Shashank Jaiswal vs Neelam Jaiswal

This Revision has been filed along with IA No.01/2023, an application for condonation of delay of 3258 days in filing the same against the order dated 03.03.2011 passed by the Principal Judge, Family Court, Durg District Durg in Miscellaneous Criminal Case No.692/2010 whereby, the application under Section 125 Cr.P.C preferred by the Non-Applicant/wife has been partly allowed and she has been awarded maintenance to the tune of Rs.2,000/- per month from the date of passing of the said order.

At the outset, Shri Upadhyay submits that after passing of the ex parte interim maintenance order in the said case, the Applicant had complied with the order impugned and cleared all the dues and has no grievance to this effect. He further submits that the Applicant has a limited grievance to the extent that while filing a subsequent application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act of 2005’) vide Criminal Case No.226/2013, Non-Applicant/wife had not disclosed that there exists a maintenance order in her favour already and the said proceeding has also been initiated. He further submits that the application preferred by the Non-Applicant/wife under Section 12 of the Act of 2005 was dismissed by the JMFC, Durg vide order dated 15.04.2013 and she had challenged the said order by filing Cr.A No.116/2013 before the 3rd Additional Sessions Judge, Durg in which, though the Applicant was proceeded ex parte, but his father and brother had participated in the same and the said application was allowed in favour of Non-Applicant/wife and the Applicant was directed to pay maintenance to the tune of Rs.3,000/- per month. He further submits that as in the said appellate order, no date has been affixed for payment of the said amount, therefore, the same is deemed to be effective from the date of passing of the judgment i.e. 27.02.2015 and the Applicant is regularly paying the maintenance in pursuance of the said order in favour of the Non-Applicant/wife. He further submits that due service has not been made before passing of the ex parte order dated 03.03.2011 and it has also not been verified as to whether the Applicant resides in the address given by the Non-Applicant/wife or not. However, he has not challenged the Revision on merits but only has a legitimate ground to set off the earlier maintenance, which has been awarded in the subsequent order in the case of domestic violence and the same may be treated merged or adjusted to the extent of the aforesaid amount as per the principles laid down in the matter of Rajnesh Vs. Neha and another reported in (2021) 2 SCC 324.

Heard learned Counsel for the Applicant and perused the order impugned along with the documents annexed herewith.

It has been well settled in Rajnesh Vs. Neha and another (supra) that where a successive claim for maintenance is made by the parties under different statutes, the Court would consider and adjust or set off the amount awarded in the previous proceedings while determining whether any other amount is to be awarded in the subsequent proceeding. As the Non-Applicant/wife had subsequently filed an application under Section 12 of the Act of 2005, in which, she had not mentioned about the grant of earlier maintenance to her under Section 125 Cr.P.C and till then, the Applicant was not aware of the said fact, therefore, no defence has been taken and the Applicant had already cleared the maintenance awarded under Section 125 Cr.P.C and is also regularly paying maintenance in pursuance of the order dated 27.02.2015 passed by the 3rd Additional Sessions Judge, Drug in Criminal Appeal No.116/2013 whereby, the application of Non-Applicant/wife under the Act of 2005 was allowed and she has been awarded maintenance to the tune of Rs.3,000/- per month.

In view of the foregoing discussion and the principles laid down in the matter of Rajnesh Vs. Neha and another (supra), the earlier maintenance order of Rs.2,000/- per month is required to be adjusted/set off in the amount which has already been awarded on 27.02.2015 and the Applicant ought to have challenged Cr.A No.116/2013 in which, the Non-Applicant/wife had not pleaded about the earlier maintenance granted to her and suppressed the same, however, he had filed this Revision challenging the earlier maintenance order and had raised the said issue though this Revision has been filed very belatedly and the Applicant has a bounden duty that whenever he changes his address, he has to inform the same to the concerned post office and the Applicant had deliberately did not do so, therefore, an inference can be drawn that he had deliberately evaded the service. Further, this is a case of maintenance proceeding which is summary in nature, therefore, considering the laudable object of maintenance under Section 125 Cr.P.C and the factual situation, this Court is not of the view to interfere with the order passed by the Family Court, Durg in Miscellaneous Criminal Case No.692/2010 decided on 03.03.2011, however, in the subsequent proceeding as the said fact was not brought to the notice of the concerned Court and for serving the ends of justice, the maintenance which has already been awarded is required to be set off or adjusted in the further proceeding, therefore, the Applicant shall raise the said issue at the time of execution proceeding and the concerned Court is directed to adjust the said amount in view of the principles laid down in the matter of Rajnesh Vs. Neha and another (supra).

With the aforesaid observation, the instant Revision stands disposed of.

A copy of this order be sent to the concerned Court for necessary compliance.