No maintenance is allowed under Domestic violence act to wife, if wife already claimed under section 125 of Crpc. Its a misuse of law.
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
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.
By this petition under Section 482 Cr.P.C. the petitioner
has assailed an order dated 22
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
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.