JUDGMENT : 1. Heard learned advocate Mr. Mrudul Barot for the applicant and learned advocate Mr. S. P. Kotia for respondent No.1, whereas learned APP Mr. Manan Mehta for the respondent - State being formal party. Perused the record. 2. The petitioner herein is a wife and minor daughters of respondent No. 1. They have preferred Criminal Miscellaneous Application No. 587 of 2015 before the Family Court, Bhavnagar under section 125 of the Code of Criminal Procedure (for short ‘the Code’) for maintenance. They have also preferred an application at exhibit 4 for interim maintenance, pending trial. The provision for interim maintenance is required because of such situation emerging from the present case, wherein though such application was filed on 08.12.2015, the order of interim maintenance was passed only on 23.11.2016 i.e. almost after a year though such applications are to be decided within 60 days as per the proviso 2 of subsection (1) of Section 125 of the Code. By such impugned order, the Family Court, Bhavnagar has awarded Rs.2000/- towards maintenance of wife and Rs.1000/- for each of the three minor daughters. Thereby total Rs. 5,000/- is to be paid by respondent – husband. However, making it clear that applicant shall be entitled to execute either this order or order of maintenance passed under the Protection of Women from Domestic Violence Act (for short ‘the Domestic Violence Act’) in Application No. 267 of 2015. Thereby, petitioner is not entitled to have both such amounts. It is undisputed fact that under Domestic Violence Act also total award of maintenance is only Rs.5000/- per month and, therefore, by impugned order, practically the family court has awarded nothing. 3. Therefore, petitioners have challenged such order seeking enhancement of an amount of interim maintenance based upon income of the respondent husband contending that respondent husband does not have to shoulder any responsibility except present petitioners and that respondent - husband is earning good amount and he has in fact disclosed his income in his income tax return as Rs. 3,74,357/-, though his real income is much more than the said amount. Since he has invested Rs. 3,74,357/-, though his real income is much more than the said amount. Since he has invested Rs. 55 lacs in plot number D2 in Santosa Greenland at Science City road in Ahmedabad and also invested Rs.32 lacs in plot at Juhapura in Ahmedabad in partnership and that he is owning 2000 gas cylinders, which are rented and he is also having 1000 unofficial cylinders, so also crane of laizure and other business at Alang shipping yard, where he is earning Rs. 1,00,000/- per month. It is also contended in the application before the trial court that respondent husband has invested more than Rs. 1 crore in the immovable properties and also procured a residential property by making payment in the form of two cheques of Rs. 2 lacs each and paid Rs. 9.45 lacs in cash. 4. So far as matrimonial dispute between the parties are concerned, at this stage, I do not wish to discuss all those factual details to determine anything on either side, since it would unnecessarily prejudice the trial before the family court, when it is yet to be completed. It is also contended that uncle of the respondent husband is serving in police department and, therefore, they are threatening the petitioners to vacate the premises where they are staying pursuant to the intervention of the competent authority on their complaint. It is also contended that respondent is having income of Rs. 10 lacs from interest and Rs. 20 to 25 lacs from the business of Oxygen gas and he was also having two wheeler and four wheeler and that all relevant evidence is produced with such application. By further affidavit dated 09.03.2017, petitioners has produced copy of documentary list at exhibit 5 produced before the family court, which confirms that petitioner have produced on record of the family court, the LIC policy, documents regarding sale transactions of immovable properties and income tax returns of 3 years, so also details about the rented cylinders. Petitioners have produced copies of such documents with affidavit, whereby it transpires that for LIC policy respondent husband is paying premium of Rs.1,36,976/- per annum i.e. almost Rs.11,000/- per month. The documents regarding business of cylinder shows that the income from such business is Rs.1,33,560/- whereas, its purchase price is only Rs.86,260/-. Thereby, there is net profit of Rs.40,000/- per month from the business of cylinders. The documents regarding business of cylinder shows that the income from such business is Rs.1,33,560/- whereas, its purchase price is only Rs.86,260/-. Thereby, there is net profit of Rs.40,000/- per month from the business of cylinders. However, for income tax purpose it was brought down to Rs. 25,000/-. Thereby, now it cannot be said that it is less than Rs.25,000/-. Whereas statement regarding rented cylinder confirms that by renting almost 500 cylinders respondent is getting Rs.50,540/- per month. Other documents regarding renting of cylinders from Akshar Air Products is Rs.35,000/- and Rs.40,000/- from Shri Sai Air Products. Thereby, though there is huge income of the respondent, he has disclosed his yearly income as only Rs.3,43,000/- in the year 2012-13, whereas Rs. 3,60,463.