Criminal Appeal No. 80 of 2021 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.64 of 2023 Goutam Charan Das …. Petitioner M/s. Bijayananda Dash, Advocate & Associates -Versus- Biswadarsani Das …. Opposite Party M/s. Bijaya Kumar Parida-2. Advocate & Associates CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT: 12.08.2024 1. Instant revision is filed by the petitioner assailing the correctness, legality and judicial propriety of the impugned order under Annexure-1 passed in Criminal Appeal No.80 of 2021 by learned 2nd Additional Sessions Judge, Cuttack, whereby, the decision of learned S.D.J.M.(Sadar), Cuttack in D.V. Misc. Case No.44 of 2021 under Section 23 of the Protection of Women from Domestic Violance Act, 2005 (hereinafter referred to as ‘the DV Act’) granting interim maintenance in favour of the opposite party stands confirmed though with reduction of monthly alimony on the grounds inter alia that the same is not sustainable in law and hence, therefore, liable to be interfered with and set aside in the interest of justice. 2. As per the order in the DV proceeding, learned S.D.J.M. (Sadar), Cuttack allowed Rs.6,000/- towards interim maintenance in favour of the opposite party wife, which was reduced to Rs.4000/- by the learned Court below. The said order dated 17th January, 2023 in appeal by learned Sessions Court is under challenge. According to the petitioner husband, the opposite Page 1 of 10 party suppressed the earlier order of the Family Court in C.M.A.
Legal Reasoning
No.87 of 2019 arising out of a proceeding in C.P. No.139 of 2018 instituted by him, wherein, while entertaining an application under Section 24 of the Hindu Marriage Act, 1955, interim maintenance @ Rs.10,000/- per month was allowed with an additional payment of Rs.50,000/- towards litigation expenses borne by her. Furthermore, it is pleaded by the petitioner that the opposite party could not have been allowed interim maintenance in two separate proceedings as the same is not legally tenable. That apart, as per the petitioner, the opposite party is well educated and qualified and has had been in employment, hence, it was not right for the learned Courts below to grant such relief to her. With the above contention, the impugned order under Annexure-1 is questioned by the petitioner.
Legal Reasoning
3. Heard Mr. Dash, learned counsel for the petitioner and Mr. Parida-2, learned counsel for the opposite party. 4. According to Mr. Dash, learned counsel for the petitioner, the interim maintenance should not have been granted to the opposite party when she could be in employment being an Engineering Graduate and the same cannot be allowed under the DV Act, when learned Family Court has already directed the petitioner to pay Rs.10,000/- a month to her as interim maintenance. It is contended that such demand for maintenance in two different forums is unfair and not justifiable in law. It is also contended that since the opposite party is a qualified professional and can earn on her own, any such maintenance as directed by the learned Courts below is not proper. In support of such contention, Mr. Dash, learned counsel for the petitioner relies on the orders of Gujarat High Court in Special Criminal Application No.2080 of 2010 dated 21st October, 2010 (Hemlataben Maheshbhai Chauhan Vrs. State of Gujarat; of Page 2 of 10 Bombay High Court in Ravindra Haribhau Karmarkar Vrs. Mrs. Shaila Ravindra Karmarkar 1992 CriLJ 1845; of Madhya Pradesh High Court in Smt. Mamta Jaiswal Vrs. Rajesh Jaiswal II (2000) DMC 170; and Shri Bhavin Shah Vrs. Smt. Sapna Shah 2016(I) OLR 755 of this Court to submit that both the learned Courts below fell into serious error in granting interim maintenance to the opposite party when she was allowed such a relief earlier by learned Family Court. 5. Mr. Parida-2, learned counsel for the opposite party justifies the impugned order under Annexure-1 and rather submits that the interim maintenance amount has been reduced to Rs.4000/-. It is further submitted that as domestic violence was prima facie proved and established, learned S.D.J.M.(Sadar), Cuttack was justified to entertain an application under Section 23 of the D.V. Act as law does not prohibit exercise of such jurisdiction by a Court even during the pendency of any other proceeding, wherein, interim alimony is granted. 6. The provisions of the DV Act in view of Section 36 thereof shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Inasmuch as, the DV Act does not affect the rights of the parties conferred under the existing laws. In fact, maintenance could be awarded both under the DV Act as well as in any other proceeding provided the parties seeking similar relief specifically mention any such order previously passed by a Court of competent jurisdiction. It is however to be understood that though the wife can simultaneously claim for maintenance under different enactments, it does not in any way mean that the husband should be made liable to pay the same in each of the such proceedings. In so far as the DV Act is concerned, a proceeding thereunder carries reliefs which cannot be granted by other Courts while exercising Page 3 of 10 jurisdiction in proceedings under Section 125 Cr.P.C. or before a Family Court or other Courts, hence, therefore, each of such proceedings is maintainable. If a spouse is neglected or one of them refuses to maintain the other, maintenance can be prayed for before a Criminal Court under Section 125 Cr.P.C., a
Decision
