Right To Claim Maintenance Under Domestic Violence Act & U/S 125 CrPC Not Mutually Exclusive: Delhi High Court

The Delhi High Court has observed that the right to claim maintenance under the Domestic Violence Act, 2005 and under Section 125 of Code of Criminal Procedure are not mutually exclusive.

Justice Asha Menon was of the view that the aggrieved person can seek interim maintenance before the Magistrate while also seeking a permanent maintenance under Section 125 CrPC.

"The only caveat is that maintenance granted by one court will be factored in by the other court before granting or refusing maintenance," the Court said.

The petitioner and respondent No.2 were husband and wife and multiple litigations were going on between them. One case was filed before the MM under the Protection of Women from Domestic Violence Act, 2005  and the other before the Family Court under sec. 125 Cr.P.C.

The husband had moved the High Court challenging the orders dated 30th January, 2020 passed by the ASJ in an application preferred by the wife under sec. 5 of Limitation Act against the order of the MM condoning a delay of three years and ninety-nine days in filing an appeal against the said order.

In the complaint case filed by the wife under the DV Act, vide orders dated 29th September, 2014, her application filed under sec. 23 for seeking interim maintenance from the husband was dismissed. The 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.

The Court observed that it was a case where different avenues for relief had caused enough confusion, which both, the Family Court as well as the ASJ, had tried to sort out.

"The D.V. Act is, without doubt a piece of welfare legislation, to protect the interests of women in a domestic relationship and shared household, against not just physical abuse but also emotional and financial abuse. The learned ASJ was, therefore, right in dealing with the condonation application in that perspective and not choosing to dismiss the appeal on procedural technicalities," the Court noted.

The Court further said that while inordinate delay would vest certain rights in the opposite party but when it comes to the question of maintenance and welfare of family members protected by the D.V. Act, there can be no vesting of such rights that would result in the divesting of rights assured by a special piece of legislation.

"It is not as if the respondent No.2 had resorted to dilatory tactics or a leisurely time taken to file the appeal, intended to harass the petitioner. Rather, she continued to pursue her right to maintenance before the learned Family Court under Section 125 of the Cr.P.C," the Court said.

Furthermore, it was observed that the courts have always held that "sufficient cause" under sec. 5 of the Limitation Act, 1963 was elastic enough to be applied by the courts in a meaningful manner, which subserved justice.

"The duration of delay would not be determinative of the merits of the explanation. The facts, as brought as the explanation for delay, and the intent of the party seeking condonation as evidenced from the circumstances, would guide the court in the exercise of its discretion to condone the delay in family matters," the Court said.

Accordingly, the plea was dismissed.

Case Title: SH JAGMOHAN KASHYAP v. GOVT. OF NCT OF DELHI & ANR.

Citation: 2022 LiveLaw (Del) 513

Click Here To Read Order