Wife cannot claim CrPC 125 maintenance on the SAME SET of facts already used in a DV maintenance case! CrPC 125 Quashed – Madras HC

However, when the aggrieved person has invoked the provisions of Section 125 Cr.P.C., on a set of cause of action or refusal to maintain, it would not be permissible for her to invoke Section 20 of the Domestic Violence Act for the same cause of action, pleading that she had incurred expenses and losses owing to these same acts of domestic violence and thereby claim additional maintenance. The language deployed under Section 20(1)(d) is only for the purpose of enabling the aggrieved person to seek for maintenance when there has been further acts of domestic violence, pursuant to an order passed under Section 125 Cr.P.C., whereby she incurs expenses or losses as a result of the domestic violence. It is with this object that Section 20(1) of the Domestic Violence Act has been enacted and by no stretch of imagination can it be said that a wife can simultaneously claim maintenance before two forums, on the same set of cause of actions, under the Code of Criminal Procedure Code as well as the Domestic Violence Act. Such parallel and simultaneous proceedings would not only be illegal but also would amount to an abuse of process of law.

8.The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above. Even otherwise, there is no provision under the Code of Criminal Procedure empowering the Magistrate to order for maintenance under Section 125 Cr.P.C., when it is brought to his notice that an order for maintenance has already been granted under Domestic Violence Act or any other enactments. If both the Courts are permitted to adjudicate the claim made by the respondent/wife and in case, an order is passed granting maintenance in both the cases, there would be gross miscarriage of justice and the petitioner would be put to serious prejudice. Hence, it would be impediment that the subsequent proceedings initiated by the respondent herein under the provisions of Section 125 Cr.P.C., requires to be quashed.

Wife cannot claim CrPC 125 maintenance on the SAME SET of facts already used in a DV maintenance case! Madras HC

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on :       07.03.2018

Date of Verdict :     26.06.2018

CORAM THE HONOURABLE MR.JUSTICE M.S.RAMESH

Crl.O.P.Nos.27507 & 10089 of 2017 and Crl.M.P.Nos.6680 & 6681 of 2017

S.Suriya Devi  …Petitioner in Crl.O.P.27507/2017 & Respondent in Crl.O.P.10089/2017

V.

Thilip Kumar …Respondent in Crl.O.P.27507/2017 & Petitioner in Crl.O.P.10089/2017

Prayer in Crl.O.P.No.27507/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to direct the Family Court, Coimbatore to dispose the petition in M.C.No.38 of 2017 expeditiously pending on the file of the Family Court, Coimbatore within time frame as fixed by this Court.

Prayer in Crl.O.P.No.10089/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to quash the proceedings in M.C.No.38 of 2017 on the file of the Additional Family Court, Coimbatore.

For Petitioner in Crl.OP.27507/2017 : Ms.V.S.Usha Rani & Respondent in Crl.OP.10089/2017

For Petitioner in Crl.OP.10089/2017 : Mr.R.Baskar & Respondent in Crl.OP.27507/2017

C O M M O N O R D E R

While the husband had filed the petition in Crl.O.P.No.10089 of 2017 seeking for quashing the maintenance case in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore preferred by the respondent/wife, Crl.O.P.No.27507 of 2017 has been filed by the wife seeking for an expeditious disposal of her petition in MC.No.38 of 2017.

2.Heard Ms.V.S.Usha Rani, learned counsel for the wife and Mr.R.Baskar, learned counsel for the husband.

3.For the sake of convenience, the facts revealed in Crl.O.P.No.10089 of 2017 is being addressed to. The marriage between the petitioner and the respondent herein was performed on 25.05.2014. After brief stay together for less than two months, both the parties had separated. According to the petitioner, the respondent had left the matrimonial house on 13.07.2014. During their estranged relationship, the petitioner herein left the country on 14.02.2015 in connection with his employment.

4.It is in connection with the estranged relationship, the respondent herein had filed a complaint under the Protection of Women from Domestic Violence Act, 2000 in DVA.No.27 of 2016 seeking for various reliefs including the relief of monthly maintenance, in which the respondent’s husband and in-laws were made as party respondents. On receipt of summons in the domestic violence case for the complaint dated 25.05.2016, the petitioner/husband herein moved a quash petition in Crl.O.P.No.2972 of 2017, which is pending against the petitioner herein.

5.But, would the aggrieved person be entitled to claim maintenance simultaneously under the provisions of Code of Criminal Procedure Code as well as Domestic Violence Act for the same cause of action? The scheme of Domestic Violence Act is to provide for an effective protection of the lives of women guaranteed under the Constitution, who are the victims of violence of any kind occurring within the Family for incidental matters. Section 125 Cr.P.C., empowers the Magistrate to order for maintenance when it is established that the person having sufficient means, neglects or refuses to maintain his wife. Whenever such an order of maintenance is passed under Section 125 Cr.P.C., and in the given circumstances, the aggrieved person is of the view that there has been further acts of domestic violence, incurring expenses and loss, the order already passed under Section 125 Cr.P.C., will not preclude the aggrieved person in invoking the provision under Section 20 of the Domestic Violence Act. However, when the aggrieved person has invoked the provisions of Section 125 Cr.P.C., on a set of cause of action or refusal to maintain, it would not be permissible for her to invoke Section 20 of the Domestic Violence Act for the same cause of action, pleading that she had incurred expenses and losses owing to these same acts of domestic violence and thereby claim additional maintenance. The language deployed under Section 20(1)(d) is only for the purpose of enabling the aggrieved person to seek for maintenance when there has been further acts of domestic violence, pursuant to an order passed under Section 125 Cr.P.C., whereby she incurs expenses or losses as a result of the domestic violence. It is with this object that Section 20(1) of the Domestic Violence Act has been enacted and by no stretch of imagination can it be said that a wife can simultaneously claim maintenance before two forums, on the same set of cause of actions, under the Code of Criminal Procedure Code as well as the Domestic Violence Act. Such parallel and simultaneous proceedings would not only be illegal but also would amount to an abuse of process of law. In the judgment relied upon by the learned counsel for the petitioner reported in 2015 (4) LW 545 [B.Prakash V. Deepa and another], this Court had observed as follows:-

