Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1953 (RAJ)

Pankaj Sharma v. Smt. Priyanka Sharma

2017-09-01

PANKAJ BHANDARI

body2017
JUDGMENT : Pankaj Bhandari, J. Petitioner has preferred this revision petition aggrieved by order dated 24.03.2017 passed by Judge Family Court No.1, Jaipur (Raj.) whereby, the petitioner was directed to pay 40% salary to the non-petitioner and additional Rs. 50,000/- were directed to be paid in lump sum. It was further directed that after fixation of pay 40% of arrear also be paid to the non-petitioner. 2. The factual matrix of the case are that non-petitioner earlier to application under Domestic Violence Act filed an application under Section 125 Cr.P.C., 1973 in the year, 2006 which was dismissed as the non-petitioner was employed and maintenance of Rs. 1,500/- per month was given to the daughter in terms of the compromise arrived at in Lok Adalat between the parties on 21.07.2007. The non-petitioner thereafter filed an application under Section 12 of the Domestic Violence Act on 23.09.2009, wherein, the Court below awarded 60% of the gross salary as maintenance. The order passed by the Domestic Violence Court was challenged before the Sessions Court which upheld the order passed by the trial Court. In appeal preferred by the petitioner, the amount was reduced by the High Court to 40% of the gross salary as maintenance to the non-petitioner from the date of the order. The Court in addition mentioned that while doing so proper care to be taken to statutory deduction made from the salary apart from other aspects. Special Leave Petition (SLP) preferred by the respondent stood dismissed by the Apex Court vide order dated 13.07.2015. In a petition filed under Section 125 Cr.P.C, 1973 the Court has awarded 40% of the basic salary as maintenance. 3. It is contended that the dispute pertaining to the maintenance payable to the wife was settled by the High Court and affirmed by the Apex Court and in accordance with the order 40% of the gross salary after statutory deduction is being deducted from the salary of the petitioner and is being credited in the account of the respondent. It is also contended that there was no occasion for the Family Court to have awarded 40% of the gross salary from the date of the filing of the application i.e. 23.07.2008. It is also contended that there was no occasion for awarding lump sum amount of Rs. It is also contended that there was no occasion for the Family Court to have awarded 40% of the gross salary from the date of the filing of the application i.e. 23.07.2008. It is also contended that there was no occasion for awarding lump sum amount of Rs. 50,000/- as the Court is not competent to award any lump sum amount under Section 125 Cr.P.C., 1973 It is also contended that the Court below has further committed perversity in directing that the amount received by the non-petitioner would be adjustable with the amount awarded under Domestic Violence Act. 4. It is contended that the code does not make any provision for adjusting the amount payable under the provision of other acts. It is also contended that there was no justification for awarding the amount from the date of filing of the application and the Court below has not mentioned any reason for awarding amount from the date of filing of the application. 5. Counsels for the non-petitioner have opposed the revision petition. Their contention is that the provisions of Domestic Violence Act are in addition to and not in derogation to the other law and there is no bar under Cr.P.C. that if an order is passed under the Domestic Violence Act, a wife cannot claim maintenance under Section 125 Cr.P.C., 1973. 6. It is contended that the order passed by the Court below is in conformity with the order passed by the High Court as the Court has mentioned that the same is in consonance with the orders passed by the Apex Court. It is also contended that the non petitioner was on temporary employment and when she was terminated, she moved an application under Section 125 Cr.P.C., 1973 and as the non-petitioner remained unemploymed, the Court was justified in directing payment of arrear from 23.07.2008. It is also contended that the petitioner has not complied with the orders of the High Court and the non-petitioner had to apply to the Court and obtain the order for deduction from salary. 7. It is further contended that the amount of Rs. 50,000/- awarded under the Domestic Violence Act was for daughter whereas, the lump sum amount awarded under Section 125 Cr.P.C., 1973 is for the respondent-wife. 7. It is further contended that the amount of Rs. 50,000/- awarded under the Domestic Violence Act was for daughter whereas, the lump sum amount awarded under Section 125 Cr.P.C., 1973 is for the respondent-wife. It is also contended that the non-petitioner is looking after the minor daughter and the amount awarded under Section 125 Cr.P.C., 1973 is not excessive so as to exercise the revisional jurisdiction. 8. I have considered the contentions. 