Gauhati High Court
Page No.# 1/ vs The State Of Asssam And Anr on 11 September, 2025
Page No.# 1/10
GAHC010033792025
2025:GAU-AS:12447
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./183/2025
SANJIB KUMAR DEKA
R/O- GAME VILLAGE, MILAN NAGAR PATH NO. 1, P.S. BASISTHA,
DIST.KAMRUP (M), ASSAM, PIN-781029
VERSUS
THE STATE OF ASSSAM AND ANR.
REP BY THE PP, ASSSAM
2:KARISHMA BISWASI
D/O SADANANDA BISWASHI
R/O VILL- JALUKBARI
LANGKESWAR
ALAKANANDA PATH
P.S. JALUKBARI
DIST. KAMRUP (M)
ASSAM
PIN-781012
Advocate for the Petitioner : MR. D P CHALIHA, MR. U P CHALIHA,MS M ROY
Advocate for the Respondent : PP, ASSAM, MD A RAHMAN (R-2),MRS. R S DEURI(R-2),MR. T
DEURI(R-2) BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA For the Petitioner : Mr. D. P. Chaliha, Sr. Adv.
: Ms. M. Roy, Advocate
For the Respondents : Mr. K. Baishya, Addl. P.P
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: Mr. T. Deuri, Advocate
(for respondent No. 2)
Date of Judgment & Order : 11.09.2025
JUDGMENT & ORDER
1. Heard Mr. D. P. Chaliha, the learned senior counsel assisted by Ms. M. Roy, learned counsel for the petitioner. Also heard Mr. K. Baishya, the learned Additional Public Prosecutor for the State respondent as well as Mr. T. Deuri, learned counsel for the respondent No. 2.
2. This Criminal Petition, under Section 528 of the BNSS read with Article 227 of the Constitution of India has been filed by the petitioner, namely, Sanjib Kumar Deka, impugning the order dated 21.12.2024 passed by the learned Judicial Magistrate First Class, Kamrup(M) at Guwahati in DV Case No. 156/2023 whereby the petitioner was directed to pay an interim maintenance allowance of Rs.23,000/- (Twenty Three Thousand) only to the respondent No. 2 and her daughter.
3. The facts relevant for consideration of the instant criminal petition, in brief, are that the respondent No. 2 got married to the petitioner as per Hindu rituals on 22.04.2022. Out of the said wedlock, a female child was born to them on 13.02.2023.After some time, matrimonial discord arose between both the parties, and since 04.06.2023, they are living separately. It is stated in the petition that on 19.07.2023, the petitioner received a legal notice from the respondent alleging that the family members as well as the petitioner had illtreated the respondent No. 2 and have demanded to Rs.10,00,000/- (Rupees Ten Lakhs) from her. In response to this said legal notice, the petitioner informed the respondent No. 2 that he is ready to take her back and live a Page No.# 3/10 happy conjugal life with her. However, the respondent No. 2 had filed an application for maintenance before the Court of the Principal Judge, Family Court No. 2 claiming maintenance amount of Rs.30,000/- for her and Rs.15,000/- for her minor child as well as an amount of Rs.50,000/- against legal expenses. The said proceeding under Section 125 of the Code of Criminal Procedure, 1973 was registered as F.C.(Crl.) No. 516/2023 before the Court of the Principal Judge, Family Court No. 2, Kamrup(M).
4. The learned senior counsel for the petitioner submits that in the said aforesaid proceeding by order dated 24.01.2024, the Court of the learned Principal Judge, Family Court No. 2 directed the petitioner to pay an interim maintenance allowance of Rs.20,000/- per month in total to the petitioner and her daughter (Rs.15,000/- to the petitioner and Rs.5,000/- per month for her daughter) from the date of the order until further orders.
5. It is further submitted by the learned senior counsel for the petitioner that though the petitioner was ready to bring back the respondent No. 2 to her matrimonial home, however, she refused to do so. Instead, she again filed another application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act) against the petitioner and his parents. The said case was registered as D.V. Case No. 156/2023 and pending before the Court of the learned Judicial Magistrate First Class, Kamrup(M). It is further submitted by the learned senior counsel for the petitioner that in the said case, the respondent claimed an interim maintenance allowance of Rs.20,000/- per month from the petitioner.
6. The learned senior counsel for the petitioner has submitted that by the impugned order, the Court of the learned Judicial Magistrate First Class directed the petitioner to pay interim maintenance allowance to the tune of Page No.# 4/10 Rs.23,000/-which is even more than what was claimed by the respondent No. 2 in her application filed before the said Court.
