High Court

1. Learned counsel for the revisionist is present.

2. As per office report dated 4.11.2024,notice has been personally served upon respondent no. 2 but none appeared on behalf of the respondent no. 2 to press the revision.

3. Heard learned counsel for the revisionist, learned AGA for the State and perused the record.

4. Learned counsel for the revisionist submitted that revisionist in maintenance case no. 324 of 2020, under Section 125 Cr.P.C. passed by the Principal Judge Family Court has been ordered to pay maintenance at the rate of Rs. 5000/- per month to the applicant from the date of filing of the application, however, in subsequent proceeding under section 12 of Protection of Women from Domestic Violence Act, the learned Magistrate awarded Rs. 4000/- per month as interim maintenance to the complainant who is applicant in maintenance suit before family court.

5. He further submitted that while this fact was placed before learned Magistrate as well as before lower appellate court that Rs. 5000/- per month maintenance has already been awarded to the complainant in proceedings under section 125 Cr.P.C. but learned court below has awarded interim maintenance under section 12 of Protection of Women from Domestic Violence Act without considering the source of income of the revisionist who has stated before learned court below that he is unemployed and is a labourer, he often remains sick. A plea has also been taken before court below that complainant is living in adulterous relationship with one Rahim. Learned Court below has not considered the dictum of Hon'ble Supreme Court passed in Rajnesh vs. Neha, AIR 2021 SC 569 which has been quoted in impugned order by learned Magistrate but no reason has been assigned therein that why successive claim of maintenance are being awarded in different proceedings.

6. Learned counsel for the revisionist lastly submitted that revisionist has been paying amount awarded under section 125 Cr.P.C. to opposite party no. 2 and complainant has filed an execution proceedings for amount of maintenance awarded under section 12 of Protection of Women from Domestic Violence Act.

7. Per contra, learned AGA for the State submitted that successive claims of maintenance in different proceeding by the aggrieved women are absolutely barred. Hon'ble Supreme Court in Rajnesh vs. Neha has held that where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set off the amount awarded in the previous proceedings while deciding whether any further amount is to be awarded in the subsequent proceeding. Section 12 of the Protection of Women from Domestic Violence Act provides as under:- "12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing."

8. The complaint has been filed under section 12 of Protection of Women from Domestic Violence Act with allegation that she was married with the opposite party on 7.12.2019. Her husband and in- laws are not satisfied with the amount of dowry given in the marriage and they used to harass and torture her physically and mentally both, in view of non fulfillment of demand of additional dowry on 2.8.2020. She was molested by her brother-in-law (Dever) and she anyhow got herself rescue from him. When she became pregnant, she made a complaint to women of family of her husband but they rebuked her and asked her keep mum. She was abused by her in-laws and her stree dhan was snatched and she was thrown out from her matrimonial home on 3.8.2020 and since then she is residing in her parental home. The complainant filed an application for interim maintenance which was allowed by learned Magistrate and criminal appeal preferred by revisionist under section 29 of Protection of Women from Domestic Violence Act has been dismissed and the order of learned Magistrate providing claim of maintenance to the complainant at the rate of Rs. 40000/- per month has been affirmed.

9. Section 23 of Protection of Women from Domestic Violence Act provides as under:- "23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."

10. In present case maintenance has been directed to be paid by respondent no. 1 who is revisionist before this Court. She has leveled allegations of subjecting her to domestic violence against her husband and in-laws. The revisionist has stated before learned court below that the parties are living separately from each other. The complainant stated in pleading that her husband has opened a shop and possesses a tractor also, the opposite party and his father possessed their own 30 bigha agricultural land from which they derive income of Rs. 15,00,000/- annually. on the other hand revisionist has stated at very beginning that he is not having any source of income and he is a labourer, he often remain sick.

11. Hon'ble Supreme Court in Rejnesh vs. Neha (Supra) held as under:- " where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding. "

12. Learned Magistrate has given a finding in the impugned judgement that complainant has been residing separately from her husband. She is not having any source of income. The opposite party is under obligation to maintain his wife/complainant. The complainant has stated in her complaint that the respondents who included husband and in-laws have turned out her from her matrimonial home by committing domestic violence against her and since then they have not taken care of her. The respondents are appearing before the court and are delaying the proceedings of the case deliberately.

13. The impugned order is within the scope of section 23 of the Act and I find no illegality, irregularity or perversity in the impugned order so far as quantum of interim maintenance is concerned, the impugned order passed by the learned Magistrate has been affirmed by the appellate court in criminal appeal under section 29 of the Act also, however keeping in view the fact that the amount of Rs 5000/- as interim maintenance has been awarded in the judgement and order dated 22.10.2021 passed by principal Judge, Family Court, Fatehpur in Maintenance Case No. 324 of 2020 which is payable from the date of filing application dated 17.10.2020, any amount paid towards that order is liable to be set off against interim maintenance awarded by the learned court below in impugned orders.

14. In present case, in fact the revisionist/husband specifically according to the revisionist, he is agrarian and having a tractor also but revisionist has stated herself as labourer in his objection.

15. With foregoing discussion, revision is partly allowed and the impugned judgement and orders are affirmed with condition that any amount paid by the revisionist towards judgement and order dated 22.10.2021 passed by the family court in maintenance case no. 324 of 2020 shall be set off towards interim maintenance awarded in the impugned order in present case if the revisionist files a proof of payment in this regard before the court concerned where proceedings under section 12 of Domestic Violence Act are pending. Order Date :- 15.1.2025 SY

1. Learned counsel for the revisionist is present.

2. As per office report dated 4.11.2024,notice has been personally served upon respondent no. 2 but none appeared on behalf of the respondent no. 2 to press the revision.