proceeding which is entertained and disposed of summarily. As it is known, a proceeding before a Family Court with reliefs sought for is quite distinct and independent of any other proceedings before other Courts. Under the DV Act, apart from maintenance many other reliefs are sought for, such as, right of residence, protection orders, custody rights, compensation etc. besides monetary relief, which cannot be specifically considered by other Courts. For such relief under the DV Act, a Court must be prima facie satisfied about a domestic violence to have been committed against the aggrieved person. The existence of a domestic relationship is also a condition to be fulfilled before granting reliefs under the DV Act. But at the same time, it is to be kept in mind that interim maintenance cannot be allowed ignoring the earlier orders of a Court in a different proceeding. The maintainability of the proceedings being exclusive and independent of each other cannot be questioned but once a relief of maintenance is granted, while such a relief is once again prayed for, the subsequent Court is to take cognizance of the earlier order, while dealing with an application received from one of the spouses. 7. In Hemlataben Maheshbhai Chauhan (supra), it is held that once maintenance is allowed under Section 125 Cr.P.C., the proceeding under the DV Act with a similar relief cannot be allowed unless and until strong reasons exist with an observation that in the event of change in circumstances, it is always open to the wife to seek modification of the maintenance order under Section 127 Cr.P.C. The said decision does not bar a DV Court Page 4 of 10 from granting interim maintenance but held that in case, circumstances demand, the same can be considered with one more option available for the wife to seek modification of order in terms of Section 127 Cr.P.C. In Ravindra Haribhau Karmakar (supra), the Bombay High Court held that when the parties are before a Civil Court, the proceeding under Section 125 Cr.P.C. before a Magistrate is to be stayed as it is unlikely to cause any prejudice to the aggrieved wife, who has been receiving maintenance every month. In Smt. Mamta Jaiswal (supra), the Madhya Pradesh High Court made certain observations while dealing with an application for maintenance when the wife was having good qualification but was not having the source of income and was unemployed depending on the husband for sustenance. On a proper reading of the above decision, the Court finds that such observation was made keeping in view the facts and circumstances of the case and parties involved therein. It cannot be universally held that one of the spouses is always guilty of sitting idle draining out the other half for demanding maintenance. Even when a wife is qualified, she may not be in employment and the same could be for variety of reasons, hence, it may not at all be justified to suspect her conduct or intent, while demanding monthly alimony approaching a Court. It is of course true that a Court must be vigilant to any such suspectful action of one of the spouses. But by considering the above decision, it would not be proper to treat the opposite party in such manner alleging her conduct as suspectful. No doubt, the learned Courts below were required to examine the plea of the opposite party when she was allowed interim maintenance of Rs.10,000/- by the Family Court. If in case, the opposite party did not seek modification of such an order, she cannot either be prevented from demanding any additional sum before the DV Court. As it was earlier mentioned, all such proceedings are Page 5 of 10 maintainable and a wife may simultaneously claim relief under the DV Act and also in other proceeding as in each of such proceedings, the cause of action is different and also the effect. 8. In Rajnesh Vrs. Neha and Another (2021) 2 SCC 32, the Apex Court discussed in detail about the overlapping jurisdictions of different Courts while dealing with a matrimonial dispute. It is held therein that the wife is under statutory obligation to disclose earlier orders of maintenance revealing all the information before the subsequent Court with an affidavit of disclosure of assets and liabilities and laid down the guidelines on interim maintenance. As per the DV Act, such disclosure about a previous order of maintenance is a statutory requirement. All such provisions of different enactments, on a harmonious reading, leads to an irresistible conclusion that the proceedings before different Courts co-exist and hence, maintainable but there should not be repetition of reliefs with orders passed by the Courts prejudicial to the interest of one of the parties involved. In the instant case, the petitioner alleges that interim maintenance was managed by the opposite party without disclosing the earlier order of the Family Court. In fact, both the orders arrived in a span of six months or a year. The Court in appeal held that the disclosure was not made by the opposite party while seeking maintenance under the DV Act. But, the fact remains, the opposite party was not granted any such maintenance ex parte. The petitioner participated in the proceeding before learned S.D.J.M. (Sadar), Cuttack and it is believed that he must have disclosed about the earlier order by the Family Court. In any case, learned Court below in appeal was made aware of the previous order of interim maintenance by the Family Court under Section 24 of the Hindu Marriage Act. In other words, the Jurisdiction was exercised by the learned Sessions Court being conscious of the Family Court’s order of maintenance in favour of the opposite party. Even if, the opposite Page 6 of 10 party is to be held guilty for any such lapse for non-disclosure, she cannot be non-suited before the DV Court and could not have been by the orders of the learned Sessions Court in appeal. The only consideration in the given set of facts would be that whether learned Court below rightly exercised the discretion in allowing maintenance with a reduced amount of Rs.4000/-. To sum up, the Court reaches at a conclusion that earlier order of maintenance or proceeding before the Family Court with such an order cannot and could not have prevented the opposite party to approach the DV Court but any such interim alimony since allowed, had to be keeping in view the previous order to make the necessary adjustment upon proof of existence of a cause of action seeking further monetary sustenance and support from the petitioner. It is reiterated that for Section 36 of the DV Act, all such provisions of the said Act are always supplemental to other enactments in force. If a case is made out for additional amount of maintenance payable to the wife, the DV Court can do so even when the previous order on alimony by a different Court is in existence. The Court is of the view that the aggrieved spouse has two options open, one being to approach the earlier Court for enhancement of the maintenance in the change circumstances or even pursue such relief before the later Court, which is to consider granting such remedy and may direct maintenance over and above the amount earlier awarded. So, to say, an adjustment has to be made while allowing further maintenance when the spouse is receiving alimony by virtue of an earlier order of another Court. 