Point of Law : Even though the proceedings under the D.V. Act may be independent proceeding, the Magistrate cannot ignore the maintenance awarded in any other legal proceedings, while determining whether over and above the maintenance already awarded, any further amount was required to be granted for the reasons to be recorded in writing.

JUDGMENT :

1. Rule. By consent of the parties, Revision taken up for hearing at the admission stage.

2. In two independent (maintenance) proceedings, following orders were passed ;

(i) On 19th June, 2019 Judge, Family Court, Pune, granted maintenance @ Rs.7,000/- per month, each, to respondent-wife and two children i.e. Rs.21,000/- from the date of the application till the disposal of the main petition.

(ii) On 24th July, 2019 the learned Judicial Magistrate First Class, Pune awarded interim maintenance at the rate of Rs.20,000/- collectively to the respondent-wife and two minor children under Section 20 read with Section 23 of the Protection of Women from Domestic Violence Act (“D.V. Act” for short).

3. Aggrieved by the order dated 24th July, 2019, applicant preferred Criminal Appeal No.405/2019, under Section 29 of the D.V. Act. On 1st January, 2020 the Appeal was dismissed by the Additional Sessions Judge, Pune. Feeling aggrieved by this order, applicant has preferred subject Revision, under Section 397 read with Section 401 of the Criminal Procedure Code, 1908.

4. Heard learned Counsel for the parties. Perused the proceedings and maintenance orders passed in the two proceedings as referred to hereinabove.

5. Following two questions have fallen for determination:

(i) Whether the maintenance granted under Section 20(1)(d) of the D.V. Act is in addition to an order under Section 125 of the Code of Criminal Procedure or any other law for the time being in force ? (emphasis supplied)

AND

(ii) Whether, while deciding the quantum of maintenance under Section 12 of the D.V. Act, Court shall take into account, maintenance awarded in the previous proceedings instituted between the parties.

6. In the context of questions, the learned Appellate Court in para-29 of its order, held that; “power to award maintenance under the D.V. Act is in addition to order of maintenance under Section 125 of the Cr.P.C. or any other law for the time being in force.” Thus, apparently Appellate Court relied on Section 36 of the D.V. Act, and held that the maintenance under the D.V. Act, being awarded, in distinct proceedings, it is neither in lieu of maintenance awarded in other/previous proceedings and therefore it is not subject to any adjustment or set-off. (emphasis supplied)

7. It may be stated that the respondent has not challenged the quantum of maintenance, Rs.20,000/- per month, granted under the D.V. Act.

8. Mr. Sarwate, learned Counsel for the applicant, would submit that the learned Sessions Judge has committed an error, while declining, to adjust the maintenance awarded under Section 24 of the Hindu Marriage Act, against the maintenance granted under the D.V. Act. Mr. Sarwate submitted, the Apex Court in the case of Sudeep Chaudhary Versus. Radha Chaudhary, (1997) 11 SCC 286, has held, that the amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in matrimonial proceedings. The other two authorities relied on by Mr. Sarwate are; (i) Sanjay Pundilkrao Niranjane Versus. Swati Sanjay Niranjane BCR (Cri.) 2005-2-905; and (ii) Rajnesh Versus Neha & Anr. 2020 (0) Supreme (SC) 648. Mr. Sarwate, learned Counsel, submitted that in Rajnesh (supra), Hon’ble Apex Court, has issued direction on over-lapping jurisdiction in maintenance proceedings and held, thus;

“Court, in the subsequent proceedings would take into consideration, the maintenance already awarded in the previous proceedings and grant adjustment of set-off of the said amount.”

Thus, Mr. Sarwate contended, that the impugned order in Criminal Appeal No.405/2019 be set aside and the learned Judicial Magistrate First Class be directed to pass an, order of adjustment/set-off, and accordingly, the order passed in M.A. No. 5223/2017 be directed to be appropriately modified.

9. Per-contra, Mr. Mishra learned Counsel for the respondent would contend that, conjoint reading of Section 20(1)(d) with Section 36 of the D.V. Act implies that, maintenance granted to