Research › Search › Judgment

Bombay High Court · body

2022 DIGILAW 1473 (BOM)

Pradip v. Jyoti

2022-06-13

MANISH PITALE

body2022
JUDGMENT 1. Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel for rival parties. 2. By this Petition, Petitioner has challenged the order dtd. 8/9/2016 passed by the court of 3rd Joint Civil Judge Senior Division, Akola, whereby the Petitioner has been directed to pay interim maintenance of Rs.2500.00 per month to the Respondent - wife from the date of application and also to pay an amount of Rs.8000.00 to the Respondent - wife towards overall expenses of the proceedings. The Petitioner has also challenged the order dtd. 7/3/2018 passed below the application (Exh.19) filed by the Petitioner, wherein he had prayed that an earlier order passed by the court of Judicial Magistrate First Class, Patur towards interim maintenance under Sec. 125 of the Code of Criminal Procedure ought to have been taken into consideration while passing impugned order dtd. 8/9/2016. According to the Petitioner, earlier order passed by the learned Magistrate ought to have been taken into consideration while passing the impugned order, and therefore, interference is warranted in the present Petition. 3. While issuing notice on 4/5/2018, this Court granted stay to the direction to pay Rs.2500.00 per month, subject to the Petitioner continuing to pay amount of Rs.3000.00 per month as directed by the learned Magistrate and also subject to paying amount of Rs.8000.00 to the Respondent - wife towards expenses as directed in the impugned order dtd. 8/9/2016, passed below Exhibit-11. 4. Mr. Ghuge, learned Counsel for the Petitioner submitted that when the impugned order dtd. 8/9/2016 was passed by the court below, earlier order dtd. 24/6/2016 passed by the learned Magistrate could not be brought to the notice of the court. It is for this reason that the application (Exh.19) was moved, but the same was rejected by the impugned order dtd. 7/3/2018. It is submitted that perusal of the impugned order dtd. 7/3/2018 would show that the court below rejected the application by relying upon the Judgment of this Court in Writ Petition No. 3791/2016 (Prakash Babulal Dangi V/s State of Maharashtra and Another). The learned Counsel emphasised upon the fact that the said Judgment of this Court was subsequently stayed by the Hon'ble Apex Court vide order dtd. 10/1/2018 in Special Leave to Appeal (Cri.) Nos.10280-10281/2017. 5. The learned Counsel emphasised upon the fact that the said Judgment of this Court was subsequently stayed by the Hon'ble Apex Court vide order dtd. 10/1/2018 in Special Leave to Appeal (Cri.) Nos.10280-10281/2017. 5. It was further submitted that the question as to whether orders claiming maintenance passed under different statutes having overlapping jurisdiction are to be taken into consideration or not is no more res integra, because in the Judgment of Hon'ble Supreme Court in the case of Rajnesh V/s Neha and Another, (2021) 2 Supreme Court Cases 324 it has specifically held that earlier orders of maintenance passed in overlapping jurisdictions have to be taken into consideration, so that appropriate orders can be passed subsequently, concerning the question of granting interim maintenance/maintenance. On this basis, it is submitted that in the present case, the Writ Petition may be allowed. 6. Per contra, Mr. Bhise, the learned Counsel for Respondent - wife submitted that considering the meagre amounts granted by the Magistrate as well as the court below, it would be appropriate not to interfere with the impugned order. Placing reliance on the Judgment of the Hon'ble Supreme Court in Manish Jain V/s Akanksha Jain , (2017) 15 Supreme Court Cases 801. it is contended that the quantum of maintenance would include the expenses being incurred by the Respondent - wife in attending the legal proceedings initiated by the Petitioner - husband, particularly because, the Respondent is required to travel from another place to the place where the legal proceedings have been initiated by the Petitioner - husband. On this basis, it was submitted that Writ Petition deserves to be dismissed. 7. Considered rival contentions and perused the documents placed on record. 8. The learned Counsel for Petitioner is justified in contending that the question raised in the present Petition is settled by the Hon'ble Supreme Court in the case of Rajnesh V/s Neha (cited supra). This Court finds that the relevant portion of the said Judgment which covers the point in favour of the Petitioner reads as follows : "3. Directions on overlapping jurisdictions 60. 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 DV Act and Sec. 125 of Cr.P.C., or under HMA. Directions on overlapping jurisdictions 60. 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 DV Act and Sec. 125 of Cr.P.C., or under HMA. 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. 61. 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 court concerned in the previous proceeding." 