Gujarat High Court
Laxmanbhai Karsanbhai Chauhan vs State Of Gujarat on 10 July, 2024
NEUTRAL CITATION
R/SCR.A/5027/2015 ORDER DATED: 10/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (FOR MAINTENANCE) NO. 5027 of
2015
With
R/SPECIAL CRIMINAL APPLICATION NO. 6002 of 2015
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LAXMANBHAI KARSANBHAI CHAUHAN
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DHWANI P LAKHANI(8222) for the Applicant(s) No. 1
MR PM LAKHANI(1326) for the Applicant(s) No. 1
MRS R P LAKHANI(3811) for the Applicant(s) No. 1
MR PREMAL S RACHH(3297) for the Respondent(s) No. 2
MR. SOHAM JOSHI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 10/07/2024
ORAL ORDER
1. Since the issues raised in both the captioned applications are interrelated and the challenge is also to a selfsame judgment and order passed by the learned 6 th Additional Sessions Judge, Jamkhambhaliya (District: Jamnagar), those were heard analogously and are being disposed of by this common order.
2. The prayer as sought for in Criminal Misc. Application No.5027 of 2015 is to quash and set aside the two order dated 06.08.2015 passed in Criminal Revision Application No.24 of 2014, whereby the application filed by the respondent-wife came to be allowed and the amount of maintenance awarded vide order dated 21.07.2014 has been enhanced from Rs.
Page 1 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined 2500/- to Rs. 7500/- as also the order of an even date, dated 06.08.2015 passed in Criminal Revision Application No.02 of 2015, whereby the application filed by the applicant-husband, challenging the legality and validity of the order dated 21.07.2014 has been rejected.
3. The prayer as sought for in Criminal Misc. Application No.6002 of 2015 is to quash the very same order dated 06.08.2015 as being unjust, improper, arbitrary and on a lower side so far as the quantum of maintenance awarded is concerned. In short, the said application has been filed for enhancement of the maintenance amount.
4. Learned advocate Mr. Premal Rachh appearing for the applicant in Criminal Misc. Application No.6002 of 2015 submits that the applicant and the respondent No.1 are legally wedded husband and wife. However, due to some matrimonial disputes having been cropped up between them, they decided to live separately. As usual, thereafter, litigations were queued and the wife had preferred an application under Section 125 of the Cr.P.C. for maintenance. The learned Judicial Magistrate, First Class, Khambalia, after appreciating the evidence available on record, passed an order on 21.07.2014 whereby the application filed by the wife was partly allowed and the amount of Rs.2500/- was awarded as the monthly maintenance. Being aggrieved, the wife had preferred revision application before the Sessions Court, which was partly allowed by the learned Sessions Judge and the amount of maintenance was enhanced to Rs.7500/- from the date of passing of the order dated 21.07.2014 and not from the date Page 2 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined of filing of the application. Learned advocate Mr. Rachh also submits that the present application is of the year 2015 and the impugned order was passed in the year 2014 and now ten years have been lapsed and, therefore, he has urged to slightly modify the order of maintenance so far as the period of calculation is concerned. The court below has erred in awarding the amount of maintenance from the date of passing of the order which is contrary to the law laid down by the Hon'ble Apex Court in the case of Rajnesh vs. Neha, reported in (2021) 2 SCC 324, wherein the Hon'ble Apex Court has crystalized the position of law that maintenance in all cases will be awarded from the date of filing of the application for maintenance, more particularly from Paragraph-94 onwards. If that be done, then he is not pressing the other reliefs at this juncture without touching the merits of the matter with a liberty to file appropriate application before the appropriate forum in accordance with law for enhancement of the amount of maintenance.
