High Court · 2025

This criminal revision has been filed against the impugned judgement and order dated 4.6.2024 passed by Principal Judge, Family court, Sambhal at Chandausi in maintenance case no. 263 of 2021 (Smt. Rekha vs. Dayaram) under section 125 Cr.P.C. whereby learned court below has awarded maintenance to the applicant Smt. Rekha @ Rs. 4,000/- per month from the date of filing of application to the date of judgement and Rs. 8,000/- per month from the date of judgement. Notice has been issued to respondent no. 2 and same has been personally served on her but none appeared on behalf of respondent no. 2 to press present revision. Heard learned counsel for the revisionist and learned AGA for the State. Learned counsel for the revisionist submitted that prior to passing of the impugned order, interim maintenance was awarded to the applicant Smt. Rekha in proceeding under section 12 of Domestic Violence Act by order dated 22.11.2022 whereby opposite party, who is revisionist, has been directed to pay Rs. 5,000/- per month as interim maintenance to the applicant Smt. Rekha; the revisionist has been paying interim maintenance to the applicant in compliance of the order of learned Magistrate in proceeding under section 31 of the Act and a copy of ordersheet has been filed in support of this contention as annexure-2 to the affidavit. He next submitted that the order passed in proceedings under the Domestic Violence Act has not been disclosed by the applicant before the family court and learned court below has not taken into consideration the fact that the interim maintenance has already been awarded to the applicant by the court of Magistrate in proceeding under the Domestic Violence Act by order dated 22.11.2022; the revisionist is not in position to pay Rs. 5,000/- as interim maintenance to the applicant in proceeding under the Domestic Violence Act as well as at the rate of Rs. 8,000/- pursuant to final order passed under section 125 Cr.P.C. However, this fact is mentioned in para-11 of the judgement that Adhat of fruits lies in the name of brother of revisionist and not in his own name; the revisionist has filed relevant documents in this regard before the court below. Learned counsel further submitted that the respondent no. 2 was examined before the court below and a copy of statement is filed to the affidavit in present revision and a copy of her cross examination has been filed as annexure -3 wherein she has shown date of incident of Marpeet with regard to demand of dowry as 1.5.2019 at 9:30 pm she has not filed any other case; she has concealed this fact in her cross examination that she has filed a complaint under the Domestic Violence Act; she has stated in her cross examination in regard to present case that she has not filed any case for maintenance before any other court; she stayed in her matrimonial place only for one month and thereafter she moved to her parental place and never came back; she has not tried to reconcile the matter; people from her parental place had come for Panchayat at the place of her in-laws; she is not having any child from her husband; she has filed a criminal case regarding demand of dowry at Sambhal; her marriage was solemnized on 25.2.2019. Learned counsel further submitted that a bare perusal of statement of respondent no. 2 reveals that she left her matrimonial home without sufficient reason and thus, claim has been barred under section 125(4) Cr.P.C. Learned counsel submitted that the case under section 9 of Hindu Marriage Act was not pursued by the revisionist in view of compromise settled out of the court but same could not be given effect due to non cooperation of respondent no. 2. Per contra, learned AGA submitted that the revisionist has also filed application under section 9 of Hindu Marriage Act for restitution of conjugal rights, which was dismissed in default due to non prosecution; the respondent no. 2 has stated in her cross examination that Arhat of fruits lies in the name of her husband; the revisionist has admitted in cross examination that he lives in a private house which is Pukka and consists of two storey; he has not produced any bank statement and has only stated in cross examination that only Rs. 200/- would have been left in her bank account; he also admitted that he sits in go-down of his brother; he also sits in fruits shop occasionally; he has admitted that he has not divulged particulars of bank account in statement of assets and liability filed in compliance of judgement of Hon'ble Supreme Court in Rajnesh vs. Neha; infact revisionist has concealed his income in the affidavit of disclosure of assets and liability. The revisionist has admitted in his evidence that he has not paid any sum of money to his wife since she has been residing separately from him. He has paid some money towards interim maintenance in proceedings under section 31 of Domestic Violence Act after issuance of coercive process against him. One of the main plank of the argument put-forth on behalf of revisionist is that his wife respondent no. 2 Smt. Rekha has also filed a complaint under section 12 of Domestic Violence Act where a sum of Rs. 5,000/- per month has awarded as interim maintenance by order of Magistrate. The revisionist has also filed a matrimonial petition under section 9 of Hindu Marriage Act for restitution of conjugal rights which has been dismissed by the family court vide order dated 8.4.2022 on the ground of non prosecution and non appearance of petitioner. Learned counsel for the revisionist submitted that as the respondent no. 2 has concealed the fact of award of interim maintenance under section 23 of Domestic Violence Act, a presumption must have been drawn against her that she has concealed a material fact that she was bound to divulge in the proceeding under section 125 Cr.P.C. This interim maintenance was awarded vide order dated 22.11.2022 by Civil Judge (J.D.)