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Varun Slathia And Others vs . Divya Gupta on 24 May, 2019

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CRMC No.617/2018, IA No. 01/2018
Date of order: 24.05.2019
Varun Slathia and others Vs. Divya Gupta
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge.

Appearing counsel:
For Petitioner (s) : Mr. B. S. Salathia, Sr. Advocate with
Mr. Rajeev Chargotra, Advocate.
For Respondent (s) : Mr. F. A. Natnoo, Advocate.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.

1. Through the instant petition filed under Section 561-A Cr.P.C.,

petitioners have sought the following reliefs:-

“(i) Quashing of order dated 07.02.2017 passed by
the court of learned 3rd Additional Munsiff, Jammu in
petition under Section 488 Cr.P.C. titled, “Divya Gupta
versus Varun Slathia”.

(ii) Quashing of order dated 20.03.2017 passed by
the court of learned Chief Judicial Magistrate, Jammu
in application under section 23 of the JK Protection of
Women from SectionDomestic Violence Act 2010 titled, “Divya
Gupta versus Varun Slathia and others”.

2. The brief facts of the case, as stated by the petitioners in the instant

petition, are that the marriage between the petitioner No.1 and the

respondent was love-cum-arrange one and was solemnized at

Jammu on 27.01.2014, in accordance with Hindu rites and

ceremonies in presence of respectable persons and relatives of the

parties. Though the marriage was duly consummated, but no issue

has been born out of the said wedlock. After the marriage, the

petitioner No.1 and the respondent stayed together as husband and

wife at House No. 13-B(s), Karan Nagar Jammu. The petitioner

No.1 has high hopes and aspirations of peaceful married life with

CRMC No.617/2018
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the respondent. This apart, petitioner No.1 was not only hoping but

anxiously looking forward to a life full of mirth and merriment,

mutual love and devotion. However, the high hopes entertained by

him dashed to ground when the respondent on one pretext or the

other started treating him with both mental as well as physical

cruelty. The respondent stayed in her matrimonial home hardly for

2-3 months and rest she was staying with petitioner No. 1 for 11

months in Mumbai and ultimately left for matrimonial home on the

pretext that her mother had a dog bite and then switched off her

phones and told the petitioner No.1 in unequivocal terms that she

will not come back. Despite the fact that petitioner No.1 made all

possible efforts to get her back to the matrimonial home, but the

respondent has shown her pure obstinate and arrogant nature and

has never returned to her matrimonial home. Moreover, the

respondent and her family members started quarrelling and abusing

the petitioner No.1 and his family members without any justified

reasons.

3. It is further submitted that because of the unwillingness of

respondent, no issue has been born out of the said wedlock. She

had openly declared that she does not want to have a child out of

the said wedlock. The petitioner No.1 performed all his obligations

and fulfilled all the marital obligations and did every needful act

for respondent’s convenience. It is further submitted that one day,

the respondent even threatened the petitioner No.1 to either leave

her or else she would commit suicide. Somehow, the petitioner

No.1 managed to pull her out of dying loop and made all efforts to

save the marriage. It is also submitted that the respondent, in fact,
CRMC No.617/2018
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is not mentally stable as she used to give threats to the petitioner

No1. and his family members and furthermore she used to abuse

and fight miserably with the petitioners. The respondent has filed

two cases contemporarily, that is, a complaint under the JK

Protection of Women from Domestic violence Act, 2010 titled,

“Divya Gupta versus Varun Slathia and ors.” before the Court of

learned Chief Judicial Magistrate, Jammu; and another petition

under Section 488 Cr.P.C titled, “Divya Gupta versus Varun

Slathia” before the Court of learned 3rd Additional Munsiff,

Jammu.

4. It is further submitted that the respondent has also arrayed the old-

aged parents of petitioner No.1 in false and frivolous complaint

under the JK Protection of Women from SectionDomestic Violence Act,

2010, which is a clear act of cruelty on the part of respondent

against the petitioners, who always tried to sort out the issue

sincerely, which is pending adjudication in the Court of learned

Chief Judicial Magistrate, Jammu and in the Court of learned 3rd

Additional Munsiff, Jammu. It is also submitted that the learned 3rd

Additional Munsiff, Jammu in a case filed by the respondent under

Section 488 Cr.P.C vide order dated 07.02.2017 directed the

petitioner No.1 to pay Rs.7000/- as interim maintenance to the

respondent and the Court of learned Chief Judicial Magistrate,

Jammu vide order dated 20.03.2017 directed the petitioner No. 1 to

pay Rs.8000/- as interim maintenance. It is submitted that the

Hon’ble Supreme Court in case titled ‘Parkash Bubulal Dangi Vs.

