IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No.64 of 2023

Goutam Charan Das …. Petitioner

M/s. Bijayananda Dash, Advocate
& Associates

-Versus-

Biswadarsani Das …. Opposite Party

M/s. Bijaya Kumar Parida-2. Advocate
& Associates

CORAM:
JUSTICE R.K. PATTANAIK

DATE OF JUDGMENT: 12.08.2024

1. Instant revision is filed by the petitioner assailing the

correctness, legality and judicial propriety of the impugned order
under Annexure-1 passed in Criminal Appeal No.80 of 2021 by
learned 2nd Additional Sessions Judge, Cuttack, whereby, the
decision of learned S.D.J.M.(Sadar), Cuttack in D.V. Misc. Case
No.44 of 2021 under Section 23 of the Protection of Women
from Domestic Violance Act, 2005 (hereinafter referred to as ‘the
DV Act’) granting interim maintenance in favour of the opposite
party stands confirmed though with reduction of monthly
alimony on the grounds inter alia that the same is not sustainable
in law and hence, therefore, liable to be interfered with and set
aside in the interest of justice.

2. As per the order in the DV proceeding, learned S.D.J.M.

(Sadar), Cuttack allowed Rs.6,000/- towards interim maintenance
in favour of the opposite party wife, which was reduced to
Rs.4000/- by the learned Court below. The said order dated 17th
January, 2023 in appeal by learned Sessions Court is under
challenge. According to the petitioner husband, the opposite

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party suppressed the earlier order of the Family Court in C.M.A.
No.87 of 2019 arising out of a proceeding in C.P. No.139 of 2018
instituted by him, wherein, while entertaining an application
under Section 24 of the Hindu Marriage Act, 1955, interim
maintenance @ Rs.10,000/- per month was allowed with an
additional payment of Rs.50,000/- towards litigation expenses
borne by her. Furthermore, it is pleaded by the petitioner that the
opposite party could not have been allowed interim maintenance
in two separate proceedings as the same is not legally tenable.
That apart, as per the petitioner, the opposite party is well
educated and qualified and has had been in employment, hence,
it was not right for the learned Courts below to grant such relief
to her. With the above contention, the impugned order under
Annexure-1 is questioned by the petitioner.

3. Heard Mr. Dash, learned counsel for the petitioner and Mr.
Parida-2, learned counsel for the opposite party.

4. According to Mr. Dash, learned counsel for the petitioner, the

interim maintenance should not have been granted to the
opposite party when she could be in employment being an
Engineering Graduate and the same cannot be allowed under the
DV Act, when learned Family Court has already directed the
petitioner to pay Rs.10,000/- a month to her as interim
maintenance. It is contended that such demand for maintenance
in two different forums is unfair and not justifiable in law. It is
also contended that since the opposite party is a qualified
professional and can earn on her own, any such maintenance as
directed by the learned Courts below is not proper. In support of
such contention, Mr. Dash, learned counsel for the petitioner
relies on the orders of Gujarat High Court in Special Criminal
Application No.2080 of 2010 dated 21st October, 2010
(Hemlataben Maheshbhai Chauhan Vrs. State of Gujarat; of

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Bombay High Court in Ravindra Haribhau Karmarkar Vrs. Mrs.
Shaila Ravindra Karmarkar 1992 CriLJ 1845; of Madhya Pradesh
High Court in Smt. Mamta Jaiswal Vrs. Rajesh Jaiswal II (2000)
DMC 170; and Shri Bhavin Shah Vrs. Smt. Sapna Shah 2016(I)
OLR 755 of this Court to submit that both the learned Courts
below fell into serious error in granting interim maintenance to
the opposite party when she was allowed such a relief earlier by
learned Family Court.

5. Mr. Parida-2, learned counsel for the opposite party justifies

the impugned order under Annexure-1 and rather submits that the
interim maintenance amount has been reduced to Rs.4000/-. It is
further submitted that as domestic violence was prima facie
proved and established, learned S.D.J.M.(Sadar), Cuttack was
justified to entertain an application under Section 23 of the D.V.
Act as law does not prohibit exercise of such jurisdiction by a
Court even during the pendency of any other proceeding,
wherein, interim alimony is granted.

