29/04/2023
MATRIMONIAL LAW
INTRODUCTION:-
Word matrimonial means Vaivahik, which directly indicate about Husband and wife, Adam and Eva. Nature God send them on earth for the purpose of productivity but they started fighting and need arises for Law to control their fights….. this is on lighter side. But it is not so lighter and laughable point. Mostly I have seen in our Courts faculties, not giving importance to matrimonial dispute by saying matrimonial as “ Miya bibi ka Zagda, rozka, ” chaha chya kapatil bhandade, Kay mahatwachi nahi and so also we matrimonial advocates are not given more importance. Thik hai. But let me tell you these dispute is not easy to solve, and its very important because healthy balance couple is base of every family and family is the base of health society, healthy society is base of every stable country. Am I correct? I am not going to tell you about the printed law, sections, act or Judgements etc. that you all advocate can read and find out even from internet. I will focus upon the practical approach, practical difficulty and pros cons of your action as an advocate upon the client’s life, and how to handle this type of clients and how to help your client to safeguard his own right and interest and not to violates other spouse’s rights and interest.
POINTS ON MATRIMONIAL LAW
WHAT ARE THE REASON FOR MATRIMONIAL DISPUTE: -
1]. Temperamental differences: - Due to differences in thinking, different upbringings, life styles, castes, communities, status (now a days, residence area also matters), etc.
2]. Stress-tension: - work stress, life-style stress, exams stress, career stress etc.
3]. Broken family: - Family Dispute, parents fighting, negative atmosphere.
4]. Sexual problems: - mostly in 99% cases s*x is the reason directly or indirectly.
5]. Hormones: - Imbalance of hormones during puberty, postpartum depression during childbirth, and menopause in ladies.
WHAT WOULD BE DUTY OF ADVOCATE IN HANDLING THE MATRIMONIAL DISPUTE: -
1]. Client’s interview- interrogation to check mental balance of clients
2]. Instruction should be in writing about marital life incidence in detail with probable dates and not opinion.
3]. Finalisation of notice or petition in advocate’s office with his signature
4]. No conversation with relatives of the client.
5]. Keep record: - All conversation should by written or through exchanges of mail and records to be kept till end of case.
6]. Guidance during counselling: - Always accompany your client and guide your client while attending counselling.
ACT CONCERNS WITH MATRIMONIAL LAW AT CONCERNED COURTS
1]. FAMILY COURT-
i]. Acts- Hindu Marriage Act, Special Marriage Act, Divorce Act, Moh. LAW, Guardians and Wards Act, HAMA, Cr. PC.[125], PWDV ACT[ section 26] ,
ii]. Type of Proceedings
• A- Type cases –
RCR u/s 9 H.M.ACT, 22 S.M.Act, 32 I.D.Act,
Divorce: -u/s13, 27 of SM Act, 10I.D. ACT,
Nullity of marriage: - u/s 11 and 12 of H.M.Act, 24 and 25 S.M.Act, 18,19 of I.D. Act
• B- Injunction, declaration, property
• C- Maintenance under HAMA 18[1] [a] [b]
• D-Custody petition under Guardians and Wards Act
• E-125 Cr.P.C maintenance
• F-Mutual consent petition 13[B] of H.M.Act, 28 S.M.Act
• Misc. Civil Application- for any correction or clarification
• Misc. Criminal application- for enhancement of Maintenance granted in Cr. PC
• RD- Recovery Darkhast for recovery of maintenance money passed in civil proceedings.
• ER- Ex*****on proceedings for recovery of maintenance granted in Cr. P C 125 proceedings.
iii]. Interlocutory proceedings
• Monthly maintenance application: - section 24 in H.M.Act, 36 SM Act, 36 I.D. Act
• Residence Rights:-section 27 in H.M.Act,
• Temporary Injunction: - 7[1] [d] of Family Court Act
• Early checking and early hearing also can be possible in urgency
• Access of the children: - vacation, regular, festival, function
• Production of documents under CPC
• Assets and liability affidavit along with income documents- as per Supreme Court guidelines given in Judgement of Rajnesh vs Neha
SPECIFIC PROVISION OF SECTION 14 OF FAMILY COURTS ACT- NO EVIDENCE ACT TO BE STRICTLY FOLLOW.
