Can a wife claim maintenance under S. 125, CrPC after obtaining a maintenance order in her favour under DV Act? Bombay HC answers

   

Bombay High Court: In a case where simultaneous maintenance claims were under different enactments, S.G. Mehare, J., held that mere obtaining of a maintenance order under the Protection of Women from Domestic Violence Act, 2005 (DV Act), will not disentitle the wife from seeking maintenance under Section 125, CrPC.

The petitioner-wife has impugned the order of the Family Court refusing to grant her maintenance under S. 125, CrPC on the sole ground that the maintenance was already granted to her under the provisions of the DV Act. The Family Court held that there was no need to grant maintenance merely because the petition was filed under different enactment.

Hence, the question for determination before the Court was whether maintenance can be granted under the DV Act and Section 125, CrPC simultaneously.

The Court noted that the object of the DV Act is to provide a minimum relief to the aggrieved person extending the emergent help of the Court orders to provide, protection from violence, immediate assistance for residents, medications, and fooding. Considering that Section 36 of the DV Act provides that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force, the Court observed that the DV Act does not affect the rights of the parties conferred under the existing laws.

In Prakash Babulal Dangi v. State of Maharashtra, 2017 SCC OnLine Bom 8897, the Bombay High Court had held that maintenance could be awarded both under the DV Act as well as under Section 125 CrPC, provided the parties seeking similar relief specifically mention any such order in her/his favour passed by any other competent Court of law. Similarly, in Sanjay v. Swati, 2005 SCC OnLine Bom 620 and Vishal v. Aparna, 2018 SCC OnLine Bom 1207, the Bombay High Court had observed that 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.

The Supreme Court in Shome Nikhil Danani v. Tanya Banon Danani SLA (Crl.) No(s).6005 of 2019, has also taken the view that mere passing of an order under Section 125, CrPC did not preclude the respondent from seeking appropriate reliefs under the DV Act.

Relying on the aforesaid pronouncements, the Court held that prima facie the impugned order was erroneous, illegal, and improper; hence, liable to be set aside.

However, considering the stand of the respondent-husband that the petitioner had resided with him for 45 days only and the Family Court had erroneously recorded the finding that he had refused and neglected to maintain her, the Court opined that the matter needed to be remitted to the Family Court for fresh disposal. Hence, the Family Court was directed to make a fresh decision after granting both parties an opportunity to contest on merit.

[Bhagyashree v. Purshottam, 2022 SCC OnLine Bom 6583, decided on 23-11-2022]


Advocates who appeared in this case :

Navandar Mehul Vikas, Advocate for the Applicant;

Suresh S. Pidgewar h/f N.L. Chaudhari, Advocate for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

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