Madhya Pradesh High Court
Yusuf Khan vs Smt. Kishwar Jahan on 7 August, 2018
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
Misc.Criminal Case No.11995/2017
Yusuf Khan
Vs
Smt. Kishwar Jahan
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Shri Imtiaz Husain with Shri Ishteyaq Husain, learned
counsel for the applicant.
Shri Shailendra Gangrade, learned counsel for the
respondent.
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ORDER
(07.08.2018) This Miscellaneous Criminal Case has been preferred by the petitioner under Section 482 of Cr.P.C. to set aside the orders dated 22.01.2016 and 03.08.2015 passed by the Courts below and issuing the direction for adjusted the awarded interim maintenance under Section 125 of the Cr.P.c.
2. According to the applicant that the respondent has filed an application under Section 12 read with Sections 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 on 01.12.2014 before the trial Court. The respondent also filed an application under Section 23 of the 2 M.Cr.C.No.11995/2017 said Act for grant of interim maintenance to the sum of Rs.20,000/- per month. On the same date i.e. 01.12.2014 the respondent has also filed an application under Section 125 of the Cr.P.C. seeking maintenance from the petitioner along with an application for interim maintenance. The learned trial Court vide order dated 03.08.2015 allowed the application filed by the respondent under Section 23 of the Protection of Women from Domestic Violence Act, 2005 and awarded Rs.1,500/- as interim maintenance to the respondent. The same Presiding officer on the same date also decided the application filed by the respondent under Section 125 of the Cr.P.C. seeking interim maintenance from the petitioner. The learned Judge allowed the application for interim maintenance and awarded Rs.1,500/- as interim maintenance.
3. The petitioner being aggrieved from aforesaid order filed an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 in the Sessions Court, Bhopal, which was registered as Criminal Appeal No.924/2015. The petitioner also filed a Criminal Revision No.494/2015 against the order dated 22.01.2016 3 M.Cr.C.No.11995/2017 of interim maintenance under Section 125 of the Cr.P.C. before the Sessions Court. Both the cases, i.e. criminal appeal and criminal revision were decided on the same date on 22.01.2016 by the same Presiding Judge and both the cases were dismissed by different orders. It is contended by the applicant that the impugned order is bad in law.
4. It is further argued that the learned Lower Appellate Court failed to appreciate that the respondent has filed two parallel proceedings for the same relief. Since the respondent has been awarded Rs.1500/- per month as interim maintenance under the provision of Section 125 of the Cr.P.C. the learned trial Court ought not to have awarded any interim maintenance under provision of Domestic Violence Act, or otherwise ought to have adjusted the amount of interim maintenance already awarded under Section 125 of the Cr.P.c.
5. It is further argued that both the Courts below failed to appreciate that two children blessed by wedlock are residing with the petitioner and he is maintaining them. The respondent without any reasonable cause has 4 M.Cr.C.No.11995/2017 left the house of the petitioner. When the respondent did not turn up to perform her marital obligation, the petitioner gave her divorce. Therefore, the respondent is not entitled to take any maintenance from the petitioner.
6. The petitioner is working as cleaner in Armaan Bus Services and gets Rs. 300/- per day, leaving apart the holidays. Therefore, it is impossible for the petitioner to pay of Rs.1,500/- per month as maintenance from out of such a meager income on two counts in two different cases, especially when he is already maintaining two children living with him. It is prayed before this Court that the Court may kindly be set aside the impugned order passed by the Appellate Court and the trial Court respectively, and the amount of the interim maintenance awarded under Section 125 of the Cr.P.C. to the respondent may be directed to be adjusted in the case under Domestic Violence Act.
7. Learned counsel for the respondent opposed the prayer and submitted that the learned trial Court and the Appellate Court passed the reasonable orders. So there is no necessity to interfere in these orders. 5 M.Cr.C.No.11995/2017
8. It is not disputed that the respondent is the wife of the applicant and the respondent is living separately from the applicant. It is also not disputed that two children are living with the applicant. The applicant is working as cleaner in Armaan Bus Services and earned Rs.300/- per day. Respondent filed an application under Section 12 read with Sections 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005. The respondent wife also filed an application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 for grant of interim maintenance. Lower Court has granted Rs.1,500/- per month as interim maintenance. Respondent also filed an application under Section 125 of the Cr.P.C. to grant maintenance. Lower Court awarded Rs.1500/- per month as interim maintenance in these proceedings.
9. This legal principle is established that the wife can get maintenance under Protection of Women from Domestic Violence Act and under Section 125 of the Cr.P.C. Both cases are different and respondent can get the maintenance in both the cases. In this regard the 6 M.Cr.C.No.11995/2017 respondent/applicant has cited the judgment of Hon'ble Apex Court in the case of Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori and Another reported in (2014) 10 SCC 736.
10. Per-contra, learned counsel for the petitioner/non-applicant has cited the judgment of Hon'ble Apex Court in the case of Sudeep Chaudhary Vs. Radha Chaudhary reported in (1997) 11 SCC 286. He has referred another judgment passed by High Court of Bombay Bench at Aurangabad in Criminal Revision Application No.203/2017 (Vishal Vs. Aparna and other). In these judgments, it is held that the maintenance awarded under Section 125 of the Cr.P.C. is adjustable against the amount awarded in matrimonial procedure.
11. It is not disputed that the applicant is working as cleaner in Armaan Bus Services and gets Rs.300/- per day leaving apart the holiday. Thus, his monthly income is Rs.7500/- to 8000/- per month. The trial Court has also determined of Rs.300/- as his daily income. Therefore, there is no dispute remains regarding earning of petitioner. 7 M.Cr.C.No.11995/2017 The two children are living with the applicant. So it is clear that the applicant is maintaining them.
12. In these Circumstances considering the income and liability of the applicant awarded interim maintenance is excessive. So the accumulative maintenance of both the proceedings can be reduced by Rs.1000/-. Accordingly, the maintenance awarded in M.J.C. No.42/2015 of 125 of the Cr.P.C. is reduced from Rs.1500/- to Rs.500/-.
13. Accordingly, this petition is disposed of.
(Rajendra Kumar Srivastava) Judge sp