3. Heard learned counsel for the revisionist, learned AGA for the State and perused the record.

4. Learned counsel for the revisionist submitted that revisionist in maintenance case no. 324 of 2020, under Section 125 Cr.P.C. passed by the Principal Judge Family Court has been ordered to pay maintenance at the rate of Rs. 5000/- per month to the applicant from the date of filing of the application, however, in subsequent proceeding under section 12 of Protection of Women from Domestic Violence Act, the learned Magistrate awarded Rs. 4000/- per month as interim maintenance to the complainant who is applicant in maintenance suit before family court.

5. He further submitted that while this fact was placed before learned Magistrate as well as before lower appellate court that Rs. 5000/- per month maintenance has already been awarded to the complainant in proceedings under section 125 Cr.P.C. but learned court below has awarded interim maintenance under section 12 of Protection of Women from Domestic Violence Act without considering the source of income of the revisionist who has stated before learned court below that he is unemployed and is a labourer, he often remains sick. A plea has also been taken before court below that complainant is living in adulterous relationship with one Rahim. Learned Court below has not considered the dictum of Hon'ble Supreme Court passed in Rajnesh vs. Neha, AIR 2021 SC 569 which has been quoted in impugned order by learned Magistrate but no reason has been assigned therein that why successive claim of maintenance are being awarded in different proceedings.

6. Learned counsel for the revisionist lastly submitted that revisionist has been paying amount awarded under section 125 Cr.P.C. to opposite party no. 2 and complainant has filed an execution proceedings for amount of maintenance awarded under section 12 of Protection of Women from Domestic Violence Act.

7. Per contra, learned AGA for the State submitted that successive claims of maintenance in different proceeding by the aggrieved women are absolutely barred. Hon'ble Supreme Court in Rajnesh vs. Neha has held that where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set off the amount awarded in the previous proceedings while deciding whether any further amount is to be awarded in the subsequent proceeding. Section 12 of the Protection of Women from Domestic Violence Act provides as under:- "12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing."

8. The complaint has been filed under section 12 of Protection of Women from Domestic Violence Act with allegation that she was married with the opposite party on 7.12.2019. Her husband and in- laws are not satisfied with the amount of dowry given in the marriage and they used to harass and torture her physically and mentally both, in view of non fulfillment of demand of additional dowry on 2.8.2020. She was molested by her brother-in-law (Dever) and she anyhow got herself rescue from him. When she became pregnant, she made a complaint to women of family of her husband but they rebuked her and asked her keep mum. She was abused by her in-laws and her stree dhan was snatched and she was thrown out from her matrimonial home on 3.8.2020 and since then she is residing in her parental home. The complainant filed an application for interim maintenance which was allowed by learned Magistrate and criminal appeal preferred by revisionist under section 29 of Protection of Women from Domestic Violence Act has been dismissed and the order of learned Magistrate providing claim of maintenance to the complainant at the rate of Rs. 40000/- per month has been affirmed.

9. Section 23 of Protection of Women from Domestic Violence Act provides as under:- "23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."

10. In present case maintenance has been directed to be paid by respondent no. 1 who is revisionist before this Court. She has leveled allegations of subjecting her to domestic violence against her husband and in-laws. The revisionist has stated before learned court below that the parties are living separately from each other. The complainant stated in pleading that her husband has opened a shop and possesses a tractor also, the opposite party and his father possessed their own 30 bigha agricultural land from which they derive income of Rs. 15,00,000/- annually. on the other hand revisionist has stated at very beginning that he is not having any source of income and he is a labourer, he often remain sick.

11. Hon'ble Supreme Court in Rejnesh vs. Neha (Supra) held as under:- " where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding. "

12. Learned Magistrate has given a finding in the impugned judgement that complainant has been residing separately from her husband. She is not having any source of income. The opposite party is under obligation to maintain his wife/complainant. The complainant has stated in her complaint that the respondents who included husband and in-laws have turned out her from her matrimonial home by committing domestic violence against her and since then they have not taken care of her. The respondents are appearing before the court and are delaying the proceedings of the case deliberately.

13. The impugned order is within the scope of section 23 of the Act and I find no illegality, irregularity or perversity in the impugned order so far as quantum of interim maintenance is concerned, the impugned order passed by the learned Magistrate has been affirmed by the appellate court in criminal appeal under section 29 of the Act also, however keeping in view the fact that the amount of Rs 5000/- as interim maintenance has been awarded in the judgement and order dated 22.10.2021 passed by principal Judge, Family Court, Fatehpur in Maintenance Case No. 324 of 2020 which is payable from the date of filing application dated 17.10.2020, any amount paid towards that order is liable to be set off against interim maintenance awarded by the learned court below in impugned orders.

14. In present case, in fact the revisionist/husband specifically according to the revisionist, he is agrarian and having a tractor also but revisionist has stated herself as labourer in his objection.

15. With foregoing discussion, revision is partly allowed and the impugned judgement and orders are affirmed with condition that any amount paid by the revisionist towards judgement and order dated 22.10.2021 passed by the family court in maintenance case no. 324 of 2020 shall be set off towards interim maintenance awarded in the impugned order in present case if the revisionist files a proof of payment in this regard before the court concerned where proceedings under section 12 of Domestic Violence Act are pending. Order Date :- 15.1.2025 SY