IMPORTANT POINTS
(1) Maintenance – Right to claim maintenance under DV Act and those u/s 125 Cr.P.C. are not mutually exclusive – Only caveat is that maintenance granted by one court will be factored in by other court before granting or refusing maintenance.
(2) Limitation – Duration of delay would not be determinative of merits of explanation.

JUDGMENT

Asha Menon, J.—The petitioners and respondent No.2 are husband and wife. Multifarious litigation is going on between them, one before the learned MM under the Protection of Women from Domestic Violence Act, 2005 (DV) Act and the other before the learned Family Court under Section 125 Cr.P.C. The present petition has been preferred against the orders dated 30th January, 2020 passed by the learned ASJ, Saket Court in an application preferred by the respondent No.2, u/s 5 Limitation Act against the order of the learned MM, dated 29th September, 2014 condoning a delay of three years and ninety-nine days in filing an appeal against the said order.

2. It may be mentioned here that in the complaint case filed by the respondent No.2 under the DV Act, vide orders dated 29th September, 2014, her application filed under Section 23 for seeking interim maintenance from the petitioner was dismissed. The learned 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/-.

3. It is the contention of Mr. Ashish Upadhyay, the learned counsel for the petitioner, that there was no valid explanation offered for this delay in filing the appeal and therefore, the condonation of an inordinate, unreasonably long period, without just cause, was erroneous and had caused miscarriage of justice. According to the learned counsel for the petitioner, the explanation offered by the respondent No.2 for the delay was lack of funds to pursue the appeal and disinclination to engage with the Legal Services Authority for legal assistance, and that the consequences of this indecision must fall on the respondent No.2 and not on the petitioner. It is further submitted that the respondent No.2 was earning well from chit fund schemes and was not bereft of funds. Thus, the reasons given to seek the condonation of delay were bogus and misleading. Accordingly, it was prayed that the impugned order be set aside.

4. Mr. S.S. Wani, learned counsel for the respondent No.2, on the other hand, submitted that the D.V. Act was a beneficial piece of legislation and relief under the said Act ought not to be denied on technicalities. It was submitted that in any case, adequate explanation had been offered for condonation of delay. Moreover, the Family Court while disposing of the application for interim relief under Section 125 Cr.P.C. on 8thJanuary, 2018 had also permitted the respondent to approach the court under the D.V. Act. Therefore, the delay in filing the appeal had been rightly condoned.

5. It was submitted that the learned MM, vide its order dated 29th September, 2014 decided the application for grant of interim maintenance under Section 23 of the D.V. Act, granting maintenance @ Rs.4,000/- to each of the minor children but had granted no maintenance to the respondent No.2. Learned counsel submits that at that point of time the application filed by the respondent no.2 under Section 125 Cr.P.C. being M. No.158/2012 was pending and she was advised that she could seek maintenance from the Family Court. As a result, she did not file an appeal at that time. Subsequently, the learned Family Court vide order dated 8th January, 2018 observed that the Family Court would not re-adjudicate the issue of interim maintenance since it was declined by the learned MM. But that order preserved her rights to challenge the orders of the learned MM by an application seeking condonation of delay. Thus, too it was contended that there was no error in the impugned order.

6. Reliance has also been placed on the judgment of the Supreme Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn., (2010) 5 SCC 459, Ved Prakash v. Rajneesh Kumar, 2019 SCC OnLine HP 2112, Judgement dated 2nd August, 2018 in Kanchiraj @ Kangeyarajvs Pappathi in C.R.P.(MD) (NPD) No.2413 of 2015 by Madurai Ben