5. Learned advocate Mr. P.M. Lakhani appearing for the applicant in the Criminal Misc. Application No.5027 of 2015 filed for reduction of the amount of maintenance submits that as number of years have been passed during the pendency of the present application, at the outset, without touching the merits of the matter, he would also like to avail appropriate legal remedy before the appropriate forum in accordance with law, seeking appropriate relief. However, he has raised a preliminary objection to the arguments canvassed by the learned advocate Mr. Rachh that the amount of maintenance should be from the date of filing of the maintenance Page 3 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined application. The learned trial judge has rightly passed the impugned order of maintenance so far as it awarded the amount of maintenance from the date of passing of the order is concerned and, therefore, the same does not require any interference at the end of this Court. Learned advocate Mr. Lakhani further submits that at this juncture, he does not want to press his application in view of the aforesaid submissions made by him. At the same time, the applicant-husband is also not entitled for any relief.
6. Considering the submissions made by both the learned advocates appearing for the respective parties and the materials available on record, I am of the view that the application filed by the applicant-wife deserves to be partly allowed in view of the law laid down by the Hon'ble Apex Court in the case of Rajnesh (supra). I would like to quote with profit the relevant observations made in the said judgment;
"IV Date from which Maintenance to be awarded There is no provision in the HMA with respect to the date from which an Order of maintenance may be made effective. Similarly, Section 12 of the D.V. Act, does not provide the date from which the maintenance is to be awarded. Section 125(2) Cr.P.C. is the only statutory provision which provides that the Magistrate may award maintenance either from the date of the order, or from the date of application.
In the absence of a uniform regime, there is a vast variance in the practice adopted by the Family Courts in the country, with respect to the date from which maintenance must be awarded. The divergent views taken by the Family Courts are : first, from the date on which the application for maintenance was filed; second, the date of the order granting maintenance; third, the Page 4 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined date on which the summons was served upon the respondent.
(a) From date of application:
The view that maintenance ought to be granted from the date when the application was made, is based on the rationale that the primary object of maintenance laws is to protect a deserted wife and dependant children from destitution and vagrancy. If maintenance is not paid from the date of application, the party seeking maintenance would be deprived of sustenance, owing to the time taken for disposal of the application, which often runs into several years.
The Orissa High Court in Susmita Mohanty v Rabindra Nath Sahu, 1996 (I) OLR 361 held that the legislature intended to provide a summary, quick and comparatively inexpensive remedy to the neglected person. Where a litigation is prolonged, either on account of the conduct of the opposite party, or due to the heavy docket in Courts, or for unavoidable reasons, it would be unjust and contrary to the object of the provision, to provide maintenance from the date of the order.
In Kanhu Charan Jena v. Smt. Nirmala Jena, 2001 Cri LJ
879. the Orissa High Court was considering an application u/S. 125 Cr.P.C., wherein it was held that even though the decision to award maintenance either from the date of application, or from the date of order, was within the discretion of the Court, it would be appropriate to grant maintenance from the date of application. This was followed in Arun Kumar Nayak v Urmila Jena, (2010) 93 AIC 726 wherein it was reiterated that dependents were entitled to receive maintenance from the date of application.
The Madhya Pradesh High Court in Krishna Jain v Dharam Raj Jain, (1993) 2 MPJR 63 held that a wife may set up a claim for maintenance to be granted from the date of application, and the husband may deny it. In such cases, the Court may frame an issue, and decide the same based on evidence led by parties. The view that the Page 5 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined "normal rule" was to grant maintenance from the date of order, and the exception was to grant maintenance from the date of application, would be to insert something more in Section 125(2) Cr.P.C., which the Legislature did not intend. Reasons must be recorded in both cases. i.e. when maintenance is awarded from the date of application, or when it is awarded from the date of order.
The law governing payment of maintenance u/S. 125 Cr.P.C. from the date of application, was extended to HAMA by the Allahabad High Court in Ganga Prasad Srivastava v Additional District Judge, Gonda & Ors., (2019) 6 ADJ 850 The Court held that the date of application should always be regarded as the starting point for payment of maintenance. The Court was considering a suit for maintenance u/S. 18 of HAMA, wherein the Civil Judge directed that maintenance be paid from the date of judgment. The High Court held that the normal inference should be that the order of maintenance would be effective from the date of application. A party seeking maintenance would otherwise be deprived of maintenance due to the delay in disposal of the application, which may arise due to paucity of time of the Court, or on account of the conduct of one of the parties. In this case, there was a delay of seven years in disposing of the suit, and the wife could not be made to starve till such time. The wife was held to be entitled to maintenance from the date of application / suit.
