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Pooja (mom)     15 July 2014

Maintenance petition under domestic violence act

I am a home-maker, who left her job around a decade back on insistence from husband that I should take care of my family. 2 years back, my husband deserted me and my child. He then began sending legal notices seeking divorce by mutual consent. When I did not give in to his demand, he began making threatening phone calls.

Tired of the harassement, I filed RCR case on him with no accusations whatsoever. Just a plea requesting him to come back and stay with me. In reply to RCR, he sent me a divorce petition through court.

I kept avoiding filing maintenance case on him, because I did not want money to come in between and spoil our relation further, because he would then feel that I am money minded.  He has been sending a very paltry sum to me from the time he left home and I am still continuing to manage my expenses in that amount. When it became very difficult to manage, I filed a maintenance case u/s 26 read with section 23 of PROTECTION OF WOMEN UNDER DOMESTIC VIOLENCE ACT 2005. 

Even here there are no allegations of domestic violence. We have just mentioned that the amount he is sending to me is insufficient because he is enjoying a very high standard of living and earning a very big salary in foreign currency (he has taken up a job abroad). Since I have the child with me, the amount sent by him is not at all enough to live in a metro city.

His lawyer now says that this case is not maintainable. He says that since I have filed RCR also, this case becomes contradictory to RCR and that I should file a fresh case of MAINTENANCE. The maintenance case was filed before completing 1 year of desertion period.

Is his lawyer right in saying so ? Request expert legal fraternity here to please give their opinions. I have neither put any accusations against him while filing affidavit, nor have I filed any case of domestic violence on him in police station.

Do I have to file a fresh application to claim maintenance ?

I will be very thankful for your advice in this regard.



Learning

 8 Replies

stanley (Freedom)     15 July 2014

1. you have stated that there are no allegations of domestic violence . But the case filed by you is a domestic violence case :-) in court . you have stated that you have not filed any domestic violence case in police station . Please try to understand that DV cases are decided by the court and not the police .

2. Now google and read the DV act . Read section 20 below of the DV act 

20. Monetary reliefs.—

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to— tc "20. Monetary reliefs.—(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—"
(a) the loss of earnings; tc" (a) the loss of earnings;"
(b) the medical expenses; tc" (b) the medical expenses;"
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and tc" (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and"
(d) 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. tc" (d) 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."
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. tc "(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed."
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. tc "(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require."
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides. tc "(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides."
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub‑section (1). tc "(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub‑section (1)."
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub‑section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent. tc "(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub‑section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."
 
or 
 
CRPC 125 
 
 
Section 125 in The Code Of Criminal Procedure, 1973
125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18- 12- 1978 ).
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-
(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such
 
Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

3. How much does he send per month and is it by cheque that the amount is deposited into your account .. 

4. Are you aware how much does he earn per month abroad and do you have his salary slip. 

5. you have not stated how much you have desired and asked in your application for maintanence under DV act . 

6. you dont have to file a fresh application . I presume maybe the devil has convinced you that you can abstract a good amount from your husband .

Its at the discretion of the judge that the amount would be decided or your case would be dismissed . As he  is sending you a monthly amount which you have not stated over here . Hence i presume that he has not neglected you and the child . At the most after hearing your pleas the judge may decide the amount .

Tajobsindia (Senior Partner )     15 July 2014

1. Your case is maintainable as in for "interim Protection Order" as interim maintenance order with contesting claims / counter claims will get awarded. 

2. However, final adjudication of DV Application may not happen as allegations (which you have not mentioned in your Application r/w affidavit) are not there from your side such as date/month/year wise incidences of ‘domestic violence’ other than ‘claim for maintenance for self / minor child’. In my opinion if a metro wife does not mention ‘sets of domestic violence allegations’ in her Application then she should not use DV act at all. 

3. However since you filed RCR it would have been prudent to have used S. 24 HMA or S. 125 CrPC to claim maintenance issues for self and minor which could have keept whole matter under Civil laws.  Many husband’s don’t like to see face of a Magistrate Court where DV applications are adjudicated and feel they are being branded as criminals when wife donot mention ‘allegations of domestic violence’!  