OTHER FACILITIES BY FC Bandra
• Children complex for access
• Muskan centre for child’s psychologist
• Medical centre for litigant
• Hirkani centre for Breast feeding baby and mother
• Mediation centre
• Counselling centre- Good team of Counsellors to solve the issues.
DISADVANTAGE OF FAMILY COURT
• CPC not strictly applicable
• Evidence Act not strictly applicable
• No Court receiver allowed
• No attachment before judgment
• Recovery of maintenance is difficult
• Access Order not followed in its true sense
• No control upon Private parties’ appearance
• No control over their relatives attending court to give alleged moral support.
DRAFTING OF PETITION:-
• Entire facts of life of the client should be in detail with dates and events.
• Incidence should be mentioned and not opinion.
• Factual should be given by the client in his/her own words by way of Word documents (if the client cannot give, then tell him to get it typed from outside, collect the contents on a pen drive, but do not waste time in writing his story.)
• Separate applications for separate reliefs.
• While filing a written statement, you also filed a counterclaim with a separate title and prayer and always filed interim applications in your counterclaim.
• Write averment of bar of Section 23 of Hindu Marriage Act in written statement if the petitioner is wrong doer.
PROCEDURE IN FAMILY COURT
FILING OF PETITION: The petitioner’s personal presence is required with marriage proof (now e-filing is suggested, but again, physical filing is allowed). With the lodging number provided, clients get SMS on their mobile. Early checking of the numbering application can be done if there is urgency.
OBJECTION BY OFFICER: Officer check and, with numbering, the case would be assigned to the concerned 7 courts in the Family Court of Mumbai at Bandra with the date of hearing. Clients get SMS on their mobile as well as email information now a days provided.
SUMMONS SERVICE Prior to the hearing date, summons are to be issued and required to be served as per Order V of the CPC.
• If the other party lives outside of Mumbai, the summons will be sent via postal mail. Although an affidavit of service with a post tracking report submitted by the petitioner may be accepted, Family Court judges always insist on second service by a civil court bailiff in the area where the opponent resides. Party can collect humdus [hand delivery and serve], obtain the service report from the bailiff, and file it in court.
• If the opponent resides in Mumbai, then a bailiff summons must be served. Advocates need to coordinate with the concerned bailiff of the concerned area and any parties required to accompany the bailiff.
• There is a way to substitute services under Order 5, Rule 17, and Rule 20 of the CPC by pasting and publishing.
• If the opponent does not come even after proper services, then there is a procedure to send notice through a counsellor before going for ex parte.
HEARING OF PETITION
• If parties appear, then three sessions of counselling should be done. It's mandatory, and the advocate must assist and guide the client in this crucial stage. During counselling, if any points of access or maintenance are agreed upon, the counsellor prepares the partial consent terms, which will be verified by the judge when the counsellor submits the reports.
• It is advisable to file the "affidavit of compliance of consent terms and or non-compliance" to put on record, so as to inform the court about the factual aspect, and it would be helpful to pass the necessary order and to count the demeanour of the parties and show the bona fide intention of parties.
• Pending counselling parties may request an interim application hearing & if necessary, an ad interim order or adhoc maintenance.
• After counselling, the hearing stages of interim applications start with filing replies and arguments. Generally, rejoinder is not allowed in family court save and except the necessities specifically mentioned or the need for such documents.
• Reply of the opponent with assets and liability affidavit and income documents required to be filed.
• Hearing and written arguments can be filed
• After the argument, obviously, the order passed. It is advisable to file the "affidavit of compliance of order and or non-compliance of order" to put on record, to inform the court about the factual aspect, and it would be helpful to pass the necessary order and to count the demeanour of the parties and show the bona fide intention of parties.
