Dv act, hama, interim residence order
S
(Querist) 14 March 2013
This query is : Resolved
Dear Friends,
I am asking this on behalf of my friend Mr. Raghu Chettiar.
1. Wife is highly qualified with post graudation and was working prior to marriage but still getting Rs. 12,000/- as Interim Maintenance u/s 20 HAMA (Hindu Adoption & Maintenance Act). She had prayed for separate shelter in the interim application. To which the Family Court Judge along with passing the interim order mentioned that her request for separate shelter will be considered during final disposal of maintenance petition.
2. After 1 year, Wife filed a case under Domestic Violence and again asked Interim Reliefs u/s 23 of Domestic Violence Act and Residence Order u/s 19 for alternate accommodation.
3. The MM passed an order that the Husband although paying interim maintenance as per HAMA order has not made provisions for shelter and passed an order to provide alternate accommodation of the same standard as enjoyed by wife during her stay with the husband or pay Rs. 8000/- as Rent.
4. There is no mention of domestic violence taken place in the order.
My Questions:
1. Is the MM's interim residence order appeal-able with higher chances that husband can get the order set aside. Also, the Appeal has to be lodged within 30 days or 60 days?
2. On what grounds can the appeal be made?
a) Same prayers in multiple courts/proceedings? Any judgements?
b) Under HAMA, definition of maintenance includes residence.
c) Highly qualified and post graduate.
d) Sec 19 can be passed under Disposal of case and not during interim order?
e) If she needed shelter she should have approached the same court and not other court.
Any other grounds of getting the appeal succeeding in cancelling the interim residence order.
Please help.
R.K Nanda
(Expert) 14 March 2013
contact local lawyer.
Raj Kumar Makkad
(Expert) 14 March 2013
1. Chances are better and the period of appeal is 30 days.
2. a. This is legal but amount shall be adjusted paid against maintenance in another case.
b).Yes.
c).ok
d). This is her desire to approach one or all courts.
Get the case studied in the light of latest judgments and move ahead.
ajay sethi
(Expert) 14 March 2013
you have not mentioned the salary wife is earning and how much husband is earning
S
(Querist) 19 March 2013
Thank you for the responses.
I have further queries, please provide your expert views:
a) Wife was earning prior to marriage Rs.20,000/- per month. Now she is claiming to be not working but is highly capable to earn. Husband was earning 35,000/- per month but later on after losing his job his salary came down to 15,000/-.
b) As per one of the reply the amount shall be adjusted paid against maintenance in another case--> I am not clear on this comment. Does it mean the husband has to pay less in the Family Court or what is the procedure to get it adjusted. Will Family Court accept it?
1. Can you please provide the latest judgements or citations on multiple proceedings not allowed in different courts.
2. Does Metropolitan Magistrate have power through DV Act to supersede Family Courts Judge order. Basically which court is superior?
3. Can there be an interim residence order passed u/s 19(1) without magistrate going into the details whether domestic violence has taken place or not?
Thanks
Nadeem Qureshi
(Expert) 20 March 2013
Dear Querist
1.for latest judgments, either search through Google or contact a Lawyer Personally.
2.Family court judge is superior, it's depend on the facts
3.yes, Because domestic violence has been taken or not, this a question of Trial and in interim order the magistrate have power to pass an Order.
Feel Free to call
Nadeem Qureshi Advocate
D-720, karkardooma Court, Delhi
9953809956
S
(Querist) 20 March 2013
Dear Experts,
Can you please provide your responses on my last comments.
prabhakar singh
(Expert) 20 March 2013
"& others,"
NO! AND NEVER IF I ANSWER WHAT CAN YOU DO?
BE HUMBLE FOR FREE BUYS,THAT IS THE SOLACE THAT ENTICES US TO REPLY.
S
(Querist) 21 March 2013
Sorry Prabhakar Sir.
I have edited my comment.
Can the experts please reply to my open questions. Thanks in advance.
S
(Querist) 21 March 2013
Dear Prabhakar Sir,
Sorry no offences.
I have updated my earlier comment.
Can the experts now provide response to my questions.
I will be highly obliged if I get some citations and reply to my queries. Thanks.
prabhakar singh
(Expert) 21 March 2013
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.
SHIV NARAYAN DHINGRA, J.
August 30, 2010
vn
prabhakar singh
(Expert) 21 March 2013
Q.1. Can you please provide the latest judgments or citations on multiple proceedings not allowed in different courts.?
A.yes!Read posted above by me.
Q.2. Does Metropolitan Magistrate have power through DV Act to supersede Family Courts Judge order. Basically which court is superior?
A.No!Metropolitan Magistrate have NO power through DV Act to supersede Family Courts Judge order.Basically Family Courts Judge is superior.
Q3. Can there be an interim residence order passed u/s 19(1) without magistrate going into the details whether domestic violence has taken place or not?
A.For interim orders only prima facie satisfaction would be the requirement.
But in the instant case since the Family Court had already passed an order that her request for separate shelter will be considered during final disposal of maintenance petition,it was not within propitiatory of the MM to pass any order provided he was kept aware of Family Court earlier order in this regard.
Providing several mechanism to enforce a single right should not be viewed as "multipliers" but simply as a choice of single one as best among available is my opinion.
Raj Kumar Makkad
(Expert) 21 March 2013
1. Multiple litigation is legal in such cases. If I am allowed to clearly say-there is a package of cases these days in matrimonial cases which starts from 498A then DV, then 125 then section 9 then section 13 and lastly a compromise. so bear all this as you have just started your journey.
2. Both courts have different powers and none supercedes other one.
3.There is no need to go in depth just fo providing residence to a wife.
R.K Nanda
(Expert) 17 October 2013
nothing to add more.
