Parvez Alam And 5 Others v. State Of U.P. Thru. Prin. Secy. Home Sectt

Heard Shri Om Prakash Tiwari, learned counsel for the petitioners as well as learned AGA for the State and perused the record.

By means of present petition the petitioners have challenged the order dated 23.8.2023 passed by the Additional Chief Judicial Magistrate-II, Lucknow, wherein an exercise of power under Section 12 of Domestic Volence Act and on the basis of complaint preferred by the opp0osite party no.2 he has granted interim maintenance of Rs. 5000/- per month in favour of opposite party no.2.

The petitioners while assailing the validity of the impugned order has only raised the ground that opposite party no.2 has instituted multiple proceedings with regard to the facts in as much as she has filed a complaint before the Civil Judge (J.D.)/ Judicial Magistrate, Fast Track Court, Lucknow on 11.10.2022 under Sections 498-A, 323, IPC and 3/4 Dowry Prohibition Act, 1961, wherein the petitioners have been summoned on 13.4.2023. Apart from the above, the opposite party no.2 has also filed a First Information Report No.0006/2023, under Sections 498-A, 323 IPC and 3/4 Dowry Prohibition Act, 196, Police Station Mahila Thana, Lucknow, wherein summoning order has been issued against the petitioners and another FIR on 11.10.2024 bearing FIR No. 0279 of 2024 under Sections 498-A, 323, 506 and 376 of IPC, at Police Station Indira Nagar, Lucknow only the ground raised is that for the same facts multiple proceedings have been initiated by the opposite party no.2.

A perusal of the impugned order indicates that opposite party no.2 has made detailed allegation against the petitioners and family members with regard to the domestic violence as described in Section 3 of the Protection of Women from Domestic Violence Act, 2005 and consequently once any woman subjected to domestic violence she has right to invoke the provision of Section 5 of the Act.

It is in the aforesaid circumstances application under Section 12 of the Domestic Violence Act has been preferred by the opposite party no.2, on which impugned order has been passed.

It is on the application of opposite party no.2 that by means of the order dated 23.8.2023 interim maintenance @ Rs. 5000/- per month has been granted in favour of opposite party no.2 and on the other hand subsequently application under Section 125 of the Cr.P.C. was preferred before the Principal Judge, Family Court, Lucknow, wherein by means of order dated 30.7.2024 the petitioners have been directed to pay an amount of Rs. 8000/- per month.

The proviso to subsection (2) of Section 12 of the Domestic Violence Act states that: "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. " Accordingly, while passing the order under Section 12 of Domestic Violence Act, the Magistrate has to take into account any order passed for maintenance or any amount paid or payable under other acts for the time being in force. In the present case, the order under Section 12 of Domestic Violence Act has been passed prior to the application under Section 125 Cr.P.C. and accordingly it shall be open for the petitioner to move any appropriate application to have the order modified passed in the application under Section 125 Cr.P.C. In case a subsequent order has been passed under Section 125 of the Cr.P.C., it will not render the previous order passed under Section 12 of Domestic Violence Act as illegal and arbitrary.

Accordingly, I do not find any infirmity in the impugned order, the petition is devoid of merit and is rejected.

After passing the aforesaid order, learned counsel for the petitioners submits that the petitioners are ready to deposit the entire outstanding amount before the trial court.

Accordingly in case the petitioners deposit the entire outstanding amount within 10 days from today before the trial court, no coercive action shall be taken against the petitioners in pursuance of the impugned order.

It is made clear that if the petitioners fail to deposit the entire outstanding amount, the benefit of this order shall not be available to the petitioners and the trial court is at liberty to proceeding against the petitioners according to law. . Order Date :- 26.5.2025 Muk (Alok Mathur, J.)