- in the year 2013-14 and Rs.3,74,358/- in the year 2014-15. Thereby supporting documents regarding accounts of the business of the respondent, which shows that probably income of the petitioner is much more than what is disclosed in income tax return. However, at this stage, even if we consider income of the respondent, which is filed by him in his income tax return as such, it becomes clear that respondent is earning Rs.30,000/- per month. 5. As against that, if we peruse the impugned order, unfortunately, the Family Court has failed to discuss any of such evidence and by making only one line statement that since is yet to be adduced before the court, considering the order under Domestic Violence Act and considering the requirement of the petitioners and income of the respondent, an amount of Rs. 2000/- for wife and Rs. 1000/- to each child is reasonable amount towards maintenance. Thereby, there is material irregularity which results into illegality in impugned order and, therefore, there is a need to interfere in such order even in the revisional jurisdiction and that too in order of interim maintenance. 6. The respondent - husband has filed written submissions, which runs into 5 pages, wherein it is contended that wife cannot claim the maintenance under both the laws. However, there is no substance in such submission, in as much as, in fact the settled law is quite clear that there may be an order of maintenance in different proceedings since it is under different enactments and thereby consideration of maintenance would be different in different proceedings with only restriction that there cannot be a double payment. However, there is no substance in such submission, in as much as, in fact the settled law is quite clear that there may be an order of maintenance in different proceedings since it is under different enactments and thereby consideration of maintenance would be different in different proceedings with only restriction that there cannot be a double payment. Therefore, practically the order by which amount is awarded towards interim maintenance is not awarded in addition to amount awarded in other proceedings, which is required to be set off against such order. In fact to that extent, the Family Court has taken care of the legal preposition, but while doing so the Family Court has continued an amount of maintenance, which is awarded under the Domestic Violence Act without assigning any reason for arriving at such quantum of maintenance and without taking into consideration the earning of the respondent husband. The respondent has also contended that when order dated 27.04.2016 awarding an amount of Rs.5,000/- to the petitioners is not challenged in appeal by the wife, she is not entitled to claim more maintenance under Section 125 of the Code. There is no substance in such submission also in as much as consideration for awarding maintenance under different statute is different and, therefore, petitioners are entitled to claim maintenance under both the statutes, irrespective of challenging order of maintenance in previous proceedings under different statute. 7. It cannot be ignored that the basic concept of principle of maintenance in different enactments are absolutely different and, therefore, it is obvious when the Honourable Supreme Court has held that maintenance can be claimed under more than one provisions. It is also clear that such claim would be certainly based upon the facts, circumstances and evidence available in favour of the claimant and order of maintenance would be only if there is substance in such facts and evidence by the claimant. To make it more precise, there is material difference so far as right to claim maintenance is concerned in all different provisions viz. To make it more precise, there is material difference so far as right to claim maintenance is concerned in all different provisions viz. u/s.125 of the Cr.P.C. - wherein maintenance is payable when husband neglects to maintain the wife and minor child, who are unable to maintain themselves; u/s.24 of the Hindu Marriage Act - maintenance during pendency of litigation; u/s.26 of the Hindu Marriage Act maintenance is granted in case of divorce between the parties; and Section 18 of the Hindu Adoption and Maintenance Act wherein maintenance is payable when wife has been deserted and when husband is having sufficient properties. Thereby, it is a maintenance based upon the civil dispute between the parties; whereas, under the Domestic Violence Act, Section 20 makes it clear that monetary relief to meet the expenses incurred and losses suffered, may be directed to be paid when aggrieved person suffers such loss as a result of domestic violence. 