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R D vs B D on 31 July, 2019

$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Judgment: 31.07.2019
+ MAT.APP.(F.C.) 149/2018

RD ….. Appellant
Through: Ms. Susmita Mahal, Advocate.

versus

BD ….. Respondent
Through: Mr. Trilok Chand, Advocate.

CORAM:
HON’BLE MR. JUSTICE G.S. SISTANI
HON’BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)

1. The present appeal arises out of an interim order dated 18.04.2018
passed by the Family Court whereby two applications filed by the
appellant-wife; one under Section 24 of the Hindu Marriage Act
(hereinafter referred to as ‘HMA’) seeking maintenance for herself
and the second application under Section 26 of HMA seeking custody
of the two minor children have been dismissed.

2. The brief facts of the case to be noticed for the disposal of the present
appeal are that the marriage between the parties was solemnized on
20.02.2006 at Delhi. Two children were born out of the said wedlock,
who are aged about 9 years and 11 years respectively. The parties are
living separately since the year 2015. On 04.02.2017, a petition under
Section 9 of HMA was filed by the appellant-wife before Family
Court seeking restitution of conjugal rights which is pending.

MAT.APP (F.C.) No.149/2018 Page 1 of 10

3. The appellant-wife is aggrieved by the impugned order passed by the
Family Court on two grounds; firstly the application filed by her
seeking maintenance under Section 24 of HMA has been rejected on
the ground that the maintenance has already been fixed @ Rs. 2000/-
per month in the proceedings initiated by the appellant-wife under the
Protection of Women from SectionDomestic Violence Act, 2005 (hereinafter
referred to as ‘SectionDV Act’). Secondly; the custody of the children was
declined to the respondent-wife and submits that the custody of the
minor children should be given to the appellant-wife which is
necessary for the proper growth of the children including physical as
well as mental development, and thus, the counsel prays the impugned
order be set aside.

4. Ms. Susmita Mahal, learned counsel for the appellant-wife submits
that the Court in proceedings arising out of the SectionDV Act has only
granted interim maintenance and she is unable to sustain herself with a
meager sum of Rs. 2,000/- per month.

5. Mr. Trilok Chand, learned counsel for the respondent-husband has
opposed this appeal on the ground that the appellant-wife is a
housewife and totally dependent upon the respondent-husband for her
day to day needs and thus, she is not in a position to bring up her
children in view of her poor financial condition. The counsel prays
that the impugned order is a well reasoned order and there is no
infirmity in it.

6. Vide order dated 12.11.2018, we had appointed Mr. Prabhjit Jauhar as
amicus curiae in the matter to assist this Court on the question as to

MAT.APP (F.C.) No.149/2018 Page 2 of 10
whether maintenance can be awarded in other proceedings once the
interim maintenance has already been granted under proceedings
arising out of Section 125 of Cr.P.C. or SectionDV Act.

7. We have heard learned counsel for the parties and have also given our
thoughtful consideration to the matter. We may note that the Family
Court has rejected the application filed by the appellant-wife under
Section 24 of HMA solely on the ground that maintenance of
Rs.2,000/- per month already stands fixed in the proceedings arising
out of the SectionDV Act. The Family Court while deciding the application
has placed reliance on the decisions rendered in the case of Rachna
Kathuria Vs. Ramesh Kathuria reported at 2010 SCC OnLine Del
2929 and Renu Mittal Vs. Anil Mittal and Ors., reported at 2010 SCC
OnLine Del 3390, wherein the learned Single Judge of this Court held
that the proceedings under Section 125 of the Code of Criminal
Procedure (hereinafter referred to as ‘SectionCr.P.C.’) and the SectionDV Act are
parallel proceedings for seeking interim maintenance and once interim
maintenance has been granted in one of such proceeding, the same
cannot be re-agitated in the other proceedings.

8. The first issue which arises for our consideration is as to whether
maintenance can be awarded in other proceedings once the interim
maintenance has already been granted under proceedings arising out
of Section 125 of Cr.P.C. or SectionDV Act.