/ FTC, Sambhal at Chandausi in Case No. 1401 of 2022, Smt. Rekha vs. Dayaram and others whereas maintenance case under section 125 Cr.P.C. was filed on 28.7.2021. Thus, the complaint case under the Domestic Violence Act under section 12 was filed after filing of maintenance case under section 125 Cr.P.C., therefore, there was no occasion for the applicant to mention the factum of filing of complaint under the Domestic Violence Act in maintenance petition under section 125 Cr.P.C. The execution proceedings under section 31 of Domestic Violence Act are pending at the instance of respondent no. 2 before the court of Magistrate for recovery of interim maintenance awarded by the learned Magistrate. Hon'ble Supreme Court in Rajnesh vs. Neha, 2021 (2) SCC 324 has categorically laid down that there is no bar to seek maintenance both under the DV Act and under section 125 Cr.P.C. or in the Hindu Marriage Act. The relevant extracts of judgement are reproduced as under: "It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Code of Criminal Procedure, or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant." Hon'ble Court further observed that "to overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the Applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding." In the impugned judgement, the factum of pendency of proceeding under the Domestic Violence Act is mentioned but there is no mention of said interim maintenance awarded under section 23 of the Act, therefore, it appears that factum of award of interim maintenance to the applicant in proceeding under the Domestic Violence Act was not brought before the court below by either of the party. The revisionist has stated in his evidence before the court below that his wife Rekha living separately from him for six years and he has not paid any maintenance to her during this period. He has also stated that he has once stated that as his wife is not living with him, he is not duty bound to maintain her. He has admitted in his evidence that he lives in double storey house alongwith family member of his brother. He is not carrying out any job by his own but he renders assistance in wholesale business of sale of fruits undertaken by his brother. Earlier he was working as Palledar at Mandi. Freezers are kept in the house for preserving fruits. The fruits are ripe in the house also, fruits are carried out by trucks, he sits in wholesale fruits shop of his brother now and then and is also works in go-down. Above statement shows that revisionist has deliberately concealed his income even if Arhat (wholesale shop) stands in the name of his brother. The part played by the revisionist itself shows that he would have been deriving a substantial income from said business. The revisionist being an able bodied person cannot shirk from his liability to maintain his wife as laid down by Hon'ble Supreme Court in various judicial decisions. The respondent no. 2 is entitled to seek maintenance from her husband for her upkeep and maintenance upto standard as she was accustomed to live with her husband before her separation from him. Therefore, I find no substantial error in finding recorded by the court below in the impugned judgement but in view of the dictum of Hon'ble Supreme Court in Rajnesh vs Neha (supra), the amount obtained by the respondent no. 2 Smt. Rekha from the revisionist in proceeding under the Domestic Violence Act is liable to be adjusted towards maintenance awarded in the impugned order, some reduction in the quantum of maintenance awarded as future maintenance is called for in view of the fact that income of the revisionist has not been established in evidence adduced by the parties and quantum of maintenance has been fixed by the court below on his presumptive income. Therefore, it is directed that quantum of maintenance awarded from the date of filing of application to the date of judgement to the applicant Smt. Rekha to the tune of Rs. 4,000/- per month is affirmed. However, quantum of maintenance awarded from the date of judgement which is a sum of Rs. 8,000/- per month is reduced slightly to Rs. 7,000/- per month. It is also directed that the amount obtained by the respondent no. 2 as interim maintenance or regular maintenance, as the case may be, in proceeding under the Domestic Violence Act shall be liable to be adjusted towards maintenance awarded in the impugned judgement. The revision stands partly allowed in the manner. Order Date :- 10.2.2025 Dhirendra/ DHIRENDRA KUMAR High Court of Judicature at Allahabad