6. The provisions of the DV Act in view of Section 36 thereof

shall be in addition to and not in derogation of the provisions of
any other law for the time being in force. Inasmuch as, the DV
Act does not affect the rights of the parties conferred under the
existing laws. In fact, maintenance could be awarded both under
the DV Act as well as in any other proceeding provided the
parties seeking similar relief specifically mention any such order
previously passed by a Court of competent jurisdiction. It is
however to be understood that though the wife can
simultaneously claim for maintenance under different enactments,
it does not in any way mean that the husband should be made
liable to pay the same in each of the such proceedings. In so far as
the DV Act is concerned, a proceeding thereunder carries reliefs
which cannot be granted by other Courts while exercising

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jurisdiction in proceedings under Section 125 Cr.P.C. or before a
Family Court or other Courts, hence, therefore, each of such
proceedings is maintainable. If a spouse is neglected or one of
them refuses to maintain the other, maintenance can be prayed
for before a Criminal Court under Section 125 Cr.P.C., a
proceeding which is entertained and disposed of summarily. As it
is known, a proceeding before a Family Court with reliefs sought
for is quite distinct and independent of any other proceedings
before other Courts. Under the DV Act, apart from maintenance
many other reliefs are sought for, such as, right of residence,
protection orders, custody rights, compensation etc. besides
monetary relief, which cannot be specifically considered by other
Courts. For such relief under the DV Act, a Court must be prima
facie satisfied about a domestic violence to have been committed
against the aggrieved person. The existence of a domestic
relationship is also a condition to be fulfilled before granting
reliefs under the DV Act. But at the same time, it is to be kept in
mind that interim maintenance cannot be allowed ignoring the
earlier orders of a Court in a different proceeding. The
maintainability of the proceedings being exclusive and
independent of each other cannot be questioned but once a relief
of maintenance is granted, while such a relief is once again prayed
for, the subsequent Court is to take cognizance of the earlier
order, while dealing with an application received from one of the
spouses.

7. In Hemlataben Maheshbhai Chauhan (supra), it is held that

once maintenance is allowed under Section 125 Cr.P.C., the
proceeding under the DV Act with a similar relief cannot be
allowed unless and until strong reasons exist with an observation
that in the event of change in circumstances, it is always open to
the wife to seek modification of the maintenance order under
Section 127 Cr.P.C. The said decision does not bar a DV Court
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from granting interim maintenance but held that in case,
circumstances demand, the same can be considered with one
more option available for the wife to seek modification of order
in terms of Section 127 Cr.P.C. In Ravindra Haribhau Karmakar
(supra), the Bombay High Court held that when the parties are
before a Civil Court, the proceeding under Section 125 Cr.P.C.
before a Magistrate is to be stayed as it is unlikely to cause any
prejudice to the aggrieved wife, who has been receiving
maintenance every month. In Smt. Mamta Jaiswal (supra), the
Madhya Pradesh High Court made certain observations while
dealing with an application for maintenance when the wife was
having good qualification but was not having the source of
income and was unemployed depending on the husband for
sustenance. On a proper reading of the above decision, the Court
finds that such observation was made keeping in view the facts
and circumstances of the case and parties involved therein. It
cannot be universally held that one of the spouses is always guilty
of sitting idle draining out the other half for demanding
maintenance. Even when a wife is qualified, she may not be in
employment and the same could be for variety of reasons, hence,
it may not at all be justified to suspect her conduct or intent,
while demanding monthly alimony approaching a Court. It is of
course true that a Court must be vigilant to any such suspectful
action of one of the spouses. But by considering the above
decision, it would not be proper to treat the opposite party in
such manner alleging her conduct as suspectful. No doubt, the
learned Courts below were required to examine the plea of the
opposite party when she was allowed interim maintenance of
Rs.10,000/- by the Family Court. If in case, the opposite party did
not seek modification of such an order, she cannot either be
prevented from demanding any additional sum before the DV
Court. As it was earlier mentioned, all such proceedings are

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maintainable and a wife may simultaneously claim relief under
the DV Act and also in other proceeding as in each of such
proceedings, the cause of action is different and also the effect.

