Telangana High Court
Susheel Chuobey, Orissa., vs Lucia Gleide Olliveria Dos Santos, ... on 1 May, 2024
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.2285 OF 2017
&
CRIMINAL REVISION CASE No.1027 OF 2019
COMMON ORDER:
1 Since the issues involved in both the criminal revision cases are intertwined with each other and since the parties to both the criminal revision cases are one and the same and since the order impugned in both the criminal revision cases is one and the same, they are being disposed of by way of this common order.
2 Since both the criminal revision cases are filed by the petitioner- husband, I refer to the parties to two cases as petitioner and respondent.
3 Petitioner filed both the revision cases aggrieved by the order dated 11.4.2017 passed in M.C.No.96 of 2015 by the learned Judge, Family Court, Secunderabad, which was filed by the respondent herein against the petitioner herein under Section 125 Cr.P.C. seeking Rs.2.00 lakhs p.m. towards maintenance and Rs.5.00 lakhs p.a. to visit her old aged mother and daughter twice a year and also Rs.50.00 2 lakhs to take care of studies of their daughter in Brazil and also to look after her mother and also Rs.5.00 lakhs towards legal expenses. 4 The facts pleaded in the said M.C. were that the marriage between the petitioner and the respondent was a love marriage. It is pleaded that even prior to their marriage on 09.5.2012, the respondent had a daughter through her first husband and that girl was aged about 21 years and after the death of her first husband, the respondent married another man who belongs to Brazil, but later they were on judicial separation. The petitioner and respondent led marital life in Bangalore and Hyderabad for some period and that later the petitioner started harassing the respondent for which she filed DVC No.140 of 2013 on the file of the Court of the XIX Metropolitan Magistrate, Miyapur, wherein she was granted Rs.45,000/- p.m. towards maintenance and also compensation of Rs.5.00 lakhs. The petitioner abandoned the respondent and filed O.P.No.235 of 2013 on the file of the Family Court, Secunderabad.
5 It was further pleaded that the Court of the XIX Metropolitan Magistrate, Miyapur, granted only Rs.45,000/- p.m. whereas she is 3 paying house rent of Rs.30,000/- and that for the life style and standards of the respondent she requires Rs.2.00 lakhs p.m. and that the petitioner can afford such amount as he is earning substantial income of more than Rs.1.00 crore p.m. and that the petitioner failed to pay the maintenance awarded in DVC No.140 of 2013 though he owned several properties and that he is a consulting doctor for several companies and he is also having several houses in Bangalore and Bhubaneswar and that the respondent has no source of income to maintain herself and she is totally dependent on the petitioner to support herself, her daughter and her mother. Hence the petition. 6 In the said petition, the petitioner herein remained ex parte. The learned trial Judge, on appreciation of the oral and documentary evidence let in by the respondent in the form of solitary testimony of the respondent as P.W.1 and the documentary evidence in the form of Exs.A.1 to A.19, allowed the M.C.No.96 of 2015 partly and accordingly awarded Rs.30,000/- p.m. to the respondent by order dated 11.4.2017. As stated supra, aggrieved thereby, the petitioner filed the Criminal Revision Case No.2285 of 2017 contending that the trial Court erred in granting Rs.30,000/- p.m to the respondent 4 without considering the maintenance already awarded in DVC No.140 of 2013 and without according a chance to the petitioner. 7 The respondent - wife filed a counter affidavit in Criminal Revision Case No.2285 of 2017 contending that though the learned XIX Metropolitan Magistrate, Miyapur, granted Rs.45,000/- p.m. towards maintenance in DVC No.140 of 2013, the petitioner, paid only Rs.1,35,000/- (three months). It is further submitted that the petitioner herein has also not complied with the order dated 11.4.2017, which is impugned herein, and fell due of arrears of maintenance.
