The Divorce Act may be an independent proceeding but the Magistrate cannot ignore the maintenance awarded in any other legal proceedings: High Court Of Chhattisgarh

 1 AFRHIGH COURT OF CHHATTISGARH AT BILASPURFAM No. 017Chandrabhushan S o Krishna Kumar aged about 32 years R o villagePrakashpur Tehsil and Police Station Khairagarh District Rajnandgaon Chhattisgarh. Appellant(s)VersusSmt. Savita Bai W o Chandrabhushan aged about 28 years at present R oVillage Kahjri Tehsil Khairagarh District Rajnandgaon Chhattisgarh. Respondent(s)For Appellant:Shri Rakesh Pandey Advocate. For Respondent:Shri G.P. Kurre Advocate. Hon ble Shri Justice P. Sam KoshyHon ble Smt. Justice Rajani Dubey JJ.Judgment on BoardPer P. Sam Koshy Judge11.11.20211.Aggrieved by the judgment dated 08.12.2016 passed by the Family Court Rajnandgaon in Civil Suit No.26 A 2010 the present appeal under Section19(1) of the Family Courts Act 1984has beenfiled. Vide the impugned judgment the court below has allowed anapplication under Section 18 of the Hindu Adoption and Maintenance Act 1956to the extent of directing the appellant Defendant to pay an amount of Rs.3000 per month to the respondent Plaintiff in this case. 2.The substantial ground which the appellant has raised principally is that thesaid order is ignoring the fact that on an earlier occasion the applicationunder Section 125 CrPC moved by the respondent Plainitff before theFamily Court at Rajnandgaon stood rejected vide order dated 22.08.2008in Misc. Criminal Case No.1 2008 and since her application under Section 2 125 CrPC was already rejected the subsequent application under anotherenactment for the same relief should not had been entertained. 3.The principal ground of challenge in the present appeal is as to whether thesubsequent application for maintenance under a different statute would hadbeen entertained and allowed by the court below. 4.There is a recent judgment of the Hon ble Supreme Court in this regard incase of Rajnesh Vs. Neha and Another 2021(2)SCC 324 wherein afterconsidering all the provisions of law which provides for claimingmaintenance under different different statutes the Supreme Court decidingon the question of overlapping jurisdiction in paragraphs 52 to 61 has heldas under:“52. Some High Courts have taken the view that since eachproceeding is distinct and independent of the other maintenancegranted in one proceeding cannot be adjusted or set off in the other.For instance in Ashok Singh Pal v Manjulata the Madhya PradeshHigh Court held that the remedies available to an aggrieved personunder S. 24 of the HMA is independent of S. 125 of the Cr.P.C. In anapplication filed by the husband for adjustment of the amountsawarded in the two proceedings it was held that the question as towhether adjustment is to be granted is a matter of judicial discretionto be exercised by the Court. There is nothing to suggest as a thumbrule which lays down as a mandatory requirement that adjustment ordeduction of maintenance awarded u S. 125 Cr.P.C. must be off setfrom the amount awarded under S.24 of the HMA or vice versa. Asimilar view was taken by another single judge of the MadhyaPradesh High Court in Mohan Swaroop Chauhan v Mohini. Similarly the Calcutta High Court in Sujit Adhikari v Tulika Adhikari held thatadjustment is not a rule. It was held that the quantum ofmaintenance determined by the Court under HMA is required to beadded to the quantum of maintenance u S. 125 Cr.P.C. 53. A similar view has been taken in Chandra Mohan Das v TapatiDas wherein a challenge was made on the point that the Courtought to have adjusted the amount awarded in a proceeding underS.125 Cr.P.C. while determining the maintenance to be awardedunder S.24 of the HMA 1955. It was held that the quantum ofmaintenance determined under S.24 of HMA was to be paid inaddition to the maintenance awarded in a proceeding under S.125Cr.P.C. 54. On the other hand the Bombay and Delhi High Courts haveheld that in case of parallel proceedings adjustment or set off musttake place. The Bombay High Court in a well reasoned judgmentdelivered in Vishal v Aparna has taken the correct view. The Courtwas considering the issue whether interim monthly maintenance 3 awarded under Section 23 r.w. Section 20of the D.V. Act couldbe adjusted against the maintenance awarded under Section 125Cr.P.C. The Family Court held that the order passed under the D.V.Act and the Cr.P.C. were both independent proceedings andadjustment was not permissible. The Bombay High Court set asidethe judgment of the Family Court and held that Section 20(1)(d) ofthe D.V. Act makes it clear that the maintenance granted under thisAct would be in addition to an order of maintenance under Section125 Cr.P.C. and any other law for the time being in force. Sub sectionof Section 26 of the D.V. Act enjoins upon the aggrievedperson to inform the Magistrate if she has obtained any reliefavailable under Sections 18 19 20 21 and 22 in any other legalproceeding filed by her whether before a Civil Court Family Court or Criminal Court. The object being that while granting relief underthe D.V. Act the Magistrate shall take into account and consider ifany similar relief has been obtained by the aggrieved person. Eventhough proceedings under the D.V. Act may be an independentproceeding the Magistrate cannot ignore the maintenance awardedin any other legal proceedings while determining whether over andabove the maintenance already awarded any further amount wasrequired to be granted for reasons to be recorded in writing. TheCourt observed : “18. What I intend to emphasize is the fact that theadjustment is permissible