Bhargavpuri Hempuri Gosai vs State Of Gujarat
2023 Latest Caselaw 2334 Guj

      R/CR.RA/224/2023                                       ORDER DATED: 17/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 224 of 2023

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                          BHARGAVPURI HEMPURI GOSAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR MAULIK J SHELAT(2500) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 2,3,4
MR.PRANAV TRIVEDI APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 17/03/2023

                                   ORAL ORDER

[1] Heard Mr.Maulik Shelat for the applicants

and learned APP for the respondent - State.

[2] Challenge in this revision application is

given to the judgment and order below Ex.5 dated

26.04.2022 passed by learned Chief Judicial

Magistrate, Jam-khambhaliya in Criminal Misc.

Application No.6 of 2019, reaffirmed by the judgment

and order dated 21.12.2022 passed by the District &

Session Court, Devbhumi - Dwarka in Criminal

Appeal No.20 of 2022.

R/CR.RA/224/2023 ORDER DATED: 17/03/2023

[3] Mr.Maulik Shelat, learned advocate for the

applicant submits that the order passed by the

Courts below have committed jurisdictional error by

not giving setoff, to adjust amount of maintenance

already granted to the respondent no.2-wife in her

application filed under Section 125 of the Criminal

Procedure Code.

3.1 Advocate Mr.Shelat submitted that the

learned Courts below have materially erred in not

considering the already awarded maintenance of

Rs.5,500/- in favour of the original applicant and

further submitted that the learned Appellate Court

has erroneously observed that the applicants can file

application under Section 25(2) of the Protection of

Women From Domestic Violence Act, 2005 (For short

D.V.Act), since Mr.Shelat submitted that it cannot be

adopted as there is no change in circumstances after

passing of the order by learned trial Court.

3.2 Advocate Mr.Shelat submitted that Section

25 of the D.V.Act speaks of an order under Section

18 of the D.V.Act, which is not impugned.

R/CR.RA/224/2023 ORDER DATED: 17/03/2023

3.3 Advocate Mr.Shelat has referred to the

decisions in the case of Rajnesh Vs. Neha & Anr. reported in (2021) 2 SCC 324, and Sudeep Chaudhary

Vs. Radha Chaudhary AIR 1999 SC 536 and submitted

that the applicant's wife had not disclosed the

maintenance amount granted under Section 125 of

the Cr.P.C. and willful suppression has led to

travesty of the justice, since the very act of the

claimant itself would disentitle the applicant's wife to

claim any interim maintenance amount.

3.4 In the case of Sudeep (supra), the appellate

Court has observed that the amount awarded under

Section 125 of the Cr.P.C. for maintenance was

adjustable against the amount awarded in the

matrimonial proceedings and it has been further

observed that the claims of the husband and wife

are to be balanced. While in the case of Rajnesh

(supra), it has been observed that the remedy of the

maintenance in both secular laws and personal laws

may not be overlapping and simultaneous operation

of statutes would lead to multiplicity of proceedings

and conflicting order. Thus, in the case of Rajnesh

R/CR.RA/224/2023 ORDER DATED: 17/03/2023

(supra) certain guidelines have been framed under

Article 142 of the Constitution of India, laying down

the uniform and consistent standard and for ensuring

timely disposal of the applications seeking

maintenance under all the applicable statutes. In the

said judgment, it has been laid down that though

the wife can simultaneously claim maintenance under

the different enactments, it would be inequitable to

direct the husband to pay the maintenance awarded

in each of the said proceedings.

3.5. The Hon'ble Apex Court has observed that

the adjustment is permissible and the adjustment can

be allowed of the lower amount against the higher

amount. The Court, therefore, would take into

consideration the maintenance already awarded in the

previous proceedings, and grant an adjustment or set-

off of the said amount.

[4] Advocate Mr.Shelat, having referred to

Section 26(3) of the D.V. Act submitted, that in case

any relief has been obtained by the aggrieved person

in any proceedings other than in a proceeding under

R/CR.RA/224/2023 ORDER DATED: 17/03/2023

this Act, she is bound to inform the Magistrate of

the grant of such relief. On that basis, he submits

that no relief ought to have been granted to

aggrieved, since she had not disclosed the fact of

maintenance amount granted under Section 125 of

the Cr.P.C.

[5] The order, which is impugned is the

proceedings, under Section 23 of the Protection of

Women from Domestic Violence Act, 2005.

5.1 Section 23 of sub-section (2) lays down that

if the Magistrate is satisfied, that an application

prima facie discloses that the respondent is

committing, or has committed an act of domestic

violence or that there is a likelihood that the

respondent may commit an act of domestic violence,

the Magistrate may grant ex parte order on the

basis of the affidavit in such form, as may be

prescribed, of the aggrieved person under section 18,

section 19, section 20, section 21, or, as the case

may be, section 22 against the respondent.