This criminal revision has been filed against the impugned judgement and order dated 4.6.2024 passed by Principal Judge, Family court, Sambhal at Chandausi in maintenance case no. 263 of 2021 (Smt. Rekha vs. Dayaram) under section 125 Cr.P.C. whereby learned court below has awarded maintenance to the applicant Smt. Rekha @ Rs. 4,000/- per month from the date of filing of application to the date of judgement and Rs. 8,000/- per month from the date of judgement. Notice has been issued to respondent no. 2 and same has been personally served on her but none appeared on behalf of respondent no. 2 to press present revision. Heard learned counsel for the revisionist and learned AGA for the State. Learned counsel for the revisionist submitted that prior to passing of the impugned order, interim maintenance was awarded to the applicant Smt. Rekha in proceeding under section 12 of Domestic Violence Act by order dated 22.11.2022 whereby opposite party, who is revisionist, has been directed to pay Rs. 5,000/- per month as interim maintenance to the applicant Smt. Rekha; the revisionist has been paying interim maintenance to the applicant in compliance of the order of learned Magistrate in proceeding under section 31 of the Act and a copy of ordersheet has been filed in support of this contention as annexure-2 to the affidavit. He next submitted that the order passed in proceedings under the Domestic Violence Act has not been disclosed by the applicant before the family court and learned court below has not taken into consideration the fact that the interim maintenance has already been awarded to the applicant by the court of Magistrate in proceeding under the Domestic Violence Act by order dated 22.11.2022; the revisionist is not in position to pay Rs. 5,000/- as interim maintenance to the applicant in proceeding under the Domestic Violence Act as well as at the rate of Rs. 8,000/- pursuant to final order passed under section 125 Cr.P.C. However, this fact is mentioned in para-11 of the judgement that Adhat of fruits lies in the name of brother of revisionist and not in his own name; the revisionist has filed relevant documents in this regard before the court below. Learned counsel further submitted that the respondent no. 2 was examined before the court below and a copy of statement is filed to the affidavit in present revision and a copy of her cross examination has been filed as annexure -3 wherein she has shown date of incident of Marpeet with regard to demand of dowry as 1.5.2019 at 9:30 pm she has not filed any other case; she has concealed this fact in her cross examination that she has filed a complaint under the Domestic Violence Act; she has stated in her cross examination in regard to present case that she has not filed any case for maintenance before any other court; she stayed in her matrimonial place only for one month and thereafter she moved to her parental place and never came back; she has not tried to reconcile the matter; people from her parental place had come for Panchayat at the place of her in-laws; she is not having any child from her husband; she has filed a criminal case regarding demand of dowry at Sambhal; her marriage was solemnized on 25.2.2019. Learned counsel further submitted that a bare perusal of statement of respondent no. 2 reveals that she left her matrimonial home without sufficient reason and thus, claim has been barred under section 125(4) Cr.P.C. Learned counsel submitted that the case under section 9 of Hindu Marriage Act was not pursued by the revisionist in view of compromise settled out of the court but same could not be given effect due to non cooperation of respondent no. 2. Per contra, learned AGA submitted that the revisionist has also filed application under section 9 of Hindu Marriage Act for restitution of conjugal rights, which was dismissed in default due to non prosecution; the respondent no. 2 has stated in her cross examination that Arhat of fruits lies in the name of her husband; the revisionist has admitted in cross examination that he lives in a private house which is Pukka and consists of two storey; he has not produced any bank statement and has only stated in cross examination that only Rs. 200/- would have been left in her bank account; he also admitted that he sits in go-down of his brother; he also sits in fruits shop occasionally; he has admitted that he has not divulged particulars of bank account in statement of assets and liability filed in compliance of judgement of Hon'ble Supreme Court in Rajnesh vs. Neha; infact revisionist has concealed his income in the affidavit of disclosure of assets and liability. The revisionist has admitted in his evidence that he has not paid any sum of money to his wife since she has been residing separately from him. He has paid some money towards interim maintenance in proceedings under section 31 of Domestic Violence Act after issuance of coercive process against him. One of the main plank of the argument put-forth on behalf of revisionist is that his wife respondent no. 2 Smt. Rekha has also filed a complaint under section 12 of Domestic Violence Act where a sum of Rs. 5,000/- per month has awarded as interim maintenance by order of Magistrate. The revisionist has also filed a matrimonial petition under section 9 of Hindu Marriage Act for restitution of conjugal rights which has been dismissed by the family court vide order dated 8.4.2022 on the ground of non prosecution and non appearance of petitioner. Learned counsel for the revisionist submitted that as the respondent no. 2 has concealed the fact of award of interim maintenance under section 23 of Domestic Violence Act, a presumption must have been drawn against her that she has concealed a material fact that she was bound to divulge in the proceeding under section 125 Cr.P.C. This interim maintenance was awarded vide order dated 22.11.2022 by Civil Judge (J.D.)