The Delhi High Court in Lavlesh Shukla v Rukmani, 2019 SCC OnLine Del 11709 held that where the wife is unemployed and is incurring expenses towards maintaining herself and the minor child / children, she is entitled to receive maintenance from the date of application. Maintenance is awarded to a wife to overcome the financial crunch, which occurs on account of her separation from her husband. It is neither a matter of favour to the wife, nor any charity done by the husband.
(b) From the date of order Page 6 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined The second view that maintenance ought to be awarded from the date of order is based on the premise that the general rule is to award maintenance from the date of order, and grant of maintenance from the date of application must be the exception. The foundation of this view is based on the interpretation of Section 125(2) Cr.P.C. which provides :
"125(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be." (emphasis supplied) The words "or, if so ordered" in Section 125 has been interpreted to mean that where the court is awarding maintenance from the date of application, special reasons ought to be recorded.
In Bina Devi v State of U.P., (2010) 69 ACC 19 the Allahabad High Court on an interpretation of S.125(2) of the Cr.P.C. held that when maintenance is directed to be paid from the date of application, the Court must record reasons. If the order is silent, it will be effective from the date of the order, for which reasons need not be recorded. The Court held that Section 125(2) Cr.P.C. is prima facie clear that maintenance shall be payable from the date of the order.
The Madhya Pradesh High Court in Amit Verma v Sangeeta Verma & Ors., 2020 SCC OnLine Mp 2657 directed that maintenance ought to be granted from the date of the order.
(c) From the date of service of summons:
The third view followed by some Courts is that maintenance ought to be granted from the date of service of summons upon the respondent.
The Kerala High Court in S. Radhakumari v K.M.K. Nair, AIR 1983 Ker 139, was considering an application for interim maintenance preferred by the wife in divorce proceedings filed by the husband. The High Court held Page 7 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined that maintenance must be awarded to the wife from the date on which summons were served in the main divorce petition. The Court relied upon the judgment of the Calcutta High Court in Samir Banerjee v Sujata Banerjee, 1965 SCC OnLine Cal 196 and held that Section 24 of the HMA does not contain any provision that maintenance must be awarded from a specific date. The Court may, in exercise of its discretion, award maintenance from the date of service of summons.
The Orissa High Court in Gouri Das v Pradyumna Kumar Das, (1986) 2 OLR 44 was considering an application for interim maintenance filed u/S. 24 HMA by the wife, in a divorce petition instituted by the husband. The Court held that the ordinary rule is to award maintenance from the date of service of summons. It was held that in cases where the applicant in the maintenance petition is also the petitioner in the divorce petition, maintenance becomes payable from the date when summons is served upon the respondent in the main proceeding.
In Kalpana Das v Sarat Kumar Das, AIR 2009 Ori 133, the Orissa High Court held that the wife was entitled to maintenance from the date when the husband entered appearance. The Court was considering an application for interim maintenance u/S. 24 HMA in a petition for restitution of conjugal rights filed by the wife. The Family Court awarded interim maintenance to the wife and minor child from the date of the order. In an appeal filed by the wife and minor child seeking maintenance from the date of application, the High Court held that the Family Court had failed to assign any reasons in support of its order, and directed :
"9. ...Learned Judge. Family Court has not assigned any reason as to why he passed the order of interim maintenance w.e.f. the date of order. When admittedly the parties are living separately and prima facie it appears that the Petitioners have no independent source of income, therefore, in our view order should have been passed for payment of interim maintenance from the date of appearance of the Opposite Party-husband..."
(emphasis supplied) Page 8 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined Discussion and Directions The judgments hereinabove reveal the divergent views of different High Courts on the date from which maintenance must be awarded. Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S.125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.
