Karnataka High Court
Mohammed Shandar vs Mrs Syeda Zaiba Firdous on 13 January, 2022
Bench: Hemant Chandangoudar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13 TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO.7413 OF 2019
BETWEEN:
MOHAMMED SHANDAR
S/O MOHAMMED ZAKAULLA
AGED ABOUT 32 YEARS,
NO.25, 8TH A MAIN ROAD,
NEW GURAPPANA PALYA,
BANNERGHATTA RAOD,
BANGALORE-560029
... PETITIONER
(BY SRI N.P.KALLESH GOWDA, ADVOCATE)
AND:
MRS. SYEDA ZAIBA FIRDOUS
D/O SYED ANWAR
AGED ABOUT 26 YEARS,
R/AT D.NO.2159/2, 7TH CROSS,
(SOUTH), SAWDAY ROAD,
MANDI MOHALLA,
MYSORE CITY-570001
... RESPONDENT
(BY SRI. B.LETHIF, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT
THIS HONORABLE COURT MAY BE PLEASED TO SET ASIDE
THE ORDER DATED 22.08.2019 PASSED BY THE PRINCIPAL
I CIVIL JUDGE AND J.M.F.C., MYSURU IN
CRL.MISC.NO.280/2016 AND SUBSEQUENTLY ORDER
DATED 18.09.2019 IN CRL.A.NO.262/2019 PASSED BY THE
III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU
2
AND DISMISS THE APPLICATION DATED 28.12.2017 FILED
BY THE RESPONDENT IN CRL.MISC.NO.280/2016
PRODUCED AT ANNEXURE-A AND B.
THIS CRIMINAL PETITION COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The respondent filed a petition in
Crl.Mis.No.280/2016 under Sections 12, 18, 19, 20, 22 and
23 of the Protection of Women from Domestic Violence Act,
2005. In the said proceeding the respondent filed an
application for grant of interim maintenance under Section
23 of the said Act and the trial Court granted interim
maintenance of Rs.10,000/- per month in favour of
respondent payable by the petitioner. The petitioner being
aggrieved, filed Criminal appeal in Crl.A.No.262/2019 under
Section 29 of the Domestic Violence Act. The appellate
Court modified the order passed by the trial Court reducing
the interim maintenance to Rs. 6,000/- per month as
against Rs.10,000/- per month granted by trial Court. Being
aggrieved, filed this Criminal petition.
2. Learned counsel for the petitioner would submit
that respondent having already obtained an order under
Section 125 of Cr.P.C in C.Mis.No.267/2015 for interim
maintenance for a sum of Rs.4,000/- per month, cannot
maintain another application for maintenance. Hence,
Judgment/order passed by trial Court as well as appellate
Court requires to be set aside.
3. On the other hand, learned counsel appearing
for respondent would submit that there is no bar under
Section 23 of the Act for claiming maintenance. Hence,
impugned order passed by trial Court as well as appellate
Court is in accordance with law and the same does not call
for any interference.
4. I have considered the submissions made by the
learned counsel for the parties.
5. It is not in dispute that the respondent filed an
application under Section 125 of Cr.P.C seeking
maintenance from the petitioner. The Jurisdictional
Magistrate granted maintenance of Rs.4,000/- per month to
the respondent, against which the petitioner has filed a
revision petition before this Court and the same is pending
for consideration. When such being the case, respondent
filed an application under the Act for interim maintenance.
6. The Husband doesn't have to pay maintenance
in each of the proceedings under different maintenance
laws. The Hon'ble Apex Court in the case of Rajnesh v.
Neha and anr reported in (2021)2 SCC (Civ) 220 has
framed directions on the issue of maintenance of wife on
conflicting orders resulting from overlapping jurisdiction
under different enactments for payment of maintenance.
The apex Court has observed that the applicant in a
subsequent maintenance proceeding shall disclose the
previous maintenance proceeding and 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.
7. The respondent herein ought to have disclosed
the order dated 13.09.19 passed by this court in RPFC No.
18/2019 which stayed the proceedings in
Crl.Misc.No.267/2015 subject to petitioner depositing 25%
of Rs 2,06,000/- and directed the petitioner to pay regular
maintenance of Rs 2,000/-per month.
8. Since the issue with regard to payment of
maintenance to the respondent is seized before this court in
RPFC No.18/2019, the trial court and the appellate court
ought not to have awarded interim maintenance to the
respondent. In view of the decision of the apex court in the
case of Rajnesh v. Neha and anr (supra), this court is of the
view that conflicting orders from overlapping jurisdiction
would place the husband into hardship. Hence, the
impugned orders passed by trial Court and appellate Court
are not sustainable in law. Accordingly, I proceed to pass
the following:
ORDER
i) Criminal Petition is allowed.
ii) The impugned order dated
22.08.2019 passed by Prl.I Additional Civil
Judge (Jr.Dn) and JMFC, Mysuru in Criminal
Miscellaneous No.280/2016 and the order
dated 18.09.2019 passed by III Additional
District and Sessions Judge, Mysuru in Criminal
Appeal No.262/2019 stand quashed.
iii) Liberty is reserved with the
respondent to submit an application afresh for
interim maintenance after disposal of
RPFC No.18/2019.
Sd/-
JUDGE
BH
