N.K REJANEESH v. THEKKEVAYAPURATH ANISHA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 MAT.APPEAL (EXE.) NO. 7 OF 2022 AGAINST THE ORDER DATED 24.06.2022 IN E.P. NO.14 OF 2020 IN O.A.NO.96 OF 2012 OF THE FAMILY COURT,KOZHIKODE APPELLANT:** **N.K REJANEESH AGED 45 YEARS, S/O KARUNAKARAN NAIR, NAMBIDI VEETTIL HOUSE, KURUVATTOOR AMSOM DESOM, KURUVATTOOR P.O., KOZHIKODE, PIN – 673611.** **BY ADVS. AMRIN FATHIMA ALEENA K. BINU SITHARA HAMZA KIZHAKOOT MUHAMMED HUSSAIN K.A. JOY KURIAKOSE K.** **RESPONDENT:** **THEKKEVAYAPURATH ANISHA, AGED 36 YEARS, D/O. GANGADHARAN NAIR, THEKKEVAYAPPURATH VEEDU, MADAVOOR DESOM, MADAVOOR P.O., KOZHIKODE, PIN – 673583.** **BY ADVS. LEO LUKOSE ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE** **CIMIL CHERIAN KOTTALIL** **THIS MAT APPEAL (EXECUTION) HAVING COME UP FOR FINAL HEARING ON 02.03.2023, THE COURT ON 20.03.2023 DELIVERED THE FOLLOWING:** 2 Mat.Appeal (Exe.) No.7 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. This appeal under Section 19(1) of the Family Courts Act, 1984 is one filed by the judgment debtor in O.A.No.96 of 2012 on the files of the Family Court, Kozhikode. He seeks to set aside the order of the Family Court dated 24.06.2022 in E.P.No.14 of 2020 in O.A.No.96 of 2012. 2. On 11.08.2022, notice was directed to be served on the respondent. As per order in I.A.No.1 of 2022, the Family Court was directed to defer coercive steps against the appellant. On 31.08.2022, a further order directing the appellant to deposit an amount of Rs.1,00,000/- within two weeks before the Family Court as a condition for continuance of the interim order was passed. In compliance of that order, the appellant has deposited Rs.1,00,000/-. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. E.P.No.14 of 2020 was filed by the respondent for enforcement of the decree in O.A.No.96 of 2012. O.A.No.96 of 3 Mat.Appeal (Exe.) No.7 of 2022 2012 along with O.A.No.45, 95 and 97 of 2012 was disposed of by the Family Court on 15.11.2019 as per a common judgment. The decree in O.A.No.96 of 2012 directs the appellant to pay past maintenance at the rate of Rs.3,000/per month for the period from 01.08.2009 to 31.01.2012 and maintenance at the rate of Rs.4,500/- per month from 07.02.2012 onwards. The said decree was put in execution by the respondent. The appellant raised objection that he has paid more than what is due and as such E.P.No.14 of 2020 was not maintainable. His contention was that in terms of the judgment in Crl.Appeal No.175 of 2017, which was filed by the respondent challenging an order passed by the Gram Nyayalaya, Koduvally in M.C.No.40 of 2016, which was filed under Section 12 of Protection from Women from Domestic Violence Act, 2005, he had been making payment of maintenance amount. He would contend that once such payments are also adjusted more amount than Rs.4,11,000/-, which is claimed by the respondent in E.P.No.14 of 2020 has already been paid. He accordingly sought to record full satisfaction of the decree and to dismiss E.P.No.14 of 2020. 4 Mat.Appeal (Exe.) No.7 of 2022 5. The Family Court rejected the objection raised by the appellant. The Family Court took the view that decree directing payment of maintenance at the rate of Rs.4,500/- per month in O.A.No.96 of 2012 and the order of the Sessions Court, Kozhikode directing payment of monthly maintenance at the rate of Rs.3,000/- in Crl.Appeal No.175 of 2017 are totally independent and enforceable separately. The Family Court further held that execution court could not go behind the said orders and hence the contention of the appellant that the amount paid in terms of the judgment in Crl.Appeal No.175 of 2017 is liable to be set off against the amount due as per the decree in O.A.No.96 of 2012 is untenable. The appellant calls in question the correctness of the said view in this appeal. The question arises for consideration is whether the order to pay maintenance as per the decree in O.A.No.96 of 2012 and the judgment in Crl.Appeal No.175 of 2017 are independently enforceable. 6. O.A.No.45 of 2012 was filed by the appellanthusband seeking a decree of dissolution of marriage. O.A.No.95 of 2012 was filed by the respondent-wife seeking a 5 Mat.Appeal (Exe.) No.7 of 2022 decree of restitution of conjugal rights. O.A.No.96 of 2012 was filed by the respondent-wife seeking past and future maintenance. O.A.No.97 of 2012 was filed by the respondentwife seeking a decree of return of gold ornaments. Those cases were jointly tried by the Family Court and disposed by judgment dated 12.10.2012. The petitioner filed Mat.Appeal No.786 of 2012 assailing the decree in O.A.No.96 of 2012. This Court set aside the common judgment as per the judgment dated 04.09.2018 and remanded the matter to the Family Court for fresh disposal. This Court further directed that the appellant shall pay every month an amount of Rs.7,500/- to the respondent as interim maintenance, after deducting the amount already paid. 7. The Family Court tried O.A.No.96 of 2012 along with the connected cases afresh. As per Ext.R1(b) common judgment dated 15.11.2019, O.A.No.96 of 2012 was decreed allowing the respondent to realise past maintenance at the rate of Rs.3,000/- per month from 01.08.2009 to 31.01.2012 and future maintenance from 07.02.2012 at the rate of Rs.4,500/- per month. E.P.No.14 of 2020 was filed by the 6 Mat.Appeal (Exe.) No.7 of 2022 respondent for enforcement of the said decree. The amount due as per the claim of the respondent in E.P.No.14 of 2020 is Rs.5,40,000/-. The petitioner filed objection, a copy of which is Ext.R1(c), where he contended that in terms of various orders, he paid an amount of Rs.5,95,500/-; whereas the claim of the respondent would be only Rs.5,40,000/- and therefore there is an excess payment of Rs.55,500/-. The basis for his contention is that what he is liable to pay is the amount of maintenance ordered as per the decree dated 15.11.2019 in O.A.No.96 of 2012 alone. 