Maintenance under DV act to be adjusted against maintenance under section 24HMA. DV maintenance not additional 2 HMA maintenance

 

N THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 16 of 2016

With

CRIMINAL REVISION APPLICATION NO. 55 of 2016

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DEVANG MAHENDRABHAI BRAHMBHATT….Applicant(s) Versus

STATE OF GUJARAT & 1….Respondent(s)

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Appearance:

MR MANOJ SHRIMALI, ADVOCATE for the Applicant(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 21/06/2016

ORAL COMMON ORDER
Heard Ld. Advocate Mr. Manoj Shrimali for the husband and Ld. Advocate Mr. RS Bhatt for the wife.
Both, the husband and wife have challenged the same impugned order dated 12/10/2015 passed by the Family Court, Ahmedabad, in Criminal Misc. Application No. 961/2011. By such impugned order, the Family Court has awarded an amount of Rs.10,000/- towards monthly maintenance in favour of the wife.
3 The husband has challenged the order contending that his income is less than Rs.2 lacs per annum and in some years even it is less than Rs.1,50,000/- p.a., as a partner of the partnership firm, where there are five partners. Therefore, it is difficult for him to pay Rs.10,000/- p.m. as maintenance.

3.1 It is further contended that the wife is residing in the flat owned by the husband and husband is residing in rental premises and, therefore, she does not have to spend for residence.

3.2 It is further contended that the husband has to take care of his parents and son, who is studying in Engineering College.

3.3 It is further contended by the husband that the wife has failed to admit and disclose in the proceedings that the Court of Chief Metropolitan Magistrate has already awarded an amount of Rs.8,000/- p.m., towards maintenance under the Domestic Violence Act and that the husband is regularly paying such amount.

3.4 It is also contended that the husband has deposited Rs.2,59,000/- in the name of the wife and she is getting interest on such amount.
4 However, there is no substance in any of the submissions for the simple reason that the husband is earning more than Rs.15,000/- pm and is having good business and properties. So far as interest on the deposit is concerned, since it is with reference to some other transaction and pursuant to some other order passed by the Court in some other proceedings, the same cannot be considered or set off of such interest cannot be given in the present proceedings.
5 However, so far as amount of maintenance awarded by the competent Court under the Domestic Violence Act is concerned, it can certainly be adjusted against total amount to be paid by the husband as maintenance, because while granting maintenance of Rs.8,000/- by order dated 28/8/2015, the Chief Metropolitan Magistrate has already made it clear that husband is entitled to get set off of the amount of maintenance, if any, awarded in any other proceedings and it is also made clear that if maintenance is awarded in other proceedings is more than Rs.8,000/-, then the husband has to pay such enhanced amount of maintenance and thereby it is made clear that wife is not entitled to total Rs.18,000/- p.m., as maintenance as per two different orders in her favour, one under the Domestic Violence Act for Rs.8,000/- and another under the Criminal Procedure Code for Rs.10,000/-. Therefore, it is made clear that the wife is entitled to monthly maintenance of Rs.10,000/- p.m. only and not Rs.18,000/-. Except such clarification, there is no substance or reason to allow the revision application preferred by the husband so as to reduce the amount of maintenance.
6 Whereas, so far as wife is concerned, it is her submission that since husband has admitted that turnover of his business is Rs.5 to Rs.6 lacs and that he is having 45% share in such partnership, he must be earning more than what is stated by him and, therefore, she is claiming more amount of maintenance from the husband. However, the fact remains that rent of the office or salary of the staff, etc., are to be borne by the partnership firm and not by the husband individually and that turnover of the firm is Rs.5 to Rs.6 lacs and thereby it cannot be said that present income of the husband is more than Rs.5 lacs, since there are five partners and his share is 45%. Even if we believe such admission by the husband, then also income of husband would be only around Rs.2,50,000/- p.a., and considering such fact, when Family Court has awarded Rs.10,000/- p.m. as maintenance considering monthly income of the husband between Rs.20,000/- and Rs.25,000/-. In absence of any cogent and reliable evidence that the husband is earning more, I do not see any reason to increase the amount of maintenance.

It is also contended by the wife that the husband is holding huge property and investment and, therefore, she is entitled to more maintenance. However, the fact remains that while awarding maintenance either under the Domestic Violence Act or under the Criminal Procedure Code, the Court has to consider basic requirement of the person and that the amount of maintenance must be adequate so as to permit the wife to reside with dignity and it cannot be equated with the properties of the husband. If anybody desires to get more maintenance, they may explore possibility under the provisions of the Hindu Adoption and Maintenance Act for claiming more maintenance, but so far as the amount of maintenance under the Criminal Procedure Code or Domestic Violence Act is concerned, when the Family Court has considered the evidence before it for awarding proper amount of maintenance, in absence of cogent and reliable evidence to increase the maintenance amount, I do not see any reason to enhance the amount, more particularly in absence of any further facts and circumstances to do so.
8 In view of such facts and circumstances, except clarification recorded hereinabove regarding set off of the amount of maintenance under the Domestic Violence Act, there is no substance in any of the revision applications. Therefore, both the revision applications are dismissed.

(S.G.SHAH, J.)
Pansala

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