17.The next question, which arises for consideration, is as to whether an order for maintenance made by a Magistrate under Section 125 of the Code, shall be a bar for a Magistrate acting under Section 20 of the Act to pass an order for maintenance. In this regard, again, we should have a look into the Section 20(1)(d) of the Act, which states that the monetary relief granted under Section 20 of the Act may include an order for maintenance, in addition to an order of maintenance under Section 125 of the Code. Thus, it is crystal clear that a previous order for maintenance passed by a Magistrate under Section 125 of the Code, is not a bar for a Magistrate acting under Section 20 of the Act to pass yet another order granting monetary relief under Section 20 of the Act, by way of maintenance under Section 125 of the Code. Here, it needs to be noted that the subsequent order made under Section 20 of the Act is not in any way in modification or variation of the earlier order made under Section 125 of the Code by a Magistrate.

18. If the wife wants to modify an order made under Section 125 of the Code, seeking enhancement of the maintenance amount, the only option available for her is to file a petition under Section 127 of the Code before the same Magistrate, who passed the order. In other words, the order made under Section 125 of the Code can be modified or varied only by the same Magistrate, who passed the earlier order. An order made under Section 125 of the Code for maintenance by one Magistrate cannot be varied or modified by a Magistrate acting under Section 20 of the Act. Therefore, it should be noted that a monetary relief granted towards maintenance passed under Section 125 of the Code. If an order has already been made under Section 125 of the Code for maintenance, there can be no doubt that the wife had proved either neglect or refusal on the part of the husband. If the wife wants an order under Section 20 of the Act, in addition to the order under Section 125 of the Code, she has to prove fresh acts of the husband constituting the domestic violence subsequent to the passing of the earlier order under Section 125 of the Code. She cannot rely on the acts of the husband constituting domestic violence, which happened prior to the passing of the order under Section 125 of the Code. For getting an order under Section 20 of the Act, in addition to the earlier order under Section 125 of the Code, the wife should plead and prove that subsequent to the said order made under Section 125 of the Code, the husband had caused domestic violence and on account of the same, she had suffered loss and thus, she is entitled for additional amount as maintenance. Thus, it is manifestly clear that a previous order made under Section 125 of the Code is not a bar for an aggrieved wife to approach a Magistrate under Section 20 of the Act, for monetary relief as an additional relief of maintenance, provided subsequent to the passing of the earlier order under under Section 125 of the Code, the husband has committed domestic violence resulting loss to the wife.

6.In the present case in hand, I have perused the pleadings in the petition filed under Domestic Violence Act for monetary relief as well as the petition under Section 125 of Cr.P.C., seeking for maintenance. The grievance of the respondent and the cause of action alleged in both these petitions are one and the same. The respondent herein had already invoked the provisions of the Domestic Violence Act seeking for monetary reliefs among other reliefs on 25.05.2016. Subsequently, she had invoked the provisions under Section 125 Cr.P.C., on 08.02.2017. In the petition under Domestic Violence Act, the respondent herein had sought for a direction to pay a sum of Rs.50,000/- for maintenance under Section 20(3) of the Domestic Violence Act. In the subsequent maintenance case filed under Section 125 Cr.P.C., the respondent herein had sought for a monthly maintenance of Rs.1 lakh.

7.Insofar as Section 20(3) of Domestic Violence Act is concerned, the same has to be read along with sub section (1) and the powers of the Magistrate to order for a lumpsum payment or a monthly payment under sub section (3) is a continuation of the powers vested on the Magistrate while ordering monetary relief to meet the expenses incurred and losses suffered by the aggrieved person. In other words, whenever an application seeking for monetary relief under Section 20(1) is made and when the Magistrate comes to the conclusion that such a monetary relief is required to be ordered in favour of the aggrieved person, he shall have powers to order such an amount either as lumpsum payments or monthly payment of maintenance as provided under sub section (3) of the Act. In any case, the amount referred to under sub section (3) is only for the maintenance of the aggrieved person.

8.The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above. Even otherwise, there is no provision under the Code of Criminal Procedure empowering the Magistrate to order for maintenance under Section 125 Cr.P.C., when it is brought to his notice that an order for maintenance has already been granted under Domestic Violence Act or any other enactments. If both the Courts are permitted to adjudicate the claim made by the respondent/wife and in case, an order is passed granting maintenance in both the cases, there would be gross miscarriage of justice and the petitioner would be put to serious prejudice. Hence, it would be impediment that the subsequent proceedings initiated by the respondent herein under the provisions of Section 125 Cr.P.C., requires to be quashed. No prejudice would be caused to the respondent by quashing the proceedings since her interest has already been protected in her earlier proceedings under Domestic Violence Act.

9.In view of the aforesaid discussions, the petition in Crl.O.P.No.10089 of 2017 is allowed. Consequently, the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore stands quashed. In view of the quashing of the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore, Crl.O.P.27507 of 2017 seeking for expeditious disposal of the maintenance case, stands dismissed. Consequently, connected Miscellaneous Petitions are closed.

26.06.2018 Speaking order

Index : Yes

Internet : Yes

DP To The Additional Family Court, Coimbatore.

M.S.RAMESH, J.,

DP Order in Crl.O.P.Nos.27507 & 10089 of 2017 and Crl.M.P.Nos.6680 & 6681 of 2017 26.06.2018

Wife living separately without any reason NOT entitled to CrPC 125 maintenance. Madhya Pradesh High Court

Lawyer wife leaves Matrimonial home few DAYS days after marriage. Goes away with her brother ostensibly to find him a (find the brother) a match. Wife Never returns back even after husband calling her back. Wife Claims harassment, cruelty etc and seeks maintenance. Looses at Madhya Pradesh HC based on FACTs of the case

HIGH COURT OF MADHYA PRADESH, JABALPUR BENCH INDORE

( Single Bench )

( Hon’ble Shri Justice Jarat Kumar Jain )

Criminal Revision No.829 of 2014

Anil S/o Shri Suganchandra Jain

VERSUS

Smt. Sunita W/o Shri Anil Kumar Jain and State of M.P.

