Gujarat High Court
Jollyben W/O Anujbhai Vinodbhai Bhatt ... vs State Of Gujarat on 20 October, 2022
Author: Samir J. Dave
Bench: Samir J. Dave
R/CR.RA/673/2021 ORDER DATED: 20/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 673 of 2021
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JOLLYBEN W/O ANUJBHAI VINODBHAI BHATT AND D/O HASMUKHBHAI
MANIYAR
Versus
STATE OF GUJARAT
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Appearance:
MR D K TRIVEDI(5283) for the Applicant(s) No. 1
PARTY IN PERSON(5000) for the Respondent(s) No. 2
MR R. C. KODEKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 20/10/2022
ORAL ORDER
1. By way of present application, the applicant has prayed to quash and set aside judgment and order dated 17.01.2020 passed by the learned Additional Sessions Judge, City Civil Court and Sessions Court No.17, Ahmedabad in Criminal Appeal No.507 of 2019 and order dated 10.06.2019 passed below Exh.13 by the learned Additional Chief Metropolitan Magistrate, Court No.22, Ahemdabad in Domestic Misc. Application No.191 of 2018.
2. The brief facts of the case are that applicant was married with the respondent no.2 and one daughter named Khushi was born out of the said wedlock. It is the case of the respondent no.2 husband that applicant is working as Page 1 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022 teacher in a school and getting a salary of Rs.13,000/- after the normal deductions and her daughter Khushi got admission in P.D.U. College, Gandhinagar, wherein fee is Rs.1,17,000/-. The applicant has also filed an application before the learned Family Court, seeking maintenance whereby the learned Family Court granted a sum of Rs.5,000/- per month as interim maintenance to her daughter Khushi, but it is very difficult for her to manage the expenses of maintaining the family and her daughter's study. Hence, she has filed an application before the learned Trial Court seeking interim compensation under the provisions of the Protection of Women from Domestic Violence Act, 2005, wherein the learned Trial Court has rejected the application of the applicant. Being aggrieved by the said order, the applicant has preferred Criminal Appeal No.507 of 2019 before the learned Sessions Court, Ahmedabad, which was dismissed by the learned Sessions Court, Ahmedabad and confirmed the order passed by the learned Trial Court. Hence, this application is filed.
3. Heard learned advocate for the applicant, party-in-person as well as learned APP for the respondent - State. Page 2 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022
4. Learned advocate Mr. D. K. Trivedi for the applicant has submitted that the orders passed by both the Courts are contrary to the facts, evidence and circumstances of the case. He further submitted that both the learned Courts have committed a grave error while passing the impugned orders. The learned Courts below ought not to have gone into the merits of the matter while deciding an application under section 23(2) of the Act. In the proceedings, under section 23(2) of the Act, what is required to be seen is husband's own income and wife's source of income. In the proceedings like maintenance, the Court exercises a wide discretion in the matter of granting alimony pendent lite but the discretion of judicial and neither arbitrary nor capricious. It is to be guided on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act and having regard to the object of the Act. The Court would not be in a position to judge the merits of the rival contentions of the parties when decided in application for interim alimony and would not allow its discretion to be fettered by the nature of the allegations made by them and would not examine the merits of the Page 3 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022 case. It is submitted that it is a bounded duty of the Courts below to ask the husband to submit a proof as regard his monthly income or the turnover of his companies as per section 106 of the Evidence Act, so as to come to a proper calculation of quantum of maintenance. The said exercise has not been done in the present case that the impugned orders are required to be quashed and set aside. Hence, it is requested by learned advocate for the applicant to allow this application by quashing and setting aside the impugned orders passed by both the courts. In support of his submission learned advocate Mr. Trivedi referred to and relied upon the judgment of the Apex Court passed in the case of Prabha Tyagi Vs. Kamlesh Devi in Criminal Appeal No.511 of 2022.
5. The respondent no.2 Mr. Anuj Vinodbhai Bhatt appears as party-in- person has objected to this application and submitted that the impugned orders passed by the learned Sessions Court as well as learned Trial Court are just and proper and this Court may not interfere with the same as there is no illegality committed by the learned both the Courts below. It is further submitted that he has not done Page 4 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022 any kind of physical or mental domestic violence and he has and is still taking care and responsibility of the daughter and wife. Hence, he has requested to dismiss this application. In support of his contention, the party-in- person has referred to and relied upon the judgment of the Apex Court passed in the case of Ranjesh Vs. Neha and Anr. Passed in Criminal Appeal No. 730 of 2020.
6. Learned APP for the respondent - State has submitted that this Court may pass necessary orders.
7. Having considered the submissions made by learned advocates for the respective parties as well as learned APP for the respondent - State and perused the material on record, it appears that applicant preferred an application under Section 125 of the Code of Criminal Procedure, 1973 for maintenance, wherein it was rejected qua applicant, however, the learned Trial Court granted interim maintenance of Rs.5,000/- per month to minor daughter vide judgment and order dated 15.11.2017 passed by the learned Family Court, Ahmedabad in Criminal Misc. Application No.184 of 2017. It also appears that the respondent-husband is responsible to maintain the minor Page 5 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022 daughter and the amount, which has been granted by the learned Family Court to the minor daughter, as monthly maintenance, is not sufficient to fulfill her basic essential needs. It remains undisputed fact on record that there existed a domestic relationship between the parties and paternity of the daughter named Khushi who is studying in standard 12 in school. It is also observed by the learned Sessions Court that the applicant does not suffer from economic constrains as admittedly she is residing in the house of the respondent husband and husband is paying the household bills apart from paying the educational fees on record. However, it appears that at present the present appellant is not working and not earning anything and she has resigned from her job. It also appears that the rates of the every things is increasing day-by-day and there is a question of survival of the applicant and daughter, at present daughter is studying in PDPU University standard and also education expenses of the daughter are increasing day-by-day. It also appears that the respondent - husband is earning handsome income and it is difficult for applicant to maintain herself and her daughter without source of income and the daughter is residing with applicant and the Page 6 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022 applicant is not able to fulfill the basic needs, which are essential for their survival, and therefore, there is a question of survival for the wife and daughter. Therefore, the impugned orders are required to be modified by enhancing the maintenance to the applicant.