8. The learned counsel appearing for the petitioner as well as the respondent placed reliance on the decision in **Rajnesh v. Neha and another [(2021) 2 SCC 324]** in order to substantiate their respective contentions. The Apex Court held with reference to the claims for maintenance under various enactments and as to how such claims are to be reconciled as follows: “67. Directions on overlapping jurisdictions.- It is well settled that a wife can make a claim for maintenance under different statutes. For instance, 7 Mat.Appeal (Exe.) No.7 of 2022 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. 68. 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 to move the concerned court in the previous proceeding.” 8 Mat.Appeal (Exe.) No.7 of 2022 9. Section 20(1)(b) of the Protection of Women from Domestic Violence Act reads,- “(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.” 10. Therefore, a Magistrate or court ordering maintenance under Section 20 of the Domestic Violence Act can decide whether the maintenance it orders is the whole or in addition to the order to pay maintenance already passed under any other law. In Ext.R1(f) the learned Sessions Judge took into consideration the order of the Family Court ordering payment of maintenance to the respondent. After considering that aspect and also the fact that the order of the Family Court granting maintenance was stayed by this Court proceeded to order the appellant to pay maintenance at the rate of Rs.3,000/- per month. Interim maintenance already paid in the said proceedings was directed to be given credit also. 9 Mat.Appeal (Exe.) No.7 of 2022 11. On a reading of Ext.R1(f) judgment, it is obvious that the appellant was directed to pay monthly maintenance of Rs.3,000/- to the respondent in addition to what was ordered by the Family Court. At that time, the order of the Family Court regarding payment of maintenance dated 12.10.2012 was in force, though it stood stayed as per the order of this Court. This Court while remitting O.A.No.96 of 2012 as per judgment dated 04.09.2018 for fresh trial directed the appellant to pay Rs.7,500/- to the respondent as interim maintenance. When O.A.No.96 of 2012 was decreed by the Family Court after having a fresh trial in terms of the judgment of this Court dated 04.09.2018, the order regarding interim maintenance merged with the said decree. Therefore, the liability of the appellant is as per the decree dated 15.11.2019 in O.A.No.96 of 2012. It was after taking into account that obligation of the respondent, the Sessions Judge, Kozhikode as per Ext.R1(f) judgment ordered to pay Rs.3,000/- per month as maintenance. 12. In such circumstances, there is no reason for any doubt that the appellant is obliged to pay maintenance as per 10 Mat.Appeal (Exe.) No.7 of 2022 the decree dated 15.12.2019 in O.A.No.96 of 2012, Ext.R1(b) and also as per the judgment in Crl.Appeal No.175 of 2017, Ext.R1(f). The Family Court therefore considered the issue in its proper perspective and there is no reason to interfere with its order dated 24.06.2022 in E.P.No.14 of 2020 in O.A.No.96 of 2012. This appeal fails and the same is accordingly dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 11 Mat.Appeal (Exe.) No.7 of 2022 ## **APPENDIX OF MA (EXE.) 7/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF ORDER DATED 24/06/222 IN E.P. NO.14/2020 IN THE FILES OF THE FAMILY COURT, KOZHIKODE.** ## **RESPONDENT EXHIBITS** - **EXHIBIT R1(E)** **A TRUE COPY OF THE MEMO OF PAYMENT DATED 16.03.2021 FILED BY THE RESPONDENT HEREIN IN IN E.P. NO. 14 OF 2020 IN O.A. NO. 96 OF 2012 ON THE FILES OF THE FAMILY COURT, KOZHIKODE** **EXHIBIT R1(A)** - **A TRUE COPY OF THE JUDGMENT DATED 04.09.2018 IN MATRIMONIAL APPEAL NO. 786 OF 2012 ON THE FILES OF THIS HON'BLE HIGH COURT .** - **EXHIBIT R1(B) A TRUE COPY OF THE COMMON JUDGMENT DATED 15.11.2019 IN O.A. NO. 45 OF 2012, O.A. NO. 95 OF 2012, O.A. NO. 96 OF 2012 AND O.A. NO. 97 OF 2012 ON THE FILES OF THE FAMILY COURT, KOZHIKODE.** - **EXHIBIT R1(C) A TRUE COPY OF THE COUNTER STATEMENT DATED 02.03.2021 FILED BY THE APPELLANTHEREIN IN IN E.P. NO. 14 OF 2020 IN O.A. NO. 96 OF 2012 ON THE FILES OF THE FAMILY COURT, KOZHIKODE.** - **EXHIBIT R1(D) TRUE COPY OF THE MEMO OF PAYMENT DATED 24.03.2021 FILED BY THE APPELLANTHEREIN IN IN E.P. NO. 14 OF 2020 IN O.A. NO. 96 OF 2012 ON THE FILES OF THE FAMILY COURT, KOZHIKODE** **EXHIBIT R1(F)** - **A TRUE COPY OF THE JUDGMENT DATED 05.10.2017 IN CRL. APPEAL NO. 175 OF 2017ON THE FILES OF THE COURT OF SESSION, KOZHIKODE DIVISION**