Alimony given under Domestic Violence Act can’t be replaced by 125 Cr.P.C, says Bombay High Court

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Case– Rekha Prakash Dangi v. Her Husband

The Bombay High Court recently clarified the position of law pertaining to Alimony. While scrutinizing the whether an order passed for alimony under section 125 Cr.P.C is to be followed, or, whether an order passed for alimony under Domestic Violence Act, is to be followed, the court held that both the orders stand independently of each other.

The bench comprised of

The single judge bench of Justice Shalini Phansalkar Joshi was hearing the counter writ examining the question related to alimony filed by both husband and wife.

Facts

Rekha Prakash Dangi, aged 26, (petitioner’s wife) had filed a maintenance petition under section 125 of Cr.P.C in 2010, which was decided on January 20, 2016. Court had allowed the petition and awarded an alimony of Rs. 6,000 for wife and Rs. 4,000 for the minor daughter, every month.

While this petition under section 125 Cr.P.C was pending, another petition under the Domestic Violence Act was filed in 2012 wherein an interim maintenance was sought. Court partly allowed the petition on July 26, 2012, and awarded maintenance of Rs. 8,000 and Rs. 5,000 to the wife and minor daughter.

While the proceeding under section 125 Cr.P.C was going on the husband indicated the alimony decree passed by the family court under the Domestic Violence Act, the court recorded that the husband was already paying the amount but nowhere referred that the order of alimony passed in the proceedings of domestic violence act would replace the order passed under Section 125 Cr.P.C

Section 20 (1) (d) of the Domestic Violence Act states- 

‘In proceedings under the Domestic Violence Act, the Magistrate may direct the Respondent to pay the maintenance to the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of Cr.P.C. or any other law for the time being in force.

Section 36 of the Domestic Violence Act states- 

‘The provisions of the Domestic Violence Act shall be in addition to and not in derogation of the provisions of and not in derogation of the provisions of any other law for the time being in force.’

“Therefore, it follows that the awarded amount of alimony under the Domestic Violence Act cannot be replaced by the amount awarded for alimony under Section 125 of Cr.P.C.”

Judgement

Court held that both the orders of alimony have to be compiled. Court held that both the orders stand independently of each other.

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