# Vishal Prajapati v. Smt. Monika Prajapati

- **Citation:** (2021) 10 ILRA 208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-30
- **Case number:** First Appeal No. 70 of 2020
- **Bench:** Rajan Roy, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-prajapati-v-smt-monika-prajapati-46246
- **Pages:** 5

## Headnote

A. Civil Law -Family Courts Act,1984Section
19-challenge
to-issue
of
overlapping jurisdiction- application u/s
24 of H.M. Act, 1955 allowed-interim
maintenance
u/s
125
deserves
no
adjustment or set off as the wife has no
source of income and two minor daughterthus, she deserves total amount granted
10 All. Vishal Prajapati Vs. Smt. Monika Prajapati
209
under both statutes along with additional
amount for daughters-there is no bar to
seek maintenance both under Section 125
Cr.P.C. and under H.M. Act or D.V.
Act.(Para 1 to 22)

B. To overcome the issue of overlapping
jurisdiction, and avoid conflicting orders
being passed in different proceedings, The
Hon'ble Supreme Court directed 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 to move the
concerned
court
in
the
previous
proceeding.(Para 14)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

208 INDIAN LAW REPORTS ALLAHABAD SERIES

27. Lastly, a feeble attempt is made
by learned counsel for the petitioner that
since no counter affidavit is filed by
respondent no.3, therefore, his writ petition
should be allowed.

28. No doubt, there are judgments,
which
provide
that
uncontroverted
pleadings in a plaint can be taken to be
correct. However, in the present case, the
petitioner is required to challenge findings
of both the courts below. Merely his
statement that the findings are bad, would
not make them bad. He is required to prove
from the record that any material illegality
or irregularity is committed by the courts
below or the finding in impugned orders
are perverse. The petitioner has failed to do
the same.

29. In view thereof, even the aforesaid
submission of learned counsel for the
petitioner is bound to be rejected and is
rejected.

30. In view of the aforesaid
discussions, I find no force in the present
writ petition. It is accordingly dismissed.

[Vivek Chaudhary,J.]

Dated: October 04, 2021

Sachin

After the aforesaid order was passed,
learned Senior Advocate Sri Mohd. Arif
Khan assisted by Sri Mohd. Aslam Khan,
learned counsel for petitioner, appeared and
prays that the petitioner may be granted
some time to vacate the premises.

Learned counsel for respondent no.3
has no objection in case a reasonable time
is granted to the petitioner provided, he
files an undertaking before the court below
by way of an affidavit that he shall vacate
the premises within the time granted by this
Court.

In view thereof, nine months time is
granted to the petitioner to vacate the
premises provided, he files an affidavit
before the Prescribed Authority to the
effect that he shall vacate the premises
without causing any hindrance before
expiry of nine months from this date and he
shall also pay rent to respondent no.3
regularly every month. In case of violation
of said condition, the same shall be
amongst other things, treated to be a
violation of undertaking given by him to
this Court.
----------
(2021)10ILR A208
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.09.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAVI NATH TILHARI, J.

First Appeal No. 70 of 2020

Vishal Prajapati ...Appellant
Versus
Smt. Monika Prajapati ...Respondent

Counsel for the Appellant:
Manoj Kumar Dubey

Counsel for the Respondent:
Rakesh Kumar Agarwal, Saksham Agarwal

A. Civil Law -Family Courts Act,1984Section
19-challenge
to-issue
of
overlapping jurisdiction- application u/s
24 of H.M. Act, 1955 allowed-interim
maintenance
u/s
125
deserves
no
adjustment or set off as the wife has no
source of income and two minor daughterthus, she deserves total amount granted
10 All. Vishal Prajapati Vs. Smt. Monika Prajapati
209
under both statutes along with additional
amount for daughters-there is no bar to
seek maintenance both under Section 125
Cr.P.C. and under H.M. Act or D.V.
Act.(Para 1 to 22)

B. To overcome the issue of overlapping
jurisdiction, and avoid conflicting orders
being passed in different proceedings, The
Hon'ble Supreme Court directed 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 to move the
concerned
court
in
the
previous
proceeding.(Para 14)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Rajnesh Vs Neha & anr.CRLA No. 730 of 2020

(Delivered by Hon'ble Ravi Nath Tilhari, J. )

1. Heard Sri Manoj Kumar Dubey,
learned counsel for the appellant and Sri
Saksham Agarwal, learned counsel for the
sole respondent.

2. On the request of the learned
counsels for the parties to argue the matter
on merits for final disposal of the appeal,
the
matter
was
heard
and
the
judgment/order was reserved.

