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Vishal S/O. Rajesaheb Gore vs Sow. Aparna W/O. Vishal Gore on 13 June, 2018

1 Cri.Revn.203/2017

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO.203 OF 2017

Vishal S/o. Rajesaheb Gore
Age:42 years, Occu:Service,
R/o. Jawahar High School,
Ashiv, Tq. Ausa, Dist. Latur
PETITIONER
(ORIG.NON-APPLICANT)
VERSUS

1. Sow.Aparna W/o Vishal Gore
Age: 34 years, Occu.:Household,

2. Miss. Neha d/o Vishal Gore,
Age: 11 years, Occu.: Education,

Respondent No.2 is minor and
under guardianship of Respondent
No.1

Both R/o Mundkar Niwas,
Mantri Nagar, Latur, Taluka
District Latur
Respondents
(Orig. Applicants)

Shri S.S. Halkude, Advocate for Petitioner;
Shri Anil H. Kasliwal, Adv.for Resp.Nos.1 and 2.
—–
CORAM : P.R.BORA, J.

DATE OF RESERVING JUDGMENT :
6 th
April,2018
DATE OF PRONOUNCING JUDGMENT :
13
th
June,2018

JUDGMENT:

1) Heard finally with consent of the

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2 Cri.Revn.203/2017

learned counsel appearing for the parties.

2) The question which falls for

consideration in the present criminal revision

application is, whether interim monthly

maintenance directed to be paid under Section 23

read with Section 20(1)(d) of The Protection of

Women from Domestic Violence Act, 2005 can be

adjusted against the amount of maintenance

awarded under Section 125 of The Code of Criminal

Procedure.

3) The respondent herein had filed two

different proceedings against the present

applicant; one under Section 125 of Code of

Criminal Procedure (for short, Cr.P.C.) and

another under the provisions of Protection of

Women from Domestic Violence Act, 2005 (for short

DV Act). In an application under Section 125 of

Cr.P.C. learned J.M.F.C. has awarded maintenance

at the rate of Rs.3,000/- to respondent no.1 and

Rs.2,000/- to respondent no.2 from the date of

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3 Cri.Revn.203/2017

application. Whereas in the proceeding under DV

Act, by way of interim maintenance, the JMFC

Court has directed present applicant to pay an

amount of Rs.2,000/- per month to respondent no.1

and Rs.1,000/- per month to respondent no.2.

4) The respondents filed an application

seeking recovery of the amount of Rs.61,000/-

from the applicant towards arrears of maintenance

of the period from 27.08.2014 to 27.08.2015

awarded under Section 125 of Cr.P.C. Applicant

filed an application in the said execution

proceeding praying that, the amount of

Rs.33,000/- paid by him by way of interim

maintenance under the DV Act shall be adjusted

against the said arrears.

5) The learned Judge of the Family Court,

Latur vide order dated 02.08.2017, rejected the

said application on the ground that the applicant

has not challenged the order passed under DV Act

and that both the proceedings are independent and

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4 Cri.Revn.203/2017

hence adjustment as sought by the applicant was

not permissible.

6) Shri Halkude, learned Counsel appearing

for the revision applicant, assailed the impugned

order on various grounds. The learned Counsel,

relying upon the judgment of the Hon’ble Apex

court in the case of Sudeep Chaudhari Vs. Radha

Chaudhari – AIR 1999 SC 536, submitted that

though the ratio laid down in the said judgment

would squarely apply to the facts of the present

case, trial court has erroneously refused to

apply the same. In the aforesaid case, the

Hon’ble Apex court has ruled that, ‘the amount

awarded under Section 125 of Cr.P.C. is

adjustable against the amount awarded in

matrimonial proceeding under Section 24 of the

Hindu Marriage Act as alimony to wife’.

