Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 688 (MP)

Sheikh Nisar v. Sanjeeda Sheikh

2019-09-24

MOHD.FAHIM ANWAR

body2019
ORDER 1. This criminal revision under section 397/401 of Cr.P.C., has been filed against the common judgment dated 14.12.2018 delivered in Criminal Appeal No. 137/2017 filed by respondent and Criminal Appeal No. 147/2017 filed by petitioner, by learned First Additional Sessions Judge, Nasrullaganj, District Sehore, affirming the order dated 25.4.2017 delivered in MJC No. 9/2015 by Judicial Magistrate First Class, Nasrullaganj, District Sehore. 2. The facts of the case in brief are that, the marriage of the petitioner and respondent was solemnized on 27.4.2010. Two children were born out of their wedlock. It is alleged that after one year of marriage, the behaviour of respondent/wife with her husband and old mother of petitioner was not cordial. She always used to go to her parental house and did not cooperate in household work. The petitioner always went to her parental house to bring her back, but she always remained reluctant to come back. In the month of August 2013, she on her own will went to her parental house. The petitioner and his relatives had gone to bring her back, but she did not come. Under such circumstances, the applicant on 28.10.2013 has filed an application before the Pariwar Paramarsh Kendra, Hoshangabad, in which on 27.11.2013 the Adviser of said Kendra had settled their dispute by compromise and respondent came back to reside with the petitioner, but did not stay happily for more than about two months and forced the petitioner to leave her at her parental house. The petitioner left her to her parental house and when again he tried to bring her back, she refused. On 1.11.2014, again an application was filed by the petitioner before the Pariwar Paramarsh Kendra, Hoshangabad for restitution of conjugal rights, but even after notice the respondent did not appear and on the contrary the respondent filed an application for grant of maintenance. 3. In that application under section 125 of Cr.P.C., by an order dated 7.11.2015 the learned JMFC Nasrullahganj has granted interim maintenanzce @ Rs. 1,000/- per month to respondent/wife and Rs. 2,000/- each per month to both the children, totalling Rs. 5,000/- per month. Thereafter, on 26.3.2015 the respondent/wife had filed an application under section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘DV Act’ for short) against the petitioner, which was registered as M.J.C.No. 9/2005. 1,000/- per month to respondent/wife and Rs. 2,000/- each per month to both the children, totalling Rs. 5,000/- per month. Thereafter, on 26.3.2015 the respondent/wife had filed an application under section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘DV Act’ for short) against the petitioner, which was registered as M.J.C.No. 9/2005. The learned JMFC Nasrullahganj, District Sehore by order dated 25.4.2017 has partly allowed the application and directed the petitioner to make payment of Rs. 2,000/- per month to respondent/wife and Rs.3,000/- per month to children, totalling Rs. 5,000/- per month and also to return the articles given in marriage. Being aggrieved by the impugned order dated 25.4.2017, appeal was filed by petitioner/husband as well as respondent/wife before the Sessions Judge. The learned Additional Sessions Judge, Nasrullahganj, District Sehore after considering both the appeals rejected the appeals by order dated 14.12.2018. Being aggrieved by the order, this revision has been filed by the petitioner. 4. Learned counsel for the petitioner submitted that the order passed by the Courts below are not tenable in the eye of law, therefore the same deserves to be set aside. It is further submitted that the respondent has received the amount of Mehar & maintenance of Iddat period and marriage between them has dissolved. Now they are not living as husband and wife. After divorce the petitioner/husband has solemnized second marriage and from second wife he is having one son. Hence, the petitioner has liability of second wife and son also. It is further submitted that since year 2013 the respondent was residing separately from the petitioner in her parental house, while the application under section 12 of DV Act has been filed in the year 2015, under these circumstances, the allegation of domestic violence does not arise as the respondent/wife was residing separately at that point of time when the application was filed. It is further submitted that under section 125 of Cr.P.C., the learned JMFC, Nasrullahganj has awarded interim maintenance of Rs. 5,000/- per month to respondent and in compliance of the order she has accepted the amount of Mehar and maintenance of Iddat period. Thereafter, in the application filed under section 12 of DV Act, an amount of Rs. 5,000/- per month has been awarded, while the petitioner is already paying Rs. 5,000/- as interim maintenance. 