DV Act and 125 CrPC proceedings are independent: monetary relief in DV Act can be granted even if some maintenance has been allowed to wife under Section-125 CrPC

April 12, 2019: Delhi High Court has observed that DV Act proceedings and Section 125 CrPC proceedings are independent and the Magistrate can grant monetary relief in DV Act even if some maintenance has been allowed to wife in the proceeding initiated under Section-125 CrPC.

Justice Sachdeva passed the judgment titled SHOME NIKHIL DANANI vs TANYA BANON DANANI on 11.04.2019.

Petitioner and Respondent were married on 28.06.2014. Respondent left her matrimonial home on 28.05.2015 allegedly on account of being physically and mentally tortured. The parties have been living separately ever since. Respondent-wife filed a petition under section 125 Cr.P.C., wherein by order dated 23.01.2017 interim maintenance was granted to her from the date of filing of the petition. Then the wife filed a petition under DV Act.

By order dated 06.04.2018 the application under section 23 was dismissed. The Trial Court rejected the monetary relief claimed by the Respondent on the ground that she had already been granted maintenance of Rs 1,20,000/- per month under section 125 Cr.P.C. by the family court.

In appeal, the appellate court held that the trial court had not considered the judgments of the Supreme Court as well as this court wherein it had been laid down that both Cr.P.C. and DV Act provided concurrent jurisdiction and the relief under section 12 of the DV Act was in addition to any relief which could be granted by any court of law in any forum. Noticing the fact that the trial court had not considered the law as laid down, the appellate court remitted the matter to the trial court to reconsider the relief sought for by the respondent.

Husband challenged the appellate court order before the High Court on the premise that wife having already granted maintenance cannot claim double maintenance by filing DV Act petition.

In that context, the High Court dealt with the matter and observed “Cleary the scope of Section 20 of the DV Act is much wider than that of Section 125 Cr.P.C.. While Section 125 Cr.P.C. talks only of maintenance, Section 20 DV Act stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of the domestic violence including but not limited to loss of earning, medical expenses, loss caused due to destruction, damage or removal of any property from the control of aggrieved person”.

It further observed by citing Section-20(1d) of DV Act as “This clearly shows that an order under Section 20 DV Act is not restricted by an order under section 125 Cr.P.C.. The Trial Court clearly erred in not appreciating the distinction between the two provisions and the reasoning is clouded by an impression that the respondent – wife in the application under section 23 was only seeking an order of maintenance, which is not the case. In her application under section 23 of the DV Act, the respondent wife has inter-alia sought residence rights under Section 19 and protection under Section 18 apart from the monetary relief under Section 20”.

The High Court also observed “Further, it may be seen that proceeding under the DV Act and under section 125 Cr.P.C are independent of each other and have different scope, though there is an overlap. In so far as the overlap is concerned, law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance under DV Act, maintenance fixed under section 125 Cr.P.C shall be taken into account”.

In the process, justice Sachdeva termed the earlier judgment of Delhi High Court passed in Rachna Kathuria vs Ramesh Kathuria, 173(2010) DLT 289 as per incurium and then he proceeded to dismiss the petition of the husband.

Read the judgment here:

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