4. What his Advocate is saying is not maintainable during interim Order stage for a fact you have not mentioned any allegations of domestic violence instead the amount you are voluntarily getting from husband being meager is your main agitation and thus is subject to ‘domestic violence in a domestic relationship’ is what you are hinting in Magistrate Court. In my opinion your advocate has given ‘softer drafting’ treatment to your DV Act Application as being some sort of V.2 to S. 125 CrPC Application, thus might have kept softer allegations in such application which is also one way to speed up the present mess in both of your life as per your Advocate’s wisdom.

5. You need not have to file fresh application. Let interim order be announced in DV Application of yours. 

6. Since husband has put-in counter claim of ‘divorce’ and if DV application (Interim protection order) is adjudicated soon the whole facts will eventually lead to ‘divorce’ by way of mutual consent is my view. 

7. Both RCR and Divorce will be clubbed together in Family Court and counseling will happen for both of you and in Magistrate Court DV interim order will eventually be announced with direction to your side to file evidences for its final disposal.

8. Hence, use discretionary wisdom to speak-up your mind during counseling sessions in Civil Court as to what you / minor would like to receive from all these court cases eventually as ending into. I mean to express here that it is Applicant’s right not to mention ‘set of serious allegations or not’ in her application, instead just agitate for a ‘just maintenance’ but then if she uses Magistrate Court for the same instead of a Civil Court then males see such acts in repulsive light and donot resolve long term matrimony as in re-joining frame of mind but such relationship ends up in divorce. 

[Last reply]

Pooja (mom)     15 July 2014

Thank you Stanley and Tajobs for the detailed and quick replies you have given. You both have explained every detail so clearly and beautifully.

Actually my good intention seem to have back fired. Frankly speaking i was not interested in filing maintenance claim at all, because I want to re-concile at any cost. All my efforts at re-conciliation with him have failed. We had counselling sessions too and judge has already taken a decision that both RCR and Divorce cases will be clubbed.

I purposely did not mention small incidents which can be termed as domestic violence. I decided to ignore these incidents, because it will only add fuel to fire. His very act of leaving home and then quietly absconding to a foreign country, refusal to pay for my and child's medical expenses after leaving home,  (i have evidence to prove this), refusal to pay money for society charges of building, omitting not just me but my daughter too from all family functions etc. He has defamed me on social networking sites. He has taken possession of a joint property owned by both of us which is on rent. He keeps the entire rent, although I have paid almost all the amount for buying the flat. My gold too is with my in-laws.

When I realized that he is leading a lavish life himself, spending on holidays abroad in expensive resorts and making my child live in the little amount he sends, making us forget the luxuries of owning a car and forced to travel by public transport . Thats when i thought of filing a maintenance case so that my daughter can enjoy a good standard of living like her father. Since I am not a legal person, I obviously did what my experienced lawyer asked me to do. 

My RCR case was transferred here from another city. Hence my present lawyer has come into picture only recently.

I really dont know what to do now. I hope as you say, I wont be asked to file fresh maintenance case.

a) He sends around 15k per month + pays EMI for the matrimonial home where i am living

b) He earns more than 3-4 laks per month. Has shares of companies too. Plus he earns rent income from our joint property. No dependants on him other than me and my child.

I think being too good is not at all good in this kaliyug. I wish I had listened to my lawyer and filed maintenance alongwith RCR.  As it is  i filed late for it, did not pursue it because money was never my priority. I just wanted to sort out the issues and continue the relationship. And I did not put charges on him too because i have decided to forgive him for all those mistakes.

Thanks again for all your advice. Lets see what happens. At the most the case will get dismissed, right ? Jaane doh ! I have lost my husband . Can there be a bigger loss than this ?

 

 

Samir N (General Queries) (Business)     15 July 2014

Admittedly I have not gone through the details of all the responses or your post. However, I got interested because you seem to have the decency of not hurling false allegations to give it a color of intense domestic violence.  Stick to the truth and you will get justice.   


