The Supreme Court Bench comprising Justice Indu Malhotra and Justice R. Subhash Reddy, had the occasion to lay down guidelines on the issue of overlapping of jurisdiction in maintenance case, in the case of Rajnesh v. Neha (2020).
In the present case, the application for maintenance under section 125 of CrPC remained pending for seven years and the difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.
Maintenance may be claimed under one or more of the afore-mentioned 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 1956 (“HAMA”), and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 (“HMA”) by invoking Sections 24 and 25 of the said Act.
In Nanak Chand v. Chandra Kishore Aggarwal and Ors. (1969) 3 SCC 802, the Supreme Court held that there was no inconsistency between the Code of Criminal Procedure and HAMA. Section 4(b) of HAMA would not repeal or affect the provisions of Section 488 of the old Code of Criminal Procedure. It was held that:
“4. Both can stand together. The Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, insofar as it dealt with the maintenance of children, was in any way inconsistent with Section 488, Code of Criminal Procedure.
The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State: AIR 1963 All 355, before the Calcutta High Court in Mahabir Agarwalla v. Gita Roy [1962] 2 Cr. L.J. 528and before the Patna High Court in Nalini Ranjan v. Kiran Rani: AIR 1965 Pat 442. The three High Courts have, in our view, correctly come to the conclusion that Section 4(b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in Section 488, Code of Criminal Procedure.”
In the present case, the court said,
While it is true that a party is not precluded from approaching the Court under one or more enactments, since the nature and purpose of the relief under each Act is distinct and independent, it is equally true that the simultaneous operation of these Acts, would lead to multiplicity of proceedings and conflicting orders. This would have the inevitable effect of overlapping jurisdiction. This process requires to be streamlined, so that the Respondent/husband is not obligated to comply with successive orders of maintenance passed under different enactments.
10. For instance, if in a previous proceeding Under Section 125 Code of Criminal Procedure, an amount is awarded towards maintenance, in the subsequent proceeding filed for dissolution of marriage under the Hindu Marriage Act, where an application for maintenance pendente lite is filed Under Section 24 of that Act, or for maintenance Under Section 25, the payment awarded in the earlier proceeding must be taken note of, while deciding the amount awarded under HMA.
Statutory provisions under various enactments
The Special Marriage Act, 1954 (“SMA”)
Section 4 of the Special Marriage Act, 1954 provides that a marriage between any two persons who are citizens of India may be solemnized under this Act, notwithstanding anything contained in any other law for the time being in force. It is a secular legislation applicable to all persons who solemnize their marriage in India.
Section 36 of the Special Marriage Act provides that a wife is entitled to claim pendente lite maintenance, if she does not have sufficient independent income to support her and for legal expenses. The maintenance may be granted on a weekly or monthly basis during the pendency of the matrimonial proceedings. The Court would determine the quantum of maintenance depending on the income of the husband, and award such amount as may seem reasonable.
Section 37 provides for grant of permanent alimony at the time of passing of the decree, or subsequent thereto. Permanent alimony is the consolidated payment made by the husband to the wife towards her maintenance for life.
The Hindu Marriage Act, 1955 (“HMA”)
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 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 prerequisite 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.
The proviso to Section 24 providing a time line of 60 days for disposal of the application was inserted vide Act 49 of 2001 w.e.f. 24.09.2001.
Section 25 provides for grant of permanent alimony. 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.
Hindu Adoptions & Maintenance Act, 1956 (“HAMA”)
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 right of separate residence and maintenance would however not be available if the wife has been unchaste, or has converted to another religion.
Section 125 of CrPC
Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance Under Section 125 of the Code of Criminal Procedure may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 Code of Criminal Procedure is to provide immediate relief to an applicant.
An application Under Section 125 Code of Criminal Procedure is predicated on two conditions: (i) the husband has sufficient means; and (ii) “neglects” to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. 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 Hindu Marriage Act, 1956.
Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”)
The D.V. Act stands on a separate footing from the laws discussed hereinabove. The D.V. 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.
