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Once permanent maintenance is received u/s 20 DV Act, wife not entitled approach Family Court u/s 26(1) DV Act
Gomathi Vs Sacraties
CMA (MD) No. 310 of 2020
About/from the judgment:
The High Court addressed an appeal with regard to seeking interim maintenance when permanent maintenance was already granted.
Petitioners have filed the present appeal challenging the Family Court's Order.
Husband sought divorce against the first appellant(wife) on the ground of cruelty.
During the pendency of the above petition, appellants filed an application under Section 7(1) of the Family Courts Act read with Section 25 of the Hindu Marriage Act, 1955 and Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the husband to pay a sum of Rs 10,000 to appellant 1 and Rs 5,000 to appellant 2 towards monthly maintenance.
Another application under Section 24 of the Hindu Marriage Act, 1055 read with Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the respondent to pay a sum of Rs 7,500 to appellant 1 and Rs 5, 000, was also filed.
Counsel for the appellants, M.P. Senthil and Counsel S. Jeyavel, for the respondent.
Issues to be considered:
- Whether the petitioners are precluded from seeking interim maintenance by invoking the provisions of Section 24 of the Hindu Marriage Act r/w Sections 20 and 26 of the Protection of Women from Domestic Violence Act on the ground that they already got an order for payment of maintenance in D.V proceedings?
Analysis & Decision
Bench referred to Section 25 of the Hindu Marriage Act, 1955, which is in regard to the permanent Alimony and Maintenance.
Section 25(1) of HMA empowers the Court, while passing any decree to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband and by way of permanent alimony, an order granting maintenance can also be passed by the Court.
"…at any time, subsequent to the passing of decree also, the Court can order for granting maintenance on application made to it by either wife or the husband."
Bench noted that the appellants cannot ask for interim relief, when permanent relief has already been granted to them.
In view of the above, court relied on the decision of Rakesh Malhotra v. Krishna Malhotra, 2020 SCC OnLine SC 239 wherein the following was dealt with:
After grant of permanent alimony under Section 25 of the 1955 Act, prayer made by wife before Magistrate under Section 125 of Code for maintenance over and above what has been granted by Court under Section 25 of Act. Impugned order allowing prayer was set aside with direction that application preferred under Section 125 of Code shall be treated and considered as one preferred under Section 25(2) of Act.
What the appellants should have done in the present matter?
Since, the appellants had already received maintenance in the DV proceedings under Section 20 of the DV Act which is permanent in nature, yet if due to a change in the circumstances the said order required modification or alteration, they can approach the same Court seeking the relief by invoking Section 25(2) of the DV Act or the Family Court can also be approached to exercise the power under Section 25(1) of the HMA.
But the resort of filing another application before another forum that too in the nature of interim relief should not be adopted.
Section 26 of the DV Act shows that the aggrieved person may seek any relief under Sections 18 to 22 of DV Act in any legal proceedings before a Civil Court/Family Court or Criminal Court as additional reliefs.
In the present case, the petitioner had already received an order in the petition properly filed under Section 12 of the DV Act before the Additional Mahila Court, Tiruchirappalli and that being so, they were not entitled to file a petition before the Family Court by invoking the provision under Section 26(1) of the DV Act, seeking interim relief.
Therefore, in the High Court's opinion, the Family Court Judge had rightly dismissed the application.
Read the Judgment
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