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Maintenance can be claimed under DV Act even if already granted under Sec 125 CrPC
Mamta Bhardwaj Vs Vinod Kumar Bharadwaj
About/from the judgment:
The High Court reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.
Instant petition was filed under Article 227 of the Constitution of India impugning the decision of Additional District Judge-I, whereby the application filed by the petition wife under Section 26 of the Protection of Women and Domestic Violence Act, 2005 was dismissed.
Petitioner wife had filed a suit under the Hindu Adoptions and Maintenance Act, 1956 as an indigent person, claiming maintenance before the Court. Family Court had granted maintenance @ Rs 10,000 per month. Petitioner wife stated that she was not paid the stated amount by her husband, hence she filed execution proceedings before the Family Court.
Later, a civil suit was filed by the respondent-husband against the petitioner wife seeking damages of Rs 20,00,000 along with an interest and for pendente lite and future interest in the account of malicious prosecution.
The suit was premised on the discharge of the respondent-husband in a criminal complaint lodged by the petitioner wife against the respondent-husband under Sections 498A and 406 of the Penal Code, 1860.
Further, the petitioner wife filed an application under Section 26 of the DV Act in the said civil suit seeking a direction to respondent-husband to pay the sum of Rs 10,000 as interim maintenance and R 1 lakh towards litigation expenses.
Though Trial Court dismissed the above application.
Analysis, Law and Decision
In Court’s opinion, petitioner wife would be entitled to invoke the provisions of Section 26 read with Section 20 of the Domestic Violence Act to seek monetary relief including maintenance, which would be in addition to the maintenance granted to her vide the Family Courts Order.
Supreme Court in its decision Rajnesh v. Neha, (2021) 2 SCC 324, observed in light of the question of overlapping jurisdictions for grant of maintenance that Section 20(1)(d) of the DV Act makes it clear that the maintenance granted under the DV Act would be in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (Cr.PC) and any other law for the time being in force. It was observed by the Supreme Court that the legislative mandate envisages grant of maintenance to wife under various statutes. There is no bar to seek maintenance both under the DV Act and Section 125 of the Cr.PC or the Hindu Marriage Act, 1955 or the Hindu Adoption and Maintenance Act, 1956.
Therefore, impugned order by the trial court was clearly erroneous inasmuch as it dismissed the application filed by the petitioner wife under Section 26 of the DV Act only on the basis that it has been filed towards execution of the maintenance already granted to the petitioner wife vide the order dated 28th March, 2018. The Trial Court has failed to appreciate that the aforesaid application was an independent remedy invoked by the petitioner wife under the provisions of the DV Act.
Hence, the impugned order was set aside. Matter was remanded back to the trial court.
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