In my opinion, your case is maintainable as a DV case because you have implicitly alleged "Economic Abuse." See Section 3 of the Act and you will see that what you have alleged is covered under Section 3(d)(iv).  What you ought to do to counter the position adopted by opposing advocate is to file an application to amend the petition which clarifies your allegations more precisely using the language in the section, where possible.  You should also file a written response stating that your DV case is maintainable and cite the applicable section to assert your position. You need NOT file a fresh case of maintenance if you have prayed for maintenance in your petition. If you have not prayed for maintenance in your DV petition, you should amend the petition to do so.  Courts cannot, as a matter of law, grant relief that is not expressly prayed for. Perhaps your advocate has resorted to this defense without expressly alerting you of the same in the fear that you will rectify the error by amending the petition!


 If relief you pray for sound mutually exclusive, then you should ask them as alternatives in the prayers paragraph. So, if RCR and maintenance is interpreted to be mutually exclusive, then seek RCR as the main prayer and then say that in the alternative you seek maintenance of ... 


Application to amend a petition is a powerful tool. Use it to rectify errors and omissions to avoid  associated legal costs and delays.

GOOD LUCK!!

Pooja (mom)     16 July 2014

Thank you Samir N for your kind reply. 

Just wanted to inform you that maintenance has been prayed for in the petition. And the language clearly shows that we are talking about "Economic abuse". It has mentioned facts about his earnings and insufficient amount he is sending to me and minor child . Infact my lawyer had suggested adding stories that would prove domestic violence. But I did not do it. My intention is to keep the relationship intact and for that I am ready to make all possible compromises. I would have never filed this petition if I was not facing financial hardships. Since I have invested all earnings of my lifetime (when i was in a job) in my home and family, I dont have any bank balance with me.

Hence in the best interest of my child and to enable her to enjoy a decent standard of living when her dad is well off, I had to file this petition.

I hope the judge will give due weightage to my genuine intentions and honesty. I dont wish to tarnish his or his parents image by framing allegations against them, eventhough I have quite a few true incidents to make a strong case. The purpose of filing RCR was with a hope that counselling will sort out our differences and we will be together again. Money, property etc has never been my priority in life.......family has always been important.

Its unfortunate that I have landed in this mess, despite best efforts from my side.

Thanks again for your kind replies.

stanley (Freedom)     16 July 2014

1. Once a case goes to court its as good as the relation ship has ended . Even if RCR comes up in your favour can the court force you'll to stay togather . Even if your husband has filed for Divorce it will not be easy for him to get it , Since he would have to prove to the court on what grounds he has filed for the same .

2. Its good to know that you have not added stories as suggested by your lawyer in order to prove domestic violence . Ultimately you would have landed up getting caught when it comes to evidence stage and cross examination stage . 

3. Your share in the joint property does not go anywhere . Based on what you have put in the joint property and wherein you can prove your share that you have invested in the same can be  claimed in that proportion to what you have invested. if you have invested 80 % and he has invested 20 % you would get it at the rate of 80 % as per the present market value .

4. Your case is a very weak case as you are staying in his house and he is paying the EMI's of the house and neither has he driven you out of the house for you to claim right to residence . As a matter of fact only maintenance would be decided 

5. You are a person of principle . Hence it would be better for you to look out for job and become independent . As you live in a metro city there are more chances of you getting a job and since you already have exposure and experience. 

Samir N (General Queries) (Business)     16 July 2014

If all you are concerned about, and asking for, is maintenance, then your petition should not be dismissed based upon the facts of your case and the content of your petition. Judges do not go by emotions and sympathy. You need to stick to facts that fit the applicable law and not dilute your arguments with unneeded statements. And only those facts/allegations which are made in your petition count.  The various allegations in your postings here, if true, should have been made in your petition. If not, amend it because they are related to maintenance/economic abuse.

Smita Verma   09 January 2016

Your story is same as mine and am also a girl of principles so not inclined to lie and tailor made things with the intentions to grab money but despite of sincere efforts am also with my 1 year old baby got enslaved in financial crisis so forced to put get into this legal things which we have never ever faced or came across, atleast you are living in your home me even not have that option wanted to fight on truth and just preparing for it and ready to face instances watever will be in destiny going to attain. Best of luck

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