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Jammu & Kashmir High Court

Jaswant Singh vs Gurcharan Kour W/O. S. Jaswant Singh on 11 October, 2023

Author: Sanjay Dhar

Bench: Sanjay Dhar

                                                                                  2
     HIGH COURT OF JAMMU, KASHMIR AND LADAKH
                      AT JAMMU

Cr Rev No. 48/2023
Cav No. 1640/2023,
CM Nos. 6007/2023 & 6008/2023



Jaswant Singh, Age 61 years S/o.                  .....Appellant(s)/Petitioner(s)
Bhai Kehar Singh, R/o. Ajeet
Colony, Camp Gole Gujral, Jammu.

q
                     Through: Mr. B. S. Soodan, Adv.
                vs
Gurcharan Kour W/o. S. Jaswant Singh,                       ..... Respondent(s)
R/o. Ajeet Colony, Camp Gole Gujral,
Jammu
                     Through: Ms. Meenakshi Salathia, Adv.


Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                  ORDER

11.10.2023 CM No. 6007/2023

1. This is an application seeking condonation of delay in filing the revision petition against the order dated 31.05.2023 passed by the Additional Principal Judge, Family Court, Jammu, whereby in a proceeding under Section 125 Cr.P.C., interim maintenance has been granted in favour of the respondent. It has been submitted that after obtaining certified copy of the impugned order, the petitioner filed a petition under section 482 Cr.P.C. bearing CRM(M) No. 767/2023 challenging the impugned order passed by the learned Family Court and during the course of the hearing of the said petition, it was realized by the petitioner that the petition is not maintainable, as in terms of provisions of the Family Courts Act, the order in question is revisable in nature. Accordingly, the petition was dismissed 2 Cr Rev. No. 48/2023 as withdrawn with a liberty to avail appropriate remedy. This was done in terms of order dated 06.09.2023 passed by this Court. According to the petitioner, the period between 02.09.2023 to 06.09.2023 during which he was prosecuting the petition under section 482 Cr.P.C. under bona fide mistaken belief deserves to be excluded, while computing the period of limitation. It has been further submitted that the petitioner consumed time in obtaining the copies of court orders and collecting the documents which resulted in further delay in filing of the revision petition. On these grounds, the condonation of delay in filing the revision petition is being sought by the petitioner.

2. No reply has been filed by the respondent, therefore, the averments made in the application have remained unrebutted.

3. For reasons stated in the application as have been narrated hereinbefore, sufficient cause is made out for condoning the delay of 28 days in filing the revision petition. The application is, accordingly, allowed and delay in filing the revision petition is condoned.

4. The application stands disposed of.

Cr Rev. No. 48/2023

5. The petitioner has challenged the impugned order dated 31.05.2023 passed by the Additional Principal Judge, Family Court, Jammu, whereby in a proceeding under Section 125 Cr.P.C. filed by the respondent against the petitioner, a sum of Rs. 3000/- per month has been awarded as interim maintenance in favour of the respondent. The revision petition has been filed in terms of Section 19(4) of the Family Courts Act, 1984. The proceedings being criminal in nature, the petition 3 Cr Rev. No. 48/2023 should have been given the nomenclature of criminal revision petition, but the Registry has wrongly given it nomenclature of civil revision petition. Accordingly, the Registry is directed to assign appropriate nomenclature to the instant petition.

6. The petitioner has assailed the order of the Family Court on the grounds that the prior to the filing of petition under section 125 Cr.P.C. by the respondent against the petitioner, she had filed an application under Section 12 of the J&K Protection of Women from Domestic Violence Act, 2005(for short the DV Act) before the court of learned Judicial Magistrate 1st Class (Munsiff), Jammu and vide order dated 07.09.2019 interim maintenance of Rs. 5000/- per month has been granted in favour of the respondent. It has been further submitted that the learned Family Court without taking into consideration the aforesaid aspect of the matter passed the impugned order, which according to the petitioner, is illegal. It has been further submitted that the petitioner cannot be made to pay interim maintenance to the respondent in two different proceedings at the same time. According to the petitioner, he is a disabled pensioner drawing a monthly pension of Rs. 40,000/- and he has to support two children, who were presently undergoing studies. In these circumstances, grant of maintenance by the learned Family Court in favour of the respondent and against the petitioner is working harshly against him. It has been further submitted that the respondent is drawing a salary of Rs. 15000/- by working on a garments shop and as such, she is not entitled to any maintenance.

