Which maintenance will prevail? Maintenance under D.V. act or under section 125 of Cr.P.C?

​Prakash Babulal Dangi v. The State of Maharashtra & Ors.


CRIMINAL WRIT PETITION NO.3791 OF 2016


ALONG WITH


CRIMINAL APPLICATION NO.296 OF 2017



Facts


The petitioner wife had filed a writ petition under Section 125 in 2010, which came to be decided on January 20, 2016. Court had allowed the petition and directed the husband to pay Rs. 6,000 for his wife and Rs. 4,000 for their minor daughter, per month. While this petition under S.125 was pending, a petition under the Domestic Violence Act was filed in 2012 wherein an interim maintenance was sought. This was partly allowed on July 26, 2012 and the husband was directed to pay Rs. 8,000 and Rs. 5,000 to his wife and daughter respectively. While the order of maintenance under the DV Act was pointed out to the Family Court during the proceedings of petition under S.125, Court only recorded that the husband was already paying this amount but it was nowhere mentioned that order of maintenance passed in the proceedings filed under Section 125 of Cr.P.C. will replace the order passed in the proceedings filed under the Domestic Violence Act

Issue


Whether the order of maintenance passed in the proceedings filed under Section 125 of CrPC is to be followed, or, whether the order of maintenance passed in the proceedings filed under Domestic Violence Act, is to be followed?

Contentions


The husband has specifically raised a contention that, as he has paid the amount of maintenance, as awarded under the Domestic Violence Act, he is not liable to pay the amount of maintenance, as awarded under Section 125 of Cr.P.C. In the said Writ Petition, the husband has also produced the receipt of payment of the maintenance awarded under the Domestic Violence Act.

Judgment


Section 20 (1) (d) of the Domestic Violence Act states- ‘In proceedings under the D.V. 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 of Cr.P.C. or any other law for the time being in force.’ 
Section 36 of the said act states- ‘The provisions of the D.V. Act shall be in addition to and not in derogation of the provisions of ny other law for the time being in force.’ Court noted- “Therefore, it follows that the amount of maintenance awarded under the D.V. Act cannot be substituted to the order of maintenance under Section 125 of Cr.P.C.”
Further, Court observed that the husband had filed a criminal revision application against the order of maintenance passed under S.125 and it was dismissed on July 25, 2016. In this application a specific contention was raised that since the applicant husband was already paying maintenance under the Domestic Violence Act, the same under S.125 could not be paid. This contention was flatly rejected by the High Court.
Therefore, Court held that both the orders of maintenance have to be complied with.

(This is submitted by Mayank Singhal, a Law Student)

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