In order to ensure strict compliance by all Sessions Judges and Magistrates with Patna High Court's order dated April, 2, 2024 passed in Vikash Kumar Giri & Ors. Vs. Sarita Kumari by Justice Bibek Chaudhuri, on May 7, 2024, Pradeep Kumar Maik, Registrar General, Patna High Court communicated to all the District and Sessions Judges of the State of Bihar and the Director, Bihar Judicial Academy, Gaighat, Patna that districts and sub-divisions in the State must register proceedings under the Domestic Violence Act as Domestic Violence Case (D.V. Case), not as a Complaint Case. The Appellate Courts are also required to register the appeal, arising out of an order passed in D.V. Case as D.V. Appeal, not as Criminal Appeal.
In this case, the Court had passed an order on January 29, 2024 prior to the final order. It recorded that an order of monetary allowance upon an application under Sections 18/19/20 of the Protection of Women from Domestic Violence Act, 2005 was passed by the Judicial Magistrate 1st Class, Muzaffarpur in D.V. Complaint Case No. 1043 of 2017 on April 20, 2018 which was dismissed by the District and Sessions Judge, Muzaffarpur on April 9, 2019. Since the impugned order was passed without assessing the income of the parties, the High Court decided to hear the Criminal Revision petition. The interim order reads: "In the meantime, without prejudice to the rights and contentions of the parties, the petitioner is directed to go on paying monetary allowance at the rate of Rs. 5,000/- per month within 10th of each succeeding month."
In its final order dated April 2, 2024, the Court recorded the submission of the Advocate for the five petitioners. It was submitted the Trial Court did not assess the monthly income of Vikash Kumar Giri, the Petitioner No. 1, who happens to be the husband of the Opposite Party and without assessing the monthly income of the Petitioner No. 1, the Trial Court fixed Rs. 10,000/- per month towards interim monetary relief. It was also submitted that the Opposite Party previously filed an application under Section 125 of the Code of Criminal Procedure and the proceeding was withdrawn on the basis of compromise between the present Petitioner No. 1 and his wife. Subsequently, on the same ground, the Opposite Party preferred another application under various provisions of the said Act, and, therefore, D.V. Complaint Case No. 1043 of 2017 was not maintainable. Both the Trial Court as well as the Court of Appeal failed to consider the said fact and wrongly passed an order of interim monetary relief.
In the Trial Court, the Petitioner No. 1 made a plea that his wife, the Opposite Party was suffering from mental disorder. However, the Trial Court passed the order on perusal of the DIR, submitted by the Protection Officer before the Trial Court. The said Domestic Incident Report (DIR), prima facie established the case of domestic violence perpetrated upon the aggrieved person, i.e., the wife.
The Court agreed with the submission of the Advocate for the petitioners that there is absolutely no discussion with regard to the income of the Petitioner No. 1. It is bounden duty of the Trial Court as well as the Court of Appeal, while disposing of a case under the Act or an appeal arising from it to consider the income of the husband before passing any order of monetary relief, either interim or final.
The High Court relied on the decision of Justices Indu Malhotra and R. Subhash Reddy of the Supreme Court dated November 4, 2020 in Rajnesh Vs. Neha & Anr., reported in (2021) 2 SCC 324. The judgement was authored by Justice Malhotra. It reads:"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 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.
(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending
proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B – III of the judgment.
The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B – IV above.
(e) Enforcement / Execution of orders of maintenance
For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI."
The final paragraph of the judgement reads: "A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts / Family Courts / Courts of Judicial Magistrates for awareness and implementation."
In the same case, Justices R. Subhash Reddy and Sanjiv Khanna of the Supreme Court passed an order dated September 1, 2021 which reads: The husband, "the respondent shall file an affidavit indicating the details of all his bank accounts in various banks, and balances thereof. In the affidavit, petitioner shall indicate, whether he has transferred any assets, to his father or any third party, from the date of filing of the petition in the family court, by the petitioner herein." The matter was decided by
Drawing on the Supreme Court's orders, Patna High Court quashed and set aside the order of the Trial Court. The order reads: "The Trial Court is directed to first direct both the parties to file affidavits of assets and liabilities to ascertain the income of the Petitioner No. 1 and after ascertaining the income of Petitioner No. 1, the Trial Court is at liberty to pass proper order of interim monetary relief in favour of the Opposite Party. It is further directed that the parties shall file affidavits of assets and liabilities within one month from the date of communication of this order and on the basis of such affidavits of assets and liabilities, the Trial Court shall pass a fresh order within a period of three weeks thereafter." The final order observed: "I would like to record that in many districts and sub-divisions in the State of Bihar, proceedings under the Domestic Violence Act is registered as a Complaint Case. It is made clear that an application under the said Act is not a complaint. Therefore, the learned Magistrates are directed to register the cases under the Domestic Violence Act as Domestic Violence Case (D. W. Case). Similarly, the Appellate Courts shall also register the appeal, arising out of an order passed in D. V. Case as D. V. Appeal and not as Criminal Appeal. This order of the Court be circulated through the learned Registrar General, Patna High Court, Patna to the learned Sessions Judges and the Magistrates in the State of Bihar for immediate compliance."
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