5,000/- per month to respondent and in compliance of the order she has accepted the amount of Mehar and maintenance of Iddat period. Thereafter, in the application filed under section 12 of DV Act, an amount of Rs. 5,000/- per month has been awarded, while the petitioner is already paying Rs. 5,000/- as interim maintenance. Hence two orders of maintenance are not sustainable under law. It is further submitted that the petitioner is a low salaried employee, therefore he is unable to bear the amount of maintenance. Contending aforesaid, it is prayed that the impugned judgment dated 14.12.2018 and order dated 25.4.2017 be set aside by allowing this revision. Petitioner has relied upon an order passed by a Coordinate Bench of this Court on 7.8.2018 in the case of Yusuf Khan v. Smt. Kishwar Jahan in M.Cr.C.No. 11995/2017. 5. Learned counsel for the respondent has submitted that there is no error in the order passed by the Court below in granting the interim maintenance and also the amount awarded under section 12 of DV Act. In support of the contention he has placed reliance to a judgment of Bombay High Court in the case of Prakash Babulal Dangi v. State of Maharashtra (Criminal Writ Petition No. 3791 of 2016) and a judgment of Delhi High Court in the case of Shome Nikhil Danani v. Tanya Banon Danani (Crl. Rev. Pet.994/2018) and submits that there is no merit in this revision, hence the same be dismissed. 6. It is pertinent to note that the petitioner/husband is working as Assistant Teacher and his income was found to be around Rs. 15,000/- per month by the learned Court below. Therefore, the petitioner was directed to pay interim maintenance @ Rs. 1,000/- per month to respondent/wife, Rs. 2,000/- each per month to both the children, total Rs. 5,000/- per month under section 125 of Cr.P.C. Thereafter, the Court below also directed petitioner to pay Rs. 3,000/- per month to the daughter and Rs. 2,000/- to the wife, total Rs. 5,000/- per month in the case filed under section 12 of DV Act. Against this order, the petitioner as well as respondent filed appeals, which were dismissed by the impugned order. 7. 3,000/- per month to the daughter and Rs. 2,000/- to the wife, total Rs. 5,000/- per month in the case filed under section 12 of DV Act. Against this order, the petitioner as well as respondent filed appeals, which were dismissed by the impugned order. 7. The Delhi High Court in the case of Shome Nikhil Danani (supra) has held that the proceedings under the DV Act and under section 125 of Cr.P.C., are independent of each other and have different scope, though there is an overlap. So far as the overlap is concerned, the law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance under DV Act, maintenance fixed under section 125 Cr.P.C., shall be taken into account. The Apex Court in the case of Juveria Abdul Majid Khan Patni v. Atif Iqbal Masoori [ (2014) 10 SCC 736 ] has held that monetary relief under section 20 of DV Act is in addition to maintenance under section 125 Cr.P.C. 8. In the light of different judgments of Coordinate Bench of this High Court, High Court of Judicature of Bombay Prakash Babulal Dangi (supra), High Court of Delhi at New Delhi Shome Nikhil Danani (supra) and also Hon’ble Apex Court in Juveria Abdul Majid Khan Patni (supra), the settled position of law appears to be that monetary relief as stipulated under DV Act is different from maintenance, which can be in addition to an order of maintenance under section 125 Cr.P.C., or any other law, but it is also held that although there is an overlap, which means that while deciding maintenance under any of the Act, the maintenance or compensation already directed to be paid under one of the Act is considerable, while deciding the liability under the other Act. 9. In the instant case, the income of petitioner/husband is found to be Rs. 15,000/- per month. Undisputedly after divorcing the respondent/wife he has married with some other lady, out of marriage he is also having one son. Therefore, I am of the considered opinion that it will be most cumbersome for the petitioner/husband to pay the maintenance/compensation amount in both the cases. The interim maintenance under section 125 of Cr.P.C., which is directed to be paid is already going to be deducted from his salary and depositing in the account of respondent/wife. Therefore, I am of the considered opinion that it will be most cumbersome for the petitioner/husband to pay the maintenance/compensation amount in both the cases. The interim maintenance under section 125 of Cr.P.C., which is directed to be paid is already going to be deducted from his salary and depositing in the account of respondent/wife. In this situation, additional maintenance/compensation, which is directed to be paid to the respondent/wife under the DV Act is not required to be paid till respondent/wife is getting the interim maintenance in the case filed under section 125 of Cr.P.C. If any change takes place at the time of decision of final disposal of aforesaid application, while it is finally decided or in the income of petitioner/husband then the respondent/wife may proceed for enhancement of amount of maintenance under section 127 of Cr.P.C., till then maintenance/compensation which is awarded to the respondent/wife under the DV Act deserves to quashed. 10. Accordingly, this revision is allowed. The order passed in MJC.No. 9/2005 dated 25.4.2017 by which maintenance/compensation of Rs.5,000/- per month was directed to be paid to respondent/wife, is hereby quashed. Consequently, the common judgment dated 14.12.2018 passed in appeal No.137/2017 and No.147/2017 is set aside.