Gujarat High Court
Ruchinbhai Hasmukhbhai Shah vs Jyotiben Narendrabhai Parikh on 7 September, 2022
Author: Samir J. Dave
Bench: Samir J. Dave
R/CR.RA/509/2015 JUDGMENT DATED: 07/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 509 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RUCHINBHAI HASMUKHBHAI SHAH & 1 other(s)
Versus
JYOTIBEN NARENDRABHAI PARIKH & 1 other(s)
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Appearance:
MR PY DIVYESHVAR(2482) for the Applicant(s) No. 1,2
MR SHIVANG J SHUKLA(2515) for the Applicant(s) No. 1,2
MR PANKAJ S CHAUDHARY(3269) for the Respondent(s) No. 1
MS M. H. BHATT, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 07/09/2022
ORAL JUDGMENT
1. By way of present application, the applicants have prayed to quash and set aside order dated 14.06.2014 passed by the learned 2nd Additional Sessions Judge, Anand in Criminal Appeal No.20 of 2013.
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2. The brief facts of the case are that the marriage of the applicant no.1 and respondent no.1 was solemnized on 15.05.2011 and out of this wedlock there is no issue (child). That after a few months respondent-wife was so offset for going to her parental house and she wanted to stay there for longer period disowning the responsibility of family of the applicants and under that shock father of applicant no.1 expired during pendency of this litigation. It has also come on record during the trial that respondent-wife herself has deserted the family of the applicant and his ailing father and mother. That just to stay with her parents and to do as per her wish, respondent wife- original complainant left the house of the applicant without any reason and she has also filed one complaint before the Borsad Police Station, wherein after investigation, the police dropped the application. Thereafter, respondent-wife filed Criminal Misc. Application no.84 of 2012 before the learned Additional Chief Judicial Magistrate Court, Anand, the applicant have filed written statement and has specifically explained that there was no violence or any such untoward incidence and respondent-wife herself left the house and company of applicant. The learned lower Court after appreciating the documents on record and evidence dismissed the said complaint. Thereafter, the said order was carried in Criminal Appeal No.20 of 2013 by responden no.2 before the learned District and Page 2 of 9 Downloaded on : Sun Dec 25 01:19:10 IST 2022 R/CR.RA/509/2015 JUDGMENT DATED: 07/09/2022 Sessions Court, Anand, wherein the learned Sessions Court allowed the Criminal Appeal and quashed and set aside the order passed in Criminal Misc. Application No.84 of 2012 and directed to pay maintenance of Rs.5,000/- per month to the respondent no.2 from 23.03.2012. Thereafter, the applicants have preferred Special Civil Application No.11692 of 2014 before this Court, wherein this Court has also issued notice to the respondent. As this Court did not permit the applicants to convert Special Civil Application to Criminal Application in view of order passed by the Coordinate Bench of this Court in Special Civil Application No.15867 of 2014 that no Special Civil Application is maintainable against the order of lower Courts under the provisions of Domestic Violence Act. Hence, the present Criminal Revision is preferred by the applicants for quashing and setting aside the impugned order passed by the learned lower Court.
3. Heard learned advocates for the respective parties as well as learned APP for the respondent - State.
4. Learned advocate Mr.P. Y. Divyeshvar for the applicants has submitted that the order passed by the learned Sessions Court, Anand is contrary to the facts, evidence and circumstances of the case. He further submitted that the learned Sessions Court erred in granting maintenance of Rs.5,000/- per month from 23.03.2021 Page 3 of 9 Downloaded on : Sun Dec 25 01:19:10 IST 2022 R/CR.RA/509/2015 JUDGMENT DATED: 07/09/2022 is against the documents on record. He also submitted that the order passed by the learned Sessions Court is against the principle of law for grant of maintenance and not only that the Sessions Court ignored the ingredients for granting maintenance and by which party. He also submitted that the learned Sessions Court failed to appreciate the conjugal right application under section 9 filed by the present applicant and his endeavors to bring back respondent-wife. No party can be granted benefits of its own wrong in the present case, the complainant- respondent wife herself does not want to enjoy the company of applicant and his family and on the other hand cannot claim the benefit of her absence from applicant's family and therefore, the impugned order is required to be quashed and set aside.
5. Learned advocate Mr.Pankaj Chaudhary for respondent-
wife has objected to this application and submitted that the impugned judgment and order passed by the learned Sessions Court is just and proper and this Court may not interfere with the impugned judgment and order passed by the learned Sessions Court as there is no illegality committed by the learned Sessions Court. He further submitted that the learned Sessions Court has not erred in granting the monthly maintenance to the respondent-wife, however, the same may be enhanced. Hence, it is requested by learned Page 4 of 9 Downloaded on : Sun Dec 25 01:19:10 IST 2022 R/CR.RA/509/2015 JUDGMENT DATED: 07/09/2022 advocate for respondent-wife to dismiss this application.
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 respondent-wife preferred an appeal under Section 29 of the Domestic Violence Act for maintenance, wherein she was granted maintenance of Rs.5,000/- per month vide impugned judgment and order dated 14.06.2014 passed by the learned Sessions Court, Anand in Criminal Appeal No.20 of 2013. It also appears that the applicant no.1-husband is responsible to maintain respondent- wife, which has been granted by the learned Sessions Court to the respondent, as monthly maintenance, is not sufficient to fulfill the basic essential needs of the present respondents. It also appears that the rates of the every thing is increasing day-by-day and there is a question of survival of the respondent- wife. It also appears that the applicant no.1 husband is having multiple movable and immovable properties and well settled in his life and it is his duty to maintain his wife as the same time, it is very difficult to the respondent no.1 wife to maintain herself without source of income and the respondent-wife is not able to fulfill the basic needs, which are essential for her Page 5 of 9 Downloaded on : Sun Dec 25 01:19:10 IST 2022 R/CR.RA/509/2015 JUDGMENT DATED: 07/09/2022 survival, and therefore, there is a question of survival for the wife. Therefore, the judgment and order dated 14.06.2014 passed by the learned Sessions Court, Anand does not require any interference.
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 289.
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.
Page 6 of 9 Downloaded on : Sun Dec 25 01:19:10 IST 2022R/CR.RA/509/2015 JUDGMENT DATED: 07/09/2022 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
(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) ***** ****** Page 7 of 9 Downloaded on : Sun Dec 25 01:19:10 IST 2022 R/CR.RA/509/2015 JUDGMENT DATED: 07/09/2022
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 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 Page 8 of 9 Downloaded on : Sun Dec 25 01:19:10 IST 2022 R/CR.RA/509/2015 JUDGMENT DATED: 07/09/2022 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 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. Thus, considering the aforesaid discussion, the impugned order does not suffer from any illegality, irregularity or impropriety, the impugned judgment and order dated 14.06.02014 passed by the learned 2 nd Additional Sessions Judge, Anand in Criminal Appeal No.20 of 2013 is confirmed. The revision is liable to be dismissed and accordingly, stands dismissed. Rule stands discharged.
Sd/-
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 9 of 9 Downloaded on : Sun Dec 25 01:19:10 IST 2022