IN THE COURT OF SH. VIRENDER BHAT, A.S.J.

(SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.

CA No.05/15

Unique Case ID No.02405R0023352015

1. Col. S.D. Mathur

s/o Sh. R.D. Mathur

2. Mrs. Savita Mathur

w/o Sh. R.D. Mathur

3. Sh. R.D. Mathur

s/o Late Kali Dayal Mathur

All R/o P-8, Baird Place, Delhi Cantt.

New Delhi-110 010. .....Appellants.

Versus

Vandana Mathur
D/o Wg. Cdr. V.K. Sharma
R/o 575, Airforce Naval Officers CGHS,
Plot -11, Sector-7, Dwarka,
New Delhi-77. .....Respondent.

Date of Institution :02.03.2015.

Date of reserving judgment/Order :16.04.2015.

Date of pronouncement : 17.04.2015.

JUDGMENT

1. The appellant has assailed herein order dated 23.01.2015 of the ld.
Magistrate (Mahila Court) disposing of an application u/s 23 of the
Protection of Women from Domestic Violence Act of the respondent
whereby the respondent has been held not entitled to interim maintenance
 but the appellant has been directed to pay Rs. 10,000/- per month to the
respondent as rental charges from the date of filing of the said application.
2. The appellant No.1 and the respondent got married on 18.4.2008 as per
Hindu Rites and Ceremonies but no child has been born from the said
wedlock. The respondent has filed a petition u/s 12 of the Protection of
Women from Domestic Violence Act before the ld Magistrate alleging
harassment, cruelty and domestic violence at the hands of the appellant
and claiming maintenance as well as right to residence for them. It is in
these proceedings that the impugned order has been passed.
3. Ld. counsel for the appellant submitted that the respondent had, before
filing the petition under Domestic Violence Act in the Mahila Court, filed
a petition u/s 125 Cr.P.C. in the Family Court claiming maintenance from
her husband i.e. appellant No.1, which was tried and finally dismissed by
the Family Court vide judgment dated 28.11.2013 holding that the
respondent is not entitled to any maintenance from the appellant No.1.
She further submitted that the respondent had challenged the aforesaid
judgment of the Family Court before the High Court by way of appeal but
not on the ground that she has been erroneously held not entitled for any
maintenance from her husband. The respondent was aggrieved only by the
observations of the Family Court contained in that order that there was no
reasonable cause for the respondent to reside separately. It is submitted
that when the respondent was satisfied with the aforesaid judgment dated
28.11.2013 of the Family Court, rejecting her claim for maintenance, she
is precluded from claiming maintenance from her husband by having
resort to the provisions of Domestic Violence Act. She submitted that ld.
Magistrate has also erred in granting Rs. 10,000/- per month to the
respondent as rental charges.
4. Ld. Counsel for the respondent submitted that the right of an estranged
wife to claim maintenance from her husband under the Domestic Violence
 Act is over and above as well as in addition to her such right under
Section 125 of Cr.P.C. and therefore, the Mahila Court while adjudicating
upon the claim of such a right from maintenance from her husband is not
bound by any order having been passed earlier u/s 125 Cr.P.C. He argued
that the ld. Magistrate has rightly observed that since the respondent is
legally wedded wife of appellant No.1, he is liable to provide
accommodation to her as per his status and therefore, directed him to pay
a rental charges of Rs. 10,000/- per month to the respondent from the date
of filing of the application.
5. I have considered the submissions made on behalf of both the parties and
have perused the impugned order as well as the Trial Court Record.
6. It is not in dispute that before approaching the Mahila Court with the
petition u/s 12 of Domestic Violence Act, the respondent (wife) had filed
a petition u/s 125 Cr.P.C. in the Family Court in which both the parties
had led evidence and petition was finally dismissed by the Family Court
vide judgment dated 28.11.2013 holding that the respondent is not entitled
to any maintenance from her husband i.e. appellant No.1. It is also not
disputed that the respondent did not challenge the said finding of the
Family Court. An appeal had been filed by the respondent against the said
judgment but only with regards to an observation contained therein that
the respondent had no reasonable cause to reside separately from her
husband. Therefore, it is manifest that the respondent had accepted the
findings of the Family Court that she is not entitled to any maintenance
from her husband.
7. I am of the opinion that once the respondent had sought maintenance from
appellant No.1 by filing a petition u/s 125 Cr.P.C. in the Family Court,
which was rejected and she did not challenge the rejection of her petition,
she is precluded from agitating again her right to maintenance by having
recourse to the provisions of Domestic Violence Act. It may be noted here
that the petition u/s 125 Cr.P.C. of the respondent had been dismissed by
the Family Court after a full fledged trial wherein both the parties had led
evidence and had cross examined each others witnesses. On the other
hand the claim for interim maintenance is adjudicated by the Mahila
Court under Domestic Violence Act in a summary manner by taking on
record only the affidavits of the parties in a fast track manner. The
proceedings under Domestic Violence Act, which are primarily designed
to provide monitory relief and other reliefs to an estranged wife in a
speedy manner, cannot be permitted to be used to set at naught the
findings of a Civil Court or Family Court regarding the claim of
maintenance of the wife. In this regard I am fortified by the observations
of the High Court in Rachna Kathuria vs. Ramesh Kathuria Crl. MC
No.130/2010 and Crl. MA No.504/2010 decided on 30.08.2010. It would
be apposite to reproduce here the relevant observations of the High Court
contained in the said order:-
"It must be understood that the Protection of Women from Domestic
Violence Act, 2005 does not create any additional right to claim
maintenance on the part of the aggrieved person. It only puts the
enforcement of existing right of maintenance available to an aggrieved
person on fast track. If a woman living separate from her husband had
already filed a suit claiming maintenance and after adjudication
maintenance has been determined by a competent court either in Civil
Suit or by Court of MM in an application under Section 125 Cr.P.C. she
does not have a right to claim additional maintenance under the Act. The
Court of MM under the Act has power to grant maintenance and monetary
reliefs on an interim basis in a fast track manner only in those cases where
woman has not exercised her right of claiming maintenance either under
Civil Court or under Section 125 Cr.P.C. If the woman has already moved
Court and her right of maintenance has been adjudicated by a competent
 Civil Court or by a competent Court of MM under Section 125 Cr.P.C.,
for any enhancement of maintenance already granted, she will have to
move the same Court and she cannot approach MM under the Protection
of Women from Domestic Violence Act by way of an application of
interim or final nature to grant additional maintenance. This petition is not
maintainable and is hereby dismissed."
8. In view of the aforesaid discussion and the law laid down by the High
Court in aforesaid judgment, I feel that the ld. Magistrate has erred in
directing the appellant No.1 herein to pay rental charges to the
respondent. The respondent had not raised any such claim before the
Family Court in the petition u/s 125 Cr.P.C. and if at all, she had raised
such claim, the same was rejected by the Family Court. The respondent
did not challenge the rejection of her claim for maintenance and accepted
the same without any demur. Hence she could not have approached the
Mahila Court under Domestic Violence Act by way of afresh application
for grant of maintenance.
9. Therefore, the impugned order so far as it directs the appellant No.1 to pay
rental charges at the rate of Rs. 10,000/- per month to the respondent
cannot be sustained. The said direction is hereby set aside. The appeal
stands allowed.
10. Trial court record be sent back alongwith copy of this order. Appeal file
be consigned to Record Room.
Announced in open (VIRENDER BHAT)
Court on 17.04.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.