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Cr Rev. No. 48/2023

7. I have heard learned counsel for the parties and perused the impugned order as well as the record of the case.

8. The first contention that has been raised by the learned counsel for the petitioner is that it was not open to the learned Family Court to pass an order of interim maintenance in favour of the respondent as already an order of maintenance had been passed in her favour in a proceeding under Section 12 of the DV Act. It is contended that it is not legally permissible to award maintenance in favour of a wife in two different proceedings at the same time.

9. The ground urged by the learned counsel for the petitioner is absolutely without any merit for the reason that the issue whether a wife is entitled to claim maintenance both under the DV Act and Section 125 of the Cr.P.C. has been settled by the Supreme Court in the case of Rajnesh vs Neha and another, 2021 (2) SCC 324. In the said case, the Supreme Court has categorically laid down that there is no bar to seek maintenance both under the DV Act and Section 125 of the CrPC or under the Hindu Marriage Act. The relevant extracts of the judgment are reproduced as under:

"It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Code of Criminal Procedure, or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.
5 Cr Rev. No. 48/2023
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the Applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding."

10. From what has been laid down by the Supreme Court, it is clear that the respondent-wife is entitled to claim maintenance against her husband/petitioner both under the DV Act and Section 125 of the Cr.P.C. The only requirement is that the wife is under a legal obligation to make disclosure of the facts regarding previously instituted proceedings and the court, while deciding quantum of maintenance in the subsequent proceedings, has to take into account the maintenance awarded in the previous proceedings.

11. In the instant case, the respondent has clearly indicated in her petition under Section 125 Cr.P.C. that she has been awarded a sum of Rs. 5,000/- per month as maintenance under the DV Act. This fact has been taken note of by the learned Family Court in its impugned order. So it is not a case where the respondent has concealed the previously instituted proceedings initiated by her before the Judicial Magistrate 1st Class(Munsiff), Jammu. It is also clear from the impugned order that the learned Family Court has, while fixing the quantum of interim maintenance, taken into account the amount of maintenance that was awarded in favour of the respondent in DV Act proceedings, whereafter the court has awarded a further sum of Rs. 3,000/- per month as interim 6 Cr Rev. No. 48/2023 maintenance in favour of the respondent. So there is no illegality committed by the learned Family Court, while awarding interim maintenance in favour of the respondent as it has done so after adhering to the guidelines laid down by the Supreme Court in Rajneesh's case(supra).

12. So far as the contention of the petitioner that it will be difficult for him to pay Rs. 8000/- per month to the respondent having regard to his disability and liability to finance the education of his children is concerned, in this regard, it is to be noted that the petitioner has retired as a gazetted officer and he is drawing monthly pension of Rs. 40,700/-. There is no dispute between the parties on this aspect of the matter. The contention of the petitioner that the respondent is earning Rs. 15,000/- per month by working on a garments shop, is not substantiated by any material on record. In the present times, having regard to the cost of living, amount of Rs. 8000/- per month as maintenance to a wife, can by no stretch of imagination be termed as exorbitant, having regard to the capacity of the petitioner to pay and the status of the parties. Even otherwise, it will not be open to this Court in exercise of its revisional jurisdiction to interfere in the discretion exercised by the learned Family Court, while fixing the quantum of maintenance, which in the circumstances, cannot be termed exaggerated.

13. It has been contended by the learned counsel for the petitioner that in the operative portion of the impugned order, the learned Family Court has at one place observed that the respondent is entitled to Rs. 2000/- per month as interim maintenance but has proceeded to award an amount of Rs. 7 Cr Rev. No. 48/2023 3,000/- per month. It appears that there is a typographical error in the order of the Family Court as a result of which at one place in para (9) instead of Rs. 3000/-, Rs. 2000/- has been typed out. In any case, the amount of Rs. 3000/- as interim maintenance does not appear to be on a higher side. Therefore, there is no ground of interfere in the quantum of maintenance awarded by the learned Family Court in favour of the respondent.

14. For the foregoing reasons, I do not find any ground to interfere in the impugned order passed by the learned Family Court. The revision petition lacks merit and is dismissed accordingly.

(SANJAY DHAR) JUDGE Jammu 11.10.2023 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No