Date of Judgment:
17th May 2019.
Bench:
Mr. Sanjeev Sachdeva, J.
Parties:
Petitioner – Vikas Bhutani.
Respondents – State & Anr.
Subject
The Hon’ble High Court(hereinafter referred to as ‘Hon’ble High Court’ or ‘the Court’), in the present instance,has observed that even if support U/s. 125 of the CrPC is given, the wife is entitled to maintenance for domestic abuse. However, there may be an adjustment based on past maintenance. The sole purpose of grant maintenance is to provide a lump sum amount as a payment to the wife who is unable to maintain herself.
Legal Provisions
Protection of Women from Domestic Violence Act, 2005
- Section 12 – states an aggrieved person, a protection officer, or any other person acting on the aggrieved person’s behalf may apply to the Magistrate for one or more of the following reliefs under this Act.
Code of Criminal Procedure, 1973
- Section 125 – states that each High Court shall have authority over all courts and tribunals in the territories in which it practices (apart from a court shaped under a law related to military or armed forces).
- Section 354(6) – states that Every order made under section 117 or sub-section (2) of section 138, as well as every final order made under sections 125, 145, or 147, must include the point or points for determination, the decision, and the reasons for the decision.
BRIEF FACTS
- In this instant petition where the petitioner contends the order dated 29/05/2017 where interim maintenance has been wrongly assessed by the Trial Court, the respondent in this instance had filed an application U/s. 12 of the Protection of Women from Domestic Violence Act, 2005, and an amount of Rs. 40,000/- has been awarded to the wife as interim maintenance.
- Subsequently, the learned counsels for the petitioner had contended that The Trial Court has erred in failing to recognize that the respondent had already filed an application for interim maintenance under Section 125 Cr.P.C.
- Furthermore, in the aforementioned application, Rs.15,000/- was assessed, and the petitioner had continued to pay the aforementioned sum of Rs.15,000/- per month. Subsequent to this it was observed by the Hon’ble Court that the aforementioned application U/s. 125 of the Code of Criminal Procedure had been withdrawn.
- Additionally, it was contended that the learned Trial Court has ignored the fact that the respondent is already receiving maintenance of Rs. 15,000/- under the previous orders which were passed U/s. 125 of Code of Criminal Procedure, further the learned Trial Court’s assessment of damaged has not been challenged on the merits of the present instance.
- Per contra, the learned counsels for the respondent had submitted that the previous amount which had been ordered to be payable by the petitioner has not been fully paid.
ISSUES RAISED
- Whether the wife can claim additional maintenance under the provisions of the DV Act if in the previous instance due maintenance has been provided to the wife under the provisions of the Code of Criminal Procedure?
ANALYSIS BY THE COURT
- The Hon’ble High Court noted that there was no substantial merit in the arguments posed before the Court by the counsels for the petitioners. Further, the Court stated that if the purpose of the maintenance award is to provide a subsistence payment to the wife who is unable to support herself, the award should ordinarily be made from the date of the application.
- Furthermore, the Court said that for the court to reconsider the award maintenance from the date of the order, there must be compelling reasons for the court to do so, which in the present instance does not seem justified on the part of the respondents as sufficient maintenance after due consideration has been awarded to the petitioner.
- Additionally the Court stated that the passage of time between the date of the application and the ultimate adjudication and award in favor of the wife does not imply that she had sufficient income to support herself when the trial court determines after a trial that the wife is entitled to a certain amount of maintenance, the assessment is retroactive to the date of the application.
- Likewise, the Hon’ble Court placed its reliance on the case of Rekha Sabharwal & Anr. Vs Jitender Sabharwal 2018, in which it was held that The maintenance is to be based on the date of the application rather than the date of the order.
- Additionally, the Court referred to the case of Shail Kumari Devi v. Krishan Bhagwan Pathak 2008, in which it was decided that the High Court was incorrect in ruling that, as a general rule, the Magistrate should only provide support from the date of the ruling, not from the date of the maintenance application further, if he plans to issue such an order, he must record the grounds for doing so.
- Further, placing reliance on another such instance where the Hon’ble Supreme Court has held that Section 125 of the Cr.P.C. thereby implies that the Court must consider making the order for maintenance effective from any of the two dates, taking into account the relevant facts.That the Court at its option may select either date for good reason, as evidenced by its order.
- Thus critiquing the learned Trial Court the, Hon’ble Court stated that U/s. 354(6) of the CrPC, that in either instance, the Court should record the grounds for such issuance of the order.
CONCLUSION
Dismissing the petition the Court directed the petitioner to pay maintenance at the rate of Rs.40,000/- per month from the date of filing of the application. Furthermore, the Court order the petitioner that would be subject to a modification of the sum previously paid in accordance with the decision issued in the application under Section 125 Cr.P.C. and the interim orders issued by this court.
Learn the Practical Aspects of CrPC HERE
Click here to download the original copy of the judgement
