Andhra Pradesh High Court - Amravati
Mohammed Yaseen Baba vs The State Of A.P on 17 December, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
IN THE HIGH COURT OF ANDHRA PRADESH
****
Criminal Revision Case No.1759 of 2018
Between:
Mohammed Yassen Baba .... Petitioner
AND
The State of Andhra Pradesh,
Rep. by its Principal Prosecutor
High Court at Hyderabad
for the State of Telangana and Andhra Pradesh
and others. .... Respondents
DATE OF JUDGMENT PRONOUNCED: 17.12.2019
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes / No
2. Whether the copies of judgment may be
marked to Law Reporters / Journals? Yes / No
3. Whether His Lordship wish to
see the fair copy of the Judgment? Yes / No
_________________________
U. DURGA PRASAD RAO, J
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* THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
+ Criminal Revision Case No.1759 of 2018
% 17.12.2019
Between:
Mohammed Yassen Baba .... Petitioner
AND
The State of Andhra Pradesh,
Rep. by its Principal Prosecutor
High Court at Hyderabad
for the State of Telangana and Andhra Pradesh
and others. .... Respondents
! Counsel for Petitioner : Smt. S.A.V.Ratnam
^ Counsel for Respondents : Sri K.Sarva Bhouma Rao
< Gist:
> Head Note:
? Cases referred:
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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Revision Case No.1759 of 2018
ORDER:
The challenge in this Criminal Revision Case at the instance of the petitioner/appellant is to the order dated 07.06.2018 in Crl.M.P.No.75/2018 in Crl.A.No.253/2018 passed by the learned VI Additional District & Sessions Judge-cum-Mahila Court, Visakhapatnam refusing to stay all further proceedings in DVC No.24/2015 on the file of the learned IV Additional Chief Metropolitan Magistrate, Visakhapatnam pending disposal of Crl.A.No.253/2018.
2. 1st respondent is the wife and respondents 2 & 3 are the minor children of petitioner/appellant. Respondents filed FCOP No.1811/2015 under Section 125 Cr.P.C. seeking maintenance against the petitioner before the Judge, Additional Family Court, Visakhapatnam. In I.A.No.375/2017 the said Court awarded Rs.4,000/- as interim maintenance vide order dated 06.01.2018. Later, the respondents filed DVC No.24/2015 on the file of the learned IV Additional Chief Metropolitan Magistrate, Visakhapatnam wherein in Crl.M.P.No.3608/2016 the said Court in its order dated 13.03.2018 awarded interim maintenance of Rs.5,000/- per month to 4 1st respondent and Rs.2,500/- per month each to respondents 2 & 3 from the date of filing of petition till disposal of main case.
3. Aggrieved by the said order, the petitioner/appellant filed Crl.A.No.253/2018 and in Crl.M.P.No.75/2018 he sought for stay of further proceedings in DVC No.24/2015. His grievance is that the IV Additional Chief Metropolitan Magistrate, Visakhapatnam without considering the fact that the respondents were already awarded Rs.4,000/- as interim maintenance in FCOP No.1811/2015, granted interim maintenance in DVC No.24/2015 and the petitioner due to his financial problems not able to pay double maintenance. He thus prayed to stay all further proceedings in DVC No.24/2015 till disposal of the Criminal Appeal. Learned VI Additional District & Sessions Judge dismissed the stay application observing that in appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'the D.V. Act') read with Section 374 Cr.P.C, the appellate Court is not clothed with the power to suspend the order of the lower Court and such a power to suspend the sentence is available only under Section 389 Cr.P.C. if the appellant was convicted with sentenced.
Hence, the Criminal Revision Case.
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4. Heard Smt. S.A.V.Ratnam, learned counsel for petitioner, and and Sri K.Sarva Bhouma Rao, learned counsel for the respondents.
5. Fulminating the order of the lower Court, learned counsel for the petitioner would submit that if not staying the further proceedings in DVC No.24/2015, the lower Court ought to have directed to adjust the maintenance amount paid under 125 Cr.P.C. in FCOP No.1811/2015 to the maintenance awarded in DVC No.24/2015, as otherwise, the petitioner has to pay the maintenance under both the proceedings to the same respondents which would cause any amount of financial hardship to him. Learned counsel placed reliance on the judgment of the High Court of Judicature at Bombay Bench at Aurangabad in Vishal, S/o. Rajesaheb Gore v. Sow. Aparna, w/o. Vishal Gore (Criminal Revision Application No.203/2017).
6. Per contra, learned counsel for the respondents would argue that the proceedings under the D.V. Act and Section 125 Cr.P.C. are independent to each other and under Section 20 of the D.V. Act the maintenance granted to the aggrieved person can be in addition to the maintenance granted under Section 125 Cr.P.C. and therefore, the petitioner is not legally entitled to seek for adjusting the maintenance in one case to the maintenance in other case or stay of the proceedings in DVC.