State of Maharashtra and anr.’ (Petition for Special Leave to

Appeal (Crl.) Nos.10280-10281/2017) has passed the interim order
CRMC No.617/2018
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dated 10.01.2018 whereby the maintenance granted under Section

125 Cr. P.C. has been stayed and the petitioner therein was

directed to pay maintenance under the SectionDomestic Violence Act

only.

5. I have heard learned counsel for the parties and gone through the

record.

6. From bare perusal of the documents annexed with the petition, it is

evident that respondent herein filed a petition under Sectionsection 488

Cr.P.C. before the learned 3rd Additional Munsiff, Jammu for grant

of maintenance in terms of Section 488 Cr.P.C. against the

petitioner No.1 herein. An application for interim maintenance was

also filed. Petitioner no.1 herein filed objections and Court below

after hearing the parties passed an order dated 07.02.2017 thereby

granting interim maintenance to the tune of Rs.7000/- per month in

favour of respondent from the date of application. The relevant

paras of the order read as under:-

“The purpose of Section 488 Cr.P.C. is to provide relief to such
persons who are unable to maintain themselves and neglected
by the persons having sufficient means to maintain them. The
provision of this section is to prevent the vagrancy. The basic
object of this section is to compel a man to perform the moral
obligation which he owes to society in respect to his wife,
children and parents. By providing relief under this section is
to ensure that the neglected wife and children are not left
destitute and thereby driven to a life of vagrancy, immorality
and crime for their subsistence. The basic aim of these
provisions is to ensure that the minimum needs of food, shelter
and clothing is paid summarily to the wife, children or parents
in order to save them from starvation.

Taking into consideration what has been discussed herein
above, at this stage the Court has to appreciate few things for
the grant of interim maintenance. From the pleadings, the
petitioner has succeeded in making out a prima-facie case that
the petitioner is the legally wedded wife of respondent having
no source of income and is living at her parental house. The
allegations and counter allegations leveled by petitioner and
respondent cannot be appreciated at this stage without
adducing evidence. Therefore, the petitioner is held entitled to

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get the interim maintenance from the respondent till the final
disposal of the main petition.

In these circumstances, the respondent is directed to pay an
interim maintenance of Rs. 7,000/- per month to petitioner
form the date of the application i.e., 11.11.2016. It is further
directed that the respondent will deposit the said amount in
petitioner’s account No. 10167870130, State Bank of India,
Branch Channi Himmat, Jammu in every first week of the
month furnished by petitioner in the Court. The application is
accordingly disposed off and shall from part of the main
petition/application.”

7. It further appears that respondent also filed a petition under

Sections 12 and Section23 of Domestic Violence Act before the learned

Chief Judicial Magistrate, Jammu, in which the petitioners herein

appeared and also filed objections and the Court below on

20.03.2017 directed the petitioner No.1 to pay Rs.8000/- per month

as interim maintenance. The relevant paras read as under:-

“During the course of arguments the Ld. Counsel for the
respondents has produced the photo copy of the order dated 7-
02-2017 passed by 3rd Addl. Munsiff, Jammu in the Petition
U/s 488 SectionCr.P.C filed by the petitioner against the respondent
No:1, whereby the respondent was directed to pay an interim
maintenance of Rs. 7000/- per month to the petitioner from
the date of the application. The Ld. Counsel for the petitioner
is also conceding the fact that the petitioner has been granted
the interim maintenance of Rs. 7000/-per month in the
proceedings U/S 488 SectionCr.P.C pending before the Court of
3rdAddl.Munsiff, Jammu.

Though the grant of interim maintenance in the proceedings
U/S488 SectionCr.P.C would not debarred the petitioner to claim
additional maintenance from the Respondent No:1 in the
instant proceedings under the provisions of SectionDomestic Violence
Act, but the said part of interim maintenance granted U/S
488SectionCr.P.C would also required to be considered for the
purpose of deciding the quantum of maintenance to be granted
in favour of the petitioner.