Section 2(q) of the Act defined “Respondent” to mean an “adult male person” who is, or has been, in a domestic relationship with the aggrieved woman.
Section 20(1)(d) 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 Code of Criminal Procedure, or any other law in force.
Under Sub-section (6) of Section 20, 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.
Section 22 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. 53. Section 23 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.
Conflicting judgments on overlapping jurisdiction
(i) Some High Courts have taken the view that since each proceeding is distinct and independent of the other, maintenance granted in one proceeding cannot be adjusted or set-off in the other.
For instance, in Ashok Singh Pal v. Manjulata,: AIR 2008 MP 139 the Madhya Pradesh High Court held that the remedies available to an aggrieved person Under Section 24 of the HMA is independent of Section 125 of the Code of Criminal Procedure. In an application filed by the husband for adjustment of the amounts awarded in the two proceedings, it was held that the question as to whether adjustment is to be granted, is a matter of judicial discretion to be exercised by the Court. There is nothing to suggest as a thumb Rule which lays down as a mandatory requirement that adjustment or deduction of maintenance awarded Under Section 125 Code of Criminal Procedure must be off-set from the amount awarded Under Section 24 of the HMA, or vice versa.
A similar view was taken by another single judge of the Madhya Pradesh High Court in Mohan Swaroop Chauhan v. Mohini: (2016) 2 MP LJ 179. Similarly, the Calcutta High Court in Sujit Adhikari v. Tulika Adhikari held that adjustment is not a rule. It was held that the quantum of maintenance determined by the Court under HMA is required to be added to the quantum of maintenance Under Section 125 Code of Criminal Procedure. A similar view has been taken in Chandra Mohan Das v. Tapati Das, wherein a challenge was made on the point that the Court ought to have adjusted the amount awarded in a proceeding Under Section 125 Code of Criminal Procedure, while determining the maintenance to be awarded Under Section 24 of the HMA, 1955. It was held that the quantum of maintenance determined Under Section 24 of HMA was to be paid in addition to the maintenance awarded in a proceeding Under Section 125 Code of Criminal Procedure.
(ii) On the other hand, the Bombay and Delhi High Courts, have held that in case of parallel proceedings, adjustment or set-off must take place. The Bombay High Court in a well-reasoned judgment delivered in Vishal v. Aparna and Anr. has taken the correct view. The Court was considering the issue whether interim monthly maintenance awarded Under Section 23 r.w. Section 20 (1)(d) of the D.V. Act could be adjusted against the maintenance awarded Under Section 125 Code of Criminal Procedure. The Family Court held that the order passed under the D.V. Act and the Code of Criminal Procedure were both independent proceedings, and adjustment was not permissible.
The Bombay High Court set aside the judgment of the Family Court, and held that Section 20(1)(d) of the D.V. Act makes it clear that the maintenance granted under this Act, would be in addition to an order of maintenance Under Section 125 Code of Criminal Procedure, and any other law for the time being in force. Sub-section (3) of Section 26 of the D.V. Act enjoins upon the aggrieved person to inform the Magistrate, if she has obtained any relief available Under Sections 18, 19, 20, 21 and 22, in any other legal proceeding filed by her, whether before a Civil Court, Family Court, or Criminal Court.
The object being that while granting relief under the D.V. Act, the Magistrate shall take into account and consider if any similar relief has been obtained by the aggrieved person. Even though proceedings under the D.V. Act may be an independent proceeding, the Magistrate cannot ignore the maintenance awarded in any other legal proceedings, while determining whether over and above the maintenance already awarded, any further amount was required to be granted for reasons to be recorded in writing. The Court observed:
18. What 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.
It was held that while determining the quantum of maintenance awarded Under Section 125 Code of Criminal Procedure, the Magistrate would take into consideration the interim maintenance awarded to the aggrieved woman under the D.V. Act. The issue of overlapping jurisdictions under the HMA and D.V. Act or Code of Criminal Procedure came up for consideration before a division bench of the Delhi High Court in RD v. BD: 2019 VII AD (Delhi) 466 wherein the Court held that maintenance granted to an aggrieved person under the D.V. Act, would be in addition to an order of maintenance Under Section 125 Code of Criminal Procedure, 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 Code of Criminal Procedure.