In Shail Kumari Devi and Ors. v Krishnan Bhagwan Pathak, (2008) 9 SCC 632, this Court held that the entitlement of maintenance should not be left to the uncertain date of disposal of the case. The enormous delay in disposal of proceedings justifies the award of maintenance from the date of application. In Bhuwan Mohan Singh v Meena, 2015 6 SCC 353 this Court held that repetitive adjournments sought by the husband in that case resulted in delay of 9 years in the adjudication of the case. The delay in adjudication was not only against human rights, but also against the basic embodiment of dignity of an individual. The delay in the conduct of the proceedings would require grant of maintenance to date back to the date of application.
The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before Page 9 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined the concerned Court.
In Badshah v Urmila Badshah Godse, (2014) 1 SCC 188, the Supreme Court was considering the interpretation of Section 125 Cr.P.C. The Court held :
"13.3. ...purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice" which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society." (emphasis supplied) It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.
V Enforcement of orders of maintenance Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law. The Bombay High Court in Sushila Viresh Chhawda v Viresh Nagsi Chhawda, AIR 1996 Bom 94, held that :Page 10 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024
NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined "The direction of interim alimony and expenses of litigation under Section 24 is one of urgency and it must be decided as soon as it is raised and the law takes care that nobody is disabled from prosecuting or defending the matrimonial case by starvation or lack of funds."
(i) An application for execution of an Order of Maintenance can be filed under the following provisions :
(a) Section 28 A of the Hindu Marriage Act, 1956 r.w.
Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under Section 24 of the Hindu Marriage Act (before the Family Court);
(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and
(c) Section 128 of Cr.P.C. before the Magistrate's Court.
(ii) Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be executable in accordance with the CPC / Cr.P.C.
(iii) Section 125(3) of the Cr.P.C provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier.
Striking off the Defence
(i) Some Family Courts have passed orders for striking off the defence of the respondent in case of non-payment of maintenance, so as to facilitate speedy disposal of the maintenance petition. In Kaushalya v Mukesh Jain, (2020) 17 SCC 822, the Supreme Court allowed a Family Court to strike off the defence of the respondent, in case of non-payment of maintenance in accordance with the interim order passed.
(ii) The Punjab & Haryana High Court in Bani v. Parkash Singh, AIR 1996 P&H 175, was considering a case where Page 11 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined the husband failed to comply with the maintenance order, despite several notices, for a period of over two years. The Court taking note of the power to strike off the defence of the respondent, held that:
"Law is not that powerless as not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to wife, his defence be struck out."
(iii) The Punjab & Haryana High Court in Mohinder Verma v Sapna, 66 discussed the issue of striking off the defence in the following words :
"8. Section 24 of the Act empowers the matrimonial court to award maintenance pendente lite and also litigation expenses to a needy and indigent spouse so that the proceedings can be conducted without any hardship on his or her part. The proceedings under this Section are summary in nature and confers a substantial right on the applicant during the pendency of the proceedings. Where this amount is not paid to the applicant, then the very object and purpose of this provision stands defeated. No doubt, remedy of execution of decree or order passed by the matrimonial court is available under Section 28A of the Act, but the same would not be a bar to striking off the defence of the spouse who violates the interim order of maintenance and litigation expenses passed by the said Court. In other words, the striking off the defence of the spouse not honouring the court's interim order is the instant relief to the needy one instead of waiting endlessly till its execution under Section 28A of the Act. Where the spouse who is to pay maintenance fails to discharge the liability, the other spouse cannot be forced to adopt time consuming execution proceedings for realising the amount. Court cannot be a mute spectator watching flagrant disobedience of the interim orders passed by it showing its helplessness in its instant implementation. It would, thus, be appropriate even in the absence of any specific provision to that effect in the Act, to strike off the defence of the erring spouse in exercise of its inherent power under Section 151 of the Code of Civil Procedure read with Section 21 of the Act Page 12 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined rather than to leave the aggrieved party to seek its enforcement through execution as execution is a long and arduous procedure. Needless to say, the remedy under Section 28A of the Act regarding execution of decree or interim order does not stand obliterated or extinguished by striking off the defence of the defaulting spouse. Thus, where the spouse who is directed to pay the maintenance and litigation expenses, the legal consequences for its non-payment are that the defence of the said spouse is liable to be struck off." (emphasis supplied)
(iv) The Delhi High Court in Satish Kumar v Meena, (2001) 60 DRJ 246, held that the Family Court had inherent powers to strike off the defence of the respondent, to ensure that no abuse of process of the court takes place.
