Source: Delhi High Court 

Why in News? 

Recently, the Delhi High Court in the matter of X and Ors. v The State and Anr.  has held that maintenance under the Protection of Women from Domestic Violence Act, 2005 (DV) is not linked with the ability or inability of the wife to maintain herself unlike Section 125 of the Code of Criminal Procedure, 1973 (CrPC). 

What was the Background of the X and Ors. v The State and Anr. Case? 

• In the present case, Respondent No.2(wife) preferred the application under Section 12 of DV Act against the petitioner (husband and his kins) 
• The trial court observed that: 
  • the parties were the spouses, and the Domestic Incident Report (DIR) prima facie shows that Respondent No.2 was a victim of domestic violence and entitled to monetary compensation under the DV Act. 
  • While Petitioner No.1 was claiming that he was drawing a meagre salary from his father’s partnership firm, however, he was driving a Duster Car and receiving profit from the firm as well.  
  • The Trial Court granted an interim maintenance of ₹15,000/- along with ₹10,000/- towards rent to Respondent No.2. After assessing the income of the petitioner. 
• The petitioner filed an appeal before the Additional Sessions Judge (ASJ) stating that: 
  • he is earning merely around Rs. 15,000/- per month and the business belongs to his father (Petitioner No. 1). 
  • the father has been taking care of the children of the parties for more than three years and Respondent No.2 has made no attempt to even meet them. 
  • sudden drop in his income after filing the application by the respondent against him. 
• The ASJ held that Petitioner No.1 could not take the excuse of the Covid-19 pandemic as the drop in his income and is liable to pay the maintenance amount assessed by the Trial Court. 
• Aggrieved by the decisions of the trial court and the ASJ the present petition is filed by the Petitioner before the Delhi High Court under Section 397 read with Section 401 of CrPC.  

What were the Court’s Observations? 

• The Delhi High Court observed that based on the order of the Trial Courts and the appellate court it can be explicitly made out that the Respondent was the victim of domestic violence. 
• The Delhi High Court further observed that the images showing injury marks were also attached by the respondent. 
• The Delhi High Court also confirmed the observations made by the Trial court that unlike Section 125 of CrPC maintenance under the DV Act is not tethered on the inability of the wife/ victim to maintain herself. 
• The Delhi High Court also referred to the case of Annurita Vohra v. Sandeep Vohra (2004)  
• The Delhi High Court dismissed the plea and order the Trial court to make independent observation irrespective of the observations made by the Additional Sessions Judge by taking into consideration the evidences 

Which Case Was Referred by the Delhi High Court in the Case of X and Ors. v the State and Anr? 

• Annurita Vohra v. Sandeep Vohra (2004): 
  • In this case the court held that the collective income forms the Family Resource Cake, which is then distributed among the family members.  
  • The allocation of this "cake" should align with the financial needs of each family member, and an equitable approach would involve dividing the Family Resource Cake into two portions for the Husband, acknowledging his additional expenses incurred in earning, and one portion each for the other members. 

What is the Difference between Maintenance Under BNSS and DV Act? 

Maintenance Under DV Act 

• Section 12: Application to Magistrate 
  • Under Section 12, an application can be made to the Magistrate by the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person. 
• Section 20: Monetary Reliefs 
  • Section 20 of the Domestic Violence Act empowers the court to issue orders for monetary relief aimed at covering expenses and losses incurred by the aggrieved person and any children due to domestic violence. 
  • Monetary reliefs which can be granted by the Magistrate under Section 20 of the DV Act includes giving of the relief in respect of the loss of earnings, the medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any. 
  • This relief may encompass expenses associated with medical treatment, loss of earnings, damage to property, and other consequential costs arising from the violence. 
  • Section 20(1)(d) state that 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. 
• Section 23: Power to grant interim and ex parte orders 
  • Section 23 vests the Magistrate with the power to grant interim ex parte orders. It is, thus, clear that various kinds of reliefs which can be obtained by the aggrieved person are of civil nature. 

Maintenance Under Bharatiya Nagarik Suraksha Sanhita, 2023 

Section 144: Order for maintenance of wives, children and parents. 

• This section was earlier covered under section 125 of CrPC. 
• Essential Condition of Maintenance under this section: 
  • If a person with sufficient means has neglected or refuses to maintain his wife, children or parents, maintenance can be claimed by applying a Judicial Magistrate of first class.   
• Maintenance of wife: 
  • As per the explanation in the section "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. 
  • A wife shall not be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, from her husband under this section if  
    • she is living in adultery 
    • if, without any sufficient reason, she refuses to live with her husband,  
    • if they are living separately by mutual consent 
• Purpose of this Section: 
  • In K. Vimal v. K. Veeraswamy (1991), the Supreme Court where it was held that Section 125 of the CrPC (now Section 144 of BNSS) had been introduced for achieving a social purpose. The aim of this section is the welfare of the wife by providing her with the required shelter and food after the separation from the husband. 

Overlap Between Section 144 of BNSS and DV Act 

• Nikhil Danani v. Tanya Banon Danani (2019):  
  • Delhi High Court held that Section 125 of CrPC (now covered under Section 144 of BNSS) states only about the order of maintenance while Section 20 of the DV Act includes giving of the relief in respect of the loss of earnings, the medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any. 
• Juveria Abdul Majid Khan Patni v. Atif Iqbal Musoori (2014):  
  • The Supreme Court in this case held that Section 125 of CrPC (now covered under Section 144 of BNSS) empowers to give maintenance order while Section 20 of the DV Act can be used in addition to the Section 125 of CrPC for giving monetary relief.