Hon'ble Sanjay Kumar Pachori,J.
1. Heard learned counsel for the appellant.
2. Cause shown in the affidavit accompanying the delay condonation application is sufficient. The application is allowed. Office is directed to accord regular number to the appeal.
3. Present appeal has been preferred assailing the validity of the order dated 28.02.2020 passed by Addl. Principal Judge, Family Court No.2, Agra on the interim maintenance application 9-Ga under Section 24 of the Hindu Marriage Act, 19551 filed in Case No.172 of 2017 (Sunil Sharma v. Smt. Gunjan Kumari) by which the opposite party (appellant herein) was directed to pay Rs. 5000/- per month as interim maintenance on 10th of each month with further direction that if opposite party is being given maintenance in any other proceeding, the same would be adjusted in this interim maintenance.
4. Brief facts giving rise to present appeal is that the marriage of the appellant (husband) was solemnized with respondent (wife) as per Hindu rites and rituals on 21.11.2015 at Arya Samaj Temple, Raja Ki Mandi, Agra. It is alleged that after the marriage the appellant came to know that before the marriage the respondent had converted herself and practised Muslim religion and was known as Sitara Begum. She married on 10.04.2013 with one Azeem Uddin @ Kunal @ Sameer son of Shri Shamim Ahmad resident of Rajavpur P.S. Rajavpur Distt. J.P. Nagar and out of the said wedlock a son was also born namely Riyan @ Aryan. Later she separated from the said wedlock with compromise and concealing this fact she has remarried with the appellant. When the said fact of her being non-Hindu was revealed she herself left the house of appellant and with the collusion of her parental members she filed a Case No. 329 of 2017 (Smt. Gunjan Sharma & Ors. v. Sunil Sharma & Ors.) under the provisions of Protection of Women from Domestic Violence Act, 20052 in which the Addl. Chief Judicial Magistrate, Court No.7, Agra has passed an order on 21.8.2018 directing the appellant to pay a sum of Rs. 3000/- per month to the respondent and also pay a sum of Rs. 1000/- to the child of respondent namely Ayran Sharma. It is also contended that as the respondent did not change her religion, her marriage with appellant is null and void. The Addl. Principal Judge, Family Court No. 2 has not considered the factual aspect of the matter and passed the order impugned.
5. The matrimonial case no. 172 of 2017 has been filed by the appellant against the respondent under Section 11 of HMA for declaration that the marriage dated 21.11.2015 solemnised between the parties is null and void-ab-initio.
6. While preferring the interim maintenance application 9-Ga filed in Case No. 172 of 2017 the version of the respondent was that after the marriage the appellant has left her in destitution. Once she has requested to keep her with him, he has threatened her of dire consequences. She had pleaded before the court below that she has no income for livelihood and in this backdrop the order impugned has been passed.
7. The Court has proceeded to examine the record in question and find that this is admitted situation that the respondent is legally wedded wife of the appellant. This fact has also been admitted by the appellant before the court below that he is earning Rs. 6000/- per month. He has also not been able to prove that the respondent is in any employment. The court below while passing the order impugned has opined that it is the moral and social responsibility of the husband to give maintenance to his wife as per his capacity. In this backdrop the order impugned has been passed.
8. The Court finds that the maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954,3 Section 125 of the Code of Criminal Procedure, 19734; and the DV Act which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities. Maintenance may be claimed under one or more of the aforementioned statutes, since each of these enactments provides an independent and distinct remedy framed with a specific object and purpose. For instance, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 19565, and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the HMA by invoking Section 24 and 25 of the said Act.