7. The learned senior counsel for the petitioner has also submitted that in the DV Case No. 156/2023, while passing the impugned order, the learned Magistrate ought to have taken into consideration the interim maintenance granted to the respondent No. 2 by the Family Court in the proceeding under Section 125 of Cr.P.C.
8. The learned senior counsel for the petitioner has cited a ruling of the Apex Court in the case of "Rajnesh Vs. Neha"reported in"(2021) 2 SCC 324", wherein it was observed as follows:-
"54. On the other hand, the Bombay and Delhi High Courts, have held that in case of parallel proceedings, adjustment or set-off must take place. The Bombay High Court in a well-reasoned judgment delivered in Vishal v. Aparna [Vishal v. Aparna, 2018 SCC OnLine Bom 1207], has taken the correct view. The Court was considering the issue whether interim monthly maintenance awarded under Section 23 read with Section 20(1)(d) of the DV Act could be adjusted against the maintenance awarded under Section 125 CrPC. The Family Court held that the order passed under the DV Act and the CrPC were both independent proceedings, and adjustment was not permissible. The Bombay High Court set aside the judgment of the Family Court, and held that Section 20(1)(d) of the DV Act makes it clear that the maintenance granted under this Act, would be in addition to an order of maintenance under Section 125 CrPC, and any other law for the time being in force. Sub-section (3) of Section 26 of the DV Act enjoins upon the aggrieved person to inform the Magistrate, if she has obtained any relief available under Sections 18, 19, 20, 21 and 22, in any other legal proceeding filed by her, whether before a civil court, Family Court, or criminal court. The object being that while granting relief under the DV Act, the Magistrate shall take into account and consider if any similar relief has been obtained by the Page No.# 5/10 aggrieved person. Even though proceedings under the DV Act may be an independent proceeding, the Magistrate cannot ignore the maintenance awarded in any other legal proceedings, while determining whether over and above the maintenance already awarded, any further amount was required to be granted for reasons to be recorded in writing. The Court observed : (Vishal case [Vishal v. Aparna, 2018 SCC OnLine Bom 1207] , SCC OnLine Bom para 18) "18. What I intend to emphasise 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."
(emphasis supplied) It was held that while determining the quantum of maintenance awarded under Section 125 CrPC, the Magistrate would take into consideration the interim maintenance awarded to the aggrieved woman under the DV Act.
55. The issue of overlapping jurisdictions under the HMA and the DV Act or CrPC came up for consideration before a Division Bench of the Delhi High Court in R.D. v. B.D. [R.D. v. B.D., 2019 SCC OnLine Del 9526 :
(2019) 7 AD 466] wherein the Court held that maintenance granted to an aggrieved person under the DV Act, would be in addition to an order of maintenance under Section 125 CrPC, or under the HMA. The legislative mandate envisages grant of maintenance to the wife under various statutes. It was not the intention of the legislature that once an order is passed in either of the maintenance proceedings, the order would debar re-adjudication of the issue of maintenance in any other proceeding. In paras 16 and 17 of the judgment, it was observed that : (SCC OnLine Del) "16. A conjoint reading of the aforesaid Sections 20, 26 and 36 of the DV Act would clearly establish that the provisions of the DV Act dealing with maintenance are supplementary to the provisions of other laws and therefore maintenance can be granted to the aggrieved person(s) under Page No.# 6/10 the DV Act which would also be in addition to any order of maintenance arising out of Section 125 CrPC.
17. On the converse, if any order is passed by the Family Court under Section 24 of the HMA, the same would not debar the Court in the proceedings arising out of the DV Act or proceedings under Section 125 CrPC instituted by the wife/aggrieved person claiming maintenance.
However, it cannot be laid down as a proposition of law that once an order of maintenance has been passed by any court then the same cannot be re-adjudicated upon by any other court. The legislative mandate envisages grant of maintenance to the wife under various statutes such as HMA, Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as 'HAMA'), Section 125 CrPC as well as Section 20 of the DV Act. As such various statutes have been enacted to provide for the maintenance to the wife and it is nowhere the intention of the legislature that once any order is passed in either of the proceedings, the said order would debar re- adjudication of the issue of maintenance in any other court."
(emphasis supplied) The Court held that under Section 20(1)(d) of the DV Act, maintenance awarded to the aggrieved woman under the DV Act is in addition to an order of maintenance provided under Section 125 CrPC. The grant of maintenance under the DV Act would not be a bar to seek maintenance under Section 24 of the HMA.