********

Shri S.J.Polekar, learned Counsel for the applicant.

Shri Piyush Shrivastava, learned Counsel for the respondent No.1

Smt. Mamta Shandilya, learned Dy. Govt. Advocate for the respondent No.2/State.

https://twitter.com/ATMwithDick

********

ORDER

( Passed on this th day of November, 2016 )

THIS revision under Section 19(4) of the Family Court Act, 1984 has been filed against the order dated 31.05.2014 passed by the Principal Judge, Family Court, Ratlam in M.Cr.C. No.203/2014 whereby directed the applicant/husband to pay maintenance @ Rs.4,000/- per month to the non-applicant/wife from the date of order.

[2] It is an admitted fact that applicant’s marriage was performed with non-applicant on 20.04.2008 and they lived together first time for 7 days and second time for 12 days i.e. 11.05.2008 to 22.05.2008. Thereafter non-applicant/wife had left matrimonial home and since then she is living in her parental home at Ratlam. She is an enrolled Advocate since the year 1991.

[3] Non-applicant/wife had filed an application under Section 125 of the Cr.P.C. stating that when she lived in her matrimonial home since 11.05.2008 to 22.05.2008 during that period her husband (applicant) and mother-in-law had so harassed her that she was forced to leave her matrimonial home, before leaving the matrimonial home her https://twitter.com/ATMwithDick signatures were obtained on blank stamp papers. Applicant’s first marriage was performed with Ranjana but only after two months she divorced the applicant due to harassment of applicant. Non-applicant is having no means to maintain herself whereas applicant is a manufacturer of Ayurvedic medicine and used to earn Rs.25,000/- per month. On these grounds she claimed maintenance @ Rs.5,000/- per month from the date of application.

[4] Applicant in the reply denied the allegations and stated that he and his mother had never harassed the non-applicant. On 23.05.2008, in the absence of applicant non-applicant had left matrimonial home along with her brother Anil and one Shrenik Bapna. On 26.05.2008 applicant went to Ratlam to take non-applicant with him, however, she refused to come with the applicant, thereafter applicant made many attempts to take back her https://twitter.com/ATMwithDick but she was not ready to come back and live with applicant. Thus, she is living in her parental home without any reason. The applicant is hardly earned Rs.3,000/- per month and he has to maintain his sick mother also; whereas non-applicant is an Advocate and has sufficient income to maintain herself. In such circumstances, she is not entitled for maintenance.

[5] Both the parties adduced evidence. Trial Court held that the non-applicant was harassed by her mother-in-law and applicant. Hence, she had sufficient reason not to live with her husband/applicant. Applicant is earning more than Rs.50,000/- per year whereas non-applicant/wife had no income from the profession as an Advocate. Hence, Trial Court directed the applicant to pay maintenance @ Rs.4,000/- per month from the date of order. Being aggrieved the applicant has filed this revision.

[6] Learned Counsel for the applicant submits that the non- applicant had left the matrimonial home voluntarily and is living in her parental home without any reason. The finding of trial court that only in 12 days non-applicant was so harassed that she was forced to leave matrimonial home is erroneous. Actually she is practicing lawyer since the year 1991 at Ratlam and has sufficient income to maintain herself. Thus, she is not entitled for maintenance. Trial court gave a finding that applicant used to earn Rs.50,000/- per year; whereas directed the applicant to pay Rs.4,000/- per month i.e. Rs.48,000/- per year to the non-applicant. Such direction is against the evidence on record. Thus, the order passed by the Trial Court is liable to be set aside. For this purpose learned Counsel for the applicant placed reliance on the judgment of this Court in the case of Prakash Kushwaha V/s. Smt. Pooja reported in 2014 (2) JLJ 189 and Savita Bai V/s. Prahlad reported in 2013 (3) M.P. Weekly Note 77.

[7] On the other hand, learned Counsel for the non-applicant supports the impugned order and submitted that the non- applicant/wife is ready to live with the applicant; however, due to harassment she is compelled to live separately. Hon’ble Apex Court in the case of Laxmi Bai Patel V/s. Shyam Kumar Patel reported in JT 2002 (3) SC 409 held that the responsibility of husband to maintain his wife and wife has the right to claim maintenance so long as she stays away from the matrimonial home under compelling circumstances. This court in the case of Dalibai V/s. Rajendra Singh reported in 2006 (1) MPLJ 495 held that wife left matrimonial house and started living separately due to harassment by husband. To prove this fact statement of wife is sufficient to hold that there was reasonable and sufficient cause available to her to live separately, hence the revision be dismissed.

[8] After hearing learned Counsel for the parties, perused the record.

[9] This Court has to examine the findings of Trial Court as to whether non-applicant/wife has sufficient reason to live separately and whether she is unable to maintain herself.

[10] Admittedly after marriage non-applicant/wife lived in her matrimonial home first time for 7 days. There is no allegation that during that period she was harassed by her in-laws, thereafter she lived in her matrimonial home from 11.05.2008 to 22.05.2008 i.e. for 12 days, thereafter she was forced to leave her matrimonial home. In this regard it is useful to refer Para 9 of her deposition in which she admitted that she was having a mobile phone and used to talk with her brother, however, she has not made any complaint about her harassment to her brother. She left matrimonial home with her brother Anil. But she has not made any complaint to anybody or lodged a report at Police Station. On the other hand, her brother Anil Chhajed (PW-2) deposed that on 22.05.2008 she came to Ratlam to select a girl for his marriage. Anil did not depose that non-applicant has complained him about harassment in her matrimonial home. https://vinayak.wordpress.com/ In the cross-examination of the applicant no question was asked about alleged cruelty and harassment.