9. It is admitted position that the daughter of the parties is receiving maintenance at the rate of 1,500/- per month which was decided amongst the parties by mutual consent on 21.07.2007 in Lok Adalat. The non-petitioner gave up her claim for maintenance as per agreement between the parties as she was in employment. 10. Section 125 of Cr.P.C., 1973 was enacted to help the women in distress and the proviso to Section 125 Cr.P.C., 1973 enjoined the Courts to dispose of the application as far as possible within 60 days from the date of service of notice. 11. In the present case, the application was filed on 23.07.2008 and has been decided vide impugned order on 24.03.2017. Subsection 2 of Section 125 Cr.P.C., 1973 provides that the maintenance is to be paid from the date of the order, or, if so ordered, from the date of application of maintenance. The Court below has not mentioned as to why the maintenance is being awarded from the date of the application. It is pertinent to note that in the application filed under Section 12 of the Domestic Violence Act, 60% of the gross salary awarded by the Court below was found to be excessive by the High Court and the High Court reduced the same from 60% to 40% of gross salary and awarded the same from the date of the order of the High Court. The Court further directed that while paying 40% of gross salary, proper care should be taken with regard to statutory deduction made from the salary. 12. Section 12 of the Protection of Women From Domestic Violence Act, 2005 deals with the monetary relief which can be granted by the Court. Sub-section 2 of 20 of the Act reads as under:- "The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed." 13. Sub-section 2 of 20 of the Act reads as under:- "The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed." 13. In light of the above provisions, the decision of the High Court awarding 40% of the gross salary should be considered as adequate, fair and reasonable and consistent with the standard of living of the non-petitioner. SLP preferred against the judgment of the High Court was dismissed by the Apex Court and, therefore, the amount awarded under Section 12 has obtained finality. 14. The Court below has committed perversity in sitting over the judgment of the High Court as well as the Apex Court and directing payment of 40% of the gross salary. The Court has however mentioned that the same would be in compliance with the order of the Apex Court but the order does not make any provision for deduction of the statutory deduction while calculating of 40% of the gross salary. 15. On the date when the impugned order was passed, there was already an order in favour of the non-petitioner whereby, the petitioner was to pay 40% of his gross salary less statutory deduction and therefore, there was no occasion for the Court below to pass any order under Section 125 Cr.P.C., 1973. 16. The Court below has further committed perversity in directing that the amount awarded by the Court below would be adjusted with the amount awarded in other proceedings. Section 125 Cr.P.C., 1973 provides that if any person having sufficient means neglects and refuses his wife, unable to maintain herself, the Court can order such person to make a monthly allowance for the maintenance of his wife at such monthly rate as the Court thinks fit. On the date when the impugned order was passed i.e. on 24.03.2017, the non-petitioner was already in receipt of maintenance at monthly rate fixed by the High Court and affirmed by the Apex Court. There was thus no occasion for the Court to have passed a separate order for grant of maintenance. 17. The Court below has further committed perversity in granting maintenance from the date of filing of the application. To my mind, there was no justification and no reason has been assigned for granting maintenance from the date of filing of the application. 18. 17. The Court below has further committed perversity in granting maintenance from the date of filing of the application. To my mind, there was no justification and no reason has been assigned for granting maintenance from the date of filing of the application. 18. The monetary relief granted under Domestic Violence Act is adequate, fair and reasonable and consistent with the standard of living as the same has been fixed by the High Court and affirmed by the Apex Court, there was no occasion to pass separate orders. The impugned order, therefore, deserves to be and is, accordingly, quashed and set aside. 19. Since the amount of Rs. 50,000/- pertains to the medical bill and other bills submitted by the non-petitioner and Sub-Section 2 of Section 125 Cr.P.C., 1973 permits grant of expenses of proceedings, I am not inclined to reduce the same. 20. In view of the above, the revision petition is partly allowed. The impugned order vide which Rs. 50,000/- has been granted as lump sum amount upheld, however, the order awarding 40% of the salary is quashed and set aside. Stay application also stands disposed of. 21. Record of the Court below be returned forthwith.