R/CR.RA/224/2023 ORDER DATED: 17/03/2023

[6] Here, in this case, the order, which has

been passed at Ex.5 in Criminal Misc. Application 6

of 2018, is not an ex-parte order and it has been

passed after hearing the Advocates of both the sides.

The prayer was made for relief to be granted under

Sections 18(c), 19 and 20 of the D.V.Act, for monthly

maintenance of Rs.5,000/- for the applicant no.1, and

Rs.1,500/- for the applicant nos.2 and 3, respectively.

Thus, the total amount of Rs.8,000/- per month,

towards maintenance, medical expenses was prayed

as interim order. It appears that there was no ex-

parte order. It appears from the order that, after appearance of respondent, through the advocate on

record, has replied to the interim application filed at

Exh.29, raising his dispute, contending that the relief

would not fall within the purview of Section 19 of

the D.V. Act, and that, there had been an order of

Rs.5,500/-, for maintenance, which he had been

paying regularly, thus, contended that there has been

no reasonable cause to file the application.

[7] Advocate Mr.Shelat submitted that the

R/CR.RA/224/2023 ORDER DATED: 17/03/2023

learned Tribunal had not considered that the

respondent was paying Rs.5,500/- regularly as a

maintenance, and no set-off has been given in the

order. Vide order dated 13.03.2018, the learned

Family Court Judge had ordered to pay Rs.5,500/- as

a maintenance. Accordingly, the learned Chief

Judicial Magistrate, while passing an order of paying

the maintenance of Rs.1,500/- to applicant no.1 and

Rs.1,000/- for applicant no.2 & 3 under the D.V.Act,

had observed that both laws are different, and

merely because of an order of maintenance under

Criminal Procedure Code, has been passed, the law

does not state that no order can be passed under

the D.V.Act.

[8] There have been two fold submissions made

by Advocate Mr.Shelat, firstly, the applicant-wife has

suppressed the facts of the maintenance order, which

has been passed under Section 125 of the Cr.P.C.

Such fact was brought to the notice of the Court

only by the respondent - husband; and secondly, the

Court has not given any set-off to the maintenance

R/CR.RA/224/2023 ORDER DATED: 17/03/2023

amount.

[9] In view of the above submission, since the

order which has been passed is not an ex-parte order, but an interim order passed after hearing of

both the sides, thus, the order is under Section 23(1)

of the D.V. Act. The learned Judicial Magistrate has

taken into consideration the order of maintenance

passed under Section 125 of the Cr.P.C of Rs.5,500/-

for three applicants. Accordingly, this Court considers

that just and reasonable amount has been granted

under the D.V. Act. The submission has been made

that no set-off has been given, the argument, does

not satisfy the observation as made in the order,

the learned Judicial Magistrate, has after considering

the order of maintenance passed under Section 125

of the Cr.P.C., has granted amount to the applicants.

[10] Advocate Mr.Shelat has taken objection to

the observations made by the appellate Court where

the Appellate Court rejecting the appeal has observed

that if the appellant has any objection, then he could

R/CR.RA/224/2023 ORDER DATED: 17/03/2023

move application under Section 25(2) of the D.V. Act

satisfying the Court about the change of

circumstances, requiring any alteration, modification

or revocation of the order.

[11] The order is not made under Section 23(2)

of the D.V. Act, Form-III under Rule 6(4) & 7 would

apply, and details, would be required to be disclosed

in accordance to Form-III.

[12] Advocate Mr.Shelat made specific reference

of Section 26(3) of the D.V.Act, to state that the

aggrieved was bound to inform the Magistrate of the

grant of relief under section 125 of the Cr.P.C.

[13] Here, in this case, the respondent was

served with the notice of the Court, had an ex-parte

order be made in favour of the aggrieved, then non-

disclosure about the order of maintenance under

Section 125 of the Cr.P.C. would have to be viewed

seriously. Generally when the proceedings are

initiated under the D.V. Act, it would be informed

R/CR.RA/224/2023 ORDER DATED: 17/03/2023

under the Domestic incident report and the details

would be dealt with according to the requirement of

the form. Here, the grievance has been raised that

the aggrieved had not disclosed the fact of the order

of under Section 125 of the Cr.P.C. It is to be noted

that the prayer made under Section 23 of the D.V.

Act, is interim relief, further, the respondent himself

had disclosed about the order of maintenance under

section 125 of the Act, which was prior to the order

passed below Ex.5 impugned. Thus, at this juncture,

it cannot be assumed that the aggrieved has

obtained any relief without informing the Court about

the earlier orders.

[14] In view of the above, this Court does not

find any merit to entertain the present application.

Hence, the present application stands rejected.

(GITA GOPI,J) MANOJ