The main legal point established in the judgment is that an application under Section 26 of the DV Act for maintenance is an independent remedy and should be decided on its merits, taking into account previous maintenance awarded to the aggrieved person.

JUDGMENT

1. The present petition under Article 227 of the Constitution of India impugns the order dated 5th March, 2020 passed by the Additional District Judge-1 (South East), Saket Courts, New Delhi in civil suit bearing No.CS-DJ-1684 of 2017, whereby the application filed by the petitioner wife under Section 26 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'DV Act') has been dismissed.

2. Notice was issued in the petition on 6th April, 2021. The counsel for the petitioner wife has filed written submissions along with judgments in support of his submissions. However, the counsel for the respondent husband has preferred not to file any written submissions. Arguments on behalf of the parties were heard on 11th October, 2021, when the judgment was reserved.

3. Facts in brief leading to the present petition are set out hereinbelow:

3.1 The petitioner wife had filed a suit under the Hindu Adoptions and Maintenance Act, 1956 as an indigent person, claiming maintenance before this Court. The said suit was transferred to the Family Courts and vide judgment dated 28th March, 2018 of the Principal Judge, Family Courts, Shahdara, Karkardooma, Delhi in HAMA No. 01 of 2017, the petitioner wife was awarded maintenance @ Rs. 10,000/- per month w.e.f. 13th March, 1997. It is the case of the petitioner wife that the aforesaid amount of maintenance has not been paid to her by the respondent husband and she has filed execution proceedings in respect of the same before the Family Court.

3.2 On 9th November, 2017, the civil suit bearing No.CS-DJ-1684 of 2017 was filed by respondent husband against the petitioner wife seeking damages of Rs.20,00,000/- along with interest @ 24% per annum and for pendente lite and future interest on account of malicious prosecution. The suit was premised on the discharge of the respondent husband in a criminal complaint lodged by the petitioner wife against the respondent husband under Sections 498A and 406 of the Indian Penal Code, 1860.

3.3 The petitioner wife filed an application under Section 26 of the DV Act in the said civil suit seeking a direction to the respondent husband to pay a sum of Rs. 10,000/- per month as interim maintenance and Rs. 1,00,000/- towards litigation expenses.

3.4 The said application was dismissed by the Trial Court vide the impugned order dated 5th March, 2020, observing that the said application had been filed for execution of the order dated 28th March, 2018 of the Family Court, in respect of which execution has already been filed on behalf of the petitioner wife and therefore, the civil court could not become an executing court for the amount of maintenance already awarded in favour of the petitioner wife.

4. The counsel appearing on behalf of the petitioner wife assails the impugned order on the grounds that, (i) the impugned order failed to appreciate that the application under Section 26 of the DV Act was not filed towards execution of the earlier maintenance order dated 28th March, 2018 granted in favour of the petitioner wife; (ii) the said application was an independent application in terms of Section 26 read with Sections 20(1)(d) and 23 of the DV Act; (iii) in terms of Section 26(3) of the DV Act, the petitioner wife had duly informed the civil court of the factum of maintenance awarded in her favour vide the order dated 28 March, 2018; (iv) the grievance raised by the petitioner wife fell within the definition of 'domestic violence' as defined under Section 3 of the DV Act being 'economic abuse' as per Explanation I to Section 3 of the DV Act; and (v) as per the judgment of the Supreme Court in Rajnesh Vs. Neha and Anr. (2021) 2 SCC 324, the maintenance awarded under DV Act is in addition to the maintenance awarded to the aggrieved woman under any other statutes.

5. The counsel appearing on behalf of the respondent husband has also relied upon the judgment of the Supreme Court in Rajnesh (supra), wherein it has been held that though ther