9. The HMA is a complete code which provides for the rights, liabilities and obligations arising from a marriage between two Hindus. Sections 24 and 25 of the HMA make provision for maintenance to a party who has no independent income sufficient for his or her support, and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. The pre-requisite is that the applicant does not have independent income which is sufficient for her or his support, during the pendency of the lis. Section 24 of the HMA provides for maintenance pendente-lite, where the Court may direct the respondent to pay the expenses of the proceeding, and pay such reasonable monthly amount, which is considered to be reasonable, having regard to the income of both the parties. Section 25 provides for permanent alimony and maintenance. Section 26 of the HMA provides that the court may from time to time pass interim orders with respect to the custody, maintenance and education of the minor children.
10. HAMA is a special legislation which was enacted to amend and codify the laws relating to adoption and maintenance amongst Hindus, during the subsistence of the marriage. Section 18 provides that a Hindu wife shall be entitled to be maintained by her husband during her lifetime. She is entitled to make a claim for a separate residence, without forfeiting her right to maintenance. Section 18 read in conjunction with Section 23 states the factors required to be considered for deciding the quantum of maintenance to be paid. Under sub-section (2) of Section 18, the husband has the obligation to maintain his wife, even though she may be living separately. The distinction between maintenance under HMA and HAMA is that the right under Section 18 of HAMA is available during the subsistence of a marriage, without any matrimonial proceeding pending between the parties. Once there is a divorce, the wife has to seek relief under Section 25 of HMA. Section 125 of Cr.PC. also provides for maintenance of wife, children and parent in summary proceeding.
11. Maintenance under Section 125 of the Cr.P.C. may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors. The remedy provided by Section 125 is summary in nature, and the substantive disputes with respect to dissolution of marriage can be determined by a civil court/ family court in an appropriate proceeding, such as the HMA. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family vide Bhagwan Dutt v Kamla Devi6.
12. The DV Act provides relief to an aggrieved woman who is subjected to "domestic violence." The "aggrieved person" has been defined by Section 2 (a) to mean any woman who is, or has been, in a domestic relationship with the respondent, and alleges to have been subjected to any act of domestic violence. Section 2 (f) defines "domestic relationship" to include a relationship between two persons who live, or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family.
13. "Domestic violence" has been defined in Section 3 of the DV Act, which includes economic abuse as defined in Explanation-1 (iv) to Section 3, as :
"Explanation-1 (iv)- Economic abuse which means deprivation of all or any economic or financial resources, to which the aggrieved person is entitled under any law or custom, whether payable under an order of a Court or otherwise, or which the aggrieved person requires out of necessity, including but not limited to household necessities for the aggrieved person, or her children."
14. Section 17 by a non-obstante clause provides that notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the "shared household", irrespective of whether she has any right, title or beneficial interest in the same. Section 17 of the DV Act, reads as :
"17. Right to reside in a shared household.-(1) Notwithstanding anything contained household: in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law."
15. Section 20 of the DV Act, provides for monetary relief to the aggrieved woman:
"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 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 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 sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require."
16. Section 20 (1) (d) of the DV Act, provides that maintenance granted under the D.V. Act to an aggrieved woman and children, would be given effect to, in addition to an order of maintenance awarded under Section 125 of the Cr.P.C., or any other law in force.
17. Under sub-section (6) of Section 20 of the DV Act, the Magistrate may direct the employer or debtor of the respondent, to directly pay the aggrieved person, or 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.
18. Section 22 of the DV Act, provides that the Magistrate may pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence perpetrated by the respondent.
19. Section 23 of the DV Act, provides that the Magistrate may grant an ex-parte order, including an order under Section 20 for monetary relief. The Magistrate must be satisfied that the application filed by the aggrieved woman discloses that the respondent is committing, or has committed an act of domestic violence, or that there is a likelihood that the respondent may commit an act of domestic violence. In such a case, the Magistrate is empowered to pass an ex parte order on the basis of the affidavit of the aggrieved woman.
