Hon'ble Ravi Nath Tilhari,J.
(Per Ravi Nath Tilhari, J.)
1. Heard Sri Manoj Kumar Dubey, learned counsel for the appellant and Sri Saksham Agarwal, learned counsel for the sole respondent.
2. On the request of the learned counsels for the parties to argue the matter on merits for final disposal of the appeal, the matter was heard and the judgment/order was reserved.
3. This appeal under Section 19 of the Family Courts Act, 1984 has been filed challenging the order dated 28.02.2020 passed by the learned Additional Principal Judge, Family court, court no. 1, Lucknow in Misc. Case No. 107-C/16 (original case no. 667/2016), on an application of the respondent-wife under Section 24 of the Hindu Marriage Act, 1955 (in short 'the H.M. Act'), whereby the application was partly allowed with a direction to the appellant-husband to make payment of Rs. 2500/- per month, as interim maintenance upto the final judgment in Original Case no. 667/2016.
4. The marriage of the plaintiff-appellant with the defendant-respondent was solemnized on 14.12.2005 but due to differences between them, the appellant filed Original Case No. 667/2016 for divorce under Section 13 of the H.M. Act. In this case, the respondent filed petition under Section 24 of the H.M. Act being Misc. Case no. 107-C/2016 for maintenance and pendente lite expenses.
5. In the application it was, inter alia stated that she had no source of income for her support. She was having two minor daughters and was unable to maintain herself and the minor daughters as also to bear the expenses of the litigation. The monthly income of the appellant was stated to be about Rs. 90,000/- per month from his Gym Club and the rent of the houses under his ownership/landlordship.
6. The appellant filed objection and inter alia denied the claim of the respondent and submitted that the respondent had source of livelihood and her monthly income was about Rs. 60,000/- and denied that his monthly income was Rs. 90,000/-.
7. The family court vide order dated 28.02.2020 allowed the petition under Section 24 of the H.M. Act and awarded pendente lite maintenance of Rs. 2500/- per month and Rs. 6000/- as one time expenses of the litigation and an amount of Rs. 100/- for each date of personal appearane of the respondent towards travelling expenses.
8. The respondent herein had filed criminal case no. 1179 of 2016 under Section 125 of the Code of Criminal Procedure, 1973 for maintenance to her and two minor daughters in which the Incharge Principal Judge, Family court, Lucknow vide order dated 09.09.2016 allowed interim maintenance of Rs. 1500/- per month for the respondent and a further sum of Rs. 1000/- per month to each of the two minor daughters was also allowed.
9. Sri Manoj Kumar Dubey, learned counsel for the appellant raised the only submission that the respondent-wife and two minor daughters are already receiving interim maintenance which was granted in the proceedings under Section 125 Cr.P.C. but deliberately the respondent did not disclose the same in the petition under Section 24 of the H.M. Act. The appellant cannot be saddled with liability of maintenance in both the proceedings and the amount of maintenance granted under Section 125 Cr.P.C. to the wife was liable to be adjusted, in the proceedings under Section 24 of the H.M. Act.
10. Sri Saksham Agarwal, learned counsel for the respondent submitted that the appellant has not paid any amount towards interim maintenance awarded vide order dated 09.09.2016 under Section 125 Cr.P.C. The appellant, admittedly, is running Gymnasium. The amount of pendente lite maintenance of Rs. 2500/- per month and the amount of interim maintenance of Rs. 1500/- per month under Section 125 Cr.P.C. to the respondent-wife in total, amounting to Rs. 4000/- per month cannot be said to be unreasonable, although even in such amount, it is very difficult for the respondent to maintain herself. He submits that the appellant did not raise the plea of adjustment or set off the amount of interim maintenance under Section 125 Cr.P.C. before the family court in proceedings under Section 24 of the Hindu Marriage Act.
11. In view of the submissions made hereinabove, the point that arises for consideration is whether the amount of interim maintenance granted to the respondent under Section 125 Cr.P.C. deserves to be adjusted in the proceedings under Section 24 of the Hindu Marriage Act ?
12. We have considered the submissions advanced and perused the material on record.
13. In the case of Rajnesh vs. Neha & Anr. passed in Criminal Appeal No. 730 of 2020 [arising out of SLP (Crl.) No. 9503 of 2018] dated 04.11.2020, on the issue of overlapping jurisdiction in grant of maintenance, the Hon'ble Supreme Court has held as under:-
"Final Directions In view of the foregoing discussion as contained in Part B - I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction 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."
14. The Hon'ble Apex Court has thus held that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the Protection of Women against Domestic Violence Act, 2005 and Section 125 of the Cr.P.C., or under Hindu Marriage Act. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. It has further been held that if maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, the Hon'ble Supreme Court directed that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.
15. Learned counsel for the appellant submitted that the respondent-wife did not disclose that she was granted interim maintenance under Section 125 Cr.P.C. However, he could also not point out that the appellant had brought to the notice of the court below, regarding grant of interim maintenance to the respondent-wife under Section 125 Cr.P.C. vide order dated 09.09.2016 nor that the appellant claimed its adjustment, while granting the prayer of the respondent for maintenance under Section 24 of the Act.
16. A perusal of the objection filed by the appellant to the application under Section 24 of the Act dated 06.02.2020, does not show that the appellant raised the plea, before the family court that under Section 125 Cr.P.C., the respondent-wife was granted interim maintenance which should be taken into consideration for adjustment in proceedings under Section 24 of the Act.
17. In view of the aforesaid, the family court had no occasion to consider that aspect of the matter.
18. We however proceed to consider the above aspect.
19. The interim maintenance awarded to the respondent-wife is Rs. 1500/- per month under Section 125 Cr.P.C. In the proceedings under Section 24 of the Hindu Marriage Act, the maintenance has been awarded @ Rs. 2500/- per month. Thus the total amount of monthly maintenance comes to Rs. 4000/- to the wife. Undisputedly, she is also having two minor daughters of growing age to maintain as well, to whom maintenance @ Rs. 1000/- per month each has been awarded under Section 125 Cr.P.C. Thus, in totality, Rs. 6000/- per month would be available to the respondent-wife to maintain herself and two minor daughters.
20. We are satisfied that any adjustment of an amount of Rs. 1500/- awarded to the respondent under Section 125 Cr.P.C., would not be in the interest of justice considering the total amount being received by the respondent towards maintenance and the number of children, which deserves no adjustment or set off.
21. No other point was argued.
22. The appeal is accordingly dismissed.
Order Date :- 30.09.2021 Nitesh (Ravi Nath Tilhari, J.) (Rajan Roy, J.)