and the adjustment can beallowed of the lower amount against the higher amount.Though the wife can simultaneously claim maintenanceunder the different enactments it does not in any waymean that the husband can be made liable to pay themaintenance awarded in each of the said proceedings.” It was held that while determining the quantum of maintenanceawarded u S.125 Cr.P.C. the Magistrate would take intoconsideration the interim maintenance awarded to the aggrievedwoman under the D.V. Act. 55. The issue of overlapping jurisdictions under the HMA and D.V.Act or Cr.P.C. came up for consideration before a division bench ofthe Delhi High Court in RD v BD wherein the Court held thatmaintenance granted to an aggrieved person under the D.V. Act would be in addition to an order of maintenance u S. 125 Cr.P.C. orunder the HMA. The legislative mandate envisages grant ofmaintenance to the wife under various statutes. It was not theintention of the legislature that once an order is passed in either ofthe maintenance proceedings the order would debar re adjudicationof the issue of maintenance in any other proceeding. In paragraphs16 and 17 of the judgment it was observed that :“16. A conjoint reading of the aforesaid Sections 20 26 and36 of DV Act would clearly establish that the provisions of DVAct dealing with maintenance are supplementary to theprovisions of other laws and therefore maintenance can begranted to the aggrieved personunder the DV Act whichwould also be in addition to any order of maintenance arisingout of Section 125 of Cr.P.C.17. On the converse if any order is passed by the FamilyCourt under Section 24 of HMA the same would not debarthe Court in the proceedings arising out of DV Act or 4 proceedings under Section 125 of Cr.P.C. instituted by thewife aggrieved person claiming maintenance. However itcannot be laid down as a proposition of law that once anorder of maintenance has been passed by any Court then thesame cannot be re adjudicated upon by any other Court. Thelegislative mandate envisages grant of maintenance to thewife under various statutes such as HMA Hindu Adoption andMaintenance Act 1956Section 125 of Cr.P.C. as well as Section 20 of DV Act. Assuch various statutes have been enacted to provide for themaintenance to the wife and it is nowhere the intention of thelegislature that once any order is passed in either of theproceedings the said order would debar re adjudication of theissue of maintenance in any other Court.”The Court held that u S. 20(1)(d) of the D.V. Act maintenanceawarded to the aggrieved woman under the D.V. is in addition to anorder of maintenance provided u S. 125 Cr.P.C. The grant ofmaintenance under the D.V. Act would not be a bar to seekmaintenance u S. 24 of HMA. 56. Similarly in Tanushree & Ors. v A.S.Moorthy the Delhi HighCourt was considering a case where the Magistrate’s Court had sinedie adjourned the proceedings u S. 125 Cr.P.C. on the ground thatparallel proceedings for maintenance under the D.V. Act werepending. In an appeal filed by the wife before the High Court it washeld that a reading of Section 20(1)(d) of the D.V. Act indicates thatwhile considering an application u S. 12 of the D.V. Act the Courtwould take into account an order of maintenance passed u S. 125Cr.P.C. or any other law for the time being in force. The mere factthat two proceedings were initiated by a party would not imply thatone would have to be adjourned sine die. There is a distinction in thescope and power exercised by the Magistrate under S.125 Cr.P.C.and the D.V. Act. With respect to the overlap in both statutes theCourt held :“5. Reading of Section 20(1)(d) of the D.V. Act further showsthat the two proceedings are independent of each other andhave different scope though there is an overlap. Insofar asthe overlap is concerned law has catered for that eventualityand laid down that at the time of consideration of anapplication for grant of maintenance under Section 12 of theD.V. Act the maintenance fixed under Section 125 Cr.P.C.shall be taken into account.” 57. The issue whether maintenance u S. 125 Cr.P.C. could beawarded by the Magistrate after permanent alimony was granted tothe wife in the divorce proceedings came up for considerationbefore the Supreme Court in Rakesh Malhotra v Krishna Malhotra.The Court held that once an order for permanent alimony waspassed the same could be modified by the same court by exercisingits power u S. 25(2) of HMA. The Court held that : “16. Since the Parliament has empowered the Court UnderSection 25(2) of the Act and kept a remedy intact and madeavailable to the concerned party seeking modification thelogical sequitur would be that the remedy so prescribed ought 5 to be exercised rather than creating multiple channels ofremedy seeking maintenance. One can understand thesituation where considering the exigencies of the situationand urgency in the matter a wife initially prefers anapplication Under Section 125 of the Code to securemaintenance in order to sustain herself. In such matters thewife would certainly be entitled to have a full fledgedadjudication in the form of any challenge raised before aCompetent Court either under the Act Or similar suchenactments. But the reverse cannot be the accepted norm.” The Court directed that the application u S. 125 Cr.P.C. be treatedas an application u S. 25(2) of HMA and be disposed of accordingly. 