7) Shri Kasliwal, learned Counsel appearing

for the respondent, opposed the submissions made

on behalf of the revision applicant. The learned

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5 Cri.Revn.203/2017

Counsel submitted that the remedy, as provided

under the provisions of the DV Act, is an

independent remedy in addition to the provisions

under Section 125 of the Cr.P.C. The learned

Counsel read out Section 20(1)(d) of the DV Act,

and submitted that in view of the clear

provision, as aforesaid, in the DV Act, the

request made by the revision applicant to adjust

the amount of interim maintenance awarded under

the provisions of the DV Act, was unsustainable

and hence has been rightly rejected by the

learned Judge of the Family Court. In order to

support his argument, learned Counsel relied upon

the judgment of the learned Single Judge of this

Court in Criminal Writ Petition No.3791/2016

(Prakash Babulal Dangi Vs. The State of

Maharashtra and Anr.) with Criminal Writ Petition

No.3239/2014 delivered on 10th October, 2017. The

learned Counsel also relied on the judgment of

the Hon’ble Gujarat High Court in the case of

Haresh Narayan Jaguja and Ors.Vs. Namrata Haresh

Jaguja and Ors. – MANU/GJ/0768/2015.

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6 Cri.Revn.203/2017

8) I have carefully considered the

submissions advanced by the learned Counsel

appearing for the respective parties. I have

also perused the impugned order and the other

material placed on record by the parties.

9) Section 125 of the Cr.P.C., relevant for

deciding the controversy in the present matter,

reads as under, –

125. Order for maintenance of wives,
children and parents – (1) If any
person having sufficient means
neglects or refuses to maintain –

(a) his wife, unable to maintain
herself, or

(b) his legitimate or illegitimate
minor child, whether married or not,
unable to maintain itself, or

(c) his legitimate or illegitimate
child (not being a married daughter)
who has attained majority, where
such child is, by reason of any
physical or mental abnormality or
injury unable to maintain itself, or

(d) his father or mother, unable to
maintain himself or herself,
a Magistrate of the first class may,
upon proof of such neglect or
refusal, order such person to make a
monthly allowance for the
maintenance of his wife or such
child, father or mother, at such
monthly rate, as such Magistrate
thinks fit, and to pay the same to

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7 Cri.Revn.203/2017

such person as the magistrate may
from time to time direct”

10) I also deem it appropriate to reproduce

herein below Sections 20, 26, and 36 of the DV

Act, which read thus, –

“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 not
limited to, –

(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.

(2) The monetary relief granted
under this section shall be
adequate, fair and reasonable and
consistent with the standard of
living to which the aggrieved person
is accustomed.

(3) The Magistrate shall have the
power to order an appropriate lump

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8 Cri.Revn.203/2017

sum payment or monthly payments of
maintenance, as the nature and
circumstances of the case may
require.

(4) The Magistrate shall send a
copy of the order for monetary
relief made under sub-section (1) to
the parties to the application and
to the in charge of the police
station within the local limits of
whose jurisdiction the respondent
resides.

(5) The respondent shall pay the
monetary relief granted to the
aggrieved person within the period
specified in the order under sub-
section (1).

(6) Upon the failure on the part of
the respondent to make payment in
terms of the order under sub-section
(1), the Magistrate may direct the
employer or a debtor of the
respondent, to directly pay to the
aggrieved person or to deposit with
the Court a portion of the wages or
salaries or debt due to or accrued
to the credit of the respondent,
which amount may be adjusted towards
the monetary relief payable by the
respondent.

26. Relief in other suits and legal
proceedings.- (1) Any relief
available under
sections 18,19,20,21
and
22 may also be sought in any
legal proceedings, before a civil
Court, family Court or a criminal
Court, affecting the aggrieved
person and the respondent whether
such proceeding was initiated before
or after the commencement of this
Act.

(2) Any relief referred to in sub-

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9 Cri.Revn.203/2017

section (1) may be sought for in
addition to and along with any other
relief that the aggrieved person may
seek in such suit or legal
proceeding before a civil or
criminal Court.

