Court No. - 41
Case :- APPLICATION U/S 482 No. - 29135 of 2018 Applicant :- Prakash Dixit Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Aniruddha Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The applicant-husband has preferred this application under Section 482 Cr.P.C. against the order dated 07.07.2018, passed by Metropolitan Magistrate, Court No.2, Kanpur Nagar in Complaint Case No. 1724 of 2014, Police Chakeri, District Kanpur Nagar, deciding the application filed by opposite party No. 2 under Section 23 of Protection of Women from Domestic Violence Act.
Learned counsel for the applicant submitted that vide order dated 05.04.2014, Family Court has directed the applicant to pay interim maintenance of Rs.3,000/- per month to Smt. Rashmi Dixit (wife) from the date of order i.e. 05.04.2014. Later on, opposite party no. 2 moved an application under Section 23 of Protection of Women from Domestic Violence Act, which was partially allowed vide impugned order dated 07.07.2018 granting maintenance of Rs.2,000/- per month to her.
Learned counsel for the applicant placed reliance upon a decision of Hon'ble Apex Court in Nanak Chand Vs. Chandra Kishore Aggarwal; 1969 (3) SCC 802. In the case of Nanak Chand (supra), the Hon'ble Supreme Court has held that the availability of remedy of maintenance both under the civil and criminal legislation enables a Hindu women to elect to proceed under any of them or to proceed simultaneously under both the laws, as there is no inconsistency between the Hindu Adoption and Maintenance Act 1956 and the Code of Criminal Procedure 1973. Once the maintenance is awarded under one law, she may not claim maintenance under the other law as well.
Learned counsel for the applicant further placed reliance upon a decision rendered by a Division Bench of this Court in First Appeal No. 32 of 2017; Pankaj Sharma Vs. Rajni Sharma on 18.1.2017 it has been held that the Court in granting maintenance under any of the aforesaid enactments must take into account the amount, if any, granted or fixed earlier under any other proceedings. The relevant portion of the aforesaid judgment is reproduced below:-
"Therefore, it is in the fitness of things that the person aggrieved i.e. the wife/husband may elect one of the fora rather than pursuing the remedy for maintenance in all of them for the simple reason that he/she would only be entitled to a reasonable maintenance depending upon his or her status and the earnings of the other party subject to other conditions and that it is not legally possible to have maintenance from each of the fora available simultaneously without adjusting the amount awarded and fixed by each of them.
In view of what has been said above, we are of the opinion that though there is no bar in law for the wife to claim maintenance in different fora simultaneously be she will only get the highest amount as awarded after adjusting the other ones. The purpose is to enable her to maintain herself and not to victimize the husband."
Learned A.G.A. opposed the aforesaid prayer.
In above backdrop of the case, the impugned order dated 07.07.2018, passed by Metropolitan Magistrate, Court No.2, Kanpur Nagar in Complaint Case No. 1724 of 2014, Police Chakeri, District Kanpur Nagar is hereby set aside. Learned Magistrate is directed to decide the case afresh after giving opportunity of hearing to both the parties in light of observations as stated above.
With the aforesaid observation, the present petition is finally disposed of.
Order Date :- 6.9.2018 NS