WRITTEN STATEMENT ALWAYS AFTER FILING OF COUNSELOR’S FAILURE REPORT:-
• The limitation of CPC for filing of written statement of one month does not apply in family Court.
• After Petition filing done, Counselling will start.
• After counselling is over and the report of the counsellor is submitted, the stage of a written statement comes, and it is advisable that a written statement always be filed with a counterclaim.
• If counterclaim filed then written statement to counterclaim also need to be file.
ISSUES:-
Generally, in family court no necessities to give draft issues as Judges only frames the standard issues.
LIST OF DOCUMENTS AND LIST OF WITNESS: -
List of documents required to be submitted in original; even photocopies are allowed, but it should be pleaded in the affidavit who procured those photocopies; and electronic evidence like video and audio required to be submitted with transcript and translation; and at the same time, parties can make application for verification of the audio and video by counsellors in the presence of both the petitioner and respondent, and counsellors are supposed to write reports to that effect, which may be read in evidence. Under Section 65-B of the Evidence Act, a party is required to submit a certificate. And a report and certificate of video and audio by a private agency are allowed with a 65B certificate of the Evidence Act.
List of witnesses: Generally, the witnesses in family court proceedings are family members and friends; whoever witnessed the marital dispute may be a witness. Here, the rejecting criteria of "interested witness" does not apply, so saying a father or mother is an interested witness does not apply, as they would support their son or daughter because in family court proceedings they are the witness. An application also may be made to call the necessary witnesses for an expert opinion, like a doctor, handwriting expert, audio or video verifier, or person aware of a point dispute.
DOCUMENTS MARKING: -
Admission and disadmission are done either by separate affidavit or by marking on the list of documents.
TRIAL: -
In family court, CPC applies so far as Trial is concerned, but not strictly, the evidence act is not even follows strictly. As per section 14 of The Family Court Act, need not be followed strictly.
AFFIDAVIT OF EVIDENCE IN LIEU OF EXAMINATION IN CHIEF:- As per Evidence Act
CROSS OF WITNESS
ARGUMENTS
JUDGEMENT
2]. PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT
IMPORTANT SECTION :-
Chapter IV
Section 12 Application to Magistrate Court: Any person who is aggrieved, herself or any person on her behalf, or a protection officer may file the application. The format is given in the Act, but it can be filed in the form of a petition; there is no strict rule about format; the section itself says "as nearly as possible to the prescribed format." But now, after the Rajnesh vs. Neha judgement, it is mandatory to file the assets and liability affidavit and income document of the petitioner. Make separate applications for maintenance, residence, injunction, streedhan, etc.
Section 17 Right to reside in a shareholding house: Every lady has the right to reside in a shareholding house [where she is residing, whether she has ownership rights or not] The latest judgement whereby the Hon’ble Supreme Court defined the concept of shared household is Prabha Tyagi v. Kamlesh Devi, Criminal Appeal No. 511 of 2022 (Division Bench),
Section 18 Protection Rights: After giving the opportunity to both sides, the Hon’ble Court may pass this protection order restraining the opponent from
i]committing act of domestic Violence,
ii]adding or abetting act of commission,
iii]entering employment place, or school of child if the child is aggrieved party,
iv]communicating with petitioner
v]. alienating any assets, opening joint lockers, joint accounts, streethan etc.
vi] causing violence or committing any other act whereby she would be harassed.
Section 19 is in the form of some sort of injunction restraining the respondent from dispossessing the lady from the house, and further, it speaks about directing the respondent to remove himself from the house; further, even he and his relatives may be restrained in the share house hold portion where the aggrieved lady is residing. If the respondent is the owner, he can be restrained from alienating, disposing of, or renouncing his rights. As well as under this section, the wife can ask for alternate accommodations of the same level.
