way in
derogation to the maintenance to which applicant will be entitled or
may be entitled, under any other provisions of the Law. It
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necessarily therefore follows that merely because, the Respondent-
wife is awarded some amount of maintenance under the D.V. Act, she
can not loose her right to get maintenance under Section 125 of
Cr.P.C..
12] According to learned Counsel for Petitioner however for
getting such interim maintenance, U/s 125 of Cr.P.C., the
Respondent-wife has to make out a " prima facie ground" and Court
should be satisfied of such ground. Here in the case no such prima
facie ground is made out. It is true that in this case the Respondent
No.1 has not stated in her application filed before the Family Court
that she has already been granted the interim maintenance in the
D.V. proceeding but that appears to be so on account of the fact that
she has filed application for interim maintenance before the Family
Court on 23/10/2013 whereas the order of interim maintenance was
passed in the D.V. proceedings on 03/01/2014. Therefore, when she
had filed the application for interim maintenance in the Family
Court, the order of interim maintenance in D.V. proceeding was not
passed, hence there is no intentional suppression of this material
fact on her part.
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13] It is a matter of record that thereafter this order was
brought to the notice of the Family Court when it passed the
impugned order. It would have been definitely in the fitness of things
that after this order dated 03/01/2014 was passed in the D.V.
proceedings, Respondent No.1 had amended her application to make
out the case for additional amount of maintenance. However, the
question posed for consideration is merely because she has not
amended such application, whether Court cannot take into
consideration the change of circumstances? The answer is emphatic
'no'. Court is not obsolved from its duty of coming to conclusion
whether she has made out prima facie ground, merely because she
has not pleaded or amended her application to that effect. The law is
well settled that the Court has to take into consideration the change
of circumstances even if not pleaded as such, because the very
wording of Clause (ii) Section 125(a) provides that it is "on Court
being satisfied that there is prima facie ground for making such
order", the Court can pass such order of interim maintenance.
Therefore, it follows that it is the "satisfaction" of the Court. It may
be arrived at on the basis of the pleading raised by the parties or it
may be on account of certain facts which are brought to the notice of
the Court, or those facts, of which the Court is expected to take the
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judicial notice.
14] Here in the case, the Family Court has taken the judicial
notice of the fact that the order of interim maintenance in the D.V.
proceeding was passed on 03/01/2014, whereas this application
before the Family Court was decided in February 2017. Therefore,
there was lapse of more than three years and during this period
there has been change in circumstances. Not only in the
requirements of the child, who is a growing child and studying in 9 th
Standard, but also on account of the rise in the prices of essential
commodities, which made it necessary to grant some additional
amount of maintenance. The Family Court has taken into
consideration these aspects of the case and it has observed that the
Court has to see whether that amount of maintenance awarded in
D.V. proceedings is sufficient and further held that the amount of
Rs.3,000/- per month for the wife and Rs.2,000/- per month for her
son is definitely not sufficient for their maintenance and educational
expenses of son. Therefore, having regard to the income of the
Petitioner and also having regard to the requirements of the
Respondent in the change of circumstances, after the laps of three
years, the Family Court has thought it fit to award additional sum of
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Rs.2,000/- per month each to Respondent Nos.1 and 2.
15] If one considers all these facts and circumstances on
record, then it can not be said that the impugned order passed by the
Family Court is passed without the jurisdiction vested in the Family
Court or it is so unreasonable, exorbitant or excessive, so as to
warrant interference therein in the writ jurisdiction of this Court. In
this respect, it may be useful to refer to the pleadings of the
Respondent which show that the Petitioner is doing the Computer
business and earning Rs.10,000/- per month, he is also having the
agriculture land. Therefore, this additional amount of maintenance
which is a small increase in the amount of maintenance awarded in
the year 2013 does not require any interference by this Court.
Hence, the Writ Petition being without merits stands dismissed.
16] Rule is discharged.
(DR. SHALINI PHANSALKAR-JOSHI, J.)