[11] I would like to refer to the judgment of this Court in the case of Savita Bai (Supra) in which after marriage Savita Bai resided only for 8 days in the house of her husband and thereafter, she left the house without any reason and unable to prove the charge of harassment. Under such circumstances, this Court has held that â??the applicant-wife is not entitled for maintenance.â? In the present case also non-applicant-wife resided in her matrimonial home for the first time for 7 days and second time for 12 days and it is alleged that in these 12 days she was harassed. It is practically impossible that she could have been so harassed that it is impossible for her to live in her matrimonial home. After 12 days she had voluntarily gone with her brother with a view to select a girl for marriage of her brother. https://vinayak.wordpress.com/ Thus, it can not be held that she was thrown with force from her matrimonial home or she was forced to leave her matrimonial home.

[12] Learned counsel for the non-applicants placed reliance on the judgment of Laxmi Bai Patel (Supra) and Dalibai (Supra). Facts of these cases are quite different, https://vinayak.wordpress.com/ therefore, these cases are not helpful to the non-applicants.

[13] With the aforesaid, I am of the view that the finding of the Trial Court that non-applicant/wife has sufficient reason to live separately is not sustainable in law. Non- applicant/wife is residing separately without any reason, hence, she is not entitled for maintenance under Section 125 of Cr.P.C.

 

Thus, the order passed by the Trial Court is hereby set-aside and the revision is hereby allowed.

[ JARAT KUMAR JAIN ] JUDGE

ns + Adarsh

*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak

Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

WIFE CAN’T file sec 125 & DV on SAME grievances !! Woman asking 1 lakh per month looses Crpc125 !! S.Suriya Devi vs ThileepKumar – Madras HC on 26 June, 2018

Madras High Court

S.Suriya Devi vs & on 26 June, 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.03.2018
Date of Verdict : 26.06.2018
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
Crl.O.P.Nos.27507 & 10089 of 2017
and Crl.M.P.Nos.6680 & 6681 of 2017

