CRLR/403/2018
2023 Latest Caselaw 1815 UK

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                                      CRLR No. 403 of 2018
                                      Hon'ble Manoj Kumar Tiwari, J.

Mr. S.K. Mandal, Advocate for the revisionist.

(2) Mr. H.C. Pathak, Advocate for respondent no. 1.

(3) Mr. Sachin Panwar, Brief Holder for the State/respondent no. 2.

(4) Heard learned counsel for the parties.

(5) This Criminal Revision is filed by husband against judgment and order dated 27.08.2018 passed by learned Additional Judge, Family Court, Dehradun in Criminal Case No. 217 of 2013, filed under Section 125 Cr.P.C.

(6) By the impugned judgment, learned Additional Judge has partially allowed the application for maintenance filed by respondent no. 1-wife and directed the revisionist to pay Rs. 17,000/- per month as maintenance to respondent no.1-wife, after adjusting amount paid by revisionist as maintenance to respondent no. 1-wife, pursuant to order passed in other proceedings.

(7) It is contended by learned counsel for revisionist that respondent no.1-wife has filed First Appeal No. 567 of 2013 against divorce decree before Hon'ble Allahabad High Court and, pursuant to the order passed in the said Appeal, revisionist is paying a sum of Rs. 15,000/- per month as maintenance pendente lite to respondent no.1, therefore, the application for maintenance filed under Section 125 Cr.P.C. by respondent no. 1, is not maintainable and learned Additional Judge, Family Court, Dehradun erred in allowing her application for maintenance. It is further contended on behalf of the revisionist that learned Family Court, Saharanpur allowed the Divorce Petition filed by her wife, which is under challenge in an Appeal before Hon'ble Allahabad High Court, however, the divorce decree passed by learned Family Court has not been set aside, therefore, revisionist is not liable to pay any maintenance.

(8) Per contra, learned counsel for respondent no.1-wife contended that the divorce decree was obtained by revisionist by playing fraud upon learned Family Court, as the revisionist had set up imposter in place of respondent no. 1-wife, who filed Divorce Petition on her behalf and became instrumental in getting the divorce decree at the behest of revisionist.

(9) The questions, which fall for consideration in this revision, are (i) whether application for maintenance filed by respondent no. 1-wife under Section 125 Cr.P.C. was maintainable before Additional Judge, Family Court, Dehradun, while she was already receiving Rs. 15,000/- as maintenance pendente lite, pursuant to orders passed by Hon'ble Allahabad High Court; (ii) whether respondent no. 1 can claim maintenance, after passing of the decree of divorce by a competent court of law.

(10) Hon'ble Supreme Court in the case of Rajnesh v. Neha and another, (2021) 2 SCC 324 has examined the conflicting views taken by different High Courts on the question of adjustment or set-off of maintenance granted in proceedings under different enactments and it was held that a wife can make claim for maintenance under Domestic Violence Act, Section 125 Cr.P.C. or under Hindu Marriage Act and, while deciding the quantum of maintenance in the subsequent proceedings, the Court concerned shall take into account the maintenance awarded in any previously instituted proceedings, and determine the maintenance payable to the claimant. Paragraph nos. 60 & 61 of the said judgment, are reproduced below:-

"60. 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 DV Act and Section 125 CrPC, or under HMA. 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.

61. 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 court concerned in the previous proceeding."

(11) The direction issued by Hon'ble Supreme Court in the said judgment on the issue of overlapping jurisdiction as contained in paragraph no. 128, is extracted below:-

"128. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

128.1. (i) Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set- off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding.

128.2. (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding.

128.3. (iii) If the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding."

(12) In view of law laid down by Hon'ble Supreme Court in the case of Rajnesh v. Neha and another (supra), this Court has no hesitation in holding that the application for maintenance filed by wife under Section 125 Cr.P.C. cannot be said to be not maintainable, only because there was a direction by Hon'ble Allahabad High Court to the husband to pay maintenance pendente lite.

(13) Section 125 Cr.P.C. provides that if any person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, then a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time-to-time directs. Explanation (b) to Section 125 (1) provides that the expression 'wife' used in Section 125 (1) includes a woman, who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Thus, right to claim maintenance is available to a woman, who is unable to maintain herself, who has been divorced or who has obtained a divorce from her husband, till the time she is not remarried.

(14) In such view of the matter, this Court has no hesitation in holding that the application filed by respondent no. 1 under Section 125(1) Cr.P.C. for maintenance was maintainable and the said issue is decided against the revisionist.

(15) Now coming back to the facts of present case, in the impugned order, learned Additional Judge has provided that the amount received by respondent no.1- wife, in terms of order passed in other proceedings, would be adjusted against the amount awarded to her as maintenance under Section 125 Cr.P.C. Thus, the order impugned in this criminal revision is strictly in consonance with the law laid down by Hon'ble Supreme Court.

(16) Thus, there is no scope for interference with the impugned order.

(17) Accordingly, the criminal revision is dismissed. No order as to costs.

(18) The difference amount of maintenance shall be paid by revisionist to respondent no. 1 in four installments spread over a period of one year from today.

(Manoj Kumar Tiwari, J.) 13.07.2023 Navin