Dv act and section 128 crpc

Dinakaran S (Querist) 22 August 2023 This query is : Resolved

Case background:

Already divorced in 2017. She filed a Domestic violence under sec/12(sec-18,19,21,22)including full false allegations along with asking maintenance to her and my minor daguther in 2018. Unfortunately, it was a ex-parte order i didn't appear for the case. The order was in May 2019 summarized that the false allegations were not proven and only remedy is to provide Maintenace to my minor daughter.

In 2021, i filed a Visitation rights which is pending in family court. In dec, 2022, she filed a petition under Sec 128 of CrPC connected to DV judgement in CJM court.

Queries:

1. Is Section 12(sec-18, 19,21 & 22) of DV judgement can be enforced through sec/128 CrPC? Why she didn't file under sec/31 of DV act / 468 CrPC convertable? Due to time limit expiration of sec/31 she didn't file or might be anyother reason?

2. In DVC, Can she file section 128 of CrPC to connect DV case? Will it be maintable? can i challenge to dismiss the petition because of time delay or can't file DV case judgement in sec128/CrPC?
(DV case Judgement date was May 2019, after that her sec/128 filing date is Dec/2022. Registration date is July/2023)

3. Or how should i proceed with this case?

4. Shall i gohead to trasnfer my Visitation rights case and this Sec128/CrPC or challenge the same if i'm able to win with any strong suggestions?
(Note: already a police complaint done and CSR has been provided against petitioner's father. This may be a strong ground to get transfer direction i believe)

Thanks in advance

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Quick Summary

This discussion concerns the enforcement of a Domestic Violence (DV) Act judgment through Section 128 of the Criminal Procedure Code (CrPC). The original DV case resulted in an ex-parte order for maintenance for a minor daughter, despite allegations not being proven. The user is questioning whether Section 128 CrPC is the correct procedure for enforcing DV orders, especially given potential time limitations for other enforcement methods, and seeks advice on challenging the Section 128 petition.

T. Kalaiselvan, Advocate (Expert) 24 August 2023
1. If the court has taken the petition on its file then you may better challenge the same by the reasons you rely upon.
However for your information the collection petition under DV case can be filed as per the provisions of 125 cr.p.c.
2. You were advised to challenge the same if as per you is not found to be legally incorrect and invalid.
3. You can decide.
4. Have you filed a child custody case or only a visitation rights case, and under which provisions of law have you filed the visitation rights case?
The DV case cannot be transferred to family court

P. Venu

(Expert) 30 August 2023
If the allegations had been false, why did you allow the matter to be decided ex-parte? Having chosen not to contest the proceedings on merits, your assertion of the allegation being also is less than convincing.

visitation rights has no nexus to the issue of maintenance.

Admittedly, maintenance is to be paid only to the minor daughter? What is the constraint in providing her the financial support?

Dinakaran S (Querist) 30 August 2023
Yes, maintenance is only to minor daughter. In 2021 Dec, filed a visitation rights petition in that added, to pay anything to my daughter including school fees and in future college fees, her marriage...etc. But in that petition they are objecting and not peacefully to see my daughter also explicitly mentioned that i'm ready to pay maintenace for my daughter as per DV judgement. so, nothing is blocking me to pay.

To harras me now, intentionally they filed Sec 128 CrPC surprisingly. so that, decided to challenge her Sec 128 from base in terms of quash the DV petition and it's judgement because divorce happend in 2017 DV filed in 2018 dec..so no Domestic relation but in her DV petition she asked maintenance. Other interesting point is In 2015 she filed Sec 125 maintenance petition and NOT pressed.

Totally she filed 5+1 cases against me..:)

P. Venu

(Expert) 01 September 2023
Please post simple facts avoiding opinions based on assumptions and presumptions.

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