(3) In case any relief has been
obtained by the aggrieved person in
any proceedings other than a
proceeding under this Act, she shall
be bound to inform the Magistrate of
the grant of such relief.

36. Act not in derogation of any
other law, – The provisions of the
Act shall be in addition to, and not
in derogation of the provisions of
any other law for the time being in
force.”

11) Section 20(1)(d) of the DV Act makes it

clear that the maintenance, which can be granted

under the said Act, can be in addition to an

order of maintenance under Section 125 of Cr.P.C.

and or any other law for the time being in force.

Whereas sub-section(3) of Section 26 of said Act

enjoins the duty on the aggrieved person to

inform the Magistrate, if she has obtained any

relief available under Sections 18, 19, 20, 21

and 22 in any other legal proceeding filed by her

before the Civil Court, Family Court or criminal

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10 Cri.Revn.203/2017

court. It is discernible that the object behind

incorporating the aforesaid specific provision is

that while granting any of the reliefs sought

under Sections 18, 19, 20, 21 and 22 of the DV

Act, the Magistrate shall take into account and

consider, if any similar relief is already

obtained by the aggrieved person. To illustrate,

if the maintenance is sought by the aggrieved

person under Section 20 of the DV Act, she shall

be bound to inform the Magistrate, if she is

already receiving the maintenance under Section

125 of Cr.P.C. or in any legal proceeding before

the civil court. The purpose underlying the said

provision is explicit that the Magistrate must be

in a position to take a reasonable decision while

awarding the maintenance, if any under the

provisions of the DV Act. It is thus evident

that though the proceeding under the DV Act may

be an independent proceeding, the Magistrate

cannot ignore the maintenance awarded, if any, in

any other legal proceeding before the civil court

or criminal court and has to take into account

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11 Cri.Revn.203/2017

the maintenance already awarded, if any, while

taking a decision whether in addition to the

maintenance already awarded any more amount is

required to be awarded and if yes, to what extent

? and shall have to record reasons therefor.

12) Admittedly, there is no such provision,

as aforesaid, under Sections 125 of Cr.P.C. The

question is, whether the J.M.F.C. or the Judge

of the Family Court, while deciding the

application filed under Section 125 of Cr.P.C.,

more particularly, while determining the quantum

of monthly maintenance can ignore or/refused to

take into account the order, if any, passed under

DV Act, whereby the aggrieved person has been

already granted certain maintenance or interim

maintenance, as because there is no such express

provision in Cr.P.C.? It appears to me that it

would be wholly unjust, if the Magistrate fails

or refuses to take into account the maintenance

or interim maintenance already awarded under the

provisions of DV Act while determining the

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12 Cri.Revn.203/2017

quantum of maintenance to be awarded under

Section 125 of Cr.P.C. Section 125 of Cr.P.C.

enjoins the duty on the Magistrate to award fair

and appropriate amount of maintenance, meaning

thereby that it shall not be inadequate or

insufficient and at the same time shall also not

be excessive or unreasonable. In the

circumstances, though there may not be any

express provision under Section 125 of Cr.P.C.,

it may not be impermissible to take into account

the maintenance or interim maintenance, if any,

already awarded to the aggrieved person under the

provisions of the DV Act while finally

determining the quantum of maintenance u/s 125

Cr.P.C. The same principle would apply to the

application u/s 128 of Cr.P.C. and thus the

amount of interim maintenance awarded under DV

Act shall liable to be adjusted in the amount of

maintenance finally awarded u/s 125 Cr.P.C., so

long the aggrieved person is receiving such

amount.

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13 Cri.Revn.203/2017

13) In view of the above, it appears to me

that the revision applicant was fully justified

in making a request in the application u/s. 128

of Cr.P.C. to adjust the amount paid by him to

the respondents by way of interim maintenance in

the proceedings under the DV Act, against the

amount of maintenance awarded u/s. 125 of the

Code. The learned Judge of Family Court has,

however, refused to accept the said request on

the ground that the revision applicant has not

challenged the order passed under the DV Act or

has secured any stay to the execution of the said

order.

