Vardhaman Magdum (ADVOCATE) 02 October 2009

DOMESTIC VOILENCE

Sir,

I have obtained maintenance order under Domestic Violence Act.

Now my first question is how the said order can be executed?

Whether the procedure u/s 125(3) of Cr.P.C. can be adopted for non payment of maintenance?

My second question is that after filing of affidavit in chief in the said matter, it came to the knowledge that the husband has fabricated one document of Sale of Flat. So the application for amendment of the plaint was filed. Let me know under which provision, the amendment can be sought?(as there is no provision in Cr.P.C. for amendment)

Thanking you,

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3 Replies

adv. rajeev ( rajoo ) (practicing advocate) 02 October 2009

I think u r right.

There is provision in the cr.p.c. to amend the petition.

U can recall ur client to say about the doucment which is produced by the husband.

U can also confront the document while the cross examination.

(Guest)

According to me procedure under s.125(3) Cr.p.c. cannot be adopted for non payment of maintenance under DV act because DV act itself has provided for execution of the order. therefore you have to follow the procedure laid down in DV act.

So far as your second query is concerned, according to me affidavit in chief cannot be filed under DV act in view of S.294 Cr.p.c. You are aware that proceedings under DV act has to be conducted in accordance with the provisions of Cr.P.C. However DV act permits the Magistrate to lay down his own procedure. So if the Magistrate wants to accept "affidavit in chief" as the mode of recording evidence, he ought to lay down the procedure in advance so that the parties will have notice of the same. If Magistrate has not laid down any such procedure and the Magistrate accepts "affidavit in chief" as evidence the same would vitiate the proceedings.