Section 20. Monetary relief. Monthly maintenance is to meet expenses of the aggrieved person and the children, including expenses like loss of earnings, medical expenses, and loss caused by destruction, damage, or removal of any property from the control of the aggrieved person. Here it is specifically mentioned that maintenance shall be adequate, fair, and reasonable consistent with the standard of living to which she is accustomed. Recently, the Hon’ble Supreme Court passed judgement in the case of Rajnesh vs. Neha, and thereby, guidelines are provided to decide the issue of the standard of living of both spouses, and both parties are directed to file income affidavits, i.e., assets and liability affidavits, and income documents required to be produced.
Section 21 custody orders : Under this section, a temporary custody order or visitation rights can be granted. No permanent custody order can be passed. Only in civil or matrimonial proceedings can the right to a permanent custody order [the Guardian and Ward Act] be granted. So far as visitation rights are concerned, unfortunately there are no children's complexes, counsellors, or psychological centres in the JMFC or Metropolitan Magistrate Court, making it very difficult to handle such delicate issues as visitation and access rights, even temporary custody issues.
Section 22 Compensation Order : It deals with compensation costs in terms of money incurred by the respondent who causes physical, mental, and emotional tortures and distress by their conduct towards the aggrieved party.
Section 23 Power to grant interim and ex parte orders
Section 26 Relief in Other Suits: As per this section, in any pending cases, either in family court or civil court, the lady can initiate proceedings under this Act. The latest judgement of the Supreme Court, Minoti Subhash Anand vs. Subhash Manohalal Anand, passed on 10/12/2015 and there are many more judgements passed whereby the PWDV case can be transferred to Family Court from M.M. Court if any connected civil case is pending in Family Court.
Section 29 Appeal: Any order to be challenged shall be appealed before the session court within 30 days.
Chapter V
Rule 9: Action to be taken in cases of emergency: If the protection officer or service provider receives any information through mail or telephone, they may seek immediate assistance from the police, record the domestic violence incidence, and present the case before the magistrate.
Rule 10: Duty of protection officer: make inquiry, file report, restore possession if lady is disposed, provide assistance to her, take assistance from police, see to it that court order is obeyed by the parties, etc.
Rule 15: Any order passed by the court is not obeyed, and if there is any breach, the protection officer may inform the magistrate in writing.
Rule 16:- Shelter to aggrieved person
Rule 17:- Medical facility to aggrieved person
Chapter 8:- Cyber crimes against women
Chapter 9:- Indecent assault
Chapter 10 marital r**e
Chapter 11- Dowry
Chapter 12 Dowry death
Chapter 13:- Decriminalization of attempted su***de
Chapter 14 :-Acid Attacks against women
FILLING OF THE PWDV PROCEEDINGS AS SAME AS FAMILY COURT-
• detail facts with dates and specific incidence and not opinion
• Separate application for separate prayer
• Filing of assets and liability affidavit and income documents along with the maintenance application
Summons to be served through Protection officer attached with concerned police station.
If parties absent insist for Exparte Order under section 23 of PWDV
If parties present than after vakalatnama reply may be filed with assets and liability of the opponents.
Mediation
Arguments
Orders
Previous Judgments on the Right to Shared Household
• While interpreting the right of an aggrieved person to reside in a shared household under section 17 of the DV Act, a Division Bench of the Supreme Court in SK Batra v. Smt. Taruna Batra [(2007) 3 SCC 169] held that a wife has no right to reside in the residence that her in-laws own and in which the husband has no interest. This narrow interpretation of this concept restricted the right of the wronged daughters-in-law to claim the right to reside at her in-laws’ property.
• A full bench of the Supreme Court in the case of Satish Ahuja v. Sneha Ahuja [(2021) 1 SCC 414], overruled S.K Batra after fourteen years in 2020. The court held that the daughter-in-law can exercise her right to live in the shared household, which is completely owned by the in-laws until her husband finds alternate accommodation. In this case, the court interpreted “shared household” in Section 17 irrespective of whether she has any legal interest or not.
• However, it went on to hold that the “living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household” and that the intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not.
