Uttarakhand High Court
Unknown vs Smt. Reena Balmiki And Another on 28 November, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 396 of 2017
Shri Gajendra Singh
........Revisionist
Versus
Smt. Reena Balmiki and another
........Respondent
Present:-
Mr. Siddhartha Sah, Advocate for the revisionist.
Mr. V.S. Rathore, AGA for the State.
Mr. Asif Ali, Advocate for the private respondent.
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to the followings:
(i) Order dated 20.06.2016 passed in Misc. Case No. 1394 of 2015, Reena Balmiki v. Rajendra, by the court of Judicial Magistrate/First Additional civil Judge (J.D.), Dehradun ("the case"). By it, the application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 ("the Act") has been allowed and various reliefs have been granted, including monetary reliefs. The court directed that the revisionist shall pay Rs.
15,000/- per month as interim 2 maintenance during the pendency of the case, in addition to Rs. 5,000/-, which the revisionist had already been paying under Section 125 of the Code of Criminal Procedure, 1973 ("the Code"); and
(ii) The judgment and order dated 25.09.2017 passed in Criminal Appeal No. 107 of 2016, Shri Gajendra Singh & another v. Reena Balmiki, by the court of 5th Additional Sessions Judge, Dehradun ("the appeal"). By it, the appeal filed by the revisionist has been dismissed and the order dated 20.06.2016 passed in the case by the Judicial Magistrate/First Additional Civil Judge (J.D.), Dehradun has been affirmed.
2. The facts, briefly stated are as follows. The respondent no. 1 ("the applicant") filed an application under Section 12 of the Act seeking various reliefs from the revisionist, including monetary reliefs, which is the basis of the case. In the case, an application under Section 23 of the Act was filed.
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3. It is the case of the applicant that she and the revisionist were married on 06.10.2006, but she was tortured and harassed for and in connection with additional demand of dowry. She was deserted by the revisionist on 25.12.2007. He filed a suit for divorce, which was rejected. Thereafter, the applicant filed a suit for restitution of conjugal right, which was decreed. The court of Judicial Magistrate also directed the revisionist to pay the applicant in a proceeding under Section 125 of the Code. It has been the case of the applicant that she is not able to maintain herself, whereas the revisionist is a teacher, who earns Rs. 50,000/- per month. There are other reliefs also with regard to the residence, etc. This application has been objected to by the revisionist.
4. By the impugned order, the revisionist has been directed to pay interim maintenance as aforesaid. The impugned judgment and order dated 20.06.2016 passed in the case has been unsuccessfully challenged by the revisionist in the appeal. Both these orders are impugned herein.
5. Learned counsel for the revisionist has raised only one point. According to him, any maintenance that is awarded under Section 23 of the Act has to be adjusted towards any other amount that is payable under any other 4 statute. It is argued that since Rs. 5,000/- is being paid by the revisionist in a proceeding under Section 125 of the Code, that amount of Rs. 5,000/- has to be deducted from the amount of Rs. 15,000/- which is awarded under Section 23 of the Act.
6. Learned counsel has referred to the provision of Section 20(6) of the Act as well as the judgment in the case of Rajnesh v. Neha and another, (2021) 2 SCC 324.
7. Section 20 of the Act speaks of monetary relief. It is as hereunder:-
"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 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 5 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) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."
(emphasis supplied)
8. In fact, learned counsel appearing for the revisionist has made reference to sub-section (6) to Section 6 20 of the Act, but, sub-section (6) to Section 20 of the Act comes into operation, when there is a failure to give such maintenance.
9. There may not be any doubt to the proposition that if under different statute, maintenance be awarded to a wife without taking into consideration any other amount of maintenance that is payable to a wife by the husband, it may create a chaos. The amount, which is payable to the wife by the husband under any law has definitely to be taken into consideration while awarding maintenance under a different statute.
10. In the case of Rajnesh (supra), in para 128.1, the Hon'ble Supreme Court has categorically held that the Court would consider an adjustment or set-off, of the amount already granted to such wife. This paragraphs is as hereunder:-
"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."
11. Learned counsel for the private respondent would submit that in this case, there is a concurrent finding of fact.
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12. What is being argued on behalf of the revisionist is that in a proceeding under Section 20 of the Act, the earlier amount of maintenance has to be adjusted. Maintenance cannot be awarded under Section 23 of the Act, in addition to any amount that had been payable under any other statute.
13. In fact, it is using phrases in different manner. In the case of Rajnesh (supra), the Hon'ble Supreme Court has categorically held that any amount of maintenance that had already been received by the wife has to be adjusted or set- off.
14. That is what has been done in the instant case. The revisionist is a teacher. The applicant was awarded Rs. 5,000/- in the year 2010, in a proceeding under Section 125 of the Code. There could have been a different mode of writing the order. The court could have passed an order that the revisionist would pay Rs. 25,000/- per month as interim maintenance to the applicant, with the further direction that the amount of Rs. 5,000/-, which the applicant had already been receiving shall be adjusted in this amount. Resultantly, the applicant would have received Rs. 20,000/-. Instead of writing so, what the court below has written is that in addition to Rs. 5,000/-, which the 8 applicant had already been receiving under Section 125 of the Code, she would receive Rs. 15,000/- more.
15. It is not the case that the court below has not taken into consideration the amount of maintenance, which the wife had been receiving under Section 125 of the Code. Merely because the word "adjustment" as such has not been written, it cannot be said that the order impugned is against law. In fact, the impugned orders are in compliance to the direction of the Hon'ble Supreme Court in the case of Rajnesh (supra) and in accordance with the provision of Section 20 of the Act. There is no illegality, error or impropriety in the impugned orders. Accordingly, the revision deserves to be dismissed.
16. The revision is dismissed.
(Ravindra Maithani, J.) 28.11.2022 Avneet/