/ FTC, Sambhal at Chandausi in Case No. 1401 of 2022, Smt. Rekha vs. Dayaram and others whereas maintenance case under section 125 Cr.P.C. was filed on 28.7.2021. Thus, the complaint case under the Domestic Violence Act under section 12 was filed after filing of maintenance case under section 125 Cr.P.C., therefore, there was no occasion for the applicant to mention the factum of filing of complaint under the Domestic Violence Act in maintenance petition under section 125 Cr.P.C. The execution proceedings under section 31 of Domestic Violence Act are pending at the instance of respondent no. 2 before the court of Magistrate for recovery of interim maintenance awarded by the learned Magistrate. Hon'ble Supreme Court in Rajnesh vs. Neha, 2021 (2) SCC 324 has categorically laid down that there is no bar to seek maintenance both under the DV Act and under section 125 Cr.P.C. or in the Hindu Marriage Act. The relevant extracts of judgement are reproduced as under: "It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Code of Criminal Procedure, or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant." Hon'ble Court further observed that "to overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the Applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding." In the impugned judgement, the factum of pendency of proceeding under the Domestic Violence Act is mentioned but there is no mention of said interim maintenance awarded under section 23 of the Act, therefore, it appears that factum of award of interim maintenance to the applicant in proceeding under the Domestic Violence Act was not brought before the court below by either of the party. The revisionist has stated in his evidence before the court below that his wife Rekha living separately from him for six years and he has not paid any maintenance to her during this period. He has also stated that he has once stated that as his wife is not living with him, he is not duty bound to maintain her. He has admitted in his evidence that he lives in double storey house alongwith family member of his brother. He is not carrying out any job by his own but he renders assistance in wholesale business of sale of fruits undertaken by his brother. Earlier he was working as Palledar at Mandi. Freezers are kept in the house for preserving fruits. The fruits are ripe in the house also, fruits are carried out by trucks, he sits in wholesale fruits shop of his brother now and then and is also works in go-down. Above statement shows that revisionist has deliberately concealed his income even if Arhat (wholesale shop) stands in the name of his brother. The part played by the revisionist itself shows that he would have been deriving a substantial income from said business. The revisionist being an able bodied person cannot shirk from his liability to maintain his wife as laid down by Hon'ble Supreme Court in various judicial decisions. The respondent no. 2 is entitled to seek maintenance from her husband for her upkeep and maintenance upto standard as she was accustomed to live with her husband before her separation from him. Therefore, I find no substantial error in finding recorded by the court below in the impugned judgement but in view of the dictum of Hon'ble Supreme Court in Rajnesh vs Neha (supra), the amount obtained by the respondent no. 2 Smt. Rekha from the revisionist in proceeding under the Domestic Violence Act is liable to be adjusted towards maintenance awarded in the impugned order, some reduction in the quantum of maintenance awarded as future maintenance is called for in view of the fact that income of the revisionist has not been established in evidence adduced by the parties and quantum of maintenance has been fixed by the court below on his presumptive income. Therefore, it is directed that quantum of maintenance awarded from the date of filing of application to the date of judgement to the applicant Smt. Rekha to the tune of Rs. 4,000/- per month is affirmed. However, quantum of maintenance awarded from the date of judgement which is a sum of Rs. 8,000/- per month is reduced slightly to Rs. 7,000/- per month. It is also directed that the amount obtained by the respondent no. 2 as interim maintenance or regular maintenance, as the case may be, in proceeding under the Domestic Violence Act shall be liable to be adjusted towards maintenance awarded in the impugned judgement. The revision stands partly allowed in the manner. Order Date :- 10.2.2025 Dhirendra/ DHIRENDRA KUMAR High Court of Judicature at Allahabad