Whether Parallel Claims of Maintenance under CrPC, 1973 and Domestic Violence Act, 2005 Permitted ? – To what extent husband is liable .

 

An effected wife can claim maintenance   under various provisions. Bhagwan Dutt v Kamla Devi[1] Sec 125 (1) of Criminal Procedure Code, 1973 states that wife “who is unable to maintain herself” is entitled to seek maintenance. Similar provision is also made under Protection of Women from Domestic Violence Act, 2005 (DV Act). Section 20(1)(d) provides that maintenance granted under the D.V. Act to an aggrieved woman and children, would be given effect to, in addition to an order of maintenance awarded under Section 125 of the Cr.P.C., or any other law in force. The object of these provisions being to prevent vagrancy and destitution.

However a question arises “whether maintenance allowance awarded to the wife/opposite party is adjustable with the monetary relief granted to her under Section 23 of the Protection of Women from Domestic Violence Act”

Facts[2]

The Respondent wife has been granted interim maintenance under Sec 23 of DV Act. This was challenged by Petitioner on the ground that in parallel proceedings under Sec 125 CrPC the wife has been granted final order of maintenance. But the “learned Judicial Magistrate rejected the application on twofold grounds, viz, interim monetary relief granted in favour of the wife/opposite party No.1 cannot be adjusted with final order of maintenance passed in a proceeding under Section 125 of the Code of Criminal Procedure, against the scope of both the above mentioned statute and the relief granted under them are distinct and different.”

Appeal/Revision

The Respondent wife has placed reliance on judgement of Bombay High Court in Prakash Babulal Dangi & Anr. vs. State of Maharashtra[3] wherein it was held that “It has to be held so in view of Section 20(1)(d) of the Domestic Violence Act, which clearly provides that, 'in proceedings under the D.V. Act, the Magistrate may direct the Respondent to pay the maintenance to the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of Cr.P.C. or any other law for the time being in force.' Therefore, the power to award maintenance under D.V. Act is in addition to an order of maintenance under Section 125 of Cr.P.C. or any other law for the time being in force. Section 36 of the D.V. Act makes the things further clear by providing that, 'the provisions of the D.V. Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.' Therefore, it follows that the amount of maintenance awarded under the D.V. Act cannot be substituted to the order of maintenance under Section 125 of Cr.P.C.

however The Court has quoted from Supreme Court decision in Rajnesh vs. Neha & Anr.[4]wherein the latest position of law has been enunciated:

“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 Cr.P.C., 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……….. 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”

Though the law is stated by Supreme Court as quoted above but in 2018 itself Bombay High Court too in Vishal v Aparna & Anr[5] had held,  The Court was considering the issue whether interim monthly maintenance awarded under Section 23 r.w. Section 20 (1)(d) of the D.V. Act could be adjusted against the maintenance awarded under Section 125 Cr.P.C. –

 “Though the wife can simultaneously claim maintenance under the different enactments, it does not in any way mean that the husband can be made liable to pay the maintenance awarded in each of the said proceedings.”

Thus the issue is settled.

 

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[1] (1975) 2 SCC 386.

[2] Partha Sakha Maity v Bijali Maity & Anr. (Calcutta High Court, CRR 1094 of 2019)

[3] CriminalAppeal No.296 of 2017 dated 10th October, 2017.

[4] (2021) 2 SCC 324

[5] 2018 SCC OnLine Bom 1207

Injunction on Invocation of Bank Guarantees on Ground of Egregious Fraud

 

When there is default in performance of contract and an unconditional bank guarantee is furnished, Courts generally do not interfere in its invocation even though the dispute is still pending between beneficiary and person on whose behalf guarantee is given.  However there are exceptions to this rule. Situation of egregious fraud - Fraud committed of a nature that would vitiate the entire underlying transaction[1].

Facts[2]

A petition was filed by appellant under Sec 9 of Arbitration and Conciliation Act, 1996 seeking orders restraining the Respondent from encashing bank guarantees. The Ld Single Judge in fact directed encashing the four bank guarantees and transfer the encashed amount into the account of the learned Registrar General of this Court, to be put in a fixed deposit subject to the outcome of the arbitration proceedings. An appeal was preferred against this order

The case of appellant in brief is that it was assigned contract for extraction of coal from an ascertained coal block. The (Detailed Project Report) DPR for the same was cleared by Respondent. Consequent to this unconditional bank guarantees were furnished by appellant.

After sometime it was found upon examination of coal block (by Respondent) that the amount of coal extraction is likely to be greatly reduced. This was informed to appellant. This variation was, according to appellant, were at great variance to the earlier Geological Reports and called for entire fresh planning of work execution; its associated cost changes/variations; approval of a fresh mining plan; obtaining fresh environmental clearance; change in locations of ventilation shaft and inclined drivages and other key issues.

The issues were communicated to Respondent which decided to form a Committee to look into issues. However even after 12 months to communication was made to appellant and abruptly a shoe cause notice was issued by Respondent for cancellation of contract.