In the instant case the Respondent No:1 is admittedly employed
in the Merchant Navy as Chief Officer and this fact has not
been denied by the Respondents in their objections. The
petitioner in her petition has claimed at least Rs.1,00,000/- as a
monthly maintenance for her food, clothing, medication and
other basic necessities and according to her the Respondent
No:1 is financially able to provide such amount of maintenance
to her. The Respondent on the other hand has not repelled the
contention of petitioner so far as mis financial capacity is
concerned. Otherwise also when we take a judicial notice of the
fact that the Respondent No:1 is working as a Chief Officer in
the Merchant Navy he must be drawing his salary in lacs and
as such, the petitioner being his wife is also entitled for the

CRMC No.617/2018
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maintenance amount as per the status of the Respondent No:1.
Keeping in view the fact that the petitioner has already been
granted the interim maintenance of Rs. 7000/- in the petition
U/S 488 SectionCr.P.C filed by her against the Respondent No: 1, I
find that the additional amount of Rs.8000/- per month would
be sufficient for the petitioner to maintain her livelihood in a
dignified manner.

Hence, this petition is allowed and the Respondent No:1 is
directed to pay Rs. 8000/- per month to the petitioner as a
monthly maintenance from the date of filing of the present
petition. This petition U/S 23 of SectionDomestic Violence Act is
disposed off accordingly and the same shall form part of the
main petition”

8. The foremost ground taken in this petition is that respondent is not

entitled to maintenance under two different laws against the

petitioner no.1 herein. Learned counsel for the petitioners has

relied upon an interim order of Hon’ble Supreme Court dated

10.01.2018 passed in Special Leave to Appeal (Crl.) Nos. 10280-

10281/2017 in case titled Prakash Babulal Dangi Vs. The State of

Maharashtra and anr., wherein the following order has been passed

“Issue notice.

In the meantime the operation of the impugned judgment (s)
and order (s) shall remain stayed, subject to the petitioner’s
continuing to pay maintenance under the SectionDomestic Violence
Act, as ordered earlier.”

9. He has also riled upon decision of Delhi High Court in Crl.M.C.

No. 130/2010 Crl.M.A. No.504/2010 dated 30.08.2010, titled,

Rachna Kathuria versus Ramesh Kathuria, wherein it is held

that the Protection of Women from Domestic Violation Act, 2005

does not create any additional right to claim maintenance on the

part of the aggrieved person. The relevant para reads as under:-

“It must be understood that the Protection of Women from
SectionDomestic Violence Act, 2005 does not create any additional
right to claim maintenance on the part of the aggrieved person.

Only puts the enforcement of existing right of maintenance
available to an aggrieved person on fast track. If a woman
living separate from her husband had already filed a suit
claiming maintenance and after adjudication maintenance has
been determined by a competent court either in Civil Suit or

CRMC No.617/2018
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by Court of MM in an application under Section 125 Cr. P.C.
she does not have a right to claim additional maintenance
under the Act. The Court of MM under the Act has power to
grant maintenance and monetary reliefs on an interim basis in
a fast track manner only in those cases where woman has not
exercised her right of claiming maintenance either under Civil
Court or under Section 125 Cr.P.C. If the woman has already
moved Court and her right of maintenance has been
adjudicated by a competent Civil Court or by a competent
Court of MM under Section 125 Cr.P.C., for any enhancement
of maintenance already granted, she will have to move the
same Court and she cannot approach MM under the
Protection of Women from SectionDomestic Violence Act by way of an
application of interim or final nature to grant additional
maintenance. This petition is not maintainable and is hereby
dismissed.”

10. The Jammu and Kashmir (Protection of Women from SectionDomestic

Violence) Act 2010 has been legislated for more effective

protection of the rights of women guaranteed under Constitution,

who are victim of violence. Section 12 of Act empowers victim to

file a petition before Magistrate regarding domestic violence;

Sectionsection 18 deals with passing of protection order; Sectionsection 19 deals

with passing of residence order; Sectionsection 20 deals with passing of

monetary order; Sectionsection 21 deals with passing of custody order and

Sectionsection 22 deals with compensation order. These types of order

can be passed/ granted by Magistrate after hearing and finally

deciding the application under Sectionsections 12 of Act. The term

Domestic Violence has been given a specific connotation under

Section 3 of the Act.

