Tanushree & Ors. vs A.S.Moorthy on 7 February, 2018

$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 07.02.2018

+ CRL.REV.P. 314/2017

TANUSHREE ORS. ….. Petitioners

versus

A.S.MOORTHY ….. Respondent

Advocates who appeared in this case:
For the Petitioner : Ms Charu Sachdev,
Mr R.P.Panwar and Ms Baby Sharma,
Advocates.

For the Respondents : Mr.Akshay Malik, Addl. PP for the
State.
Mr Ankur Singhal, Advocate.

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

07.02.2018
SANJEEV SACHDEVA, J. (ORAL)

1. The petitioners are aggrieved by order dated 29.03.2017,
whereby the Trial Court has adjourned sine die the proceedings under
Section 125 of the Code of Criminal Procedure (Cr.P.C.) filed by the
petitioner seeking maintenance on the premise that two parallel
proceedings, i.e. proceedings under
Section 125 Cr.P.C. and
proceedings under
Section 12 of the Protection of Women from

CRL.REV.P.314/2017 Page 1 of 6
Domestic Violence Act, 2005 (hereinafter referred to as ‘the
D.V.Act’) seeking maintenance would not lie. The petitioner was
given liberty to seek revival of the proceedings in case maintenance
issue was not sought for in the Domestic Violence proceedings. This
order was passed, relying on the decision of a Coordinate Bench of
this Court in Renu Mittal versus Anil Mittal Others, 2010 (119)
DRJ 306.

2. Learned counsel for the petitioners submits that there is no
embargo on two Courts parallelly considering the issue of
maintenance. It is contended that the ambit of proceedings under
Section 12 of the D.V.Act are much wider than mere award of
maintenance, however once the order of maintenance is passed either
by the Court exercising power under
Section 125 Cr.P.C. or by the
Court under
Section 12 of the D.V.Act, the other Court is to take into
account the said order and appropriately pass an order. Learned
counsel further submits that there is misapplication of the ratio in
Renu Mittal (supra).

3. Section 20 of the D.V.Act lays down as under:-

“20. Monetary reliefs.–(1) While disposing of an
application under sub-section (1) of section 12, the
Magistrate may direct the respondent to pay monetary
relief to meet the expenses incurred and losses suffered
by the aggrieved person and any child of the aggrieved
person as a result of the domestic violence and such
relief may include but is not limited to–

CRL.REV.P.314/2017 Page 2 of 6

(a) the loss of earnings

(b) the medical expenses

(c) the loss caused due to the destruction, damage or
removal of any property from the control of the
aggrieved person; and

(d) the maintenance for the aggrieved person as well as
her children, if any, including an order under or in
addition to an order of maintenance under
section 125 of
the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force……………”

4. Reading of Section 20(1)(d) of the D.V.Act, shows that a Court,
which is considering an application under
Section 12 of the D.V.Act,
would take into account an order of maintenance passed under
Section
125 Cr.P.C. or any other law, for the time being, in force.

5. Reading of Section 20(1)(d) of the D.V.Act further shows that
the two proceedings are independent of each other and have different
scope, though there is an overlap. Insofar as the overlap is concerned,
law has catered for that eventuality and laid down that at the time of
consideration of an application for grant of maintenance under
Section
12 of the D.V.Act, the maintenance fixed under
Section 125 Cr.P.C.
shall be taken into account.

6. Pendency of proceedings under section 12 of the D.V.Act do
not act as an embargo for consideration of an application under
section 125 Cr.P.C. Rather, it implies that both the proceedings can

CRL.REV.P.314/2017 Page 3 of 6
continue simultaneously. It is only when there is a determination of
maintenance under
section 125 Cr.P.C., that the order would become a
relevant factor to be taken into account by the court considering grant
of maintenance under
section 12 of the D.V.Act.

7. The mere fact that two proceedings are initiated by a party; one
under
Section 125 Cr.P.C. and another under Section 12 of the Act
does not imply that one of the two has to be adjourned sine die, as has
been done in the present case. The Trial Court has erred in adjourning
sine die the 125
Cr.P.C. proceedings and not appreciating that unless
there is a determination of maintenance under
section 125 Cr.P.C., the
order does not become relevant for the determination of maintenance
under
Section 12 of the D.V.Act.

8. It may also be noticed that the proceedings under the D.V.Act
are not only confined to award of maintenance but several other
monetary reliefs inter alia expenses incurred, losses suffered, loss of
earnings, medical expenses, loss caused due to destruction, damage or
removal of any property maintenance etc.

9. There is thus clearly a distinction between the scope and power
exercised by the Magistrate under
Section 125 Cr.P.C. and under
Section 12 of the D.V.Act.

10. In Renu Mittal (supra), a Coordinate Bench of this Court held
as under:-

CRL.REV.P.314/2017 Page 4 of 6

“4. It must be considered that for granting maintenance,
a party can either approach the Court of MM
under
Domestic Violence Act soon after commission of
Domestic Violence or under
Section 125 Cr. P.C.
claiming maintenance. The Jurisdiction for granting
maintenance under
Section 125 Cr. P.C. and Domestic
Violence Act is parallel jurisdiction and if maintenance
has been granted under
Section 125 Cr. P.C. after taking
into account the entire material placed before the Court
and recording evidence, it is not necessary that another
MM under
Domestic Violence Act should again
adjudicate the issue of maintenance. The law does not
warrant that two parallel courts should adjudicate same
issue separately. If adjudication has already been done
by a Court of MM under
Section 125Cr. P.C., re-
adjudication of the issue of maintenance cannot be done
by a Court of MM under
Domestic Violence Act. I,
therefore, consider that learned MM was right in
allowing maintenance only to the tune of Rs. 6,000/-
p.m.”

11. In Renu Mittal (supra), the court was dealing with an issue
where the Trial Court while deciding an application under
section 12
of the D.V.Act, had followed the determination under
Section 125
Cr.P.C. and reconfirmed the maintenance awarded under
Section 125
Cr.P.C.. It is in these circumstances that the court held that two
parallel courts should not adjudicate same issue separately. If
adjudication has already been done by a Court of MM under
Section
125Cr. P.C., re-adjudication of the issue of maintenance cannot be
done by a Court of MM under
Domestic Violence Act. The said
judgment is clearly not applicable to the facts of the present case.

CRL.REV.P.314/2017 Page 5 of 6

12. In view of the above, the impugned order cannot be sustained.
The impugned order is accordingly set aside. The order adjourning the
proceedings sine die is recalled. The Trial Court shall proceed with
the application in accordance with law. The revision is allowed.

13. The application of the petitioner under section 125 Cr.P.C. is
directed to be listed before the concerned Trial Court for directions on
08.03.2018. The Trial Court is further directed to expedite the hearing
of the application.

14. Order Dasti under signatures of the Court Master.

SANJEEV SACHDEVA, J
FEBRUARY07, 2018
‘Sn’

CRL.REV.P.314/2017 Page 6 of 6

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