S.Suriya Devi …Petitioner in Crl.O.P.27507/2017
& Respondent in Crl.O.P.10089/2017
V.
Thilip Kumar …Respondent in Crl.O.P.27507/2017 & Petitioner in Crl.O.P.10089/2017 Prayer in Crl.O.P.No.27507/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to direct the Family Court, Coimbatore to dispose the petition in M.C.No.38 of 2017 expeditiously pending on the file of the Family Court, Coimbatore within time frame as fixed by this Court.
Prayer in Crl.O.P.No.10089/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to quash the proceedings in M.C.No.38 of 2017 on the file of the Additional Family Court, Coimbatore.
For Petitioner in Crl.OP.27507/2017 : Ms.V.S.Usha Rani & Respondent in Crl.OP.10089/2017 For Petitioner in Crl.OP.10089/2017 : Mr.R.Baskar & Respondent in Crl.OP.27507/2017 C O M M O N O R D E R While the husband had filed the petition in Crl.O.P.No.10089 of 2017 seeking for quashing the maintenance case in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore preferred by the respondent/wife, Crl.O.P.No.27507 of 2017 has been filed by the wife seeking for an expeditious disposal of her petition in MC.No.38 of 2017.
2.Heard Ms.V.S.Usha Rani, learned counsel for the wife and Mr.R.Baskar, learned counsel for the husband.
3.For the sake of convenience, the facts revealed in Crl.O.P.No.10089 of 2017 is being addressed to. The marriage between the petitioner and the respondent herein was performed on 25.05.2014. After brief stay together for less than two months, both the parties had separated. According to the petitioner, the respondent had left the matrimonial house on 13.07.2014. During their estranged relationship, the petitioner herein left the country on 14.02.2015 in connection with his employment.
4.It is in connection with the estranged relationship, the respondent herein had filed a complaint under the Protection of Women from Domestic Violence Act, 2000 in DVA.No.27 of 2016 seeking for various reliefs including the relief of monthly maintenance, in which the respondent’s husband and in-laws were made as party respondents. On receipt of summons in the domestic violence case for the complaint dated 25.05.2016, the petitioner/husband herein moved a quash petition in Crl.O.P.No.2972 of 2017, which is pending against the petitioner herein.
5.But, would the aggrieved person be entitled to claim maintenance simultaneously under the provisions of Code of Criminal Procedure Code as well as Domestic Violence Act for the same cause of action? The scheme of Domestic Violence Act is to provide for an effective protection of the lives of women guaranteed under the Constitution, who are the victims of violence of any kind occurring within the Family for incidental matters. Section 125 Cr.P.C., empowers the Magistrate to order for maintenance when it is established that the person having sufficient means, neglects or refuses to maintain his wife. Whenever such an order of maintenance is passed under Section 125 Cr.P.C., and in the given circumstances, the aggrieved person is of the view that there has been further acts of domestic violence, incurring expenses and loss, the order already passed under Section 125 Cr.P.C., will not preclude the aggrieved person in invoking the provision under Section 20 of the Domestic Violence Act. However, when the aggrieved person has invoked the provisions of Section 125 Cr.P.C., on a set of cause of action or refusal to maintain, it would not be permissible for her to invoke Section 20 of the Domestic Violence Act for the same cause of action, pleading that she had incurred expenses and losses owing to these same acts of domestic violence and thereby claim additional maintenance. The language deployed under Section 20(1)(d) is only for the purpose of enabling the aggrieved person to seek for maintenance when there has been further acts of domestic violence, pursuant to an order passed under Section 125 Cr.P.C., whereby she incurs expenses or losses as a result of the domestic violence. It is with this object that Section 20(1) of the Domestic Violence Act has been enacted and by no stretch of imagination can it be said that a wife can simultaneously claim maintenance before two forums, on the same set of cause of actions, under the Code of Criminal Procedure Code as well as the Domestic Violence Act. Such parallel and simultaneous proceedings would not only be illegal but also would amount to an abuse of process of law. In the judgment relied upon by the learned counsel for the petitioner reported in 2015 (4) LW 545 [B.Prakash V. Deepa and another], this Court had observed as follows:-
17.The next question, which arises for consideration, is as to whether an order for maintenance made by a Magistrate under Section 125 of the Code, shall be a bar for a Magistrate acting under Section 20 of the Act to pass an order for maintenance. In this regard, again, we should have a look into the Section 20(1)(d) of the Act, which states that the monetary relief granted under Section 20 of the Act may include an order for maintenance, in addition to an order of maintenance under Section 125 of the Code. Thus, it is crystal clear that a previous order for maintenance passed by a Magistrate under Section 125 of the Code, is not a bar for a Magistrate acting under Section 20 of the Act to pass yet another order granting monetary relief under Section 20 of the Act, by way of maintenance under Section 125 of the Code. Here, it needs to be noted that the subsequent order made under Section 20 of the Act is not in any way in modification or variation of the earlier order made under Section 125 of the Code by a Magistrate.
18. If the wife wants to modify an order made under Section 125 of the Code, seeking enhancement of the maintenance amount, the only option available for her is to file a petition under Section 127 of the Code before the same Magistrate, who passed the order. In other words, the order made under Section 125 of the Code can be modified or varied only by the same Magistrate, who passed the earlier order. An order made under Section 125 of the Code for maintenance by one Magistrate cannot be varied or modified by a Magistrate acting under Section 20 of the Act. Therefore, it should be noted that a monetary relief granted towards maintenance passed under Section 125 of the Code. If an order has already been made under Section 125 of the Code for maintenance, there can be no doubt that the wife had proved either neglect or refusal on the part of the husband. If the wife wants an order under Section 20 of the Act, in addition to the order under Section 125 of the Code, she has to prove fresh acts of the husband constituting the domestic violence subsequent to the passing of the earlier order under Section 125 of the Code. She cannot rely on the acts of the husband constituting domestic violence, which happened prior to the 16 passing of the order under Section 125 of the Code. For getting an order under Section 20 of the Act, in addition to the earlier order under Section 125 of the Code, the wife should plead and prove that subsequent to the said order made under Section 125 of the Code, the husband had caused domestic violence and on account of the same, she had suffered loss and thus, she is entitled for additional amount as maintenance. Thus, it is manifestly clear that a previous order made under Section 125 of the Code is not a bar for an aggrieved wife to approach a Magistrate under Section 20 of the Act, for monetary relief as an additional relief of maintenance, provided subsequent to the passing of the earlier order under under Section 125 of the Code, the husband has committed domestic violence resulting loss to the wife.
6.In the present case in hand, I have perused the pleadings in the petition filed under Domestic Violence Act for monetary relief as well as the petition under Section 125 of Cr.P.C., seeking for maintenance. The grievance of the respondent and the cause of action alleged in both these petitions are one and the same. The respondent herein had already invoked the provisions of the Domestic Violence Act seeking for monetary reliefs among other reliefs on 25.05.2016. Subsequently, she had invoked the provisions under Section 125 Cr.P.C., on 08.02.2017. In the petition under Domestic Violence Act, the respondent herein had sought for a direction to pay a sum of Rs.50,000/- for maintenance under Section 20(3) of the Domestic Violence Act. In the subsequent maintenance case filed under Section 125 Cr.P.C., the respondent herein had sought for a monthly maintenance of Rs.1 lakh.
7.Insofar as Section 20(3) of Domestic Violence Act is concerned, the same has to be read along with sub section (1) and the powers of the Magistrate to order for a lumpsum payment or a monthly payment under sub section (3) is a continuation of the powers vested on the Magistrate while ordering monetary relief to meet the expenses incurred and losses suffered by the aggrieved person. In other words, whenever an application seeking for monetary relief under Section 20(1) is made and when the Magistrate comes to the conclusion that such a monetary relief is required to be ordered in favour of the aggrieved person, he shall have powers to order such an amount either as lumpsum payments or monthly payment of maintenance as provided under sub section (3) of the Act. In any case, the amount referred to under sub section (3) is only for the maintenance of the aggrieved person.
8.The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above. Even otherwise, there is no provision under the Code of Criminal Procedure empowering the Magistrate to order for maintenance under Section 125 Cr.P.C., when it is brought to his notice that an order for maintenance has already been granted under Domestic Violence Act or any other enactments. If both the Courts are permitted to adjudicate the claim made by the respondent/wife and in case, an order is passed granting maintenance in both the cases, there would be gross miscarriage of justice and the petitioner would be put to serious prejudice. Hence, it would be impediment that the subsequent proceedings initiated by the respondent herein under the provisions of Section 125 Cr.P.C., requires to be quashed. No prejudice would be caused to the respondent by quashing the proceedings since her interest has already been protected in her earlier proceedings under Domestic Violence Act.
9.In view of the aforesaid discussions, the petition in Crl.O.P.No.10089 of 2017 is allowed. Consequently, the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore stands quashed. In view of the quashing of the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore, Crl.O.P.27507 of 2017 seeking for expeditious disposal of the maintenance case, stands dismissed. Consequently, connected Miscellaneous Petitions are closed.
26.06.2018 Speaking order Index : Yes Internet : Yes DP To The Additional Family Court, Coimbatore.
M.S.RAMESH, J., DP Order in Crl.O.P.Nos.27507 & 10089 of 2017 and Crl.M.P.Nos.6680 & 6681 of 2017 26.06.2018
— Read on indiankanoon.org/doc/192512190/

No immediate arrest for #NON-#payment of #Sec125 #Maintenance

classic case where the Patna HC orders that non payment of maintenance cannot lead to immediate / direct arrest and that due process is to be followed

 

 

Patna High court : No Arrest on Non Payment of Maintanence

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.563 of 2016

Md. Barik, S/o- Late Md. Haroon, Resident ofVillage- East Gharari, P.O.-Kharik Bazar, P.S.- Kharik (Naugachia), District-Bhagalpur….. …. Petitioner

Versus

1. The State of Bihar through Chief Secretary, Bihar, Patna.

2. Bibi Akila Bano, W/o- Md. Barik, D/o- Md. Niyamat,

3. Rubi Khatoon (minor)

4. Ruhi Khatoon (minor)

Respondent No.3 and 4 are minors and represented through their mother and natural guardian Respondent No.-2

Respondent No.2 to 4 are residing at Village- Ujani, P.O.- Maniya More, P.S.- Naugachia, District- Bhagalpur….. …. Respondents

Appearance :For the Petitioner : Mrs. Sarita Bajaj, Advocate

For the Respondent no.1 : Mr. Ashok Priyadarshi(GA-4)

CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGHORAL

ORDER2

02-06-2016

Heard learned counsel for the petitioner and learned counsel for the State.

