Jitendra Kumar Sharma v. State of U.P. and another), as well as against the order dated
Case Details
1 Court No. - 88 Case :- CRIMINAL REVISION No. - 127 of 2020 Revisionist :- Jitendra Kumar Sharma Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ashutosh Kumar Mishra,Sudhanshu Narain,Vinai Shanker Singh Counsel for Opposite Party :- G.A.,Atul Kumar Singh,Bharat Pratap Singh Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the revisionist and learned AGA for the the State. None has appeared on behalf of opposite party no. 2. 2. This criminal revision has been preferred against the order dated 27.11.2019 passed by the learned Addtional Sessions Judge, Court No.4, District Aligarh in Criminal Appeal No. 53 of 2018 (Jitendra Kumar Sharma vs. State of U.P. and another), as well as against the order dated 15.02.2018 passed by the learned Additional Chief Judicial Magistrate, Court No.6,
Legal Reasoning
Aligarh in Case No. 574 of 2014 (Smt. Reena vs. Jitendra Kumar Sharma and others), P.S. Quarsi, District Aligarh. 3. Learned counsel for the revisionist argued that both the impugned orders are against the facts and law and are liable to be set aside. The revisionist is husband of opposite party no.2 and their marriage has taken place in the 2001. Earlier the opposite party no.2 has filed a case under Section 125 Cr.P.C. in the year 2003 claiming maintenance for herself and her minor daughter, wherein she was awarded total maintenance of Rs. 1750/- per month vide order dated 16.08.2003. Later on the opposite party no.2 has filed the case under Sections 12, 14, 18 and 20 of Domestic Violence Act seeking various reliefs but she concealed the fact that she is already getting maintenance under Section 125 Cr.P.C. The application under the provisions of Domestic Violence Act was partly allowed and the revisionist was directed to pay the amount of Rs. 50,000/- in lieu of Stridhan, Rs. 2,00,000/- for mental and physical injury to the opposite party no.2 and to pay Rs.4,000/- per month for residential accommodation to opposite party no.2. Learned counsel for the revisionist submits that the revisionist has 2 already paid the above stated amount of Rs. 50,000/- and Rs. 2,00,000/-. It has been submitted that the opposite party no.2 is having her own residential accommodation but the Court of ACJM, Court No.6, Aligarh did not consider the facts and evidence in correct perspective and directed the revisionist to pay Rs. 4,000/- per month for her residential accommodation. The revisionist has challenged the said order by filing a criminal appeal, which has been dismissed vide impugned order dated 27.11.2019, without considering the relevant facts and evidence of the parties. Referring to the facts of the matter, it has been submitted that both the impugned orders are liable to be set aside. 4. Learned AGA has opposed the revision and argued that there is no illegality in the impugned order. 5. 6. I have considered rival submissions and perused the record. In the instant matter, it is not disputed that revisionist is the husband of opposite party no.2 Smt. Reena. Perusal of record shows that the opposite party no. 2 was granted maintenance under Section 125 Cr.P.C. vide order dated 16.08.2003 in Maintenance Case No. 2/11/2013as thereafter in application under Section 127 Cr.P.C, the said maintenance amount to opposite party no.2 was enhanced from Rs.1,000/- to Rs. 3,000/- per month and maintenance of minor child was enhanced from Rs. 750/- to Rs. 2,000/- per month, vide judgment and order dated 27.04.2019 passed by the learned Additional Principal Judge, Family Court No. 1, Aligarh. It appears that before filing application under Section 127 Cr.P.C., she has filed a case under Sections 12, 14, 18 and 20 of Domestic Violence Act claiming maintenance and other monitory reliefs, wherein by order dated 15.12.2018, passed by the learned ACJM, Court No.6, Aligarh, she was awarded Rs. 50,000/- in lieu of Stridhan, Rs. 2,00,000/- for physical and mental injury and Rs. 4,000/- per month was awarded for the expenses of residential accommodation. The appeal against the said order has been dismissed by the Court of learned Additional Sessions Judge, Court No. 4, Aligarh by impugned order dated 27.11.2019. 7. At this stage, it may be mentioned that recently in landmark judgment of Rajnesh vs. Neha and another, (2021) 2 SCC 324 the Hon'ble Apex Court held as under : 3 "While it is true that a party is not precluded from approaching the Court under one or more enactments, since the nature and purpose of the relief under each Act is distinct and independent, it is equally true that the simultaneous operation of these Acts, would lead to multiplicity of proceedings and conflicting orders. This would have the inevitable effect of overlapping jurisdiction. This process requires to be streamlined, so that the respondent / husband is not obligated to comply with successive orders of maintenance passed under different enactments. For instance, if in a previous proceeding under Section 125 Cr.P.C., an amount is awarded towards maintenance, in the subsequent proceeding filed for dissolution of marriage under the Hindu Marriage Act, where an application for maintenance pendente lite is filed under Section 24 of that Act, or for maintenance under Section 25 the payment awarded in the earlier proceeding must be taken note of, while deciding the amount awarded under HMA." 8. In the same judgment, in para 128, it was held as under:
Decision
"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. (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding; (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." 4 9. From the aforesaid pronouncement, it is apparent that though a party is not precluded from approaching the Court under one or more enactments but where successive claims are made for maintenance by the party as per the statute, the Court would consider a adjustment of the amount awarded in previous proceedings while determining whether any further amount is to be awarded in subsequent proceeding. 10. In the instant matter, the revisionist is not disputing about the direction of the court below regarding award of Rs. 50,000/- in lieu of Stridhan and Rs. 2,00,000/- for physical and mental injury and it was submitted that the said amount has already been deposited by the revisionist but it was stated that while granting the maintenance of Rs. 4,000/- per month to the opposite party no.2 under the Domestic Violence Act, the court below did not consider the matter in accordance with law. 11. Perusal of the impugned order dated 27.11.2019 passed by the learned Appellate Court shows that the learned Appellate Court did not consider the points raised in the appeal and the position of law and it appears that the appeal was dismissed in a cursory manner by making a reference of Section 112 of evidence Act. The learned court below failed to take notice of the maintenance granted to the opposite party no.2 under Section 125 Cr.P.C. 12. In view of the aforesaid, it would be just and proper that the impugned order dated 27.11.2019 passed by the learned court below below is set aside and the matter is remanded back to the learned appellate court below to reconsider the matter in the light of law laid down in case of Rajnesh vs. Neha (supra) and to pass a fresh order. 13. In view of the aforesaid, the impugned order dated 27.11.2019 passed by the learned Additional Sessions Judge, Court No.4, Aligarh in Criminal Appeal No. 53 of 2018 (Jitendra Kumar Sharma vs. State of U.P. and another) is set aside and the matter is remanded back to the appellate court below to reconsider the matter and pass an order in accordance with law, after affording an opportunity to both the parties. 14. The Revision is disposed of in above terms. Order Date :- 14.2.2023 Ashish Pd. 5 Digitally signed by :- ASHISH PRASAD High Court of Judicature at Allahabad