8 Be that as it may, the petitioner filed Criminal Revision Case No.1027 Of 2019 seeking to set aside the very same order passed by the trial Court. The pleas taken in this revision case are that though he made regular payments of Rs.18,76,000/-, Rs.50,000/- from August, 2013 till August, 2016 in DVC No.140 of 2013, he was unable to pay Rs.1,00,000/- in April, 2018, Rs.30,000/- in May, 2018 and further Rs.10,000/- in December, 2018 to the respondent. It is his further submission that he was unable to earn enough money after 5 February, 2016 and was not been able to comply with the orders of the Court due to the circumstances beyond his control. It is his further submission that his annual gross income was reduced gradually over the last three years and that with the arrest warrants and likelihood of imprisonment it will be very difficult to engage a full- time job since he was already imprisoned for one month. He finally contended that even if he was in a regular earning capacity to pay Rs.45,000/- (in main DVC No.140 of 2013) and Rs.30,000/- (in the impugned order of M.C.No.96 of 2015), which comes to Rs.75,000/- is beyond his capacity. In addition, the respondent, as per her own statement, has been residing in the house of the petitioner and is not paying any rent for accommodation. Therefore, the petitioner sought for setting aside the order dated 11.4.2017 passed in M.C.No.96 of 2015 by the learned Judge, Family Court, Secunderabad. 9 Heard Smt. Pushpa Rani, learned Amicus Curie for the petitioner in Crl.R.C.No.2285 of 2017 and Sri Sushil Kumar Pandey, learned counsel appeared for the petitioner in Crl.R.C.No.1027 of 2019 and Smt. S.Madhavi learned Amicus Curie for the respondent. This court also heard the respondent, who argued as party in person. 6 10 Now the points for consideration are 1) Whether the petitioner is liable to maintain the respondent? and if so, 2) Whether the quantum of maintenance awarded by the Court below is just and proper?
11 In a catena of judgments pronounced by this Court as well as the Hon'ble Supreme Court apart from the purport of the statute, it is a directive that Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to 7 maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him. 12 Viewed from the backdrop of the above legal position, the facts in the present case are that the respondent herein was awarded an amount of Rs.45,000/- in DVC No.140 of 2013 on the file of the Court of the XIX Metropolitan Magistrate, Miyapur and Rs.30,000/- in M.C.No.96 of 2015 by the learned Judge, Family Court, Secunderabad.
13 The Kerala High Court, in the case of Vijesh P.K. and Others Vs. Divya (passed in Crl.MC.No.380/2013 on 14.02.2014) held as follows:
2. On a perusal of the provisions contained in Section 26 of the Protection of Women from Domestic Violence Act this Court finds that parallel proceedings for maintenance under the said Act and under Section 125 of the Code of Criminal 8 Procedure are permissible. Pendency of a claim for maintenance before the Family Court will not preclude the petitioners therein from seeking relief including maintenance under the Protection of Women from Domestic Violence Act. Section 26 of the said Act provides that any relief available under Sections 18 to 22 of the Act may also be sought in any legal proceedings, before a Civil Court, Family Court or a Criminal Court, and Sub Section 2 provides that any relief referred in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a Civil or Criminal Court.
Sub-section (3) further provides that in case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. Thus we find that parallel proceedings for maintenance are possible, and one proceeding cannot be set aside or quashed on the ground that there is another proceeding before a different forum. The 1st respondent herein has the right to claim maintenance under the Protection of Women from Domestic Violence Act or under Section 125 of the Code of Criminal Procedure. Of course, when a decision is taken in one proceeding, the other court will have to consider such decision while granting the relief in the second proceeding.
14 The Gauhati High Court in Shofi Kamal Ahmed vs Joynab Khatun {Crl.Petition No.640 of 2018 dated 08.4.2019} held as follows:
In the Protection of Women from Domestic Violence Act, 2005, it is nowhere mentioned as to what for this information is required to be given to the court which grant such relief. But, to the understanding of this court, the purpose of this provision is to see that while a party is getting maintenance in two proceedings, a proper assessment of maintenance allowance to be awarded is necessary, and only when the court granting the relief knows that in another proceeding the petitioner is receiving a particular amount then only it can decide about the logical quantum in the other proceeding to be awarded.
