IMPORTANT POINT
Family courts lack jurisdiction over criminal proceedings under the Protection of Women from Domestic Violence Act, and parties must disclose previous maintenance orders in subsequent claims to avoid conflicting decisions.

JUDGMENT

Arindam Sinha, J.

Two appeals are before us for adjudication. They have been filed by the husband. First is MATA no.89 of 2022 preferred against order dated 5th April, 2022 of the family Court allowing, on contest, the petition of respondent-wife for restitution of conjugal rights. The other appeal is MATA no.217 of 2022 preferred against order dated 16th September, 2022 by said Court on the application filed by respondent-wife under section 12 of Protection of Women from Domestic Violence Act, 2005. On query from Court Mr. Parida, learned advocate appearing on behalf of appellant-husband submits, the application under the Act of 2005 was presented before the Magistrate on 22nd June, 2018. On further query from Court he submits, the petition under section 9 in Hindu Marriage Act, 1955 was presented by respondent-wife on or before 27th November, 2017, date on which first order was made by the family Court on it. 2. It appears appellant-husband applied for transfer of the domestic violence case to the family Court, already in seisin of the civil proceeding filed by respondent-wife under section 9. By order dated 7th March, 2022 in TRP (Crl. no.09 of 2022) (Satyajit Padhi v. Jogamaya Pati) a learned single Judge of this Court transferred the criminal case to the family Court. We reproduce below paragraph 5 from said order.

'Considering the facts and the submissions made and the law laid down by the apex Court in the case Rajnesh vrs. Neha (Criminal Appeal No.730 of 2020 arising out of SLP (Crl.No.9503 of 2018 disposed of on 4th November, 2020), this Court is of the view that if CMC (DV) Case No.131 of 2018 is transferred from the file of learned J.M.F.C. (2), Keonjhar to the file of learned Judge, Family Court, Keonjhar, the same will not cause any inconvenience to the Opposite Party-wife since both the courts are located in one place. Therefore, without issuing notice to the Opposite Party-wife, this Court directs that CMC (DV) Case No.131 of 2018 pending on the file of learned J.M.F.C.(2), Keonjhar be transferred to the court of Judge, Family Court, Keonjhar. Both the courts shall do the needful on production of the certified copy of this order and intimate the same to the Opposite Party. Learned Judge, Family Court, Keonjhar is directed to dispose of both the cases as expeditiously as possible, preferably within six months.'

The case of Rajnesh v. Neha, reported in AIR 2021 SC 569 was relied upon by the learned single Judge to make the order of transfer. We reproduce below two passages from paragraph 17 in the judgment.

'Directions on overlapping jurisdictions

It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required