Analysis of Supreme Court’s Recent Verdict
• Recently in the case of Prabha Tyagi v. Kamlesh Devi, Criminal Appeal No. 511 of 2022 (Division Bench), the aggrieved person was widowed immediately after her marriage and was subjected to domestic violence and was forced to leave the matrimonial home, even though she was entitled to properties owned by her husband after his death. The issues before the court were as follows:
1. Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levelled;
2. Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed.
• The court held that a victim of domestic violence can enforce her right to reside in a shared household, regardless of whether she lived in the shared household. The court introduced the concepts of “constructive residency” and “non-existence of marital connection” to conclude that the wife is entitled to relief under the PWDV Act. The Bench observed that if a person is related to another person through consanguinity, marriage, or another type of relationship, it is not necessary for that person to physically live with the other person at the time of the alleged act of domestic violence.
• The court held that “the expression ‘right to reside in the shared household’ would include not only actual residence but also constructive residence in the shared household i.e., right to reside therein which cannot be excluded vis-à-vis an aggrieved person except in accordance with the procedure established by law. If a woman is sought to be evicted or excluded from the shared household, she would be an aggrieved person in which event Sub-Section (2) of Section 17 would apply.”
• The court talks about instances like widows, women after judicial separation, divorced women, and those without any subsisting marital connection that they are entitled to rights and reliefs under the PWDV Act, and offers protection to all women irrespective of their status or marital relationship.
Chattisgarh High Court
Chandrabhushan vs Smt. Savita Bai on 11 November, 2021
1. Aggrieved by the judgment dated 08.12.2016 passed by the Family Court, Rajnandgaon, in Civil Suit No.26-A/2010, the present appeal under Section 19(1) of the Family Courts Act, 1984 (in short, The Act, 1984) has been filed. Vide the impugned judgment, the court below has allowed an application under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (in short, The Act, 1956) to the extent of directing the appellant-
Defendant to pay an amount of Rs.3000/- per month to the respondent-
Plaintiff in this case.
2. The substantial ground which the appellant has raised principally is that the said order is ignoring the fact that on an earlier occasion the application under Section 125 CrPC moved by the respondent-Plaintiff before the Family Court at Rajnandgaon stood rejected vide order dated 22.08.2008 in Misc. Criminal Case No.1/2008 and since her application under Section 125 CrPC was already rejected, the subsequent application under another enactment for the same relief should not had been entertained.
3. The principal ground of challenge in the present appeal is as to whether the subsequent application for maintenance under a different statute would had been entertained and allowed by the court below.
4. There is a recent judgment of the Hon'ble Supreme Court in this regard in case of Rajnesh Vs. Neha and Another, 2021(2)SCC 324 wherein after considering all the provisions of law which provides for claiming maintenance under different different statutes, the Supreme Court deciding on the question of overlapping jurisdiction in paragraphs 52 to 61 has held as under:
"52. Some High Courts have taken the view that since each proceeding is distinct and independent of the other, maintenance granted in one proceeding cannot be adjusted or set-off in the other. For instance, in Ashok Singh Pal v Manjulata, the Madhya Pradesh High Court held that the remedies available to an aggrieved person under S. 24 of the HMA is independent of S. 125 of the Cr.P.C. In an application filed by the husband for adjustment of the amounts awarded in the two proceedings, it was held that the question as to whether adjustment is to be granted, is a matter of judicial discretion to be exercised by the Court. There is nothing to suggest as a thumb rule which lays down as a mandatory requirement that adjustment or deduction of maintenance awarded u/S. 125 Cr.P.C. must be off-set from the amount awarded under S.24 of the HMA, or vice versa. A similar view was taken by another single judge of the Madhya Pradesh High Court in Mohan Swaroop Chauhan v Mohini. Similarly, the Calcutta High Court in Sujit Adhikari v Tulika Adhikari held that adjustment is not a rule. It was held that the quantum of maintenance determined by the Court under HMA is required to be added to the quantum of maintenance u/S. 125 Cr.P.C.