8. In Rajnesh Vrs. Neha and Another (2021) 2 SCC 32, the Apex
Court discussed in detail about the overlapping jurisdictions of
different Courts while dealing with a matrimonial dispute. It is
held therein that the wife is under statutory obligation to disclose
earlier orders of maintenance revealing all the information before
the subsequent Court with an affidavit of disclosure of assets and
liabilities and laid down the guidelines on interim maintenance.
As per the DV Act, such disclosure about a previous order of
maintenance is a statutory requirement. All such provisions of
different enactments, on a harmonious reading, leads to an
irresistible conclusion that the proceedings before different Courts
co-exist and hence, maintainable but there should not be
repetition of reliefs with orders passed by the Courts prejudicial to
the interest of one of the parties involved. In the instant case, the
petitioner alleges that interim maintenance was managed by the
opposite party without disclosing the earlier order of the Family
Court. In fact, both the orders arrived in a span of six months or a
year. The Court in appeal held that the disclosure was not made
by the opposite party while seeking maintenance under the DV
Act. But, the fact remains, the opposite party was not granted any
such maintenance ex parte. The petitioner participated in the
proceeding before learned S.D.J.M. (Sadar), Cuttack and it is
believed that he must have disclosed about the earlier order by
the Family Court. In any case, learned Court below in appeal was
made aware of the previous order of interim maintenance by the
Family Court under Section 24 of the Hindu Marriage Act. In
other words, the Jurisdiction was exercised by the learned
Sessions Court being conscious of the Family Court’s order of
maintenance in favour of the opposite party. Even if, the opposite
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party is to be held guilty for any such lapse for non-disclosure, she
cannot be non-suited before the DV Court and could not have
been by the orders of the learned Sessions Court in appeal. The
only consideration in the given set of facts would be that whether
learned Court below rightly exercised the discretion in allowing
maintenance with a reduced amount of Rs.4000/-. To sum up,
the Court reaches at a conclusion that earlier order of
maintenance or proceeding before the Family Court with such an
order cannot and could not have prevented the opposite party to
approach the DV Court but any such interim alimony since
allowed, had to be keeping in view the previous order to make
the necessary adjustment upon proof of existence of a cause of
action seeking further monetary sustenance and support from the
petitioner. It is reiterated that for Section 36 of the DV Act, all
such provisions of the said Act are always supplemental to other
enactments in force. If a case is made out for additional amount
of maintenance payable to the wife, the DV Court can do so even
when the previous order on alimony by a different Court is in
existence. The Court is of the view that the aggrieved spouse has
two options open, one being to approach the earlier Court for
enhancement of the maintenance in the change circumstances or
even pursue such relief before the later Court, which is to consider
granting such remedy and may direct maintenance over and
above the amount earlier awarded. So, to say, an adjustment has
to be made while allowing further maintenance when the spouse
is receiving alimony by virtue of an earlier order of another
Court.