Even though appellant tried its best that respondent withdraws the cancellation notice but instead a letter communicating cancellation of contract was issued. The appellant filed the above Sec 9 petition seeking interim measures for protection against which an appeal was filed.

Ratio

It was noted that bank guarantees furnished by appellant are unconditional in nature meaning thereby “the bank has undertaken to pay to the beneficiary immediately on demand all monies payable by the contractor to the extent of the amounts specified therein, without any demur, reservation, recourse, contest or protest and/or without any reference to the appellant contractor”. Terms and Conditions stipulated in the contract give an absolute right to Respondent to encash the bank guarantees in accordance with the terms captured above.

Appellant raises the ground of egregious fraud by Respondent to obtain injunction against encashment of bank guarantee. But the Court states that – “the Appellant’s contention is vague and does not meet the requirement of law on the concept of fraud as a ground for restraining encashment of bank guarantees, as laid down in a plethora of judgments on the subject”

Further the appelants’s prayer that Contract be declared void ab intio also was not accepted by the court on a simple reason that arbitration proceedings are pending and it was beyond the scope of Sec 9 petition under the Act to grant such a relief.

The encashment of bank guarantee cannot be termed as fraudulent only because disputes arose between parties even if it was accepted that Respondent was at fault for failing to fulfill its obligations under the Contract. – “The existence of disputes between the parties to the Contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees.”

Also the Ld single judge has not assigned the amount to Respondent rather has been deposited in the Court subject to outcome of arbitration proceedings.

Thus the plea of appellant was not accepted.

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[1]  U.P. State Sugar corporation v Sumac International Ltd (1997) 1 SCC 568

[2] AMR BBB Consortium v Bharat Cooking Coal Ltd (Delhi High Court, FAO(OS) (COMM) 20/2021)

Parallel Claims of Maintenance under CrPC and Domestic Violence Act

 

An effected wife can claim maintenance   under various provisions. Bhagwan Dutt v Kamla Devi[1] Sec 125 (1) of Criminal Procedure Code, 1973 states that wife “who is unable to maintain herself” is entitled to seek maintenance. Similar provision is also made under Protection of Women from Domestic Violence Act, 2005 (DV Act). Section 20(1)(d) provides that maintenance granted under the D.V. Act to an aggrieved woman and children, would be given effect to, in addition to an order of maintenance awarded under Section 125 of the Cr.P.C., or any other law in force. The object of these provisions being to prevent vagrancy and destitution.

However a question arises “whether maintenance allowance awarded to the wife/opposite party is adjustable with the monetary relief granted to her under Section 23 of the Protection of Women from Domestic Violence Act”

Facts[2]

The Respondent wife has been granted interim maintenance under Sec 23 of DV Act. This was challenged by Petitioner on the ground that in parallel proceedings under Sec 125 CrPC the wife has been granted final order of maintenance. But the “learned Judicial Magistrate rejected the application on twofold grounds, viz, interim monetary relief granted in favour of the wife/opposite party No.1 cannot be adjusted with final order of maintenance passed in a proceeding under Section 125 of the Code of Criminal Procedure, against the scope of both the above mentioned statute and the relief granted under them are distinct and different.”

Appeal/Revision

The Respondent wife has placed reliance on judgement of Bombay High Court in Prakash Babulal Dangi & Anr. vs. State of Maharashtra[3] wherein it was held that “It has to be held so in view of Section 20(1)(d) of the Domestic Violence Act, which clearly provides that, 'in proceedings under the D.V. Act, the Magistrate may direct the Respondent to pay the maintenance to the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of Cr.P.C. or any other law for the time being in force.' Therefore, the power to award maintenance under D.V. Act is in addition to an order of maintenance under Section 125 of Cr.P.C. or any other law for the time being in force. Section 36 of the D.V. Act makes the things further clear by providing that, 'the provisions of the D.V. Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.' Therefore, it follows that the amount of maintenance awarded under the D.V. Act cannot be substituted to the order of maintenance under Section 125 of Cr.P.C.

however The Court has quoted from Supreme Court decision in Rajnesh vs. Neha & Anr.[4]wherein the latest position of law has been enunciated:

“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 Cr.P.C., 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……….. 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”

Though the law is stated by Supreme Court as quoted above but in 2018 itself Bombay High Court too in Vishal v Aparna & Anr[5] had held,  The Court was considering the issue whether interim monthly maintenance awarded under Section 23 r.w. Section 20 (1)(d) of the D.V. Act could be adjusted against the maintenance awarded under Section 125 Cr.P.C. –

 “Though the wife can simultaneously claim maintenance under the different enactments, it does not in any way mean that the husband can be made liable to pay the maintenance awarded in each of the said proceedings.”

Thus the issue is settled.

---

[1] (1975) 2 SCC 386.

[2] Partha Sakha Maity v Bijali Maity & Anr. (Calcutta High Court, CRR 1094 of 2019)

[3] CriminalAppeal No.296 of 2017 dated 10th October, 2017.

[4] (2021) 2 SCC 324

[5] 2018 SCC OnLine Bom 1207