53. A similar view has been taken in Chandra Mohan Das v Tapati Das, wherein a challenge was made on the point that the Court ought to have adjusted the amount awarded in a proceeding under S.125 Cr.P.C., while determining the maintenance to be awarded under S.24 of the HMA, 1955. It was held that the quantum of maintenance determined under S.24 of HMA was to be paid in addition to the maintenance awarded in a proceeding under S.125 Cr.P.C.
54. On the other hand, the Bombay and Delhi High Courts, have held that in case of parallel proceedings, adjustment or set-off must take place. The Bombay High Court in a well-reasoned judgment delivered in Vishal v Aparna has taken the correct view. 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. The Family Court held that the order passed under the D.V. Act and the Cr.P.C. were both independent proceedings, and adjustment was not permissible. The Bombay High Court set aside the judgment of the Family Court, and held that Section 20(1)(d) of the D.V. Act makes it clear that the maintenance granted under this Act, would be in addition to an order of maintenance under Section 125 Cr.P.C., and any other law for the time being in force. Sub- section (3) of Section 26 of the D.V. Act enjoins upon the aggrieved person to inform the Magistrate, if she has obtained any relief available under Sections 18, 19, 20, 21 and 22, in any other legal proceeding filed by her, whether before a Civil Court, Family Court, or Criminal Court. The object being that while granting relief under the D.V. Act, the Magistrate shall take into account and consider if any similar relief has been obtained by the aggrieved person. Even though proceedings under the D.V. Act may be an independent proceeding, the Magistrate cannot ignore the maintenance awarded in any other legal proceedings, while determining whether over and above the maintenance already awarded, any further amount was required to be granted for reasons to be recorded in writing. The Court observed:
"18. What I intend to emphasize is the fact that the adjustment is permissible and the adjustment can be allowed of the lower amount against the higher amount. 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."
It was held that while determining the quantum of maintenance awarded u/S.125 Cr.P.C., the Magistrate would take into consideration the interim maintenance awarded to the aggrieved woman under the D.V. Act.
55. The issue of overlapping jurisdictions under the HMA and D.V. Act or Cr.P.C. came up for consideration before a division bench of the Delhi High Court in RD v BD wherein the Court held that maintenance granted to an aggrieved person under the D.V. Act, would be in addition to an order of maintenance u/S. 125 Cr.P.C., or under the HMA. The legislative mandate envisages grant of maintenance to the wife under various statutes. It was not the intention of the legislature that once an order is passed in either of the maintenance proceedings, the order would debar re-adjudication of the issue of maintenance in any other proceeding. In paragraphs 16 and 17 of the judgment, it was observed that:
"16. A conjoint reading of the aforesaid Sections 20, 26 and 36 of DV Act would clearly establish that the provisions of DV Act dealing with maintenance are supplementary to the provisions of other laws and therefore maintenance can be granted to the aggrieved person (s) under the DV Act which would also be in addition to any order of maintenance arising out of Section 125 of Cr.P.C.
17. On the converse, if any order is passed by the Family Court under Section 24 of HMA, the same would not debar the Court in the proceedings arising out of DV Act or proceedings under Section 125 of Cr.P.C. instituted by the wife/aggrieved person claiming maintenance. However, it cannot be laid down as a proposition of law that once an order of maintenance has been passed by any Court then the same cannot be re-adjudicated upon by any other Court. The legislative mandate envisages grant of maintenance to the wife under various statutes such as HMA, Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as 'HAMA'), Section 125 of Cr.P.C. as well as Section 20 of DV Act. As such various statutes have been enacted to provide for the maintenance to the wife and it is nowhere the intention of the legislature that once any order is passed in either of the proceedings, the said order would debar re adjudication of the issue of maintenance in any other Court."
The Court held that u/S. 20(1)(d) of the D.V. Act, maintenance awarded to the aggrieved woman under the D.V. is in addition to an order of maintenance provided u/S. 125 Cr.P.C. The grant of maintenance under the D.V. Act would not be a bar to seek maintenance u/S. 24 of HMA.
