Dv act


The said DV Act 2005 has had and is still having various, bad and sad implications for both men and women.

Coming to the point, maintenance/ relief  to the wife and children, I personally feel that is more being misused, much to the very objectives of the DV Act itself. I feel that maintenance to wife and children are allowed only under following sections of the acts.

  1. u/s 24 of Hindu Marriage Act as sequel to divorce.
  2. u/s 18 & 20 of the Hindu Adoption and Maintenance  Act – 1956.
  3. Section 20 of the Protection of Women from Domestic Violence Act 2005.
  4. Section 125 of the Cr PC is of course is the guiding and enforcing section, for all such  maintenance.
  5. It is pertinent to note here that the applicant /affected person or persons (major children and guardians for minors) should be party and explicitly claimant to claim such maintenance.
  6. Section 20 of the Domestic Violence Act says that the “aggrieved person” is entitled to monetary relief to her children also.

Here the point is that the “aggrieved person” shall also make her children ( as guardians if they are minor)  as party to claim monetary relief.

 

To claim monetary relief (not maintenance) u/s 20 of the D.V.Act, the claimant should be a “aggrieved person”. If the allegations of “Domestic Violence”  as defined under the act is not proved, she will not be called as “aggrieved person”  and is not entitled to any relief available under act.

I would like to seek your advise on this I would like to say that  the “children” are also not entitled for any “ monthly relief”  u/s 20 of the DV Act.

 

The DV Act 2005 does not alter the marital status of wife and husband, even there no provision for “judicial separation”. The relief and other monetary and other relief remains to be temporary till a material change in the marital status is altered.

The magistrate can’t order the monetary relief to the children of the applicant suo moto which the applicant has not made her children as a party to the reliefs under DV Act 2005.The total income and educational qualifications of both rival parties are no taken into consideration. The yardstick for granting maintenance , or even monetary relief is sec 125(4) of the Cr.P.C. The spouse if has left her matrimonial home on her own and without assigning any reasons is not entitled to any kind of maintenance

The total income and educational qualifications of both parties are not taken into consideration. I shall be much obliged if you could kindly give me your considered opinion on the above doubts.  I may kindly be pardoned for the troubles and any inconvenience caused to you.

 

With profound regards,

 

Yours sincerely

 

 
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Advocate

What you stated is not wrong and keeping this in mind Delhi High Court by it order in Kusam Sharma v Mahinder Kumar Sharma case of 2015 has made compulsory for both parties to file income and expenses affidavit in all cases relating to maintenance under any Act available in this regard. Just read that long judgment and check for the 40 pages affidavit draft to see that no party can hide anything about his/her income and expenses. Now this law is valid and applicable on all courts in the State of Delhi and many courts outside Delhi too take in consideration the case law of Delhi High Court for deciding the issue relating to maintenance for spouse and even their children. Now it is up to the Advocates who practice outside Delhi to refer this Delhi High Court case law for getting fair trial if they want for their clients.

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India is a huge and high and densely populated country.it is not so easy to escape once u trap or u enter into anything without basic knowledge don't thing I have taken precautions or intelligent.so I cannot be fooled.every individual take his care himself
 
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It not easy to enforce any law because every thing is appealed ,questioned amended delayed days and years passes when u realise precious time has gone and become alone ultimately what I earned.
 
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Thanks for your kind reply.

Further to  my earlier query , the issue is monetary relief u/s 20 of the DV Act . The applicatant was proved and judged as " not aggreived Person" and charges of all kinds of violence under DV Act was not proved . The children were not made a party in her application u/s 12 of the act  but the court  suo moto ordered to pay the " maintainance" to the two children without even giving an opportunity to the respondents to defend it. There is a lot of differece between " relief" and "maintainance" , Relief is temporary but maintainance is not. in my opinion.

 

 

 
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Advocate , Hyderabad

 

You have to go to appeal on this, under section 29 of DV Act to address the issue, ( Appeal at Court Of session)

As per your comment, it is clear that other party is unable to prove as "Aggrieved Party", this means no case on you. then on what grounds, Court ordered to pay the Maintenance? Or court might feel that She will go to next Appellate court, so this maintenance order is given as temporary relief. 

Where are these childs now? is at Mother? then they still get, as a Minors, Unde the custody of Natural Guardian. This is to save children from family dispute.

 

 


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