The Delhi High Court in Smt. Santosh Sehgal v Shri Murari Lal Sehgal, AIR 2007 Del 210, framed the following issue for consideration:
"Whether the appeal against the decree of divorce filed by the appellant-wife can be allowed straightway without hearing the respondent-husband in the event of his failing to pay interim maintenance and litigation expenses granted to the wife during the pendency of the appeal."
The reference was answered as follows :
"5.The reference to the portion of the judgment in Bani's case extracted here- in-above would show that the Punjab and Haryana High Court and Orissa High Court have taken an unanimous view that in case the husband commits default in payment of interim maintenance to his wife and children then he is not entitled to any matrimonial relief in proceedings by or against him. The view taken by Punjab and Haryana High Court in Bani's case has been followed by a Single Judge of this Court in Satish Kumar v. Meena . We tend to agree with this view as it is in consonance with the first principle of law. We are of the view that when a husband is negligent and Page 13 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined does not pay maintenance to his wife as awarded by the Court, then how such a person is entitled to the relief claimed by him in the matrimonial proceedings. We have no hesitation in holding that in case the husband fails to pay maintenance and litigation expenses to his wife granted by the Court during the pendency of the appeal, then the appeal filed by the wife against the decree of divorce granted by the trial court in favor of the husband has to be allowed. Hence the question referred to us for decision is answered in the affirmative." The Court concluded that if there was non-payment of interim maintenance, the defence of the respondent is liable to be struck off, and the appeal filed by the appellant-wife can be allowed, without hearing the respondent.
(v) The Punjab and Haryana High Court in Gurvinder Singh v Murti & Ors., (1990) 1 DMC 599, was considering a case where the trial court stuck off the defence of the husband for non-payment of ad-interim maintenance.
The High Court set aside the order of the trial court, and held that instead of following the correct procedure for recovery of interim maintenance as provided u/S. 125 (3) or Section 421 of the Cr.P.C., the trial court erred in striking off the defence of the husband. The error of the court did not assist in recovery of interim maintenance, but rather prolonged the litigation between the parties.
(vi) The issue whether defence can be struck off in proceedings under Section 125 Cr.P.C. came up before the Madhya Pradesh High Court in Venkateshwar Dwivedi v Ruchi Dwivedi ,2017 SCC OnLine MP 2065. The Court held that neither Section 125(3) of the Cr.P.C, nor Section 10 of the Family Courts Act either expressly or by necessary implication empower the Magistrate or Family Court to strike off the defence. A statutory remedy for recovery of maintenance was available, and the power to strike off defence does not exist in a proceeding u/S. 125 Cr.P.C. Such power cannot be presumed to exist as an inherent or implied power. The Court placed reliance on the judgment of the Kerala High Court in Davis v Thomas, 2007 SCC Online Ker 358 and held that the Magistrate does not possess the power to strike off the defence for failure to pay interim maintenance.
Page 14 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined Discussion and Directions on Enforcement of Orders of Maintenance:
The order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.
Striking off the defence of the respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.
VI Final Directions In view of the foregoing discussion as contained in Part B
- I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:
(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in Page 15 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.
(b) Payment of Interim Maintenance The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B - III of the judgment. The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B - IV above."
7. In view of the aforesaid principles laid down by the Hon'ble Apex Court, the Criminal Misc. Application No.6002 of 2015 is partly allowed. The amount of maintenance awarded to the wife shall be given from the date of filing of the maintenance application and not from the date of passing of the order.
8. The application filed by the applicant-husband being Criminal Misc. Application No.5027 of 2025 for reduction of the Page 16 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024 NEUTRAL CITATION R/SCR.A/5027/2015 ORDER DATED: 10/07/2024 undefined amount of maintenance is disposed of as withdrawn. Notice is discharged.
9. Both the applications stand disposed of in the above terms.
(DIVYESH A. JOSHI,J) VAHID Page 17 of 17 Downloaded on : Fri Jul 26 21:13:17 IST 2024