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interim maintenance u/s 125 of Crpc.

No maintenance is allowed under Domestic violence act to wife, if wife already claimed under section 125 of Crpc. Its a misuse of law.

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see the judgement passed by Delhi High court.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

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

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 22

nd

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 3

rd

January, 1996.  She had filed a Civil Suit under Hindu Adoption and

Maintenance Act and an application under Section 125 Cr.P.C. and Crl.M.C.No. 130/2010  Page 2 of 3

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 Crl.M.C.No. 130/2010  Page 3 of 3

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

No alimony to a women who deserted her husband.

N THE HIGH COURT OF STATE OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.M-24684 of 2008 (O&M)

POONAM   …PETITIONER

VERSUS

MAHENDER KUMAR   …RESPONDENt

Criminal Misc. No.M-24684 of 2008 (O&M)

Present:           Mr.P.L. Goyal,  Advocate,  for the  petitioner.

Mr. S.D. Bansal,  Advocate, for the  respondent.

Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code’) claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the  same  time,   affirming  the  finding    recorded    by  the     trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.

I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and  have gone through the records of the case.

The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only  in  getting maintenance allowance and  taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon’ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.

In view of the  above,    the present petition   is  dismissed being  without any merit.

March  19  , 2009.

(   MOHINDER  PAL )

ak    JUDGE

Interim Maintenance must be decide upon financial status of both party,e, Husband and wife.

see the judgement passed by Hon;ble supreme Court of India.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5660 OF 2010

(Arising out of SLP (C) No. 6736 of 2007)

Neeta Rakesh Jain …. Appellant Vs.

Rakesh Jeetmal Jain ….Respondent JUDGMENT

R.M.LODHA,J.

Leave granted.

2. The order dated September 21, 2006 passed by the High Court of Judicature at Bombay (Appellate Side), which fixes the interim maintenance at the rate of Rs. 12000/- per month pending appeal, is under challenge at the instance of the wife – appellant in this appeal by special leave.

3. The parties were married on May 8, 1995. The respondent-husband petitioned for divorce under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 (for short, `the Act’) on the ground of cruelty and desertion against the wife. The Principal Judge, Family Court No. 5, Pune, passed an ex-parte decree on April 7, 2005 dissolving the marriage between the parties on the ground of cruelty. The wife has preferred an appeal before the Bombay High Court challenging the ex-parte decree. The appeal has been admitted. On July 18, 2005 an ad-interim order was granted staying the operation of the ex-parte decree. The husband was also restrained from re-marrying until further orders. The ad-interim stay order is operative although the husband has informed the High Court that on July 22, 2005 he had re-married. The factum of re-marriage has been disputed by the wife before the High Court.

4. The wife made an application (Civil Application No. 107 of 2006) for direction to the husband to pay to her interim maintenance of Rs. 50,000/- per month. In that application it was stated that husband’s income is Rs. 2,00,000/- per month approximately. It was stated that the husband is a highly qualified person; he is Chartered Accountant (CA) and has also passed Cost and Works Accounts of
India (ICWA). He passed Chartered Institute of Management Accountants (CIMA), U.K., examination in May, 1999 and also completed course of Computer Information Technology. According to wife, at the time of marriage the husband was working with M/s. Kalpataru Constructions at Mumbai drawing a salary of Rs. 40,000/- per month; in 1996 he changed his job and was appointed as Finance Manager with M/s. Kimberly Clark, Pune (a multi-national company) at double the salary and in May, 1998 he joined a highly reputed software company, namely, M/s. Tata Technology on substantially increased salary. In 1999, the husband was sent to Sri Lanka by the company as a Senior SAP Consultant where he was entitled to a chauffeur driven Toyota Van and a large bungalow to live. He returned to Pune in August 1999. At that time his monthly income was about Rs. 1,50,000/-. The wife averred that somewhere in the month of January, 2000 the husband started his own company in the name and style of M/s. Paysquare Consultancy Limited at Pune and engaged several computer and IT engineers, chartered accountants and MBAs as employees. As regards her own income, the wife stated that she did not have any independent source of income and was pursuing her studies of Ph.D. at the mercy of her elder sister
who has been supporting her since 2001.

5. The husband responded to the application by filing his affidavit. Substantial part of the reply affidavit deals with the proceedings before the Family Court. As regards his income, he stated that he joined the service with M/s. Kalpataru Constructions as an entry level job with a total income of Rs. 7,000/- per month. According to him, his salary in M/s. Kimberly Clark was Rs. 15,000/- per month while his salary in M/s. Tata Technology was Rs. 20,000/- per month. He stated that having worked for six years, he decided to start on his own and put all his savings in the company – M/s. Paysquare Consultancy Limited. He also stated that he was not the sole owner or proprietor of the company and that from August 2005 he has started drawing the salary of Rs. 30,000/- per month from the company.

6. The Division Bench in the impugned judgment observed that since an application for interim maintenance was being considered, it was not inclined to deal with the submissions advanced by the counsel for the parties on the earning capacity of the husband in extenso and accepting the husband’s statement that he was
getting Rs. 30,000/- per month, fixed an amount of Rs. 12,000/- per month as interim maintenance to the wife.

7. Section 24 of the Act makes a provision for maintenance pendent lite and expenses of proceedings. It reads thus:- "S.24.- Maintenance pendent lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no

independent income sufficient for her or his

support and the necessary expenses of the

proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly, during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.

Provided that the application for the

payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be."

8. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner’s own income and the income of the respondent. The very language in which Section is couched
indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner’s own income. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute.

9. In a case such as the present one, the stand of the husband that he is drawing salary of Rs. 30,000/- per month from the company since August 2005 is inherently improbable. The husband is highly qualified; he is CA, ICWA, CIMA and has also
completed course of Computer Information Technology. He has worked with renowned and big companies like M/s. Kimberly Clark and M/s. Tata Technology as Finance Manager and Senior SAP Consultant respectively before he started on his own in January, 2000. He did not leave the job due to any compulsion but because he wanted to grow big. He has admitted that having worked for six years, he decided to do his own business and started the company, namely, M/s. Paysquare Consultancy Limited in which he has sought financial/administrative help of his brother and one Ms. Nilima Apte. How can it be believed that a person who has started his own business leaving the job in 2000 would start drawing the salary of Rs. 30,000/- per month from the company from August, 2005? The High Court has not taken into consideration these vital aspects and accepted the statement of the husband that he was drawing salary of Rs. 30,000/- per month as a gospel truth. Insofar as wife is concerned, it appears that she does not have any settled job; she has worked at few places for few months. We think this is eminently a case in which the High Court must reconsider the wife’s application for interim
maintenance.

10. Accordingly, this appeal is partly allowed, the impugned order dated September 21, 2006 is set aside and Civil Application No. 107 of 2006 made by the wife for interim maintenance is restored to the file of the High Court for fresh consideration. We expect the High Court to dispose of the application for interim maintenance expeditiously and before it proceeds with the hearing of the main appeal, being Family Court Appeal No. 10 of 2006. The cost of the appeal is quantified at Rs. 20,000/- (Rupees twenty thousand) which the respondent shall pay to the appellant within one month from today.

………………………J.

[AFTAB ALAM]

……………………….J.

[R.M. LODHA]

New Delhi,

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