9. In the case at hand, no such ground is made out by the

opposite party for interim maintenance in addition to the amount
of monthly alimony of Rs.10,000/- awarded by the Family Court.
The said order in a proceeding under the Hindu Marriage Act is
dated 5th February, 2021, whereas, the impugned order in the DV
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proceeding was passed on 6th November, 2021. What were the
circumstances for the opposite party to demand maintenance
again, may be on the premise of being a victim of domestic
violence, when she was already awarded alimony of Rs.10,000/-
a month in a proceeding initiated by the petitioner under the
Hindu Marriage Act seeking dissolution of marriage is not
discernible from the record. The said question was not dealt with
at least by the Court in appeal, which allowed further
maintenance as a routine duty under the impression that it is
bound to grant the same when a prima facie case of domestic
violence is made out against the petitioner. In the humble view of
the Court, unless the opposite party was to satisfy the DV Court
for any such further maintenance in addition to Rs.10,000/-, it
was not right for the Courts below to accede to such request. It
was also incorrect on the part of the learned court below to
conclude that no evidence is necessary before passing an interim
order in favour of the opposite party in view of the aim and
objective of the DV Act though relief granted ex parte may be
based on affidavit. In absence of any material on record except
evidence regarding domestic violence by itself not to be sufficient
for a Court to consider quantum of interim maintenance.
Otherwise without any evidence on record, while dealing with an
application under Section 23 of the DV Act, it would just be a
guess work for the Courts where there may not be proper
decisions taken especially with regard to the quantum of
maintenance in juxtaposition to the capacity, living standard and
life style of the spouses involved and therefore, to deal with such
situations, disclosure of assets and liabilities as directed by the
Apex Court in Rajnesh (supra) to be necessary.

10. It is, therefore, to be held that a DV Court has the jurisdiction

to entertain such relief of maintenance during the subsistence of
an earlier order but to determine the quantum and make the
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necessary adjustment or set off accordingly provided a case is
made out by the aggrieved spouse stating the circumstances and
the need for the same. It is hence to be concluded that the spouse,
in whose favour an order of maintenance has been passed, shall
have to disclose it to the subsequent Court but for any such non-
disclosure, the Court shall have the jurisdiction to modify the
order or even review or recall the same on being informed by the
other spouse. The further conclusion is that a spouse cannot be
non-suited for having earlier approached a Court and obtained
relief but as held and discussed, adjustment as to quantum of
alimony shall have to be considered by the latter Court. Since in
the present case, the opposite party had not applied for
enhancement of maintenance approaching the Family Court, so
was required to convince the DV Court, the need for additional
amount over and above Rs.10,000/-. In absence of any such facts
revealed by the opposite party and a case made out by her, the
learned Courts below were not justified to allow further
maintenance. A conclusion has to be reached at that the opposite
party though did not seek enhancement of the maintenance
amount but the same was to be necessary on account of the
changed circumstances and for adequate reasons. Even assuming
that such an exercise has been under taken by the learned Court
below, no decision has been rendered as to if the maintenance
amount of Rs.10,000/- allowed by the Family Court in favour of
the opposite party to be sufficient or otherwise. That apart, the
learned Court below without any logic or reason fixed the
maintenance amount at Rs.4000/- in addition to Rs.10,000/-.
Again, it has been a guess work by the learned Sessions Court
without the decision being supported by any reason. A Court has
to take judicial notice of all such aspects before considering
maintenance and passing orders especially during the existence of
an earlier order on a similar relief in favour of one of the spouses.

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 As it appears, both the learned Courts below, at least the learned
Sessions Court could have examined the above aspects keeping in
view the decision of the Apex Court in Rajnesh (supra) even at a
time while considering the maintenance insisting upon the parties
to make the necessary disclosure of assets and liabilities and also
considering, whether, the opposite party is still entitled to any
additional sum when she was granted interim alimony of
Rs.10,000/-. Only under demanding circumstances assigning
reasons with a case made out by the opposite party, further
amount of maintenance could be allowed with the set off,
otherwise, one of the spouses would always be in a difficult and
disadvantaged position to bear the brunt, which can never be the
intent of any such law in force.

11. Hence, it is ordered.

12. In the result, the revision petition stands allowed. As a

necessary corollary, the impugned orders under Annexure-1 and 3
passed by the learned Courts below are hereby set aside with the
matter remitted back to the Court of learned S.D.J.M.(Sadar),
Cuttack with the restoration of the proceeding in D.V. Misc. Case
No.44 of 2021 for a fresh decision on the application filed under
Section 23 of the DV Act by the opposite party followed by an
order on merit keeping in view the settled legal position and the
discussions with the observations made herein above.

13. In the circumstances, however, there is no order as to costs.

(R.K. Pattanaik)
Judge
Balaram

Signature Not Verified

Digitally Signed
Signed by: BALARAM BEHERA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 12-Aug-2024 14:38:16

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