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maintenance under domestic violence act.

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

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