Shivanand Gurannavar Vs Basavva on 17 Feb 2022
Citations :
Other Sources :
https://www.latestlaws.com/case-analysis/hc-maintenance-granted-u-s-12-of-dv-act-cannot-be-enhanced-u-s-127-cr-p-c-read-order
Maintenance granted under DV Act cannot be enhanced under CrPC Provisions : Karnataka High Court
A single judge of Calcutta High Court held as follows:
Prasenjit Mukherjee Vs State of West Bengal and Ors on 02 Sep 2021On an examination of the controversy involved in the present case in the background of the law laid down in Rakesh Malhotra (supra) once it comes to the knowledge of the learned Magistrate that the marriage between the parties have been dissolved by a decree of divorce under the relevant provisions of Section 13B of the Hindu Marriage Act and it is found that the wife has received a lump-sum amount as onetime payment towards maintenance, what would be the procedure adopted in the following circumstances:
(a) A fresh case under Section 125 of the Code of Criminal Procedure is filed.
(b) The proceedings under Section 125 of the Code of Criminal Procedure was pending and the Civil Court has dissolved the marriage by decree of divorce and there was no information before the Civil Court regarding the pendency of the proceedings under Section 125 of the Code of Criminal Procedure.
(c) Procedure/steps to be adopted by the learned Magistrate if the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under Section 13B of the Hindu Marriage Act (which has already been decided) are in different sub-divisions or different districts or different States.
As the aforesaid questions involve serious ramification so far as the proceedings under Section 125 of the Code of Criminal Procedure are concerned, I am of the view that the same is to be referred and settled by a Larger Bench (as there are conflicting judgments of this Court on the point).
Accordingly, the record of the case be placed before The Hon’ble The Chief Justice (Acting), High Court at Calcutta.
The case was ordered to be listed but it’s been over 8 months, the Judges did not find time to look in it…
Prasenjit Mukherjee Vs State of West Bengal and Ors on 10 Sep 2021 (List Matter)Supreme Court passed General Directions in regard to the menace of multiple maintenance litigation between spouses as follows.
Some crucial procedural guidelines with respect to interim maintenance proceedings…
(xi) Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of India :
(a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate’s Court, as the case may be, throughout the country;
(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;
(c) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.
If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.32
On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;
(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.
(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.
(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC;
On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so;
The income of one party is often not within the knowledge of the other spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.
(g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended / supplementary affidavit, which would be considered by the court at the time of final determination.
(h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C., and for contempt of Court.
(i) In case the parties belong to the Economically Weaker Sections (“EWS”), or are living Below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be dispensed with.
(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.
(k) A professional Marriage Counsellor must be made available in every Family Court.
Some crucial procedural guidelines with respect to Permanent alimony
(i) Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.
(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.
(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family.
(iv) If there are any trust funds / investments created by any spouse / grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.
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.
(b) Payment of Interim Maintenance
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
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. he 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
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
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.
Note: In my opinion, since all these proceedings are Civil in nature (no criminal liability at all meaning No jail), no one has to bother much about the same, as no care of concern is shown to address root causes:
Action Item:
Citations: [2020 SCC ONLINE SC 903], [(2021) 1 SCC (Cri) 749], [(2021) 2 SCC 324], [(2021) 2 SCC (Civ) 220], [(2020) 11JT 558], [2020 (6) KHC 1]
Other Sources : https://indiankanoon.org/doc/117541087/
https://www.casemine.com/judgement/in/5fa2f5f68e5f67910ddaf6ce
The HC dismissed the Crl Writ Petition challenging the Family Court Order in the 125 CrPC case.
Rajnesh Vs Neha and Anr on 14 Aug 2018Family Court case no: Petition No. E-443/ 2013
Here are the key orders passed by Hon’ble Delhi High Court on the case of Kusum Sharma Vs Mahinder Kumar Sharma case.
UPDATES:
Next Date: 18th December, 2020
This judgment is gainfully used in Shalu Ojha case here.
A 2-judge bench passed guidelines to handle multiple maintenance litigation here.
Another dirty judgment, this time from High Court of Delhi.
R D Vs B D on 31 July, 2019Here are the key orders passed by Hon’ble Supreme Court of India on the case of Shalu Ojha Vs Prashant Ojha.
The index page is here.
A 2-judge bench passed guidelines to handle multiple maintenance litigation here.
In this Delhi High Court Judgment, it was held that both orders under 125 CrPC and PWDV Act are to be paid by husband Vikas. Woww
Hope he will get relief in Supreme Court.
Vikas Bhutani Vs State & Anr on 17 May, 2019
This is the judgment from Gujarat High Court, wherein it held concurrent jurisdiction exists between 125 CrPC and PWDV Act.
From Para 12,
Therefore, even if there is no reference of maintenance either under sub-Section 2 of Section 12 or in Section 20 of the Act, the fact remains that there is concurrent jurisdiction the statute provides concurrent jurisdiction and, therefore, it cannot be said that there is over ruling of jurisdiction while granting maintenance in different proceedings. At the most, what is required to be considered while deciding the claim of maintenance is that amount already awarded in a previous litigation may be taken into consideration for arriving at final amount of maintenance and, thereby, if order of only additional amount is there, then there is no overlapping and if award is for maximum amount of maintenance that can be awarded then set off against amount payable under any previous proceedings is to be extended.
From Para 13,
Haresh Narayan Jaguja and Ors. Vs Namrata Haresh Jaguja and Ors on 28 April, 2015When petitioner is relying upon citations which are referred herein above and are already considered by the first appellate Court while rejecting the appeal, it would be appropriate for the petitioner herein to go through the legal provision properly. The time has come that litigants restrain themselves from agitating the issue which has already been decided by competent Court, only because they are not comfortable with the same.
This order from Hon’ble Bombay High Court talks about adjusting the maintenance paid under one case, when a maintenance order is granted in another case/law/act.
Intention of the judge, from Para 18,
Vishal SO. Rajesaheb Gore Vs Sow. Aparna WO. Vishal Gore on 13 June, 2018What I intend to emphasize is the fact that the adjustment is permissible and the adjustment can be allowed of the lower amount against the higher amount. Though the wife can simultaneously claim maintenance under the different enactments, it does not in any way mean that the husband can be made liable to pay the maintenance awarded in each of the said proceedings.
Here is the case filed by Prakash Babulal Dangi at Hon’ble Supreme Court, assailing the High Court of Bombay order available here on the aspect of Multiple Maintenance to be paid. These are daily orders along with final disposal order.
From January 2018:
Prakash Babulal Dangi 10-Jan-2018From March 2018;
Prakash Babulal Dangi 12-Mar-2018A new case got tagged to this one in April 2018. This is pending as on 10-Apr-2020.
Aarti Rai Vs Satish Rai and Ors on 09-Apr-2018A new case got tagged to this one in November 2018. This was Dismissed as withdrawn.
Dheeraj Bhojraj Malukani Vs Seema Dheeraj Malukani on 16-Nov-2018And the grand Finale for this case in September 2019. Yippieeee!!!! The Special Leave Petition is disposed of as withdrawn.
Prakash Babulal Dangi Vs The State of Maharashtra on 27 September 2019A 2-judge bench passed guidelines to handle multiple maintenance litigation here.
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