58. In Nagendrappa Natikar v Neelamma this Court considered acase where the wife instituted a suit under Section 18 of HAMA after signing a consent letter in proceedings u S. 125 Cr.P.C. statingthat she would not make any further claims for maintenance againstthe husband. It was held that the proceedings u S. 125 Cr.P.C. weresummary in nature and were intended to provide a speedy remedyto the wife. Any order passed u S. 125 Cr.P.C. by compromise orotherwise would not foreclose the remedy u S. 18 of HAMA. 59. In Sudeep Chaudhary v Radha Chaudhary the Supreme Courtdirected adjustment in a case where the wife had filed an applicationunder Section 125 of the Cr.P.C. and under HMA. In the S. 125proceedings she had obtained an order of maintenance.Subsequently in proceedings under the HMA the wife soughtalimony. Since the husband failed to pay maintenance awarded thewife initiated recovery proceedings. The Supreme Court held thatthe maintenance awarded under Section 125 Cr.P.C. must beadjusted against the amount awarded in the matrimonialproceedings under HMA and was not to be given over and abovethe same. Directions on overlapping jurisdictions 60. It is well settled that a wife can make a claim for maintenanceunder different statutes. For instance there is no bar to seekmaintenance both under the D.V. Act and Section 125 of the Cr.P.C. or under H.M.A. It would however be inequitable to direct thehusband to pay maintenance under each of the proceedings independent of the relief granted in a previous proceeding. Ifmaintenance is awarded to the wife in a previously institutedproceeding she is under a legal obligation to disclose the same in asubsequent proceeding for maintenance which may be filed underanother enactment. While deciding the quantum of maintenance inthe subsequent proceeding the civil court family court shall take intoaccount the maintenance awarded in any previously institutedproceeding and determine the maintenance payable to the claimant.61.To overcome the issue of overlapping jurisdiction and avoidconflicting orders being passed in different proceedings we directthat in a subsequent maintenance proceeding the applicant shalldisclose the previous maintenance proceeding and the orderspassed therein so that the Court would take into consideration the 6 maintenance already awarded in the previous proceeding and grantan adjustment or set off of the said amount. If the order passed inthe previous proceeding requires any modification or variation theparty would be required to move the concerned court in the previousproceeding.”5.The Supreme Court vide the said judgment has in a very categorical termsheld that maintenance application decided under one statute would notforeclose the claim for maintenance under a different statute. The SupremeCourt has also gone to the extent that even in case if maintenance isawarded under one of the statutes that by itself would not preclude theclaimant from raising another claim application under a different statuteclaiming maintenance. The only rider provided by the Supreme Court isdisclosure of these facts in the subsequent proceedings and if required thecourt entertaining the application had to adjust and take into considerationthe amount of maintenance already awarded earlier under another statute. 6.Given the authoritative decision by the Supreme Court in the abovereferred judgment the ground raised for the appellant in assailing theimpugned judgment herein would not stand and the appeal thus deservesto be and is accordingly rejected in the light of the judgment of SupremeCourt in case of RajneshJudge Judgeinder 

Summary: 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 Hon’ble High Court of Chhattisgarh before The division bench led by The Hon’ble Shri Justice P. Sam Koshy and The Hon’ble Smt. Justice Rajani Dubey in the matter of Chandrabhushan Vs. Smt. Savita Bai [FAM No. 03 of 2017].  The facts of the case were associated with an appeal filed under Section 19(1) of the Family Courts Act, 1984 against the judgment passed by the Family Court, Rajnandgaon dated 08.12.2016. According to the said judgment, the Court below had directed the appellant-defendant to pay an amount of Rs.3000/- per month to the respondent-plaintiff under Section 18 of the Hindu Adoption and Maintenance Act, 1956.  The appellant contended that the application under Section 125 CrPC moved by the respondent-Plaintiff before the Family Court was ignored in the said order and as the said application of her was already rejected so the next application under another enactment for the same relief was not to be entertained. The primary ground for the instant appeal was if the subsequent application for maintenance under a different statute was to be allowed entertained and allowed by the court below. For reference, the case of Rajnesh Vs. Neha and Another, 2021(2)SCC 324 was submitted wherein The Hon’ble Supreme Court considered all the provisions of law that provided for claiming maintenance under different statutes and stated that the remedy so prescribed ought to be exercised rather than to create multiple channels of remedy seeking maintenance.  After hearing all facts and submissions, The Hon’ble Court held that “Given the authoritative decision by the Supreme Court in the above-referred judgment, the ground raised for the appellant in assailing the impugned judgment herein would not stand and the appeal thus deserves to be and is accordingly rejected in the light of the judgment of Supreme Court in case of Rajnesh (Supra). Given the authoritative decision by the Supreme Court in the above-referred judgment, the ground raised for the appellant in assailing the impugned judgment herein would not stand and the appeal thus deserves to be and is accordingly rejected in the light of the judgment of Supreme Court in case of Rajnesh (Supra).” Therefore, the appeal stands rejected.