It is indeed a matter of great regret that in spite of the decision of the Division Bench of this court, in the case of Laljee Yadav Vs. the State of Bihar, since reported in 2011 (4)PLJR 248, the learned In-charge Principal Judge, Family Court, Bhagalpur, has not followed the procedure as laid down in law and violated the petitioner’s fundamental right by wrongly ordering his confinement, on failure to pay maintenance as awarded under section 125 of the Cr.P.C. in Miscellaneous Maintenance Case No. 62 of 2008 by the Court of Principal Judge, FamilyCourt, Bhagalpur, a Miscellaneous Execution Case was registered and in that miscellaneous Execution case, the learned Judge issued warrant of arrest and detention of the petitioner having defaulted to pay maintenance.

This Court in the judgment aforesaid (Laljee Yadav) had elaborately dealt with entire procedure inasmuch as this court held that no person can be arrested by orders of the court. First upon default in payment of maintenance, asawarded in terms of section 125 Cr.P.C, it could only be recovered in the process as prescribed for recovery of fine, which wouldultimately be sent to the Collector for recovery of arrears of Rent Revenue in a proceeding under the Bihar and Orissa Public Demand Recovery Act, 1914.

The Court also noticed specific provisions of the Code of Criminal Procedure, which prohibited the arrest of a person. Form -18 (not Form- 15) as being used by the Principal Judge, Family Court, Bhagalpur as appended to Cr.P.C. is in respect of a person, who has been found guilty and convicted for default in payment of maintenance, which conviction has to be upon a fresh complaint for every arrears.

All these have been noted in the judgment of the Division Bench, as aforesaid.Regrettably, the learned Judge in spite of protest by the petitioner pay to take note thereof. It would be well advised for the Judge to acquaint himself with law before taking such drastic actions. The situation being what it is clear that in defiance of law,the petitioner has been detained. Thus, the detention of the petitioner being per se illegal and without jurisdiction. It would be violated of its constitutional rights under Article 21 of the Constitution.

The order issuing warrant and detaining the petitioner as passed by the Principal Judge, Family Court, Bhagalpur, is thus, set aside.

The petitioner is directed to be released from civil prison forthwith, unless he is required in any other criminal case.Let a copy of this order be communicated tothe Principal Judge, Family Court Bhagalpur, for information and necessary action

This writ petition is accordingly allowed.
(Navaniti Prasad Singh, J.)

 

wife’s #Sec125 #maintenance #dismissed for wrong jurisdiction; #MadrasHC ; K.#Mohan vs #Balakanta #Lakshmi

Educated couple start matrimonial litigation. Since both were residing at Bangalore, before separation, Husband files for divorce at Bangalore. Wife leaves husband, comes to Ambattur, which is outside Madras Metropolitan limits (in 1982 / 83) and files for maintenance under CrPC Sec 125 at Madras court. Husband assails jurisdiction. Husband proves with evidence that wife is outside Madras (and is residing under the jurisdiction of nearby Chengalpattu courts) Madras HC analyses “Domicile” and “jurisdiction”, verifies the facts and dismisses wife’s case, asking her to file at appropriate jurisdiction !!

While such technical victories may be short-lived, these are important to frustrate errant women filing usurious maintenance cases

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Madras High Court

K. Mohan vs Balakanta Lakshmi on 13 December, 1982

Equivalent citations: 1983 CriLJ 1316

Author: R Pandian

Bench: R Pandian

ORDER Ratnavel Pandian, J.

..1. This revision is directed against the preliminary order made’ in M. C. 806 of 1980 on the file of the II Metropolitan Magistrate, Edmore, Madras, rejecting the contention of the revision petitioner (respondent in M. C. 806 of 1980 — husband) that the Court below did not have the territorial jurisdiction to entertain an application under Section 125, Cr. P.C. filed by the respondent herein (wife).

..2. It is a very unfortunate case wherein the highly educated couple are perpetually fighting with each other obviously for the reason, that they are not able to get on together amicably. It is seen from the records that after the marriage, both the parties resided at Bangalore and that the revision petitioner filed an original petition for annulment of the marriage before the Principal Civil Judge, Bangalore city. Be that as it may, the respondent had left Bangalore and thereafter had filed an application under Section 125 Cr. P.C. before the Second Metropolitan Magistrate, Edmore, Madras, claiming maintenance from the revision petitioner. In that petition she has stated in the preamble that she is now residing at Madras. The respondent, on receipt of the notice from the Court of the Second Metropolitan Magistrate, Madras, had filed a counter denying the allegations and raising a preliminary objection, stating that the said Court had no territorial jurisdiction to entertain this application under Section 125 Cr. P.C. on the ground that the respondent is not residing within its jurisdiction, viz. in the Madras City, but on the other hand is permanently residing with her parents at Ambattur within the jurisdiction of the Chengalpattu district and therefore the application ought to have been presented before the Court concerned in Chengalpattu district having jurisdiction over Ambattur area. To substantiate his preliminary objection, the petitioner has filed a number of documents marked as Exs. R-l to R-5. No oral evidence was let in by either of the parties. The learned Magistrate, observing that the term ‘resides’ occurring in Section 125 (1) (b) of the Cr. P.C. should be liberally construed, held, on the sole basis of the averment in the preamble of the petition that the respondent is residing at Madras, that he has got the territorial jurisdiction to entertain that application and the preliminary objection raised by the petitioner with regard to the jurisdiction is to be overruled. It is as against this order, the present revision is preferred.

..3. Though the respondent has received the summons, she is neither appearing in person nor appearing through any counsel. Therefore this Court has appointed Mr. A. Sasidharan, as amicus curiae to appear on behalf of the respondent and to assist this Court.

