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2023 DIGILAW 483 (GUJ)

Bhargavpuri Hempuri Gosai v. State of Gujarat

2023-03-17

GITA GOPI

body2023
ORDER : 1. Heard Mr. Maulik Shelat for the applicants and learned APP for the respondent-State. 2. Challenge in this revision application is given to the judgment and order below Ex.5 dated 26.04.2022 passed by learned Chief Judicial Magistrate, Jam-Khambhaliya in Criminal Misc. Application No. 6 of 2019, reaffirmed by the judgment and order dated 21.12.2022 passed by the District and Session Court, Devbhumi-Dwarka in Criminal Appeal No. 20 of 2022. 3. Mr. Maulik Shelat, learned advocate for the applicant submits that the order passed by the Courts below have committed jurisdictional error by not giving setoff, to adjust amount of maintenance already granted to the respondent no. 2-wife in her application filed under Section 125 of the Criminal Procedure Code. 3.1 Advocate Mr. Shelat submitted that the learned Courts below have materially erred in not considering the already awarded maintenance of Rs.5,500/- in favour of the original applicant and further submitted that the learned Appellate Court has erroneously observed that the applicants can file application under Section 25(2) of the Protection of Women From Domestic Violence Act, 2005 (For short D.V. Act), since Mr. Shelat submitted that it cannot be adopted as there is no change in circumstances after passing of the order by learned trial Court. 3.2 Advocate Mr. Shelat submitted that Section 25 of the D.V. Act speaks of an order under Section 18 of the D.V. Act, which is not impugned. 3.3 Advocate Mr. Shelat has referred to the decisions in the case of Rajnesh vs. Neha and Another, (2021) 2 SCC 324 and Sudeep Chaudhary vs. Radha Chaudhary, AIR 1999 SC 536 and submitted that the applicant’s wife had not disclosed the maintenance amount granted under Section 125 of the Cr.P.C. and willful suppression has led to travesty of the justice, since the very act of the claimant itself would disentitle the applicant’s wife to claim any interim maintenance amount. 3.4 In the case of Sudeep (supra), the appellate Court has observed that the amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and it has been further observed that the claims of the husband and wife are to be balanced. 3.4 In the case of Sudeep (supra), the appellate Court has observed that the amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and it has been further observed that the claims of the husband and wife are to be balanced. While in the case of Rajnesh (supra), it has been observed that the remedy of the maintenance in both secular laws and personal laws may not be overlapping and simultaneous operation of statutes would lead to multiplicity of proceedings and conflicting order. Thus, in the case of Rajnesh (supra) certain guidelines have been framed under Article 142 of the Constitution of India, laying down the uniform and consistent standard and for ensuring timely disposal of the applications seeking maintenance under all the applicable statutes. In the said judgment, it has been laid down that though the wife can simultaneously claim maintenance under the different enactments, it would be inequitable to direct the husband to pay the maintenance awarded in each of the said proceedings. 3.5. The Hon’ble Apex Court has observed that the adjustment is permissible and the adjustment can be allowed of the lower amount against the higher amount. The Court, therefore, would take into consideration the maintenance already awarded in the previous proceedings, and grant an adjustment or setoff of the said amount. 4. Advocate Mr. Shelat, having referred to Section 26(3) of the D.V. Act submitted, that in case any relief has been obtained by the aggrieved person in any proceedings other than in a proceeding under this Act, she is bound to inform the Magistrate of the grant of such relief. On that basis, he submits that no relief ought to have been granted to aggrieved, since she had not disclosed the fact of maintenance amount granted under Section 125 of the Cr.P.C. 5. The order, which is impugned is the proceedings, under Section 23 of the Protection of Women from Domestic Violence Act, 2005. On that basis, he submits that no relief ought to have been granted to aggrieved, since she had not disclosed the fact of maintenance amount granted under Section 125 of the Cr.P.C. 5. The order, which is impugned is the proceedings, under Section 23 of the Protection of Women from Domestic Violence Act, 2005. 5.1 Section 23 of sub-section (2) lays down that if the Magistrate is satisfied, that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, the Magistrate may grant ex-parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21, or, as the case may be, section 22 against the respondent. 