An application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is maintainable in addition to an order passed in a proceeding under Section 125 of the Code of Criminal Procedure, 1973.

Heard learned counsel for the petitioners, learned counsel for the State and learned counsel appearing on behalf of the opposite party no. 2.

2. In the present application filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Code), the petitioner has prayed for quashing the Domestic Violence Case No. 27 of 2011 pending in the court of the learned Judicial Magistrate-1st Class, Patna.

3. Learned counsel for the petitioners has submitted that the petitioners are permanent resident of Durgapur in the West Bengal. The petitioner no. 1 Navin Kumar Mishra was married to the complainant/opposite party no. 2 Mamta Mishra @ Mamtra Chaturvedi in accordance with Hindu Rites and Customs in Durgapur at 13.04.2004. After marriage between the petitioner no. 1 and the opposite party no. 2 a baby was born on 8.4.2005. After the birth of the daughter while the opposite party no. 2 again conceived in the month of September 2006, a request came from the parents of opposite party no. 2 to sent her for delivery of the second issue at Jamshedpur (in the State of Jharkhand) where the parents of the opposite party no. 2 was residing at the relevant time. The petitioners agreed and happily sent opposite party no. 2 to her father’s place at Jamshedpur where she gave birth to a male child on 17.02.2007. After birth of the second child, the petitioners wanted that opposite party no. 2 should return to her matrimonial home at Durgapur but several attempts made to get her back went in vain. The differences between the two families developed further over the adamant approach of the opposite party no. 2 and her parents who were interested in fetching money from the petitioners. Since opposite party no. 2 refused to return her matrimonial home at Durgapur, the petitioner no. 1 filed a Matrimonial Suit No. 205 of 2008 under Section 9 of the Hindu Marriage Act, 1956 for restitution of conjugal rights.

4. Learned counsel for the petitioners has further contended that while opposite party no. 2 residing at Jamshedpur with her parents, filed a case under Section 125 of the Code giving rise to Misc. Case No. 127 of 2008 in the court of Principal Judge, Family Court at Jamshedpur. In her application, she has alleged that she was not allowed to talk to the family members and when she conceived after three months, she was beaten and to call her father. She has claimed for maintenance of Rs. 20,000/- per month for herself and two children. On 10.01.2011 an interim order of maintenance has been passed by the learned Principal Judge, Family Court, Jamshedpur. The operative part of the order passed by the learned Principal Judge reads as under:-

“Accordingly the interim maintenance petition filed by the applicants is allowed. The opposite party is directed to pay a sum of Rs. 2000/- per month to the applicant no. 1/wife and Rs. 2000/- to the applicant no. 2/son/ (minor), and also Rs. 1500/- per month the applicant no. 3/daughter (minor) in total Rs. 5500/- per month form the date of this order by the 15th of each successive month till disposal of this Misc. case failing which the applicants will be at liberty to realize the same from the opposite party through due process of law.”

5. It has further been contended that in the aforementioned backgrounds, the Domestic Violence Case No. 27 of 2011 filed by the opposite party no. 2 in the court of Chief Judicial Magistrate, Patna is bad in law. He has submitted that opposite party no. 2 has filed an application under Section 125 of the Code and she is getting a total ad interim maintenance of Rs. 5,500/- per month form the petitioner. In case, the opposite party no. 2 finds the maintenance awarded to her has not sufficient, the proper course for her is to approach the family court for enhancement of maintenance amount. According to him, the protection of Women from Domestic Violence Act, 2005 (For short “the Act of 2005”) does not create any additional right to claim maintenance on th