..4. This revision raises the question as to the true construction of the term ‘resides’ appearing in Section 126 (1) (b) of the Criminal P.C. Leaving apart the question about the respondent’s entitlement for maintenance, we have to determine in this case the question about the territorial jurisdiction of the Court at Madras to entertain this application filed under Section 125 Cr. P.C. because the jurisdiction of the Court is to be determined by the residence of the parties. The answer to this question turns upon the interpretation of Causes (a) to (c) of Section 126 (1) of the Code which demarcate the jurisdictional limits of a Court to entertain a petition under Section 125. I shall presently give the present and, the corresponding past provisions of the Code in the following table so that one can easily understand the position of law that stood earlier and the present position consequent upon the amendment made in the present Code.

 

Sec. 488 (8) of the Criminal	Section 126 (1) of the Criminal
Procedure Code, 1898	Procedure Code, 1973
Proceedings under this	Proceedings ‘under Section 125 may be
section may be taken	taken against any person in any
against any person	district
in any  district	(a) where he is, or
where he resides or is,	(b) where he or his wife resides, or
or where he last resided	(c) where he last resided with his
with his wife, or, as the case may be the	wifeor as the case
mother of illegitimate child.	case may be, the
	mother of illegitimate child.

On a plain reading of Section 488 (8) of the old Code, it can be seen that the place where the wife resided after desertion by her husband was not material. This caused great hardship to wives. who after desertion were living far away from the place where they and their husbands last resided together. So, in order to remove such hardships, on the recommendation made by the Law Commission, the present Section 126 (1) (b) was enacted by introducing the expression ‘or his wife’ between the words ‘he’ and, ‘resides’, so that the venue of the proceedings should also include the place where the deserted or neglected wife may be residing on the date of the application. In the present revision, the crucial word ‘resides’ occurring in Section 126 (1) (b) alone comes up for interpretation. Under the old Code, the Magistrate of the district where the husband or father, as the case may be, resided, only had the jurisdiction. Now the jurisdiction is enlarged or widened. 5. 126 (1) gives three alternative forums as enumerated, in Clauses (a) to (c) there under. These alternative forums are designedly given by the Parliament so as to enable a discarded wife or helpless child to get the much-needed and, urgent relief in one or the other of the three forums that is convenient to them. Needless to say that the proceeding under Section 125 is in the nature of a civil proceeding and the remedy is a summary one, as laid down in Sub-section (2) of Section 126, and the person seeking the remedy, as pointed out above, is ordinarily a helpless person. The introduction of the expression in Section 126 (1) (b) is ‘or his wife.’

..5. So, the word ‘resides’ should be undoubtedly liberally construed, but at the same time, without doing any violence to the language and without defeating the very object of this provision.

..6. The word ‘resides’ has been subject to conflicting judicial opinions. In the Oxford Dictionary it is defined as ‘….to live permanently or for a considerable time, to have one’s settled or usual abode, to live, in or at a particular place.’

..7. The Corpus Juris Secundum, Vol. LXXVII at page 285 states that the word ‘reside’ is employed in a wide variety of significations, that its meaning may differ according to the connection in which it is used, that the particular signification of the term in any given instance depends on the context and the purpose under consideration and that it should be interpreted in the light of the object or purpose of its use. It is. further noted therein as follows:– It has been said that the word, ‘reside’ has two distinct meanings, and that it may be employed in two senses, and in what is sometimes referred to as the strict legal, or technical sense, it means legal domicile as. distinguished from mere residence or. place of actual abode. In this sense the word ‘reside’ means legal residence; legal domicile, or the home of a person in contemplation of law, the place where a person is deemed in law to live, which may not always be the place of his actual dwelling and thus the term may mean something different from, being bodily present, and does not necessarily refer to the place of actual abode. When employed in this sense, the word,’reside’,.includes not only physical presence in a place, but also the accompanying intent of choosing that place as a permanent residence.

..8. Again, at page 288, it is noted thus: Reside’ has been held equivalent to, or synonymous with, ‘abide’, ‘dwell; ‘to have one’s home’, ‘live’, ‘lodge?, ‘remain’, ‘residence’, ‘sojourn’, and ‘stay’ ‘Reside’ is said to be. usually classed as synonymous, with ‘inhabit’; but not., in strictness, properly so.

..9. In the Words and Phrases, Per manent Edn. Volume 37, at page 308 it is defined thus; To ‘reside’ in ordinary acceptation, means to dwell, or to live…’Reside’ means live, dwell, abide, sojurn, stay, remain, lodge.

..10. The above lexicographical meaning of the word, therefore, takes in both the permanent dwelling and the tern porary living in a place and it is therefore capable of different meanings including ‘domicile’ in the strictest and the most technical sense and a temporary residence in the liberal sense. Whatever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in or a flying visit to a particular place. In short, the meaning of the word would in the ultimate analysis depend upon the context and the purpose of the particular statute..

..11. In this case, the context and the purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would, be better served if the word ‘resides’ is understood to include temporary residence. For example, if a person goes from his permanent place ‘A’ to another place ‘B’ either for carrying out certain work or as an invitee or as a tourist and resides or stays there for one or two days, he cannot be said to be residing at ‘B’ in the legal sense. But it he goes to the place ‘B’ and stay there for some length of time, though not permanently, but for the purpose of either educating his children or carrying on a business for a considerable length of time, he resides at ‘B’. One cannot give exhaustive illustrations to explain what the term ‘resides’ means. j But, its meaning has to depend upon the circumstances of each case. The main criteria in determining what the term ‘reside’ means, is the intention or the animus manendi of the person residing in a particular place, and the, cognate expression includes both temporary and permanent residence. But, the expression ‘resides’ used in Section 126 (b) of the new Code will not include a casual or flying visit or a brief, stay. On the other, hand, it implies more than that..

..12. Mr. V. Gopinathan drew the attention of this Court to decisions of the various High Courts and ultimately to the decision of the Supreme Court, all defining the term ‘reside’.