20. Section 26 of the DV Act provides that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil Court, Family Court or Criminal Court. Sub-section (2) of Section 26 provides that the relief mentioned in sub-section (1) may be sought in addition to, and alongwith any other relief that the aggrieved person may seek in a suit or legal proceeding before a civil or criminal court. Section 26 (3) provides that in case any relief has been obtained by the aggrieved person in any proceeding other than proceedings under this Act, the aggrieved woman would be bound to inform the Magistrate of the grant of such relief.
21. Section 36 provides that the DV Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force.
22. The issue of overlapping jurisdictions under the HMA and DV Act or Cr.P.C. came up for consideration before a division bench of the Delhi High Court in RD v BD7, wherein the Court held that maintenance granted to an aggrieved person under the DV Act, would be in addition to an order of maintenance under Section 125 Cr.P.C., or under the HMA. The legislative mandate envisages grant of maintenance to the wife under various statutes. It was not the intention of the legislature that once an order is passed in either of the maintenance proceedings, the order would debar re-adjudication of the issue of maintenance in any other proceeding. In paragraphs 16 and 17 of the judgment, it was observed that :
"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) 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 DV 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 Maintenance 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."
23. The Delhi High Court held that under Section 20(1)(d) of the DV Act, maintenance awarded to the aggrieved woman under the DV is in addition to an order of maintenance provided under Section 125 Cr.P.C. The grant of maintenance under the DV Act would not be a bar to seek maintenance under Section 24 of HMA.
24. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
25. Recognising the need for uniformity, consistency, procedural fairness and temeliness in the disposal of maintenance applications, in Rajnesh v. Neha & Ors.,8 Hon'ble the Supreme Court issued guidelines on the payment of maintenance in matrimonial disputes. While setting out the criteria for determining the amount of maintenance to be paid, the Apex Court recognised that there is no one-size-fits-all formula for deciding the maintenance in matrimonial case. Stressing the importance of maintaining a careful and just balance between all relevant factors, the Apex Court held that the amount of maintenance awarded must be reasonable and realistic. In addition to the statutory guidance, the Apex Court directed a number of indicative factors to be considered when determining the amount of maintenance to be paid, including; the status of the parties; the reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable the applicant to maintain the same standard of living to which she was accustomed in her matrimonial house; whether the applicant was employed prior to marriage; whether the applicant worked during the subsistence of the marriage; whether the applicant had to sacrifice her employment opportuities to care for the couple's family and children; and the reasonable costs of litigation for a non-working wife.
26. Further to the above guidelines, the Apex Court set out additional factors for determining the amount of maintenance to be paid, including; the age and employment status of the parties; the duration of the marriage; the maintenance of any minor children; and any serious disability or ill health of a spouse, child from the marriage or dependent relative who requires constant care and recurrent expenditure. These factors are not exhaustive and the court can exercise its discretion to consider any other factors which may be necessary or relevant in the facts of a particular case.
27. Hon'ble the Supreme Court in Rajnesh (Supra) considering the issue of maintenance and overlapping jurisdiction has held as under:-
"(a) Issue of overlapping jurisdiction
98. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:
(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.
(b) Payment of Interim Maintenance
99. The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court/District Court/ Magistrates Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
100. For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B - III of the judgment.
101. The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
102. We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B - IV above.
(e) Enforcement/Execution of orders of maintenance
103. For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20 (6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.
104. Before we part with this judgment, we note our appreciation of the valuable assistance provided by the Ld. Amici Curiae Ms. Anitha Shenoy and Mr. Gopal Sankaranarayanan, Senior Advocates in this case.
105. A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts/Family Courts/Courts of Judicial Magistrates for awareness and implementation."
28. In the aforesaid facts and circumstances of the case, the Court does not find any infirmity or illegality in the order impugned so as to make interference by this Court under Section 19 of the Family Courts Act, 19849. The court below has passed just and reasoned order and no interference is required in the matter.
29. Consequently, first appeal fails and is accordingly dismissed.
30. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the appellant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
31. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 6.1.2021 Ishan (Sanjay Kumar Pachori, J.) (Mahesh Chandra Tripathi, J.)