11. Domestic violence is not physical violence alone. Domestic

violence is any behaviour the purpose of which is to gain power

and control over a spouse. Physical abuse can include hitting,

biting, slapping, battering, shoving, punching, pulling hair,

burning, cutting, pinching, etc. (any type of violent behavior

inflicted on the victim). Physical abuse also includes denying

CRMC No.617/2018
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someone medical treatment and forcing drug/alcohol use on

someone. Sexual abuse occurs when the abuser coerces or attempts

to coerce the victim into having sexual contact or sexual behavior

without the victim’s consent. This often takes the form of marital

rape, attacking sexual body parts, physical violence that is

followed by forcing sex, sexually demeaning the victim, or even

telling sexual jokes at the victim’s expense. Emotional

abuse involves invalidating or deflating the victim’s sense of self-

worth and/or self-esteem. Emotional abuse often takes the form of

constant criticism, name-calling, injuring the victim’s relationship

with his/her children, or interfering with the victim’s abilities.

Economic abuse takes place when the abuser makes or tries to

make the victim financially reliant. Economic abusers often seek to

maintain total control over financial resources, withhold the

victim’s access to funds, or prohibit the victim from going to

school or work.

12. Section 20 of D.V Act deals with monetary relief. It reads as

under:-

“20. Monetary reliefs.-

(1) While disposing of an application under sub-section (1) of
Sectionsection 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 Sectionsection 488 of the Code of Criminal
Procedure, Samvat 1989 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.

CRMC No.617/2018
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(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.
(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.”

13. From bare perusal of this section, it is evident that while granting

Monterey relief whether interim (section 23 of Act) or final for the

aggrieved person, the court can grant the same separately or in

addition to maintenance already granted under section 488 Cr.P.C.

14. In view of above statutory provisions, the orders impugned do not

suffer from any infirmity of law. Further, Delhi High Court

recently in Crl. Rev. Pet. No.994/2018 in case titled Shome Nikhil

Danani Vs. Tanya Banon Danani, decided on 11.04.2019 has

held as under:-

“19. Reference may also be had to the Judgment of a coordinate
bench of this court in Karamchand Ors Vs State NCT of Delhi
Anr (2011) 181 DLT 494 and of the Supreme Court of India in
Juveria Abdul Majid Khan Patni Vs Atif Iqbal Masoori (2014) 10
SCC 736, wherein the Supreme Court has held that monetary
relief as stipulated under Section 20 is different from maintenance,
which can be in addition to an order of maintenance under Section
125 Cr.P.C. or any other law.

20. Further, it may be seen that proceeding under the SectionDV Act and
under Sectionsection 125 Cr.P.C are independent of each other and have
different scope, though there is an overlap. In so far 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 SectionDV Act, maintenance fixed under Sectionsection
125 Cr.P.C shall be taken into account.

21. The Judgment in the case of Rachna Katuria Versus Ramesh
Kathuria (supra) relied upon by learned Senior Counsel for the
Petitioner to contend that SectionDV Act does not create any additional
right to claim maintenance on the part of the aggrieved person
and if a woman had already filed a suit claiming maintenance and
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after adjudication maintenance has been determined, she does not
have a right to claim additional maintenance under the SectionDV Act is
per incurium as it does not notice the very provisions of Section
20 and Section23 of DV Act. Further now the Supreme Court of India in
Juveria Abdul Majid Khan Patni Vs Atif Iqbal Masoori (supra)
has held that monetary relief under Section 20 DV Act is in
addition to maintenance under section 125 Cr.P.C.

22. In view of the above, I find no infirmity in the order of the
Appellate Court in setting aside the order of the Trial Court and
remitting the matter for reconsideration of the application of the
Respondent. There is thus no merit in the Petition, the same is
dismissed.”

15. In view of above law (Shome Nikhil Danani’s case), which is based

upon Supreme Court judgment in case titled Juveria Abdul Majid

Khan Patni Vs Atif Iqbal Masoori (2014) 10 SCC 736, the

arguments of counsel for petitioners as well as law cited are not

applicable. Further, plea of counsel for petitioners that Apex Court in

case Prakash Babulal Dangi Vs. The State of Maharashtra and

anr. (supra) has stayed one of maintenances granted by trial Court, so

other maintenance has to go, is not tenable because interim order

passed by Apex court in any case does not settle any law point;

interim orders always passed in the facts and circumstances of that

case only. It is not the precedent law binding on the subordinate

courts.

16. In view of above, this petition is dismissed. Interim order, if any, is

vacated.

( Sanjay Kumar Gupta )
Judge
Jammu
24.05.2019
Meenakshi

NARINDER KUMAR SHARMA
2019.05.24 14:32
I attest to the accuracy and
integrity of this document
CRMC No.617/2018

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