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7. The point for consideration is whether the maintenance awarded under Section 125 Cr.P.C. can be adjusted towards the maintenance awarded under D.V. Act in this case?
8. Section 20 of the D.V. Act speaks of monitory relief. It lays down that while disposing of the application under Section 12, the Magistrate may direct the respondent to pay to meet the expenses incurred and losses suffered by the aggrieved person and any child of the said aggrieved person as a result of the domestic violence and such relief may include but 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 (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 Cr.P.C. or any other law for the time being in force. Such monitory 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.
9. So, as can be seen from Section 20(1)(d) of D.V. Act, there can be no demur that the monitory relief that is awarded under this Section to aggrieved person and her children may include but not limited to the maintenance awarded to them under Section 125 Cr.P.C. From 7 this provision it is discernible that in appropriate cases, the monitory relief awarded need not be limited to the categories mentioned under
(a) to (d) of Section 20(1). Thus, the monetary relief awarded under Section 20 can be more than the maintenance awarded under Section 125 Cr.P.C. or any other law. However, that is not the end of the matter. At this juncture, it is germane to consider Section 26 of the D.V. Act also. The said section reads thus:
"26. Relief in other suits and legal proceedings:- (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to 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.
(3) 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."
As per Section 26(3), 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. Therefore, a duty is caste on the aggrieved person to inform the Magistrate dealing with the D.V. case that she has already 8 obtained the reliefs akin to the ones mentioned in Sections 18, 19, 20, 21 & 22 of the D.V. Act in other proceedings in a Civil Court, Family Court or a Criminal Court. In simple, if the aggrieved person has already obtained maintenance under Section 125 Cr.P.C. in a Criminal Court, she is bound to inform the said fact to the Magistrate dealing with the D.V. case filed by her. In my considered view, this is not an empty formality in view of the fact that the word "shall" is employed in sub-section (3). The purpose is to enable the Magistrate to consider that the maintenance/reliefs were already granted in some other parallel proceedings and thereby while granting the similar reliefs in D.V. case he may fix the correct quantum of the relief. Viewing in that angle, the maintenance already granted under Section 125 Cr.P.C. or in some other proceedings is liable to be adjusted to the higher amount if awarded in D.V. case. As otherwise the purpose of Section 26 would become otious. This aspect has been discussed in Vishal's case (supra). It was observed thus:
18) What I intend to emphasize is the fact that the adjustment is permissible and the adjustment can be allowed of the lower amount against the higher amount. Though the wife can simultaneously claim maintenance under the different enactments, it does not in any way mean that the husband can be made liable to pay the maintenance awarded in each of the said proceedings.
19) The wife and children can claim maintenance under Section 125 of the Code of Criminal Procedure, under Section 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 and also under Section 20 read with 23 of the D.V. Act. The wife additionally can 9 claim interim alimony under Section 24 of the Hindu Marriage Act. Even if all these remedies are simultaneously pursued by the wife and some or the other order is passed in each of the said proceedings, it would not be permissible for the wife to claim the amount of maintenance awarded in each of the said proceedings independently. Firstly, the propriety demands that if any similar relief is granted in the earlier proceedings, the person in whose favour such relief is granted has to disclose the said fact in the subsequent proceedings. For a moment even if it is presumed that no such discloser was made or in a hypothetical situation, all the proceedings are simultaneously decided, the husband will definitely have a right to claim adjustment of the amount awarded in the said proceeding and can not be subjected to 19 Cri.Revn.203/2017 independently pay the amount of maintenance awarded under each of the said proceedings.
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22) There may be different enactments, to which I have referred to herein above, containing some or other provision providing maintenance to wife and children, but the object behind every such provision is common; to prevent vagrancy and destitution. Such a provision in all these enactments is meant to achieve a social purpose and a measure of social justice specially incorporated to protect women and children. It falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. However, as I have discussed herein before, these provisions cannot be interpreted to mean that the husband can be made liable to pay maintenance/interim maintenance awarded under each of the said provisions independently and cannot be permitted to seek adjustment of the amount of maintenance awarded in the earlier proceeding against the amount awarded in the subsequent proceeding or vice versa."
The said High Court ultimately directed to adjust the maintenance awarded in one proceedings to the maintenance awarded in other 10 proceedings between the same parties. In my view, the ratio in the above judgment applies with all its force to facts of the present case.
10. In the result, this Criminal Revision Case is allowed and learned IV Additional Chief Metropolitan Magistrate, Visakhapatnam is directed that payment made in respect of the interim maintenance awarded by him, shall be adjusted to the interim maintenance already awarded by the Judge, Additional Family Court, Visakhapatnam and paid by the revision petitioner. This order is subject to the result of the Crl.A.No.253/2018. However, it shall be made clear that there can be no stay of further proceedings in DVC. No.24/2015 as prayed by the petitioner.
Interlocutory applications, if any, pending in this Writ Petition shall stand closed.
__________________________ U. DURGA PRASAD RAO, J 17.12.2019 MVA