Jaswant Singh vs Gurcharan Kour
2023 Latest Caselaw 2258 j&K

                                                                                  2
     HIGH COURT OF JAMMU, KASHMIR AND LADAKH
                      AT JAMMU

Cr Rev No. 48/2023
Cav No. 1640/2023,
CM Nos. 6007/2023 & 6008/2023



Jaswant Singh, Age 61 years S/o.                  .....Appellant(s)/Petitioner(s)
Bhai Kehar Singh, R/o. Ajeet
Colony, Camp Gole Gujral, Jammu.

q
                     Through: Mr. B. S. Soodan, Adv.
                vs
Gurcharan Kour W/o. S. Jaswant Singh,                       ..... Respondent(s)
R/o. Ajeet Colony, Camp Gole Gujral,
Jammu
                     Through: Ms. Meenakshi Salathia, Adv.


Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                  ORDER

11.10.2023

CM No. 6007/2023

1. This is an application seeking condonation of delay in filing the revision

petition against the order dated 31.05.2023 passed by the Additional

Principal Judge, Family Court, Jammu, whereby in a proceeding under

Section 125 Cr.P.C., interim maintenance has been granted in favour of

the respondent. It has been submitted that after obtaining certified copy of

the impugned order, the petitioner filed a petition under section 482

Cr.P.C. bearing CRM(M) No. 767/2023 challenging the impugned order

passed by the learned Family Court and during the course of the hearing of

the said petition, it was realized by the petitioner that the petition is not

maintainable, as in terms of provisions of the Family Courts Act, the order

in question is revisable in nature. Accordingly, the petition was dismissed

Cr Rev. No. 48/2023

as withdrawn with a liberty to avail appropriate remedy. This was done in

terms of order dated 06.09.2023 passed by this Court. According to the

petitioner, the period between 02.09.2023 to 06.09.2023 during which he

was prosecuting the petition under section 482 Cr.P.C. under bona fide

mistaken belief deserves to be excluded, while computing the period of

limitation. It has been further submitted that the petitioner consumed time

in obtaining the copies of court orders and collecting the documents which

resulted in further delay in filing of the revision petition. On these

grounds, the condonation of delay in filing the revision petition is being

sought by the petitioner.

2. No reply has been filed by the respondent, therefore, the averments made

in the application have remained unrebutted.

3. For reasons stated in the application as have been narrated hereinbefore,

sufficient cause is made out for condoning the delay of 28 days in filing

the revision petition. The application is, accordingly, allowed and delay in

filing the revision petition is condoned.

4. The application stands disposed of.

Cr Rev. No. 48/2023

5. The petitioner has challenged the impugned order dated 31.05.2023

passed by the Additional Principal Judge, Family Court, Jammu,

whereby in a proceeding under Section 125 Cr.P.C. filed by the

respondent against the petitioner, a sum of Rs. 3000/- per month has been

awarded as interim maintenance in favour of the respondent. The

revision petition has been filed in terms of Section 19(4) of the Family

Courts Act, 1984. The proceedings being criminal in nature, the petition

Cr Rev. No. 48/2023

should have been given the nomenclature of criminal revision petition,

but the Registry has wrongly given it nomenclature of civil revision

petition. Accordingly, the Registry is directed to assign appropriate

nomenclature to the instant petition.

6. The petitioner has assailed the order of the Family Court on the grounds

that the prior to the filing of petition under section 125 Cr.P.C. by the

respondent against the petitioner, she had filed an application under

Section 12 of the J&K Protection of Women from Domestic Violence Act,

2005(for short the DV Act) before the court of learned Judicial Magistrate

1st Class (Munsiff), Jammu and vide order dated 07.09.2019 interim

maintenance of Rs. 5000/- per month has been granted in favour of the

respondent. It has been further submitted that the learned Family Court

without taking into consideration the aforesaid aspect of the matter passed

the impugned order, which according to the petitioner, is illegal. It has

been further submitted that the petitioner cannot be made to pay interim

maintenance to the respondent in two different proceedings at the same

time. According to the petitioner, he is a disabled pensioner drawing a

monthly pension of Rs. 40,000/- and he has to support two children, who

were presently undergoing studies. In these circumstances, grant of

maintenance by the learned Family Court in favour of the respondent and

against the petitioner is working harshly against him. It has been further

submitted that the respondent is drawing a salary of Rs. 15000/- by

working on a garments shop and as such, she is not entitled to any

maintenance.