7.1 It is also clear that consideration for maintenance under all above different provisions are also different in as much as under Section 125 of the Code, the consideration would be the earnings and basic requirement of the claimant for their maintenance and, therefore, initially, there was a sealing of Rs.500/- only which is enhanced and now removed considering the devaluation of money but the basic concept of maintenance under Section 125 of the Code is to provide maintenance to the claimants at the earliest by summary proceedings. Whereas, as aforesaid, maintenance under the Domestic Violence Act is practically in lieu of loss and by way of monitory relief. Whereas, maintenance under Hindu Marriage Act and Hindu Minority and Guardianship Act would be based not solely upon the earnings of the husband but would be based upon the several other issues like status of the parties, properties of the husband etc. 8. So far as minute details about the differences and dispute between the parties are concerned including allegation by the husband that, in fact, wife has left him only when he met with an accident, at this stage, it would be inappropriate to disclose all the details which would unnecessarily prejudice the trial. 8. So far as minute details about the differences and dispute between the parties are concerned including allegation by the husband that, in fact, wife has left him only when he met with an accident, at this stage, it would be inappropriate to disclose all the details which would unnecessarily prejudice the trial. However, the fact remains that when there are differences and dispute between the parties, there is reason for the wife and minor to stay away from the matrimonial house and in that case, they are entitled to maintenance based upon the income of the respondent – husband. 8.1 Respondent - husband is also relying upon the reply at exhibit 14 before the family court which is filed on 12.04.2016 i.e. after 6 months of filing of an application and, therefore, delayed the process of interim maintenance beyond six months. In such reply, respondent has contended that wife is literate and running tuition classes in her flat and capable to maintain herself. However, there is no evidence to support such pleadings and, therefore, it is to be discarded. However, now even the Honourable Supreme Court has held in case of Minakshi Gaur vs. Chitranjan Gaur reported in AIR 2009 SC 1377 that earnings of the wife may not be a sole ground to refuse the maintenance in her favour. Whereas in the present case, it is only pleadings of the husband that she is capable to earn. However, when wife is not earning from decades together, because of three children born by their relationship and who are required to be brought up under the care of their mother, now it does not suit to the husband to claim that she is literate and capable to earn herself and, therefore, he is not liable to pay maintenance. 9. Surprisingly, as usual, like most of the husband in such cases, the present petitioner has also pleaded in his reply that he is not earning, as contended by the wife and that she has to prove his income though he has no option but to admit that he is paying an income tax. However, now because of accidental injuries, he is unable to earn anything. However, now because of accidental injuries, he is unable to earn anything. Though we do not wish to discuss the minute details between the parties, it is worth to record here that there is an admission on the part of the husband that after love marriage between them, when he realised that his family may not accept them, he used to stay with the petitioner in rented flat and he has purchased a flat in the year 2014, which goes to show that he has sufficient income to maintain himself and his wife with three daughters. 10. However, in defence, it is also contended that he was hospitalized for 26 days as indoor patient and treated by the physician and at present, he is unable to do any work. It is also alleged that, when flat was purchased, wife was hard pressing to transfer it to her name, otherwise she will not allow the husband to live peacefully. At present, it seems that wife and daughters are residing at such premises, but overall reading of the written statement confirms that respondent husband has failed to disclose the correct position before the trial Court and, therefore, whatever is produced by the petitioner wife is to be considered, at such interim stage. More particularly, income tax returns which is public documents and cannot be denied by the husband also. 11. Respondent is also relying upon a decision by the learned Single Judge of the Delhi High Court in case of Renu Mittal vs. Anil Mittal in CRL.R.P. No.633 of 2010 with CRL.M.A. 15451 of 2010 wherein, it is observed that it is not necessary for the Court to adjudicate the issue of maintenance under the Domestic Violence Act, if there is one order under Section 125 of the Code. However, those observations and determination has not been confirmed by the Honorable Supreme Court, in as much as, now the law is well settled when the Honourable Supreme Court has made it clear that there may be an order of maintenance in different proceedings under different enactment but with only condition that there may not be any overlapping of an amount of maintenance and, thereby, husband has not to pay all the amount of maintenance under all the statute and order of one statute can be adjusted in other statute. Thereby, husband has to pay higher amount of maintenance under different maintenance and not as per both the orders. 