That being so, in the considered view of this court, there is no bar in getting maintenance in two parallel proceedings under Section 125 Cr.PC and under the Protection of Women from Domestic Violence Act. However, the person, who is getting maintenance, is bound to inform the court granting maintenance in the subsequent proceeding. Accordingly, this petition is disposed of with a direction to the respondent to inform the court below that she is getting the maintenance allowance in another proceeding enabling the court to decide logical quantum of maintenance to be awarded to the respondent. The petition stands disposed of.
16 In view of the observations made by the Courts referred to above, in the instant case, it is to be observed that the provisions of the DVC Act are in addition, and not derogation of any other law for the time being in force, under which the wife can exercise her rights.
Pendency of a claim for maintenance before the family Court will not 9 preclude the petitioner therein, from seeking relief including that of maintenance under the DVC Act of 2005. The DVC Act does not contain any prohibition for the parties to take recourse to such other remedy, as may be available in law, before other forums. 17 However, the Hon'ble Supreme Court in Rajnesh vs. Neha 1 (para Nos.128.1 to 128.3) held as follows:
128.1: (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.
128.2: (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding.
128.3: (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.
18 The petitioner herein pleads that he was already burdened with the award of the learned XIX Metropolitan Magistrate, Miyapur, wherein the respondent herein was granted Rs.45,000/- p.m. towards maintenance, the impugned order directing him to pay Rs.30,000/- p.m. to the respondent is liable to be set aside is not worthy because there is no bar in getting maintenance in two parallel proceedings under Section 125 Cr.PC and under the Protection of Women from 1 (2021) 2 SCC 324 10 Domestic Violence Act in view of the judgment of the Shoft Kamal Ahmed case.
19 Reverting to the facts of the case on hand, in view of the pleadings and documentary evidence put forth by the respondent and considering the status of the petitioner, it is considered that the matter requires some consideration. The findings arrived at by the trial Court, in my considered opinion, cannot be appreciated in view of the findings of the Hon'ble Supreme Court in Rajnesh vs. Neha case wherein it was observed that where successive claims for maintenance are made by a party under different statues, the Court would consider an adjustment or set-off of the amount awarded in the previous proceedings, while determining whether any further amount is to be awarded in the subsequent proceeding.
20 Of course, the petitioner was granted some relief before the court below itself, since the direction to pay the maintenance was from the date of order instead of filing the petition. But the Court below did not consider the fact that the respondent was granted Rs.45,000/- p.m. under DVC proceedings. Though the ruling in Shofi 11 Kamal Ahmed case where the Gauhati High Court held that there is no bar in getting maintenance in two parallel proceedings under Section 125 Cr.P.C. and under the Protection of Women from Domestic Violence Act, but the Hon'ble Supreme Court in Rajnesh vs.Neha case (supra) held that where successive claims for maintenance are made by a party under different statues, the Court would consider an adjustment or set-off of the amount awarded in the previous proceedings, while determining whether any further amount is to be awarded in the subsequent proceeding, this Court is of the considered view that the matter requires to be remanded to the Court below for fresh consideration in the light of Rajnesh judgment, since there is no dispute between the parties with regard to the previous proceedings.
21 At this point of time, it is to be seen that though the petitioner has already challenged the order dated 11.4.2017 passed in the very same M.C.No.96 of 2015 passed by the very same trial court, this Court is unable to understand why the petitioner has filed criminal revision case No.1027 of 2019, seeking the very same relief. Therefore, no different prayer is sought for and challenge to the very 12 same order made in a previous proceeding cannot be again challenged by filing another proceeding.
22 In the result, the Criminal Revision Case No.2285 of 2017 is remanded the matter to the Court below for consideration afresh i.e. as to whether the respondent herein is entitled for the relief granted by the court at the rate of Rs.30,000/- p.m. in view of the orders passed in the DVC case where the respondent was granted Rs.45,000/- p.m. keeping in view of the judgment of the Hon'ble Supreme Court in Rajnesh vs. Neha case (1 supra). On the other hand, Crl.R.C.No.1027 of 2019 is dismissed as infructuous. 23 Miscellaneous petitions if any pending in these criminal revision cases shall also stand dismissed.
------------------------------
E.V.VENUGOPAL, J.
Date : 01.05.2024 Kvsn