Maintenance in 2 cases

alimony/maintenance can be claimed under only one law and not different sections of law. Which ever first will be  considered.

Go through this judgement

 

                  * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of Reserve: August 25, 2010
                                              Date of Order: 30th August, 2010

+ Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010
%                                                                    30.8.2010

         Rachna Kathuria                                     ... Petitioner
                                Through: Mr. P.Narula, Advocate

                   Versus


         Ramesh Kathuria                                ... Respondent
                                Through:Mr. S.S.Saluja, Advocate


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?   Yes.

2. To be referred to the reporter or not?                                  Yes.

3. Whether judgment should be reported in Digest?                          Yes.


JUDGMENT

By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed.

 

2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance. The learned Court of MM observed that petitioner was living separate from her husband since 3rd January, 1996. She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and she was getting a total maintenance of ` 4000/- per month from the respondent. In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed. Against this petitioner preferred an appeal. The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition.

3. It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed.

 

August 30, 2010                   SHIV NARAYAN DHINGRA, J.
vn

hi

there are several judgments of various high courts that (1) IF WIFE IE EARNING EQUAL TO OR MORE THAN THE HUSBAND, THEN SHE CANNOT ASK FOR MAINTENANCE FOR THE CHILD (2) IF FATHER IS READY FOR CUSTODY OF THE CHILD THEN ALSO MOTHER CANT ASK FOR MAINTENANCE (3) LIABILITY AS PER RATIO OF INCOME OF SPOUSES (4) QUANTUM OF EXPENSE ON CHILD HAS TO BE ASSESSED AND NOT UNREASONED MAINTENANCE AMOUNT

Rajesh has elaborated well

I'm afraid, as per established principle in law u r liable to pay both the maintenance.

Many thanks for the replies...

are there any SC judgements to substantiate your arguments ? Appreciate if you could tell me the name and i will look for the judgements.

Also the judgement of Dhingra, Delhi HC is about wife maintenance, not child maintenance....i have 2 orders for child maintenance - 1 in 125 crpc from sessions court (which i am challenging in HC as child maintenance amount is too high) and 2nd from HC for interim DV.

Appreciate if you could read my query again and provide response..many thanks

Also...

 

What about the rule that if 2 judgements on the same maintenance then “the higher amount is to be paid”…how will the higher amount be calculated in this case?

Any other expert opinion / advice is highly appreciated.

Only the higher grant will be taken into account. Better log on to  www.kanoon.com, U will get number of judgements.

It is simple mathmatics, in two maintenance orders the one in which amount is high would be taken into consideration. 

 

If two orders state INR 2000 & 2500 maintenance then you have to pay INR 2500 only. The higher amount would be final & binding.

Thanks guys..In my case, the 2 orders are - 1)125 crpc main, Child maintenance of 30k per month. Order states that “only father liable for child maintenance under 125 crpc” I have appealed in HC and the case is pending as it is too high and beyond my means. In the meantime, I am paying 30k per month regularly. 2) Interim DV order from HC – father to pay childs full food & clothing + full education + 10k residence cost for child & wife. Childs total cost of food & clothing + education bills is approx 10k per month (as per bills provided.) PLUS 10K for residence for child and wife = 20k per month Wife & child staying with her parents, not paying any rent, hence no rental bill provided. WHICH ONE OF THE TWO ABOVE IS APPLICABLE TO ME AS PER LAW?

ya there are judgments on all 4 aspects that i wrote.

shall post them as reply soon

but if you could share your contact details, then i can give you the same on whatsapp easily

You can look for judgements in Indiakanoon.org and lawweb123.com or judis.in.  There is no dearth for judgments.