6. Here, in this case, the order, which has been passed at Ex.5 in Criminal Misc. Application 6 of 2018, is not an ex-parte order and it has been passed after hearing the Advocates of both the sides. The prayer was made for relief to be granted under Sections 18(c), 19 and 20 of the D.V. Act, for monthly maintenance of Rs. 5,000/- for the applicant no. 1, and Rs. 1,500/- for the applicant nos.2 and 3, respectively. Thus, the total amount of Rs. 8,000/- per month, towards maintenance, medical expenses was prayed as interim order. It appears that there was no ex-parte order. It appears from the order that, after appearance of respondent, through the advocate on record, has replied to the interim application filed at Exh.29, raising his dispute, contending that the relief would not fall within the purview of Section 19 of the D.V. Act and that, there had been an order of Rs.5,500/-, for maintenance, which he had been paying regularly, thus, contended that there has been no reasonable cause to file the application. 7. Advocate Mr. Shelat submitted that the learned Tribunal had not considered that the respondent was paying Rs. 5,500/- regularly as a maintenance, and no set-off has been given in the order. Vide order dated 13.03.2018, the learned Family Court Judge had ordered to pay Rs. 5,500/- as a maintenance. Accordingly, the learned Chief Judicial Magistrate, while passing an order of paying the maintenance of Rs. 1,500/- to applicant no. 1 and Rs. 5,500/- regularly as a maintenance, and no set-off has been given in the order. Vide order dated 13.03.2018, the learned Family Court Judge had ordered to pay Rs. 5,500/- as a maintenance. Accordingly, the learned Chief Judicial Magistrate, while passing an order of paying the maintenance of Rs. 1,500/- to applicant no. 1 and Rs. 1,000/- for applicant no. 2 & 3 under the D.V. Act, had observed that both laws are different, and merely because of an order of maintenance under Criminal Procedure Code, has been passed, the law does not state that no order can be passed under the D.V. Act. 8. There have been two fold submissions made by Advocate Mr. Shelat, firstly, the applicant-wife has suppressed the facts of the maintenance order, which has been passed under Section 125 of the Cr.P.C. Such fact was brought to the notice of the Court only by the respondent-husband and secondly, the Court has not given any set-off to the maintenance amount. 9. In view of the above submission, since the order which has been passed is not an ex-parte order, but an interim order passed after hearing of both the sides, thus, the order is under Section 23(1) of the D.V. Act. The learned Judicial Magistrate has taken into consideration the order of maintenance passed under Section 125 of the Cr.P.C of Rs.5,500/- for three applicants. Accordingly, this Court considers that just and reasonable amount has been granted under the D.V. Act. The submission has been made that no set-off has been given, the argument, does not satisfy the observation as made in the order, the learned Judicial Magistrate, has after considering the order of maintenance passed under Section 125 of the Cr.P.C. has granted amount to the applicants. 10. Advocate Mr. Shelat has taken objection to the observations made by the appellate Court where the Appellate Court rejecting the appeal has observed that if the appellant has any objection, then he could move application under Section 25(2) of the D.V. Act satisfying the Court about the change of circumstances, requiring any alteration, modification or revocation of the order. 11. The order is not made under Section 23(2) of the D.V. Act, Form-III under Rule 6(4) & 7 would apply, and details, would be required to be disclosed in accordance to Form-III. 12. Advocate Mr. 11. The order is not made under Section 23(2) of the D.V. Act, Form-III under Rule 6(4) & 7 would apply, and details, would be required to be disclosed in accordance to Form-III. 12. Advocate Mr. Shelat made specific reference of Section 26(3) of the D.V. Act, to state that the aggrieved was bound to inform the Magistrate of the grant of relief under section 125 of the Cr.P.C. 13. Here, in this case, the respondent was served with the notice of the Court, had an ex-parte order be made in favour of the aggrieved, then nondisclosure about the order of maintenance under Section 125 of the Cr.P.C. would have to be viewed seriously. Generally when the proceedings are initiated under the D.V. Act, it would be informed under the Domestic incident report and the details would be dealt with according to the requirement of the form. Here, the grievance has been raised that the aggrieved had not disclosed the fact of the order of under Section 125 of the Cr.P.C. It is to be noted that the prayer made under Section 23 of the D.V. Act, is interim relief, further, the respondent himself had disclosed about the order of maintenance under section 125 of the Act, which was prior to the order passed below Ex.5 impugned. Thus, at this juncture, it cannot be assumed that the aggrieved has obtained any relief without informing the Court about the earlier orders. 14. In view of the above, this Court does not find any merit to entertain the present application. Hence, the present application stands rejected.