Rajendra Prasad Choudhary vs State Of Rajasthan And Ors

The instant miscellaneous petition under Section 482 CrPC has been preferred by the petitioner Rajendra Prasad Choudhary seeking to assail the order dated 19.07.2017 passed by the learned Additional Chief Metropolitan Magistrate, Jodhpur in Complaint Case No.10/2010, whereby, the application filed by the respondent wife and minor daughter of the present petitioner under the provisions of the Domestic Violence Act was accepted and the petitioner was directed to make payment of a total sum of Rs.4000/- to them by way of monthly maintenance.

The sole contention of Mr. R.N. Choudhary, learned counsel representing the petitioner, for assailing the impugned order was that another order of maintenance has been passed in favour of the respondent Smt. Prabha Choudhary by the Family Court, Jodhpur in proceedings under Section 24 and 26 of the Hindu Marriage Act, wherein maintenance to the tune of Rs.1600/-per month has been awarded to the petitioner's wife the respondent and their daughter by way of maintenance. As per learned counsel Mr. Choudhary, the order of maintenance, if any passed under the provisions of the Domestic Violence Act, has to take into account the maintenance awarded under the provisions of the Hindu Marriage Act, which has to be deducted from the final award under the Domestic Violence Act.

Per contra, Mr. Bharat Bhushan, Advocate, representing the respondent No.2, being the wife of petitioner, opposed the submission of Mr. Choudhary. He urged that the maintenance under the provisions of the Domestic Violence Act can be awarded in addition and independent to the maintenance awarded under other statutes. He further pointed out that till date, the petitioner has not paid the due amount even under the order passed by the Family Court way back in the year 2013. He further pointed out that the order under challenge was passed ex parte because the petitioner intentionally failed to appear in the proceedings before the trial court and thus, he cannot be allowed to belatedly impeach the said order by invoking the inherent powers of this court under Section 482 CrPC.

I have given my thoughtful consideration to the submissions advanced at bar and gone through the material available on record. Suffice it to say that the exparte order under challenge was passed way back in the year 2017. The petitioner has shown no reason as to why he did not contest the proceedings before the learned Magistrate. He did not challenge the said order by availing the statutory remedy of appeal provided under Section 29 of the Domestic Violence Act and has instead, directly challenged the impugned order by filing this highly belated miscellaneous petition under Section 482 CrPC for invoking the inherent powers of this court. In addition to the fact that the instant miscellaneous petition is not fit to be entertained because the petitioner failed to defend the case before the Judicial Magistrate and the fact that he has failed to file statutory appeal even otherwise also, the petitioner is not entitled to the relief claimed for. The sole basis of challenge laid by the petitioner's counsel to the impugned order is founded on the assumption that two simultaneous orders of maintenance cannot coexist i.e. one under the Domestic Violence Act and the other under the Hindu Marriage Act. The situation in this regard is clear by the statutory provision is Section 26 (2) of the Domestic Violence Act, which stipulates that any relief referred to in sub-section (1) can be sought for in addition to and alongwith any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. Therefore, maintenance under the provisions of the Domestic Violence Act can be awarded in addition to maintenance, which is awardable under the other statutes, be it Section 125 CrPC or the Hindu Marriage Act. Therefore, I find no merit in the contention advanced by the petitioner's counsel for assailing the impugned order.

Hence, the miscellaneous petition is dismissed as being devoid of merit.