9. As per the said position of law, it is clear that the order passed in previous proceedings in overlapping jurisdiction concerning grant of maintenance ought to be taken into consideration while passing subsequent orders, and if necessary, the orders passed in previous proceedings need to be modified or varied. The said position of law demonstrates that the emphasis placed on the Judgment of this Court in the case of Prakash Babulal Dangi V/s The State of Maharashtra & Anr. in Criminal Writ Petition No.3791 of 2016, by the court below while passing the impugned order dtd. 7/3/2018, was not justified. Insofar as the impugned order dtd. 8/9/2016 is concerned, since the court below was not aware about the earlier order dtd. 24/6/2016, passed by the learned Magistrate, strictly speaking, no error can be attributed to the order of the court below. But, in view of the above facts and circumstances, particularly the subsequent judgment of the Hon'ble Supreme Court in Rajnesh V/s Neha (supra), the order dtd. 24/6/2016, passed by the learned Magistrate, strictly speaking, no error can be attributed to the order of the court below. But, in view of the above facts and circumstances, particularly the subsequent judgment of the Hon'ble Supreme Court in Rajnesh V/s Neha (supra), the order dtd. 8/9/2016 deserves to be modified in an appropriate manner. 10. This Court has considered the impugned order and it is found that the direction to pay Rs.2500.00 as maintenance to the Respondent - wife, cannot be said to be an exorbitant amount. The court below has also taken care of the litigation expenses that the Respondent - wife is required to incur and accordingly direction has been given to pay the amount of Rs.8000.00 to the Respondent - wife towards expenses. Hence, it is clear that reliance placed on judgment in Manish Jain V/s Akanksha Jain (supra) is misplaced. Therefore, on merits the order does not deserve interference. 11. In view of the aforesaid position of law clarified by the Hon'ble Supreme Court, this Court is of the opinion that the order dtd. 8/9/2016 passed by the 3rd Joint Civil Judge Senior Division, Akola below Exh.11 needs to be taken into consideration for appropriate modification. Perusal to the order dtd. 24/6/2016 passed by the Judicial Magistrate First Class, Patur shows that direction has been given to the Petitioner to pay interim maintenance of Rs.1500.00 per month each to the Respondent - wife and the minor son. Therefore, it is clear that insofar as the Respondent - wife is concerned, only an amount of Rs.1500.00 is directed to be paid as interim maintenance. Since the direction in the impugned order passed by the court below to pay Rs.2500.00 per month to the Respondent - wife as interim maintenance under Sec. 24 of the Hindu Marriage Act is confirmed by this Court, the earlier order of the learned Magistrate needs to be taken into consideration for suitable modification of the order dtd. 8/9/2016. 12. Upon adjusting the amount of interim maintenance of Rs.1500.00 granted by the learned Magistrate in favour of the Respondent - wife under the impugned order dtd. 8/9/2016, the Petitioner is found to be liable to pay Rs.1000.00 from the date of application moved under Sec. 24 of the Hindu Marriage Act. 8/9/2016. 12. Upon adjusting the amount of interim maintenance of Rs.1500.00 granted by the learned Magistrate in favour of the Respondent - wife under the impugned order dtd. 8/9/2016, the Petitioner is found to be liable to pay Rs.1000.00 from the date of application moved under Sec. 24 of the Hindu Marriage Act. The record shows that the application was moved on 29/7/2015, therefore, the impugned order deserves to be modified and appropriate directions are required to be given to the Petitioner. It is recorded that insofar as the amount of Rs.8000.00 towards legal expenses is concerned, the Petitioner states that he has already paid the said amount to the Respondent. 13. In view of above, the Writ Petition is disposed of as follows : (i) In view of law clarified by the Hon'ble Supreme Court in the case of Rajnesh V/s Neha (cited supra), the impugned order dtd. 7/3/2018 is hereby quashed and set aside. (ii) In view of the aforesaid position of law, the impugned order dtd. 8/9/2016, is modified to hold that the Petitioner is liable to pay an amount of Rs.1000.00 per month towards interim maintenance to the Respondent - wife from the date of application i.e. from 29/7/2015 moved by the Respondent under Sec. 24 of the Hindu Marriage Act. (iii) The arrears of the said amount till June-2022 shall be paid by the Petitioner to the Respondent within a period of two months from today. (iv) The Petitioner shall start paying amount of Rs.4000.00 per month from July-2022 onwards (i.e. Rs.3000.00 per month to the Respondent and the minor son as per the order dtd. 24/6/2016 passed by the learned Magistrate + Rs.1000.00 per month to the Respondent as per the impugned order upon modification of the same as directed herein above). (v) The said amount shall be paid before the fifth day of each month. 14. Writ Petition stands disposed of in above terms. 15. Needless to say, the Respondent - wife shall be at liberty to move appropriate proceedings for enhancement of interim maintenance, which shall be decided in accordance with law. 16. Rule is made absolute in above terms. No order as to costs.