14) In the case of Sudeep Chaudhary vs Radha

Chaudhary – AIR 1999 SC 536, wife had filed an

application under Section 125 of Code of Criminal

Procedure and was awarded the maintenance @ of

Rs.350/- per month and was subsequently enhanced

to Rs.500/- per month. In the proceeding under

the Hindu Marriage Act, 1955 also interim alimony

was sought by the wife under Section 24 of the

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14 Cri.Revn.203/2017

Hindu Marriage Act, 1955. It was granted @ of

Rs.600/- per month and was subsequently enhanced

to Rs.800/- per month. Since, the husband failed

to pay the amount of maintenance as aforesaid,

the wife started recovery proceedings, whereupon

the husband contended that the maintenance amount

under Section 125 of Cr.P.C. should be adjusted

against the interim alimony and the Magistrate,

before whom the recovery proceedings were

pending, upheld the contention. The High Court,

however, held that the Magistrate was in error in

directing the adjustment of the maintenance

amount awarded under Section 125 of Cr.P.C.

against the amount awarded under Section 24 of

the Hindu Marriage Act. The Hon’ble Apex Court

set aside the order passed by the Hon’ble High

Court by observing that the amount awarded under

Section 125 of Cr.P.C. for maintenance was

adjustable against the amount awarded in the

matrimonial proceedings and no maintenance was

liable to be given over and above the same.

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15 Cri.Revn.203/2017

15) The aforesaid decision was cited by the

Revision Applicant before the Trial Court. The

Trial Court has however failed in appreciating

the ratio laid down in the said Judgment and has

wrongly held that the Judgment of the Civil Court

is binding on the Criminal Court so far as the

amount of maintenance is concern and not vice-

versa. From the Judgment of the Hon’ble Apex

Court it is clear that the Hon’ble Apex Court

allowed the adjustment of the lower amount

(Rs.500/-) awarded by the Magistrate against the

higher amount of Rs.800/-, which was subsequently

enhanced to Rs.1000/-, awarded by the Matrimonial

Court.

16) In the case of Shailendra Nath Gosh vs.

State of West Bangal – 1997 CRI.L.J. 4591, the

Hon’ble Calcutta High Court allowed the

adjustment of maintenance awarded by the

Matrimonial Court under Section 24 of the Hindu

Marriage Act against the maintenance awarded

under Section 125 of Cr.P.C. since the amount of

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16 Cri.Revn.203/2017

maintenance awarded by the Matrimonial Court was

lower than the amount awarded by the Magistrate’s

Court under Section 125 of Cr.P.C.

17) In Sanjay vs. Swati – 2006 DMC 731

Bombay, the maintenance was awarded to the wife

in the proceeding under Hindu Marriage Act under

Section 24 of the said Act and also in an

application filed by her under Section 125 of

Cr.P.C. The maintenance @ of Rs.1500/- was

awarded under Section 125 of Cr.P.C.; whereas,

maintenance was awarded @ 2000/- per month under

Section 24 of the Hindu Marriage Act. The wife

had filed an application before the Family Court

for recovery of the arrears of maintenance

ordered under Section 125 of Cr.P.C. In the said

application the husband claimed that he was not

bound to pay the amount of maintenance under

Section 125 of Cr.P.C. since he was already

paying higher amount of maintenance in compliance

with the order passed under Section 24 of the

Hindu Marriage Act. The Family Court rejected

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17 Cri.Revn.203/2017

his request and hence the husband approached the

High Court. The learned Single Judge of this

Court set aside the order passed by the Family

Court and clarified that the respondent wife

shall not be entitled to claim execution of the

order under Section 125 of the Cr.P.C. until she

receives or continue to receive the amount of

maintenance under section 24 of the Hindu

Marriage Act.

