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.
