Neelam & Anr. v. Pradeep Birman

1. For the reasons mentioned in the applications, as well as, regard being had to the fact that the issue involved concerns the maintenance of wife, the delay in filing and refiling of the appeal is condoned.

2. Applications stand disposed of. CRL.M.A. 12265/2017 (delay in filing the reply).

3. For the reasons mentioned in the application, the delay in filing the reply is condoned.

4. Application stands disposed of.

5. The present revision petition has been filed by the petitioners against the impugned order dated 08.09.2014, whereby the petition filed by the petitioners under Section 125 CrPC has been dismissed on the ground that the petitioners have already been awarded maintenance under the Protection of Women Against Domestic Violence Act, 2005. The relevant part of the impugned order dated 08.09.2014, reads as under:- “30. In the present case, it is the same provision of law, i.e., 125 CrPC for grant of maintenance that is being agitated under two Acts i.e. under the Family Court Act, 1984 as well as under Protection of Women Against Domestic Violence Act, 2005.

31. The same petition cannot be entertained by two courts. Since the petition under Section Protection of Women Against Domestic Violence Act, 2005 has already been filed and is prior in time and interim maintenance in the sum of Rs.5,000- has already been granted under Domestic Violence Act, 2005, it is held that no further orders are required to be made for grant of maintenance under Section 125 CrPC.”...

6. The issue raised in the present revision petition is that whether or not two or more petitions for grant of maintenance are maintainable simultaneously under different statutes.

7. The issue is no more res integra, in as much as the Hon’ble Supreme Court in Rajnesh vs Neha & Anr.,(2021) 2 SCC 324 has held that a party is not precluded from approaching the Court for grant of maintenance under more than one enactment, since the nature and purpose of the relief granted under each Act is distinct and independent.

8. The Hon’ble Supreme Court further clarified that if in one proceeding an amount is awarded towards maintenance, then in the subsequent proceedings, the maintenance awarded in the earlier proceeding has to be taken note of and adjustment or set off of the said amount has to be granted. The relevant paragraphs of the judgment reads as under:-

18. 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 CrPC, 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. xxxx xxxx xxxx xxxx xxxx xxxx

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 DV Act and Section 125 CrPC, or under HMA. 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 court concerned in the previous proceeding.”...

9. In view of the aforesaid authoritative pronouncement of the Hon’ble Supreme Court on the point, the impugned order dated 08.09.2014 is not sustainable.