Cr Rev. No. 48/2023

7. I have heard learned counsel for the parties and perused the impugned

order as well as the record of the case.

8. The first contention that has been raised by the learned counsel for the

petitioner is that it was not open to the learned Family Court to pass an

order of interim maintenance in favour of the respondent as already an

order of maintenance had been passed in her favour in a proceeding under

Section 12 of the DV Act. It is contended that it is not legally permissible

to award maintenance in favour of a wife in two different proceedings at

the same time.

9. The ground urged by the learned counsel for the petitioner is absolutely

without any merit for the reason that the issue whether a wife is entitled to

claim maintenance both under the DV Act and Section 125 of the Cr.P.C.

has been settled by the Supreme Court in the case of Rajnesh vs Neha

and another, 2021 (2) SCC 324. In the said case, the Supreme Court has

categorically laid down that there is no bar to seek maintenance both

under the DV Act and Section 125 of the CrPC or under the Hindu

Marriage Act. The relevant extracts of the judgment are reproduced as

under:

"It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Code of Criminal Procedure, or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.

Cr Rev. No. 48/2023

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the Applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding."

10. From what has been laid down by the Supreme Court, it is clear that the

respondent-wife is entitled to claim maintenance against her

husband/petitioner both under the DV Act and Section 125 of the Cr.P.C.

The only requirement is that the wife is under a legal obligation to make

disclosure of the facts regarding previously instituted proceedings and the

court, while deciding quantum of maintenance in the subsequent

proceedings, has to take into account the maintenance awarded in the

previous proceedings.

11. In the instant case, the respondent has clearly indicated in her petition

under Section 125 Cr.P.C. that she has been awarded a sum of Rs. 5,000/-

per month as maintenance under the DV Act. This fact has been taken

note of by the learned Family Court in its impugned order. So it is not a

case where the respondent has concealed the previously instituted

proceedings initiated by her before the Judicial Magistrate 1st

Class(Munsiff), Jammu. It is also clear from the impugned order that the

learned Family Court has, while fixing the quantum of interim

maintenance, taken into account the amount of maintenance that was

awarded in favour of the respondent in DV Act proceedings, whereafter

the court has awarded a further sum of Rs. 3,000/- per month as interim

Cr Rev. No. 48/2023

maintenance in favour of the respondent. So there is no illegality

committed by the learned Family Court, while awarding interim

maintenance in favour of the respondent as it has done so after adhering to

the guidelines laid down by the Supreme Court in Rajneesh's

case(supra).

12. So far as the contention of the petitioner that it will be difficult for him to

pay Rs. 8000/- per month to the respondent having regard to his disability

and liability to finance the education of his children is concerned, in this

regard, it is to be noted that the petitioner has retired as a gazetted officer

and he is drawing monthly pension of Rs. 40,700/-. There is no dispute

between the parties on this aspect of the matter. The contention of the

petitioner that the respondent is earning Rs. 15,000/- per month by

working on a garments shop, is not substantiated by any material on

record. In the present times, having regard to the cost of living, amount of

Rs. 8000/- per month as maintenance to a wife, can by no stretch of

imagination be termed as exorbitant, having regard to the capacity of the

petitioner to pay and the status of the parties. Even otherwise, it will not

be open to this Court in exercise of its revisional jurisdiction to interfere in

the discretion exercised by the learned Family Court, while fixing the

quantum of maintenance, which in the circumstances, cannot be termed

exaggerated.

13. It has been contended by the learned counsel for the petitioner that in the

operative portion of the impugned order, the learned Family Court has at

one place observed that the respondent is entitled to Rs. 2000/- per month

as interim maintenance but has proceeded to award an amount of Rs.

Cr Rev. No. 48/2023

3,000/- per month. It appears that there is a typographical error in the

order of the Family Court as a result of which at one place in para (9)

instead of Rs. 3000/-, Rs. 2000/- has been typed out. In any case, the

amount of Rs. 3000/- as interim maintenance does not appear to be on a

higher side. Therefore, there is no ground of interfere in the quantum of

maintenance awarded by the learned Family Court in favour of the

respondent.

14. For the foregoing reasons, I do not find any ground to interfere in the

impugned order passed by the learned Family Court. The revision petition

lacks merit and is dismissed accordingly.

(SANJAY DHAR) JUDGE

Jammu 11.10.2023 Rakesh

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No