3. This appeal under Section 19 of the
Family Courts Act, 1984 has been filed
challenging the order dated 28.02.2020
passed by the learned Additional Principal
Judge, Family court, court no. 1, Lucknow
in Misc. Case No. 107-C/16 (original case
no. 667/2016), on an application of the
respondent-wife under Section 24 of the
Hindu Marriage Act, 1955 (in short 'the
H.M. Act'), whereby the application was
partly allowed with a direction to the
appellant-husband to make payment of Rs.
2500/- per month, as interim maintenance
upto the final judgment in Original Case
no. 667/2016.

4. The marriage of the plaintiffappellant with the defendant-respondent
was solemnized on 14.12.2005 but due to
differences between them, the appellant
filed Original Case No. 667/2016 for
divorce under Section 13 of the H.M. Act.
In this case, the respondent filed petition
under Section 24 of the H.M. Act being
Misc.
Case
no.
107-C/2016
for
maintenance and pendente lite expenses.

5. In the application it was, inter alia
stated that she had no source of income for
her support. She was having two minor
daughters and was unable to maintain
herself and the minor daughters as also to
bear the expenses of the litigation. The
monthly income of the appellant was stated
to be about Rs. 90,000/- per month from his
Gym Club and the rent of the houses under
his ownership/landlordship.

6. The appellant filed objection and
inter alia denied the claim of the
respondent
and
submitted
that
the
respondent had source of livelihood and her
monthly income was about Rs. 60,000/-
and denied that his monthly income was
Rs. 90,000/-.

7. The family court vide order dated
28.02.2020 allowed the petition under
Section 24 of the H.M. Act and awarded
pendente lite maintenance of Rs. 2500/- per
month and Rs. 6000/- as one time expenses
210 INDIAN LAW REPORTS ALLAHABAD SERIES
of the litigation and an amount of Rs. 100/-
for each date of personal appearane of the
respondent towards travelling expenses.

8. The respondent herein had filed
criminal case no. 1179 of 2016 under
Section 125 of the Code of Criminal
Procedure, 1973 for maintenance to her and
two minor daughters in which the Incharge
Principal Judge, Family court, Lucknow
vide order dated 09.09.2016 allowed
interim maintenance of Rs. 1500/- per
month for the respondent and a further sum
of Rs. 1000/- per month to each of the two
minor daughters was also allowed.

9. Sri Manoj Kumar Dubey, learned
counsel for the appellant raised the only
submission that the respondent-wife and
two minor daughters are already receiving
interim maintenance which was granted in
the proceedings under Section 125 Cr.P.C.
but deliberately the respondent did not
disclose the same in the petition under
Section 24 of the H.M. Act. The appellant
cannot be
saddled with
liability
of
maintenance in both the proceedings and
the amount of maintenance granted under
Section 125 Cr.P.C. to the wife was liable
to be adjusted, in the proceedings under
Section 24 of the H.M. Act.

10. Sri Saksham Agarwal, learned
counsel for the respondent submitted that
the appellant has not paid any amount
towards interim maintenance awarded vide
order dated 09.09.2016 under Section 125
Cr.P.C. The appellant, admittedly, is
running Gymnasium. The amount of
pendente lite maintenance of Rs. 2500/- per
month
and
the
amount
of
interim
maintenance of Rs. 1500/- per month under
Section 125 Cr.P.C. to the respondent-wife
in total, amounting to Rs. 4000/- per month
cannot be said to be unreasonable, although
even in such amount, it is very difficult for
the respondent to maintain herself. He
submits that the appellant did not raise the
plea of adjustment or set off the amount of
interim maintenance under Section 125
Cr.P.C.
before
the
family
court
in
proceedings under Section 24 of the Hindu
Marriage Act.

11. In view of the submissions made
hereinabove, the point that arises for
consideration is whether the amount of
interim
maintenance
granted
to
the
respondent under Section 125 Cr.P.C.
deserves to be adjusted in the proceedings
under Section 24 of the Hindu Marriage
Act ?

12.

We
have
considered
the
submissions advanced and perused the
material on record.

13. In the case of Rajnesh vs. Neha
& Anr. passed in Criminal Appeal No. 730
of 2020 [arising out of SLP (Crl.) No. 9503
of 2018] dated 04.11.2020, on the issue of
overlapping
jurisdiction
in
grant
of
maintenance, the Hon'ble Supreme Court
has held as under:-

"Final Directions

In
view
of
the
foregoing
discussion as contained in Part B - I to V of
this judgment, we deem it appropriate to
pass the following directions in exercise of
our powers under Article 142 of the
Constitution of India :

(a)
Issue
of
overlapping
jurisdiction

To
overcome
the
issue
of
overlapping
jurisdiction,
and
avoid
conflicting orders being passed in different
10 All. Vishal Prajapati Vs. Smt. Monika Prajapati
211
proceedings, it has become necessary to
issue directions in this regard, so that there
is uniformity in the practice followed by the
Family Courts/District Courts/Magistrate
Courts throughout the country. We direct
that:

(i) where successive claims for
maintenance are made by a party under
different statutes, the Court would consider
an adjustment or set- off, of the amount
awarded in the previous proceeding/s,
while determining whether any further
amount is to be awarded in the subsequent
proceeding;

(ii) it is made mandatory for the
applicant
to
disclose
the
previous
proceeding and the orders passed therein,
in the subsequent proceeding;

(iii) if the order passed in the
previous
proceeding/s
requires
any
modification or variation, it would be
required
to
be
done
in
the
same
proceeding."

