Maintenance Allowance Awarded For Wife Adjustable With Monetary Relief Under Domestic Violence Act: Calcutta High Court

  • Shruti Kakkar
  • 07:54 AM, 05 Apr 2021

The Single Bench comprising Justice Bibek Chaudhuri of Calcutta High Court has recently observed that the amount of maintenance that is being paid by husband u/s 125 CrPC is adjustable in a subsequent proceeding u/s 23 of Protection of Women from Domestic Violence Act,2005 ("Act"). 

Hon’ble Supreme Court in unequivocal terms has observed that adjacent maintenance allowance granted in a previous proceeding is permissible in a subsequent proceeding filing even under the different statute but substantially for the same relief.”, the Bench noted. 

Factual Matrix

In the present matter, the wife filed an application u/s 12 r/w S. 23 of the Act praying for monetary relief. The Trial Court granted interim relief monetary at the rate of Rs.3000/- per month to be paid by the petitioner/husband to the opposite party No.1/wife under Section 23 of the Act. On July 6,2018, the petitioner filed an application praying for adjustment of order of interim monetary relief passed in Misc (DV Case No.7 of 2015 by the learned Judicial Magistrate, 3rd Court at Contai with the final order of maintenance of Rs.3000/- per month passed in Misc Case No.204/2014 u/s 125 of the Code of Criminal Procedure by the learned Additional Chief Judicial Magistrate. The said application was rejected on the ground that interim monetary relief granted in favour of the wife/opposite party No.1 cannot be adjusted with final order of maintenance passed in a proceeding under Section 125 of the Code of Criminal Procedure, against the scope of both the above mentioned statute and the relief granted under them are distinct and different. The petitioner filed an appeal against the order dated 10th July, 2018 u/s 29 of the Act which was disposed of by the learned Additional District Judge. Thereafter the petitioner filed a revision petitioner challenging the legality, validity and propriety of the order dated 19th January, 2019.

Reliance was placed on Rajesh v. Neha & Anr. (2021) 2 SCC 324 in which it was observed that, 

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 D.V Act and Section 125 of the CrPC, or under H.M.A. 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.

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 concerned court in the previous proceeding.”

The Court thus allowed the revision application on contest without cost.

Case Title: Partha Sakha Maity v. Bijali Maity & Anr. | CRR 1094 of 2019