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 Code of Criminal Procedure 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 Code of Criminal Procedure 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.
The Court held that Under Section 20(1)(d) of the D.V. Act, maintenance awarded to the aggrieved woman under the D.V. is in addition to an order of maintenance provided Under Section 125 Code of Criminal Procedure. The grant of maintenance under the D.V. Act would not be a bar to seek maintenance Under Section 24 of HMA. Similarly, in Tanushree and Ors. v. A.S. Moorthy the Delhi High Court was considering a case where the Magistrate’s Court had sine die adjourned the proceedings Under Section 125 Code of Criminal Procedure on the ground that parallel proceedings for maintenance under the D.V. Act were pending.
In an appeal filed by the wife before the High Court, it was held that a reading of Section 20(1)(d) of the D.V. Act indicates that while considering an application Under Section 12 of the D.V. Act, the Court would take into account an order of maintenance passed Under Section 125 Code of Criminal Procedure, or any other law for the time being in force. The mere fact that two proceedings were initiated by a party, would not imply that one would have to be adjourned sine die. There is a distinction in the scope and power exercised by the Magistrate Under Section 125, Code of Criminal Procedure and the D.V. Act.
With respect to the overlap in both statutes, the Court held:
5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two proceedings are independent of each other and have different scope, though there is an overlap. Insofar as the overlap is concerned, law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance Under Section 12 of the D.V. Act, the maintenance fixed Under Section 125 Code of Criminal Procedure shall be taken into account.
The issue whether maintenance Under Section 125 Code of Criminal Procedure could be awarded by the Magistrate, after permanent alimony was granted to the wife in the divorce proceedings, came up for consideration before the Supreme Court in Rakesh Malhotra v. Krishna Malhotra. The Court held that once an order for permanent alimony was passed, the same could be modified by the same court by exercising its power Under Section 25(2) of HMA. The Court held that:
16. Since the Parliament has empowered the Court Under Section 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequitur would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance. One can understand the situation where considering the exigencies of the situation and urgency in the matter, a wife initially prefers an application Under Section 125 of the Code to secure maintenance in order to sustain herself.
In such matters the wife would certainly be entitled to have a full-fledged adjudication in the form of any challenge raised before a Competent Court either under the Act Or similar such enactments. But the reverse cannot be the accepted norm. The Court directed that the application Under Section 125 Code of Criminal Procedure be treated as an application Under Section 25(2) of HMA and be disposed of accordingly.
(iii) In Nagendrappa Natikar v. Neelamma (2014) 14 SCC 452 Supreme Court considered a case where the wife instituted a suit Under Section 18 of HAMA, after signing a consent letter in proceedings Under Section 125 Code of Criminal Procedure, stating that she would not make any further claims for maintenance against the husband. It was held that the proceedings Under Section 125 Code of Criminal Procedure were summary in nature, and were intended to provide a speedy remedy to the wife. Any order passed Under Section 125 Code of Criminal Procedure by compromise or otherwise would not foreclose the remedy Under Section 18 of HAMA.
(iv) In Sudeep Chaudhary v. Radha Chaudhary: (1997) 11 SCC 286 the Supreme Court directed adjustment in a case where the wife had filed an application Under Section 125 of the Code of Criminal Procedure, and under HMA. In the Section 125 proceedings, she had obtained an order of maintenance. Subsequently, in proceedings under the HMA, the wife sought alimony. Since the husband failed to pay maintenance awarded, the wife initiated recovery proceedings. The Supreme Court held that the maintenance awarded Under Section 125 Code of Criminal Procedure must be adjusted against the amount awarded in the matrimonial proceedings under HMA, and was not to be given over and above the same.
Directions on overlapping jurisdictions
The Court gave following Directions on the issue of overlapping of Jurisdiction,
It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Code of Criminal Procedure, or under H.M.A. 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. 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, we direct 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.
Reference
Rajnesh v. Neha (2011)