14. The Hon'ble Apex Court has thus
held that a wife can make a claim for
maintenance under different statutes. For
instance,
there
is
no
bar
to
seek
maintenance both under the Protection of
Women against Domestic Violence Act,
2005 and Section 125 of the Cr.P.C., or
under Hindu Marriage Act. 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. It has
further been held that 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, the Hon'ble Supreme Court
directed 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 to move the
concerned court in the previous proceeding.

15. Learned counsel for the appellant
submitted that the respondent-wife did not
disclose that she was granted interim
maintenance under Section 125 Cr.P.C.
However, he could also not point out that
the appellant had brought to the notice of
the court below, regarding grant of interim
maintenance to the respondent-wife under
Section 125 Cr.P.C. vide order dated
09.09.2016 nor that the appellant claimed
its adjustment, while granting the prayer of
the respondent for maintenance under
Section 24 of the Act.

16. A perusal of the objection filed by
the appellant to the application under
Section 24 of the Act dated 06.02.2020,
does not show that the appellant raised the
plea, before the family court that under
Section 125 Cr.P.C., the respondent-wife
was granted interim maintenance which
should be taken into consideration for
212 INDIAN LAW REPORTS ALLAHABAD SERIES
adjustment in proceedings under Section 24
of the Act.

17. In view of the aforesaid, the
family court had no occasion to consider
that aspect of the matter.

18. We however proceed to consider
the above aspect.

19. The interim maintenance awarded
to the respondent-wife is Rs. 1500/- per
month under Section 125 Cr.P.C. In the
proceedings under Section 24 of the Hindu
Marriage Act, the maintenance has been
awarded @ Rs. 2500/- per month. Thus the
total amount of monthly maintenance comes
to Rs. 4000/- to the wife. Undisputedly, she is
also having two minor daughters of growing
age
to
maintain
as
well,
to
whom
maintenance @ Rs. 1000/- per month each
has been awarded under Section 125 Cr.P.C.
Thus, in totality, Rs. 6000/- per month would
be available to the respondent-wife to
maintain herself and two minor daughters.

20. We are satisfied that any adjustment
of an amount of Rs. 1500/- awarded to the
respondent under Section 125 Cr.P.C., would
not be in the interest of justice considering
the total amount being received by the
respondent towards maintenance and the
number of children, which deserves no
adjustment or set off.

21. No other point was argued.

22.

The
appeal
is
accordingly
dismissed.
----------
(2021)10ILR A212
APPELLATE JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 30.09.2021

BEFORE
THE HON'BLE RAVI NATH TILHARI, J.

FAFO Defective No. 178 of 2021

A.G.M. Uttarkhand State Road Transport
Corp. Kotdwar ...Appellant
Versus
Ram Sumer Singh & Ors. ...Respondents

Counsel for the Appellant:
Prabhakar Tiwari

Counsel for the Respondents:

(A) Civil Law - Review - Motor Vehicle Act,
1988 - Motor Vehicle Rules, 1998 -
Although there may be no power of review
under the Act of 1988 like the power
vested in a court under Section 114 r/w
order 47 C.P.C. or under any other
provision but, in the case of dispute with
respect to statement of fact in the
judgment and award of the Tribunal, the
only way to have the record corrected is to
approach the same Tribunal. If no such
step is taken then the matter must
necessarily end there.
 If the party
approaches the Tribunal raising the grievance,
contradicting the statement in the judgment,
the Tribunal shall have the limited power to
review, to that limited extent, on the principle of
'actus curiae neminem gravabit' which means
that no act of the Court, in the course of the
proceedings does an injury to the suitors in the
Court. (Para 22)

Appeal Rejected. (E-10)

List of Cases cited:

1. Bijoy Kumar Dugar Vs Bidyadhar Dutta &
ors.. AIR 2006 SC 1255 (distinguished)

2. United India Insurance Co. Ltd. Vs Smt.
Meena & ors. 2010 (1) ALJ 112

3. Patel Narshi Thakershi & ors. Vs Shri
Pradyumansinghji AIR 1970 SC 1273

4. Lily Thomas, Etc. Vs U.O.I. (2000) 6 SCC 224