56. Similarly, in Tanushree & Ors. v A.S.Moorthy, the Delhi High Court was considering a case where the Magistrate's Court had sine die adjourned the proceedings u/S. 125 Cr.P.C. on the ground that parallel proceedings for maintenance under the D.V. Act were pending. In an appeal filed by the wife before the High Court, it was held that a reading of Section 20(1)(d) of the D.V. Act indicates that while considering an application u/S. 12 of the D.V. Act, the Court would take into account an order of maintenance passed u/S. 125 Cr.P.C., or any other law for the time being in force. The mere fact that two proceedings were initiated by a party, would not imply that one would have to be adjourned sine die. There is a distinction in the scope and power exercised by the Magistrate under S.125, Cr.P.C. and the D.V. Act. With respect to the overlap in both statutes, the Court held :
"5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two proceedings are independent of each other and have different scope, though there is an overlap. Insofar as the overlap is concerned, law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance under Section 12 of the D.V. Act, the maintenance fixed under Section 125 Cr.P.C. shall be taken into account."
57. The issue whether maintenance U/S. 125 Cr.P.C. could be awarded by the Magistrate, after permanent alimony was granted to the wife in the divorce proceedings, came up for consideration before the Supreme Court in Rakesh Malhotra v Krishna Malhotra. The Court held that once an order for permanent alimony was passed, the same could be modified by the same court by exercising its power u/S. 25(2) of HMA. The Court held that :
"16. Since the Parliament has empowered the Court Under Section 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequitur would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance. One can understand the situation where considering the exigencies of the situation and urgency in the matter, a wife initially prefers an application Under Section 125 of the Code to secure maintenance in order to sustain herself. In such matters the wife would certainly be entitled to have a full-fledged adjudication in the form of any challenge raised before a Competent Court either under the Act Or similar such enactments. But the reverse cannot be the accepted norm."
The Court directed that the application u/S. 125 Cr.P.C. be treated as an application u/S. 25(2) of HMA and be disposed of accordingly.
58. In Nagendrappa Natikar v Neelamma, this Court considered a case where the wife instituted a suit under Section 18 of HAMA, after signing a consent letter in proceedings u/S. 125 Cr.P.C., stating that she would not make any further claims for maintenance against the husband. It was held that the proceedings U/S. 125 Cr.P.C. were summary in nature, and were intended to provide a speedy remedy to the wife. Any order passed u/S. 125 Cr.P.C. by compromise or otherwise would not foreclose the remedy u/S. 18 of HAMA.
59. In Sudeep Chaudhary v Radha Chaudhary, the Supreme Court directed adjustment in a case where the wife had filed an application under Section 125 of the Cr.P.C., and under HMA. In the Sec 125 proceedings, she had obtained an order of maintenance. Subsequently, in proceedings under the HMA, the wife sought alimony. Since the husband failed to pay maintenance awarded, the wife initiated recovery proceedings. The Supreme Court held that the maintenance awarded under Section 125 Cr.P.C. must be adjusted against the amount awarded in the matrimonial proceedings under HMA, and was not to be given over and above the same.
Directions on overlapping jurisdictions.
60. 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. 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.
61.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."
5. The Supreme Court vide the said judgment has in a very categorical terms held that maintenance application decided under one statute would not foreclose the claim for maintenance under a different statute. The Supreme Court has also gone to the extent that even in case if maintenance is awarded under one of the statutes that by itself would not preclude the claimant from raising another claim application under a different statute claiming maintenance. The only rider provided by the Supreme Court is disclosure of these facts in the subsequent proceedings and if required the court entertaining the application had to adjust and take into consideration the amount of maintenance already awarded earlier under another statute.
6. Given the authoritative decision by the Supreme Court in the above referred judgment, the ground raised for the appellant in assailing the impugned judgment herein would not stand and the appeal thus deserves to be and is accordingly rejected in the light of the judgment of Supreme Court in case of Rajnesh (Supra).
7. The appeal stands rejected. No order as to costs.