9. At the outset, we deem it appropriate to extract Section 20 of DV Act
which reads as under:

MAT.APP (F.C.) No.149/2018 Page 3 of 10

“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–

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

(Emphasis Supplied)

10. At this stage, it would be necessary to re-visit the law governing
maintenance under different statutes.

11. In the case of SectionManish Jain vs. Akanksha Jain reported at II (2017)
DMC 106 (SC), the order passed by this Court whereby interim
maintenance of Rs. 60,000/- per month was granted to the respondent-

MAT.APP (F.C.) No.149/2018 Page 4 of 10

wife under Section 24 of HMA in addition to Rs. 10,000/- per month
which the appellant-husband was already paying by way of interim
maintenance to the respondent-wife in the proceedings under the SectionDV
Act was challenged before the Supreme Court of India. The Apex
Court while reducing the quantum of maintenance under Section 24 of
the HMA Act held that the maintenance pendente lite granted under
HMA would be in addition to the amount paid under the proceedings
of SectionDV Act.

12. In the case of Rajat Johar Vs. Divya Johar reported at 2017 SCC
OnLine Del 11790, a learned Single Judge of this Court held that „the
monetary relief as provided under the SectionDV Act is different from
maintenance, which can be in addition to an order of maintenance
under Section 125 of Cr.P.C. or any other law, and can be granted to
meet the expenses incurred and losses suffered by the aggrieved
person and child of the aggrieved person as a result of the domestic
violence.‟

13. Similarly, the High Court of Bombay in the case of SectionPrakash Babulal
Dangi vs. The State of Maharashtra and Ors. reported at 2017 SCC
OnLine Bom 8897 held that maintenance can be awarded both under
the SectionDV Act as well as under Section 125 of Cr.P.C. The relevant para
7 and 8 read as under:

“7. Now both the proceedings being independent, both the
orders will stand independently and, hence, husband will have
to pay not only the maintenance awarded under the SectionDomestic
Violence Act, which was of an interim nature and taking into
consideration that maintenance only, the wife was awarded the
maintenance under Section 125 of Cr.P.C. only from the date of

MAT.APP (F.C.) No.149/2018 Page 5 of 10
the order. It has to be held that this order under Section 125 of
Cr.P.C. stands independently and in addition to the
maintenance awarded under the SectionDomestic Violence Act.

8. It has to be held so in view of Section 20(1)(d) of the
Domestic Violence Act, which clearly provides that, „in
proceedings under the SectionD.V. Act, the Magistrate may direct the
Respondent to pay the maintenance to 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
Cr.P.C. or any other law for the time being in force‟. Therefore,
the power to award maintenance under SectionD.V. Act is in addition
to an order of maintenance under Section 125 of Cr.P.C. or any
other law for the time being in force. Section 36 of the D.V. Act
makes the things further clear by providing that, „the provisions
of the SectionD.V. Act shall be in addition to and not in derogation of
the provisions of any other law for the time being in force‟.
Therefore, it follows that the amount of maintenance awarded
under the SectionD.V. Act cannot be substituted to the order of
maintenance under Section 125 of Cr.P.C.”

(Emphasis Supplied)

14. Also, the High Court of Punjab Haryana in the case of Sanjay
Gulati Vs. Harsh Lata reported at MANU/PH/0323/2018, while
deciding the question as to whether maintenance can be claimed by
the wife under the SectionDV Act, in view of the fact that she is already
receiving maintenance under Section 125 of Cr.P.C. It has been held
that the provisions of SectionDV Act are supplementary to the other laws.

The relevant para 13 reads as under :

“13. Therefore, the upshot of the discussion would be that the
respondent wife would be entitled to claim maintenance under
Section 20 of the Domestic Violence Act, even though she is
already getting maintenance under Section 125 of the Code of
Criminal Procedure. There is no requirement for the aggrieved

MAT.APP (F.C.) No.149/2018 Page 6 of 10
person, the respondent herein, to file an application under
Section 127 of the Code of Criminal Procedure seeking
enhancement of maintenance and to prove that they are
changed circumstances. An aggrieved person can institute a
petition under the SectionDomestic Violence Act, in addition to
proceedings under Section 125 of the Code of Criminal
Procedure. However, the courts, while deciding quantum of
maintenance have to take into account the maintenance being
awarded to the aggrieved person under other provisions of law,
be it under Section 125 Code of Criminal Procedure, Section 24
of the Hindu Marriage Act or any other provisions applicable
thereto, while awarding maintenance.”

