In CRL.M.C. 2269/2020-DEL HC- Right to claim maintenance under Protection of Women from Domestic Violence Act and those u/s 125 CrPC are not mutually exclusive, rules Delhi HC Justice Asha Menon [27-05-2022]

Read Order: SH JAGMOHAN KASHYAP v. GOVT. OF NCT OF DELHI & ANR 

LE Correspondent

New Delhi, May 30, 2022: The Delhi High Court has recently held that the aggrieved person can seek interim maintenance before the Magistrate while also seeking a permanent maintenance under Section 125 Cr.P.C. The only caveat is that maintenance granted by one court will be factored in by the other court before granting or refusing maintenance.

Observing that the Protection of Women from Domestic Violence Act, 2005 is a piece of welfare legislation, to protect the interests of women in a domestic relationship and shared household, against not just physical abuse but also emotional and financial abuse, the Bench of Justice Asha Menon asserted, “The right to claim maintenance under the DV Act and those u/s 125 Cr.P.C. are not mutually exclusive…”

In this matter, multifarious litigation has been going on between the petitioner and second respondent, who are husband and wife. One proceeding has been going on before the Magistrate under the Protection of Women from Domestic Violence Act, 2005 (DV) Act and the other before the Family Court under Section 125 Cr.P.C.

In the complaint case filed by the second respondent-wife under the DV Act, her application filed under Section 23 for seeking interim maintenance from the petitioner was dismissed. The ASJ opined that though there was a long delay in filing the appeal, the appellant had sufficiently explained the cause for the delay. Accordingly, the application for condonation of delay was allowed subject to cost of Rs.8,000. The present petition was preferred against the orders dated January 30,2020 passed by the ASJ, Saket Court in an application preferred by the wife  u/s 5 of Limitation Act against the order of the MM condoning the delay of three years and ninety-nine days in filing an appeal against the said order.

The Bench held that the ASJ was right in dealing with the condonation application and not choosing to dismiss the appeal on procedural technicalities.Noting that inordinate delay would vest certain rights in the opposite party, the Bench still held that when it comes to the question of maintenance and welfare of family members protected by the D.V. Act, there can be no vesting of such rights that would result in the divesting of rights assured by a special piece of legislation. 

As per the Bench the wife had not resorted to dilatory tactics or intended to harass the petitioner. Rather, she continued to pursue her right to maintenance before the Family Court under Section 125 of the Cr.P.C.

Thus, observing that it will be only if perversity or non-application of mind is disclosed in the impugned order or the impugned order results in a grave miscarriage of justice, that the court would interfere with it in exercise of the powers u/s 482 CrPC,  the  Bench dismissed the application terming it as being devoid of merit.