18) What I intend to emphasize is the fact

that the adjustment is permissible and the

adjustment can be allowed of the lower amount

against the higher amount. Though the wife can

simultaneously claim maintenance under the

different enactments, it does not in any way mean

that the husband can be made liable to pay the

maintenance awarded in each of the said

proceedings.

19) The wife and children can claim

maintenance under Section 125 of the Code of

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18 Cri.Revn.203/2017

Criminal Procedure, under Section 18 and 20 of

the Hindu Adoption and Maintenance Act, 1956 and

also under Section 20 read with 23 of the D.V.

Act. The wife additionally can claim interim

alimony under Section 24 of the Hindu Marriage

Act. Even if all these remedies are

simultaneously pursued by the wife and some or

the other order is passed in each of the said

proceedings, it would not be permissible for the

wife to claim the amount of maintenance awarded

in each of the said proceedings independently.

Firstly, the propriety demands that if any

similar relief is granted in the earlier

proceedings, the person in whose favour such

relief is granted has to disclose the said fact

in the subsequent proceedings. For a moment even

if it is presumed that no such discloser was made

or in a hypothetical situation, all the

proceedings are simultaneously decided, the

husband will definitely have a right to claim

adjustment of the amount awarded in the said

proceeding and can not be subjected to

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19 Cri.Revn.203/2017

independently pay the amount of maintenance

awarded under each of the said proceedings.

20) In the case of Sudeep Chaudhary (cited

supra) the Hon’ble Apex Court has laid down a law

that the amount awarded under Section 125 of

Cr.P.C. is adjustable against the amount awarded

in matrimonial proceedings under Section 24 of

the Hindu Marriage Act as alimony to wife. No

narrow meaning can be given to the law laid down

by the Hon’ble Apex Court in the aforesaid

judgment by interpreting the same to mean that

the amount awarded by the Criminal Court only can

be adjusted against the amount awarded by the

Civil Court in the proceeding before it. The

Judgment read and interpreted in proper spirit

lays down a law that the lower amount is to be

adjusted against the higher amount. As noted

earlier, in the case of Shailendra Gosh (cited

supra) the Hon’ble Calcutta High Court allowed

such request by permitting the adjustment of the

maintenance awarded under Section 24 of the Hindu

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20 Cri.Revn.203/2017

Marriage Act by the Civil Court against the

amount of maintenance awarded by the Criminal

Court under Section 125 of Cr.P.C., since the

amount awarded under Section 125 of Cr.P.C. was

higher than the amount awarded under Section 24

of the Hindu Marriage Act.

21) In the case of Merchandise Vs. State –

(1990) 1 DMC 38, the Hon’ble Allahabad High Court

was hearing a revision by the husband directed

against the order granting maintenance allowance

to the wife under Section 125 of Cr.P.C. and it

was contended on behalf of the respondent that he

has already filed a petition for divorce and in

that divorce proceeding, he has been directed to

pay maintenance to the wife. In the

circumstances, the High Court directed adjustment

of the amount paid towards the maintenance in the

matrimonial proceeding against the maintenance

payable under section 125 of Cr.P.C. The Court

held that double payment of maintenance is not

intended by law and that if any money has been

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21 Cri.Revn.203/2017

deposited towards the payment of maintenance in

the divorce proceeding, the same was liable to be

adjusted in the payment of maintenance ordered

under section 125 of Cr.P.C.

22) There may be different enactments, to

which I have referred to herein above, containing

some or other provision providing maintenance to

wife and children, but the object behind every

such provision is common; to prevent vagrancy and

destitution. Such a provision in all these

enactments is meant to achieve a social purpose

and a measure of social justice specially

incorporated to protect women and children. It

falls within the constitutional sweep of Article

15(3) reinforced by Article 39 of the

Constitution. However, as I have discussed

herein before, these provisions cannot be

interpreted to mean that the husband can be made

liable to pay maintenance/interim maintenance

awarded under each of the said provisions

independently and cannot be permitted to seek

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22 Cri.Revn.203/2017

adjustment of the amount of maintenance awarded

in the earlier proceeding against the amount

awarded in the subsequent proceeding or vice

versa.