..13. The Full Bench of the. Allahabad High Court, in Arthur Flowers v. Minnie Flowers (1910) ILR 32 All 203, has held, while interpreting the expression ‘resides’ occurring in Section 3 of the Indian Divorce Act, that a mere temporary sojourn in a place, there being no intention of remaining there, will not amount to residence in.that place within the meaning of. the expression, so as to give jurisdiction under, the Act to the Court within the local limits of whose jurisdiction such a place is situate.

..14. In Charan Das v. Surasti Bai AIR 1940 Lah 449 : 1941-42 Cri LJ 105, it was held that the sole test on the question of residence was whether a party had the animus manendi or an intention to stay for a definite,period at one place and if he had such an intention, then alone could he be said to reside there.

..15. In Balakrishna v. Mrs. B. Sakun-lala Bai AIR 194-2 Mad 666 : 194-2 Mad WN Cri 73, it has been pointed, out that the word ‘resides in Section 488 (8) Cr. P.- C. implies the mere intention to rer maJn ata place and not merely to pay it a casual visit intending shortly, to move on to ones permanent residence.

..16. This Court has in Sampoornam v. N. Sundaresan , obseryed as follows at p, 275 of Cri LJ:– In short, Sub-section (8)of Section 488 Cr. P.C. does not necessarily refer to a permanent residence and it refers also to temporary residence, and the word ‘residence’ implies something more than a brief visit but not such a continuity as to amount to domicile. Each case, has to be dealt with on its merits as has been pointed out in Ganga Bai v. Pamanmal AIR 1938 Sind 223 1939-40 : Cri: LJ 117, bearing in mind that the section should not be so strictly cont, strued as to deprive the woman, who often in these cases is helpless, of assistance from the Court/which is most easily accessible to her. The Supreme Court in Jagir Kaur v. Jaswant Singh , after having referred to the meaning of the term ‘resides’ as defined lexicographically and as inter-: preted by the various High Courts, has observed as follows (at p. 415 of Cri LJ):- The decisions on the. subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far as to hold that ‘resides’ in the sub-section means only’ domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a (lying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the words used; and the construction placed by decided cases thereon, we would define the word ‘resides’ thus. :,a person resides in a place if, he through choice makes it his abode permanently or even temporarily,; whether a person has chosen to make: a particular place his abode depends upon the facts,of each case.

..17. Therefore, it is clear that the exprecession ‘resides’ occurring in Section 126(1) (b) has to be given a liberal construe ion and the legislature could not have intended to use the said term in the technical sense of ‘domicile’ and it ‘has to be Understood to include a temporary residence also.

..18. Now, let us examine the facts of the present case, giving the word ‘resides’ the liberal interpretation as pointed put in the., above decisions.

..19. Mr. Gopinathan drew the attention of this Court to Exs. R. 1 toR 5,marked in this case and contended that the petitioner herein has unambiguously proved that the respondent is residing in Ambattur. In Ex. R-l, the postal acknowledgment containing the signature of the respondent dated 20-7-1979, her address read,s thus : “Mrs. K. Bala Kanaka Lakshmi, Laxmi Nivasl, No. 5, Kanniah Chetti St. Venkatapurarn, Ambattur P. O., Madras-53”. Ex. R. 2 is the reply notice dated 15-10-1979, sent by the respondent herself to the petitioner’s Counsel. In that reply notice also, she has given the same address as in Ex. R. 1. Ex. R. 5 is yet another postal acknowledgment dated 9-8-1980, containing the signature of the respondent and therein also the respondent’s address is the same as in Ex. R. I-Thus, it is clear that all the correspondence and the communications addressed to the respondent at her address at Ambattur, Madras 53, were duly served on her. Above -all, she -herself has given her address in October 1979′.in Ex. R. 2, stating that she is residing at No. 2 Kanniah Chetti St. Venkatapuram, Ambattur, Madras 53.

..20. As against the above, documentary evidence, the Court below was inclined to base its conclusion holding that the respondent is residing at Madras, solely on the recital made in the preamble of the petition filed under Section 125 Cr. P.C. which reads thus: The petitioner/complainant Balakanaka Lakshmi, aged about 23 years, residing at Madras, solemnly affirm and state as follows. Barring this, there is nothing on record to show that the respondent is residing within the territorial jurisdiction of the Court below or at any rate in any part of the Madras Corporation limits. The respondent would be conspicuously silent about the actual place of her residence in her affidavit. Only if the respondent gives her- residential address, the petitioner would be able to refute it by producing evidence to the contrary. Her bald, and vague statement that she is residing at Madras, will not enable the Court to arrive at any definite conclusion that she is residing within the territorial jurisdiction of the Court. If really the respondent is residing in any part of the Madras City, she should have specifically given the door number and the names of the street and of the locality, so that the Court below could unmistakably take seisin, of the matter. On the other hand, she has not denied the statement in the counter that she is residing at Ambattur, Madras 53 (Madras 53 denotes the postal division). Ex. R. 5 dated 9-8-1980, reveals that the correspondence addres sed to her has been served on her at her Ambattur address, even after her petition for maintenance dated, 20-2-1980 has been filed before the Court below, and the respondent herself has given her Ambattur address in Ex. R-2 Moreover, it may be noted that the notice issued from this Court in this revision sent to the respondent through the II Metropolitan Magistrate, Egmore, Madras, has been served on the respondent only at her residence at Ambattur mentioned above. Therefore, I unhesitatingly hold that the respondent is even now residing only at Ambattur. For all the reasons stated above, I hold that the respondent is not residing within the territorial jurisdiction of the Court below, either temporarily or permanently, but she is proved to be ‘residing’ within the meaning of the said expression used in which area the Court within the Chingalpattu district alone will have the territorial. jurisdiction’.

..21. In the result, the.revision is allowed, the order passed by the II Metropolitan Magistrate is set aside and the objection raised by the petitioner with regard to the territorial jurisdiction is upheld. It is left to the respondent to present the petition before the appropriate and competent Court having jurisdiction over Ambattur.