9. On the other hand, the learned counsel for the respondent No. 2 has opposed the instant criminal petition filed by the petitioner on the ground that the impugned order was passed by the learned Judicial Magistrate First Class, Kamrup(M) following the guidelines of the Apex Court in the case of "Rajnesh Vs. Neha"(supra) and after considering the affidavit of assets and liabilities filed by the respondent in the said case. He submits that the affidavit of assets and liabilities was filed by the respondent on 17.10.2023 i.e., much before the Family Court granted interim maintenance to her on 24.01.2024.
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10. The learned counsel for the respondent No. 2 has also submitted that the objective of granting interim maintenance is to assure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage. He submits that there is no straight jacket formula for fixing the quantum of maintenance and in the instant case, as the Court of the learned Judicial Magistrate First Class, Kamrup(M) by passing the impugned order has rightly directed the petitioner to pay an interim maintenance allowance of Rs.23,000/- in total to the respondent and her minor in the aforesaid case.He further submits that the petitioner has an admitted income of Rs.1,76,352 which has been admitted by him and as such, he is capable of paying the interim maintenance allowance awarded by the Court of the learned Judicial Magistrate First Class, Kamrup(M) in the aforesaid case.
11. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record carefully.
12. It is an admitted position that prior to filing to grant of interim maintenance by the impugned order dated 21.12.2024 by the learned Judicial Magistrate First Class, Kamrup(M) in DV Case No. 156/2023, the order dated 24.01.2024 was passed by the learned Principal Judge, Family Court No. 2, Kamrup(M) in F.C.(Crl.) No. 516/2023 whereby the petitioner was directed to pay interim maintenance of allowance of Rs.20,000/- per month to the respondent No. 2.
13. It also appears that as the respondent No. 2 had submitted the affidavit of assets and liabilities on 17.10.2023, the mention of the interim maintenance granted to herby the Family Court is not there.However, in view of the judgment of the Apex Court in the case of "Rajnesh Vs. Neha"(supra), the respondent No. 2 was under a legal obligation to disclose the same in the Page No.# 8/10 proceeding under DV Act (DV Case No. 156/2023) pending before the learned Judicial Magistrate First Class, Kamrup(M). It appears that same was not done in this case.
14. In the case of "Rajnesh Vs. Neha"(supra), the Apex Court has also observed as follows:-
Directions on overlapping jurisdictions "60. 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 DV Act and Section 125 CrPC, or under HMA. 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.
61. 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 court concerned in the previous proceeding".
15. It also appears that though in the impugned order dated 21.12.2024, passed in DV Case No. 156/2023, the learned Judicial Magistrate First Class, Page No.# 9/10 Kamrup(M) has mentioned that the respondent has already been paid maintenance amount in proceeding under Section 125 of Code of Criminal Procedure, 1973, however, there is nothing in the impugned order to indicate that while granting the interim maintenance by the impugned order, the learned Judicial Magistrate First Class, Kamrup(M) had taken into consideration the interim maintenance already granted to the respondent No. 2 and her minor child by the learned Principal Judge, Family Court No. 2, Kamrup(M).
16. In view of the judgment of the Apex Court in the case of " Rajnesh Vs. Neha"(supra), it was incumbent on the learned Judicial Magistrate to take into account the interim maintenance granted by the Family Court and, thereafter determine the maintenance amount payable to the respondent No. 2 and her minor daughter in the DV Case No. 156/2023. By not doing so, the learned Judicial Magistrate First Class, Kamrup(M) has violated the directions of the Apex Court in the case of " Rajnesh Vs. Neha"(supra) and as such on that count the impugned order dated 21.12.2024 passed by the learned Judicial Magistrate First Class, Kamrup(M) at Guwahati in DV Case No. 156/2023 is liable to be set aside.
17. This Court accordingly set aside the impugned order dated 21.12.2024 passed by the learned Judicial Magistrate First Class, Kamrup(M) at Guwahati in DV Case No. 156/2023.
18. The learned Judicial Magistrate First Class, Kamrup(M) is hereby directed to re-consider the prayer for interim maintenance filed by the respondent No. 2 in DV Case No. 156/2023 afresh in terms of the judgment of the Apex Court passed in the case of "Rajnesh Vs. Neha"(supra).
19. With the above observation, this Criminal Petition is hereby disposed Page No.# 10/10 of.
20. Send a copy of this order to the learned Judicial Magistrate First Class, Kamrup(M) for compliance.
JUDGE Comparing Assistant