23) In the instant matter, two proceedings

were filed by the wife with a gap of one day.

The application under the DV Act was filed on 26 th

August, 2014; whereas the application under

Section 125 of Cr.P.C. was filed on 27th August,

2014. In the proceeding under the DV Act,

interim order came to be passed on 16th January,

2015 whereby the husband was directed to pay

interim maintenance to the present respondents @

Rs.2,000/- and Rs.1,000/- respectively. The

application under Section 125 of Cr.P.C. was

finally decided later on, i.e. on 1.9.2015. The

learned Magistrate awarded the maintenance @ Rs.

3,000/- to the wife and @ Rs.2,000/- to the

daughter and the husband was directed to pay the

said amount from the date of application, i.e.

27.8.2014.

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                                             23                  Cri.Revn.203/2017

24) The fact that the interim maintenance

was awarded under the DV Act was not brought to

the notice of the learned Magistrate while

deciding the application under Selection 125 of

Cr.P.C. either by the wife or by the husband.

The learned Magistrate held the proved income of

the husband to the tune of Rs. 15,000/- per month

and accordingly granted maintenance to the wife @

Rs.3,000/- and to the daughter @ Rs.2,000/- per

month. The wife has not challenged the

order passed under Section 125 of Cr.P.C.

Therefore, it can be reasonably inferred that the

amount of maintenance awarded by the learned

Magistrate is adequate and sufficient to meet her

requirements to lead life of her standard.

25) When the interim order came to be passed

under the DV Act, there was no other order in

existence awarding any maintenance to the wife

and the daughter. Therefore, it cannot be said

that the amount, as has been awarded by way of

interim maintenance under the DV Act, is in

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24 Cri.Revn.203/2017

addition to the amount of maintenance awarded

under any other provision of law. Had there been

any earlier order in existence awarding some

maintenance to the respondents and in spite of

the said order, if the learned Magistrate dealing

with the proceeding under the DV Act, by

recording reasons, would have granted some more

amount by way of maintenance in addition to the

maintenance already granted in favour of the

aggrieved person, the position would have been

different. In such a case, the adjustment could

not have been permissible. In the instant

matter, since the interim maintenance awarded

under the DV Act is not in addition to the amount

already granted in any other civil or criminal

proceeding, the same is certainly liable to be

adjusted against the amount of maintenance

finally awarded under Section 125 of Cr.P.C. even

though the husband has not challenged the said

order before any higher court.

26) Though the learned Counsel for the

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25 Cri.Revn.203/2017

respondents sought to rely upon the decision of

the learned Single judge of this Court in the

case of Prakash Babulal Dangi (cited supra), it

is brought to my notice that the Hon'ble Apex

Court in SLP (Cree.) No.10280-10281/2017 has

stayed the operation of the said order and has

directed the husband to continue to pay the

maintenance as awarded under the DV Act. It is

not in dispute that in the aforesaid case, the

amount of maintenance awarded under the DV Act is

higher than the amount awarded under Section 125

of Cr.P.C. Thus, the higher amount only is made

payable by the Hon'ble Apex court.

27) In view of the facts, circumstances and

legal provisions discussed herein above, the

impugned order passed by the learned Judge of the

Family Court, Latur, cannot be sustained and

deserves to be quashed and set aside. It is

accordingly quashed and set aside. It is directed

that while computing the amount of maintenance

payable to the respondents for the period from

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26 Cri.Revn.203/2017

27.8.2014 to 26.8.2015, as per the order passed

under Section 125 of Cr.P.C., the learned Judge

of the Family Court shall take into account the

amount of maintenance paid by the husband under

the DV Act for the aforesaid period and adjust

the said amount against the amount payable under

Section 125 of Cr.P.C.

28) The Criminal Revision Application thus

stands allowed in the aforesaid terms.

(P.R.BORA)
JUDGE

bdv/
fldr 4.5.18

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