The amount of Rs.2,500/- awarded as interim maintenance under DV Act could be adjusted in the amount of maintenance awarded under Section 125 of CrPC.
The maintenance amount awarded to respondent No.1is concerned, as submitted by the counsel for the applicant, the applicant is earning only Rs.6,000/- to Rs.7,000/- per month and apart of maintenance amount awarded by the learned Family Court under Section 125 CrPC, respondent No.1 is also getting a sum of Rs.2,500/- per month as interim maintenance under Section 20 of the DV Act.
11.In the case of Mohit Jain (supra)relied upon by the applicant, a Coordinate Bench of this Court adjusted the amount of interim maintenance awarded under Section 24 of the Hindu Marriage Act with the amount awarded under Section 125 of CrPC.
12.In the case of Sunil Lodhi (supra) a Coordinate Bench of this Court following the preposition laid down by the Hon’ble Apex Court in the case of Chaturbhuj vs. Sita bai (2008) 2 SCC 316 has held that, if wife is living separately with her own will,without any sufficient cause, she is not entitled for grant of maintenance. But in the present case, there are so many criminal cases pending against each other and from the statement of respondent No.1, it is reflected that she was harassed by the applicant and his family members and there are sufficient cause for living separately which is reflected from the evidence of respondent No.1.
13.In the case of Gaurav Dhabhai (supra)this court held that non-applicant (wife) has failed to prove the income of applicant, in these circumstances, Coordinate Bench reduced the maintenance amount from Rs.7,000/- to Rs.3,000/- per month.
14.In the present case, respondent No.1, clearly stated that applicant is having a JCB Machine, Dumper and four wheeler and is earning approximately Rs.2 Lacs Rupees. The applicant in his statement, in para 4, deposed that his younger brother deals with the business of crusher project and in his cross-examination admitted that, he is working as Supervisor in Lime Stone Crusher and stated that his earning is Rs.7,000/- to Rs.8,000/- per month,but not submitted any proof related to his salary to substantiate that statement. Once respondent No.1 stated that applicant is having a sufficient means of earning, he is having a JCB Machine, Dumper and four wheeler, it is not possible for the respondent to submit exact income of her husband while living in matrimonial house, she can gather facts on which her husband earns money. Now, burden is shifted to the husband to rebut that fact and produced sufficient rebuttal evidence.
15.Hon’ble Apex Court in the case of Shamima Farooqui vs.Shahid Khan, reported in (2015) 5 SCC 705, categorically held that, if husband is an able bodied young man, is not suffering from any deformities and is capable of earning money, then, he is under obligation to maintain his wife. Hon’ble Apex Court calculated an estimated income and awarded maintenance allowance. Para 18 and 19 of the judgment reads as under :
18.In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakashwherein it has been opined thus:-
7. …..an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.”
19. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises.When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.
16.Considering all these facts, this court is of the firm view that the learned Principal Judge did not commit any error in awarding Rs.5,000/- maintenance while considering the present living index and current price index.
17.Learned trial court considered this aspect that respondent No.1 is getting Rs.2,500/- per month as interim maintenance under Section 20 of the DV Act and while considering that allowance awarded Rs.5,000/- as maintenance allowance under Section 125 of CrPC to respondent No.1 and not adjusted the amount of Rs.2,500/-, awarded as interim maintenance by the trial court.
18.So far as set-off of the amount of Rs.2,500/- is concerned,perused Section 20 of the D.V. Act, which reads as under :
20. Monetary reliefs.—
(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved personas a result of the domestic violence and such relief may include but is not limited to—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section125 of the Code of Criminal Procedure, 1973 (2 of1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub–section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub–section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to 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.
19.After perusal of Section 20(1)(d), this court is of the view that the order passed under Section 20 of the DV Act, whether it is temporary or permanent, It is under or in addition to the order of maintenance under Section 125 CrPC.
20.So far as interim maintenance awarded under Section 20 of DV Act is concerned, this court is of the view that the maintenance allowance awarded under Section 125 of CrPC by the Family Court and interim maintenance under Section 20 of the DV Act awarded by the Trial Court are of the same nature. It is not a separate amount, it is under or in addition to each other.Interim maintenance Rs.2,500/- is fixed by the trial court in acase pending between the applicant and respondent No.1 under DV Act. This court is of the view that amount awarded by the trial court under any provisions of the DV Act, until and unlessnot specifically mentioned in the order, it should be adjusted withthe order for awarding maintenance under section 125 of CrPC.
21.In this way, the amount of Rs.2,500/- awarded as interim maintenance under DV Act could be adjusted in the amount of maintenance awarded under Section 125 of CrPC. Hence, this court incline to modify the operative order by adding that, if respondent No.1 received an amount of Rs.2,500/- as interim maintenance or as a maintenance under DV Act, that amount be adjusted in the awarded amount of Rs.5,000/- in favour of respondent No.1.