8. It would be beneficial to reproduce the relevant observations and findings of the Delhi High Court in the case of Shome Nikhil Danani Vs. Tanya Banon Danai reported in 2019 Law Suit(Del) 1139, which reads as under:
"6. Respondent-wife thereafter filed a petition under the DV Act alia seeking a right of residence. By order dated 06.04.2018, the Trial Court declined to grant monetary relief and also declined to pass any order for residence on the ground that the DV Act not contemplate restoration of possession but provided for alternate accommodation to be provided to the wife and the Respondent - wife had agreed to be compensated by payment of rental for alternative accommodation. The court further noticed that in the application under section 125 Cr.P.C., Respondent- wife had made a claim of Rs. 2,50,000/- per month towards rental and taking the same into account, the court under section 125 Cr.P.C., had awarded interim maintenance at Rs. 1,20,000/, thus she was not entitled to any order for residence or rental for alternative accommodation.
9. Reliance is placed on the decision of a coordinate bench of this court in Rachna Kathuria Vs. Ramesh Kathuria, 173(2010) DLT Page 7 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022
289.
10. Per contra, learned counsel for the Respondent submits that the Respondent-wife suffered domestic violence and thus was entitled to monetary relief under the DV Act. Further it is submitted that the respondent had not only sought relief under section 20 also prayed for residence orders under section 19 and protection order under section 18 of DV Act, which are beyond the scope of Section 125 Cr.P.C..
15. In the present proceedings under the DV Act, the Respondent has claimed residence order in the shared household and during arguments, alternatively claimed rental in lieu of the residence order in the shared household.
16. Section 20 DV Act reads as under:
"20. Monetary reliefs.--
(1) While disposing of an application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to--
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and Page 8 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) ***** ******
17. Clearly the scope of section 20 of the DV Act is much wider than that of section 125 Cr.P.C.. While Section 125 Cr. P.C. talks only of maintenance, Section 20 DV Act stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of the domestic violence including but not limited to loss of earning, medical expenses, loss caused due to destruction, damage or removal of any property from the control of aggrieved person. Further, Section 20(1)(d) of the DV Act clearly provides that "In proceedings under the DV Act, the magistrate may direct the Respondent to pay the maintenance to the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 Cr.P.C. or any other law for the time being in force."
18. This clearly shows that an order under Section 20 DV Act is not restricted by an order under section 125 Cr.P.C.. The Trial Court clearly erred in not appreciating the distinction between the two provisions and the reasoning is clouded by an Page 9 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022 impression that the respondent - wife in the application under section 23 was only seeking an order of maintenance, which is not the case. In her application under section 23 of the DV Act, the respondent wife has inter-alia sought residence rights under Section 19 and protection under Section 18 apart from the monetary relief under Section 20.
19. Reference may also be had to the Judgment of a coordinate bench of this court in Karamchand & Ors Vs State NCT of Delhi & Anr (2011) 181 DLT 494 and of the Supreme Court of India in Juveria Abdul Majid Khan Patni Vs Atif Iqbal Masoori (2014) 10 SCC 736, wherein the Supreme Court has held that monetary relief as stipulated under is different from maintenance, which can be in addition to an order of maintenance under Section 125 Cr.P.C. or any other law.
20. Further, it may be seen that proceeding under the DV Act and under Section 125 Cr.P.C are independent of each other and have different scope, though there is an overlap. In so far as the overlap is concerned, law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance under DV Act, maintenance fixed under section 125 Cr.P.C shall be taken into account.
21. The Judgment in the case of Rachna Katuria Versus Ramesh Kathuria (supra) relied upon by learned Senior Counsel for the Petitioner to contend that DV Act does not create any additional right to claim maintenance on the part of the aggrieved person and if a woman had already filed a suit claiming maintenance and after adjudication maintenance has been determined, she does not have a right to claim additional maintenance under the Page 10 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022 DV Act is per incurium as it does not notice the very provisions of Section 20 and 23 of DV Act. Further now the Supreme Court of India in Juveria Abdul Majid Khan Patni Vs Atif Iqbal Masoori (supra) has held that monetary relief under Section 20 DV Act is in addition to maintenance under section 125 Cr.P.C."
9. In view of the above, the impugned judgment and order dated judgment and order dated 17.01.2020 passed by the learned Additional Sessions Judge, City Civil Court and Sessions Court No.17, Ahmedabad in Criminal Appeal No.507 of 2019 and order dated 10.06.2019 passed below Exh.13 by the learned Additional Chief Metropolitan Magistrate, Court No.22, Ahemdabad in Domestic Misc. Application No.191 of 2018 are hereby quashed and set aside. The respondent - husband is directed to pay an amount of Rs.10,000/- (Rupees Ten Thousand only) per month to applicant-wife by way of maintenance regularly from the date of resignation given by the applicant from her service as school teacher i.e. 01.01.2020.
10. The respondent no.2-husband is directed to clear the arrears amount of maintenance within a period of six months from today and pay regularly the amount of maintenance granted by this Court.
Page 11 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022 R/CR.RA/673/2021 ORDER DATED: 20/10/2022
11. The present application is allowed and the same is disposed of.
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 12 of 12 Downloaded on : Thu Oct 20 21:11:51 IST 2022