9. In the case at hand, no such ground is made out by the opposite party for interim maintenance in addition to the amount of monthly alimony of Rs.10,000/- awarded by the Family Court. The said order in a proceeding under the Hindu Marriage Act is dated 5th February, 2021, whereas, the impugned order in the DV Page 7 of 10 proceeding was passed on 6th November, 2021. What were the circumstances for the opposite party to demand maintenance again, may be on the premise of being a victim of domestic violence, when she was already awarded alimony of Rs.10,000/- a month in a proceeding initiated by the petitioner under the Hindu Marriage Act seeking dissolution of marriage is not discernible from the record. The said question was not dealt with at least by the Court in appeal, which allowed further maintenance as a routine duty under the impression that it is bound to grant the same when a prima facie case of domestic violence is made out against the petitioner. In the humble view of the Court, unless the opposite party was to satisfy the DV Court for any such further maintenance in addition to Rs.10,000/-, it was not right for the Courts below to accede to such request. It was also incorrect on the part of the learned court below to conclude that no evidence is necessary before passing an interim order in favour of the opposite party in view of the aim and objective of the DV Act though relief granted ex parte may be based on affidavit. In absence of any material on record except evidence regarding domestic violence by itself not to be sufficient for a Court to consider quantum of interim maintenance. Otherwise without any evidence on record, while dealing with an application under Section 23 of the DV Act, it would just be a guess work for the Courts where there may not be proper decisions taken especially with regard to the quantum of maintenance in juxtaposition to the capacity, living standard and life style of the spouses involved and therefore, to deal with such situations, disclosure of assets and liabilities as directed by the Apex Court in Rajnesh (supra) to be necessary. 10. It is, therefore, to be held that a DV Court has the jurisdiction to entertain such relief of maintenance during the subsistence of an earlier order but to determine the quantum and make the Page 8 of 10 necessary adjustment or set off accordingly provided a case is made out by the aggrieved spouse stating the circumstances and the need for the same. It is hence to be concluded that the spouse, in whose favour an order of maintenance has been passed, shall have to disclose it to the subsequent Court but for any such non- disclosure, the Court shall have the jurisdiction to modify the order or even review or recall the same on being informed by the other spouse. The further conclusion is that a spouse cannot be non-suited for having earlier approached a Court and obtained relief but as held and discussed, adjustment as to quantum of alimony shall have to be considered by the latter Court. Since in the present case, the opposite party had not applied for enhancement of maintenance approaching the Family Court, so was required to convince the DV Court, the need for additional amount over and above Rs.10,000/-. In absence of any such facts revealed by the opposite party and a case made out by her, the learned Courts below were not justified to allow further maintenance. A conclusion has to be reached at that the opposite party though did not seek enhancement of the maintenance amount but the same was to be necessary on account of the changed circumstances and for adequate reasons. Even assuming that such an exercise has been under taken by the learned Court below, no decision has been rendered as to if the maintenance amount of Rs.10,000/- allowed by the Family Court in favour of the opposite party to be sufficient or otherwise. That apart, the learned Court below without any logic or reason fixed the maintenance amount at Rs.4000/- in addition to Rs.10,000/-. Again, it has been a guess work by the learned Sessions Court without the decision being supported by any reason. A Court has to take judicial notice of all such aspects before considering maintenance and passing orders especially during the existence of an earlier order on a similar relief in favour of one of the spouses. Page 9 of 10 As it appears, both the learned Courts below, at least the learned Sessions Court could have examined the above aspects keeping in view the decision of the Apex Court in Rajnesh (supra) even at a time while considering the maintenance insisting upon the parties to make the necessary disclosure of assets and liabilities and also considering, whether, the opposite party is still entitled to any additional sum when she was granted interim alimony of Rs.10,000/-. Only under demanding circumstances assigning reasons with a case made out by the opposite party, further amount of maintenance could be allowed with the set off, otherwise, one of the spouses would always be in a difficult and disadvantaged position to bear the brunt, which can never be the intent of any such law in force. 11. Hence, it is ordered. 12. In the result, the revision petition stands allowed. As a necessary corollary, the impugned orders under Annexure-1 and 3 passed by the learned Courts below are hereby set aside with the matter remitted back to the Court of learned S.D.J.M.(Sadar), Cuttack with the restoration of the proceeding in D.V. Misc. Case No.44 of 2021 for a fresh decision on the application filed under Section 23 of the DV Act by the opposite party followed by an order on merit keeping in view the settled legal position and the discussions with the observations made herein above. 13. In the circumstances, however, there is no order as to costs. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Aug-2024 14:38:16 Page 10 of 10