(Emphasis Supplied)

15. A careful perusal of Section 20 of DV Act shows that it provides
maintenance to the aggrieved person as well as her children, if any,
which would be in addition to an order of maintenance under Section
125 of the Code of Criminal Procedure or any other law for the time
being in force. Further, Section 26 of DV Act stipulates that any relief
available under Sections 18 to Section22 of DV Act may also be sought in
any legal proceedings before a civil court, Family court or a criminal
court and such relief may be sought in addition thereto. Whereas
Section 36 of DV Act clearly stipulates „Act not in derogation of any
other law–The provisions of this Act shall be in addition to, and not
in derogation of the provisions of any other law, for the time being in
force.‟

16. A conjoint reading of the aforesaid Sections 20, 26 and 36 of DV Act
would clearly establish that the provisions of DV Act dealing with
maintenance are supplementary to the provisions of other laws and
therefore maintenance can be granted to the aggrieved person (s)

MAT.APP (F.C.) No.149/2018 Page 7 of 10
under the DV Act which would also be in addition to any order of
maintenance arising out of Section 125 of Cr.P.C.

17. On the converse, if any order is passed by the Family Court under
Section 24 of HMA, the same would not debar the Court in the
proceedings arising out of SectionDV Act or proceedings under Section 125
of Cr.P.C. instituted by the wife/aggrieved person claiming
maintenance. However, it cannot be laid down as a proposition of law
that once an order of maintenance has been passed by any Court then
the same cannot be re-adjudicated upon by any other Court. The
legislative mandate envisages grant of maintenance to the wife under
various statutes such as HMA, Hindu Adoption and SectionMaintenance Act,
1956 (hereinafter referred to as ‘HAMA’), Section 125 of Cr.P.C. as
well as Section 20 of DV Act. As such various statutes have been
enacted to provide for the maintenance to the wife and it is nowhere
the intention of the legislature that once any order is passed in either
of the proceedings, the said order would debar re-adjudication of the
issue of maintenance in any other Court.

18. Having regard to the law settled by the Hon’ble Supreme Court and
various other High Courts to the facts of the present case, we find that
the Family Court in different matters is placing reliance on the
judgments of Rachana Kathuria (supra) and Renu Mittal (supra). In
our view the impugned order passed by the Family Court needs to be
tested on the anvil of the settled law and requires to be reconsidered.
The law laid down in the aforesaid two judgments is not a good law
and has been over ruled. Accordingly, the interim order dated

MAT.APP (F.C.) No.149/2018 Page 8 of 10
18.04.2018 arising out of the application under Section 24 of HMA is
set aside.

19. The second question which arises for our consideration in this appeal
is with respect to the grant of custody of two minor children as
claimed by the appellant-mother. Admittedly, the parties are residing
separately since the year 2015 and the children are in the care and
custody of the respondent-father. Unhappy with such a situation, we
had directed production of the children in the Court and have also
fixed a time schedule vide order dated 06.02.2019 to enable the
appellant-mother to meet the children at Alwar on each Sunday for
two hours. We had also directed that the bus fare would be
reimbursed by the respondent-father.

20. We had also requested Ms. Rosemary Raju, Advocate, who was
present in the Court on 06.02.2019, to act as a mediator in the matter.
We are informed that the children are happy meeting with the
appellant-mother.

21. At this stage, counsel for the respondent-husband has submitted that
his income is 6,000/- to 8,000/- per month but it is not denied that he
is a painter and he also participates in bhajan mandalis. He volunteers
to pay Rs.8,000/- per month as maintenance to the wife.

22. We set aside the order of the Family Court with regard to the custody
of the children, for the reason that the Family Court has observed that
the appellant-mother is not in a position to maintain the children and
also that in case the care and custody is

MAT.APP (F.C.) No.149/2018 Page 9 of 10
transferred to the mother it may be traumatic for the children. Having
regard to the tender age of the children, we are of the considered view
that love and affection of both the parents is necessary for their
upbringing.

23. Accordingly, we set aside the impugned order dated 18.04.2018 and
remand the matter back to the Family Court. Parties will appear
before the Family Court on 07.08.2019. During the interim period the
arrangement arrived at and also directions passed in Contempt Case
No. 602/2018 for the train expenses, etc. would also remain in force.
The Family Court at the first instance will ensure that the appellant-
mother meets the children and when the children are comfortable at
that point of time the Family Court would consider what would be the
best interest of the children. As far as maintenance is concerned,
granting maintenance under SectionDomestic Violence Act is not a bar.

24. We appreciate the efforts rendered by Mr. Prabhjit Jauhar and Ms.
Rosemary Raju who acted as amicus curiae and mediator for rendering
valuable contribution in the disposal of this matter.

25. Resultantly, the appeal is disposed of in the above terms.

G.S.SISTANI, J.

JYOTI SINGH, J.

JULY 31, 2019
//AK

MAT.APP (F.C.) No.149/2018 Page 10 of 10

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