Even if interim maintenance by wife has already been secured under Domestic Violence Act, application under sec 125 CrPC is maintainable

Even if interim maintenance by wife has already been secured under Domestic Violence Act, application under sec 125 CrPC is maintainable

Rani Vs Dinesh

Delhi HC

02/12/2020

Crl. Rev. P. 1091 of 2019

About/from the judgment:

The High Court addressed a matter wherein the question was considered whether an application under Section 125 Criminal Procedure Code, 1973 after having secured interim maintenance by an order passed in proceedings under the Domestic Violence Act is maintainable?

 

The instant petition impugned Family Court's order whereby the petitioner's application for interim maintenance under Section 125 of the Criminal Procedure Code, 1973 was rejected.

 

The said impugned order by the Family Court indicated that the petitioner's application was rejected on the ground that the petitioners had been granted interim maintenance of Rs 4,000 per month in proceedings filed under Section 12 of the Domestic Violence Act, 2005. Court held that since the petitioners had been awarded interim maintenance for the same period and no appeal had been preferred against the said interim order, an application under Section 125 CrPC for seeking interim maintenance for the same period was not maintainable.

 

Family Court also added that it was not open for the petitioners to claim maintenance from two different courts in different proceedings for the same period. And, in the event the petitioners were of the view that the amount of interim maintenance granted was insufficient, the appropriate remedy would be to approach the concerned court for modification or enhancement of the interim maintenance.

 

Petitioner contended that the family court's reasoning was erroneous.

 

In view of the above-said position, the question to be considered by the bench is as follows:

 

Whether it is open for the petitioners to maintain an application under Section 125 CrPC after having secured interim maintenance by an order passed in proceedings under the DV Act?

 

Bench found merit in petitioner counsel's contention with regard to the Family Court's order being erroneous.

 

The question whether an application for interim maintenance under Section 125 CrPC could be maintained for the same period for which interim maintenance has been awarded under the DV Act, is no longer res integra.

 

In Delhi High Court's decision of R.D. v. B.D., it was held that an order for interim maintenance granted under the DV Act does not preclude an applicant to claim maintenance for the same period in separate proceedings.

 

Court observed that although a separate application seeking interim maintenance for the same period is maintainable, the Court would of necessarily bear in mind the interim maintenance awarded in the other proceedings while considering the merits of the application.

 

The above-stated similar view was expressed in the Judgment of Niharika Yadav v. Manish Kumar Yadav, Crl. Rev. P. 755 of 2018, decided on 18-12-2019.

 

Therefore, the impugned order was set aside and the matter was remanded to the family court to consider the petitioner's application for interim maintenance under Section 125 CrPC.

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