11.1 Respondent husband has also relied upon unreported order dated 20.10.2016 in Special Criminal Application (Quashing) No.7666 of 2016 between Sejalben Tejasbhai Chovatiya vs. State of Gujarat, wherein, the co-ordinate bench has quashed the order regarding filing of complaint regarding forgery. However, when there is no such issue before us, in as much as, in such cited case, wife was getting interest and profit from business which she has failed to disclose in her application to this case. 11.2 The Other judgment on which, reliance is also placed in case of Hemlataben Maheshbhai Chauhan vs. State of Gujarat in Special Criminal Application No. 2080 of 2010 dated 21.10.2010, wherein the co-ordinate bench has dismissed the petition of the wife observing that when order of maintenance under section 125 of the Code attains finality and when wife can seek modification of such order of maintenance under section 127 of the Code, the prayer for interim maintenance in proceedings arising out of the Domestic Violence Act cannot continue. However, the Court has no option but to say that Magistrate shall dispose of the proceedings unmindful of such order, since the Court is concerned with the interim stage in the matter. However, considering the settled legal position as held by the Honourable Supreme Court Renu Mittal (supra) this is not a correct view and, therefore, as held by the Honourable Supreme Court, though there may not be an overlapping of an amount of maintenance, there can be an order of maintenance under all different enactments. To be more precise, it can be said that provisions of Code of Criminal Procedure and the Domestic Violence Act are different in nature for different cause and purpose. Therefore, proceedings under both the statutes are based upon different premise and, different cause and purposes and, therefore, proceedings under both the statute based upon the different premise and, therefore, they are not substitute to each other but they are in addition to each other and, therefore, except for overlapping of amount of maintenance, proceedings under both the enactment are permissible and thereby both the courts are free to pass appropriate orders based upon the facts, circumstances and evidence placed before it and in accordance with law. 12. 12. The petitioner has filed additional rejoinder disclosing that because of cruelty by the respondent – husband upon her and her children, she has also lodged a complaint before Ghogha Road Police Station and produced copy of FIR in support of such her submissions. However, at interim stage, I do not intend to enter into factual dispute so as to avoid prejudice to either side in trial before the Family Court. The petitioner has also produced some other documents to confirm that petitioner is having agency for cylinder and gas business and he was dealing with the cylinder at a time for Rs.6,30,000/-. This leads to the confirmation that petitioner is entitled to interim maintenance. Then only question which remains is regarding quantum of interim maintenance. 13. In view of above, if we referred the cited cases on the subject, it becomes clear that at least in case of Bhushan Kumar Meen v. Mansi Meen reported in (2010) 15 SCC 372 the Apex Court has awarded maintenance of Rs.5000/- only for a wife from the husband who is earning Rs.9000/-. Whereas, in case of Chanmuniya v. Virendra Kumar Singh Kushwaha reported in (2011) 1 SCC 141 , the Honourable Apex Court has confirmed that maintaining the wife, children and parents is a measure of social justice to prevent vagrancy and destitution. However, in case of Chaturbhuj v. Sita Bai reported in (2008) 2 SCC 316 , the Honourable Apex Court has also considered that the deserted wife is unable to maintain herself is to be decided on the basis of material placed on record stating that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. It is further stated that the expression unable to maintain herself does not mean that the wife must be absolutely destituted before she apply for maintenance under Section 125 of the Code of Criminal Procedure. It is also confirmed that the provision is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. 14. It is also confirmed that the provision is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. 14. As already discussed herein above the Family Court has failed to appreciate the material placed before it to consider the earnings of the respondent – husband and, thereby, to award an appropriate amount of maintenance. It is evident form record that petitioner is earning more than Rs.30,000/- per month. Thereby, even if we consider the unit system. Thereby, 7 units out of Rs.30,000/- per unit will be approximately Rs.4,285/-. Thereby, petitioners may be entitled to Rs.20,000/- for 4 human being against 1 human being. Whereas as per standard practice being followed that wife and children are entitled to 1/3rd of the income; Petitioners are certainly entitled to Rs.10,000/- even towards interim maintenance. 15. In view of such facts and circumstances, it would be appropriate to modify the impugned order by increasing the amount of maintenance for each of the applicant in following manner. Rs.4000/- to the petitioner No.1 and Rs.2,000/- each to the petitioner Nos. 2 to 4, i.e. total Rs.10,000/- towards maintenance per month. Thereby, impugned order is modified to the aforesaid extent. Petitioners are entitled for such amount from 08.12.2015. It is made clear that such amount should be adjusted in final order of maintenance after full trial. Revision application is allowed to the aforesaid extent. Direct service is permitted.