Once the learned Magistrate declined to grant
maintenance for reasons specified, it was not open for him
to assume jurisdiction in a proceeding under section 125
of the Cr.P.C. which was not pending before him and was a
completely independent proceeding to direct grant of
maintenance under the same. The two being independent
proceedings, the learned Magistrate wrongly assumed
jurisdiction under Section 125 Cr.P.C in a proceeding
under the Act. In effect, what the magistrate directly
declined to the respondent, he granted indirectly by
observing that till the proceedings under section 125 of
Cr.P.C. is not decided, the appellants shall pay
maintenance at a rate of Rs.2,000/- per month to the
respondent.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1613 OF 2019
P. RAJKUMAR & ANR. Vs YOGA @ YOGALAKSHMI
Dated:OCTOBER 23, 2019.
Leave granted.
The appellants assail order dated 06.03.2015 passed
by the High Court dismissing the criminal revision,
declining to interfere with the order dated 20.01.2015
affirming order dated 28.09.2012 for grant of Rs.10,000/-
as maintenance to the respondent in proceedings under
section 20 of the Protection of Women from Domestic
Violence Act, 2005 (for short, the ‘Act’).
Learned counsel for the appellants makes a short
submission that the claim for maintenance under section 20
of the Act was specifically negatived by the judicial
magistrate. The learned Magistrate therefore could not
have simultaneously ordered for maintenance in a pending
proceeding under section 125 of Code of Criminal Procedure
(for short, the ‘Cr.P.C.’) over which he had no
jurisdiction. It was lastly submitted that the respondent
has since remarried.
Learned counsel for the respondent invited our
attention to the interim order dated 12.10.2018 for
payment of all arrears of maintenance. He however did not
dispute the fact that the respondent has since remarried
on 10.02.2019.
We are of the considered opinion that the present
appeal can be disposed of on a very short point.
Admittedly, the respondent was denied any monetary
compensation under section 20 of the Act by the learned
Magistrate.
Once the learned Magistrate declined to grant
maintenance for reasons specified, it was not open for him
to assume jurisdiction in a proceeding under section 125
of the Cr.P.C. which was not pending before him and was a
completely independent proceeding to direct grant of
maintenance under the same. The two being independent
proceedings, the learned Magistrate wrongly assumed
jurisdiction under Section 125 Cr.P.C in a proceeding
under the Act. In effect, what the magistrate directly
declined to the respondent, he granted indirectly by
observing that till the proceedings under section 125 of
Cr.P.C. is not decided, the appellants shall pay
maintenance at a rate of Rs.2,000/- per month to the
respondent. The order is without jurisdiction and
therefore wholly unjustified and unsustainable. The
respondent never challenged the order of the learned
Magistrate declining monetary relief under section 20 of
the Act.
The parties are however agreed that the amount of
maintenance which has already been paid under the impugned
orders shall not be recovered and also that any amount
lying in deposit in the family court may be withdrawn by
the respondent.
The impugned orders, with the aforesaid exception,
are set aside. The appeal is allowed.
.....................J
[NAVIN SINHA]
.....................J
[B.R. GAVAI]
NEW DELHI;
OCTOBER 23, 2019.
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