Justice dhingra judgment versus domestic violence act
Querist :
Anonymous
(Querist) 01 October 2011
This query is : Resolved
In a judgment famously delivered of Rachna Kathuria vs Ramesh Kathuria, Delhi High Court, Justice Dhingra mentioned in his judgement "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" and similar lines on the above idea. Question is The Act itself mentions per section 26 and section 36 of PWDVA Section 26. Relief in other suits and legal proceedings.-(1) Any relief available under sections 18, 19,
20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or
a criminal court, affecting the aggrieved person and the respondent whether such proceeding
was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any
other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or
criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than
a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such
relief.
Section 36. Act not in derogation of any other law.
36. Act not in derogation of any other law.-The provisions of this Act shall be in addition to,
and not in derogation of the provisions of any other law, for the time being in force
Now which is the correct legal lawful stand, The Act itself or the Judgement.
Does any1 know if there is any appeal preferred against it or what were the contentions of argument in the lower Court.
prabhakar singh
(Expert) 01 October 2011
Yeh sab theek hai par aap kahna kya chahate hain janab o batayen na?????chaat is good but chaatana is not.
Raj Kumar Makkad
(Expert) 01 October 2011
Appeal against ibid judgment is still pending before SC. Justice Dhingra as decided a matter and aggrieved party is free to move ahead and accordingly an appeal has been preferred and let the verdict of Hon'ble Apex Court come on ibid judgment.
Querist :
Anonymous
(Querist) 01 October 2011
What is your opinion on the matter when the judgement is contrary to the provisions of the Act?
Shonee Kapoor
(Expert) 02 October 2011
First of all, PWDVA, 2005 created no new rights which were not available to the victim.
It just clumsily collected various rights available in diffirent acts and created a new law.
You would find that CrPC 125, HAMA18, Civil Suit for Damages and Recovery all rolled in one with a time-limit of 60 days (As far as practisable)
And then you see cases lingering for many years.
:-)
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 02 October 2011
The judgement is quoted below,sections already posted by you::
Rachna Kathuria vs Ramesh Kathuria on 30 August, 2010
Author: Shiv Narayan Dhingra
* 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 Crl.M.C.No. 130/2010 Page 1 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 2 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
Crl.M.C.No. 130/2010 Page 3 of 3
GOING THROUGH JUDGEMENT AND PARTICULAR CIRCUMSTANCES OF THE CASEIN WHICH IT HAS BEEN DELIVERED I CAN NOT SAY THAT JUDGEMENT IS AGAINST THE LAW YOU REFER.
AT ONE HAND WE TALK OF MULTIPLICITY OF PROCEEDINGS AND ON THE OTHER WE WANT TO INVOKE SEVERAL MACHINERY FOR SAME CAUSE OF ACTION WHICH ,IN MY VIEW, CAN NOT AND SHOULD NOT GO SIDE BY SIDE.
A WIFE OR A DEPENDENT PROTECTED WITH A RECOGNIZED RIGHT TO MAINTENANCE WHOSE REMEDY IS PROVIDED BY SEVERAL ENACTMENTS WHICH HAVE COME IN THE NAME THAT PREVIOUS LEGISLATION DOES NOT SERVE A SPEEDY JUSTICE
OR SEVERAL OTHER REMEDIES AVAILABLE CANT BE INVOKED BY ONE SINGLE PETITION,THE PETITIONER SHOULD BE UNDERSTOOD TO HAVE A CHOICE BY WHICH LAW HE/SHE WANTS HIS/HER RIGHTS ENFORCED;IT MUST NOT HAPPEN FOR GOOD ADMINISTRATION OF JUSTICE THAT FOR THE SAME VERY RELIEF ONE INVOKES FIVE JURISDICTIONS INSTEAD OF ONE,IF IT IS ALLOWED TO RUN ,IT WOULD IN MY VIEW BE CALLED NOT JUSTICE BUT MOCKERY OF JUSTICE.
Raj Kumar Makkad
(Expert) 02 October 2011
As the matter is subjudice no final view can be produced.
Querist :
Anonymous
(Querist) 02 October 2011
In my opinion,
1. No Court can rule above the Act, cannot go contrary to the Act. It is not constitutionally correct.
2. If a person thinks it is fit enough to get Rs 1000(for example)as maintenance, then if u/s24 HMA however she gets Rs. 500 only. She should have the right to approach the Court if the provisions of the Act allow so only for the remaining quantum of Rs. 500. Not for reproaching Rs. 1000. It should be a matter of merit to be decided by the Court if she should be granted the remaining Rs. 500 she thinks it is fit enough.
3. Many judgments before PWDVA, in maintenance u/s125 CrpC and u/s24HMA the Courts would set off the amount being granted in the earlier. That sounds reasonable, logical and understandable. However to bar the right to approach the Court itself contrary to the Act in my personal opinion I cannot understand.
4. Many circumstances like the fast disposal in PWDVA verus u/s24HMA and others give the victim wife a fast way to avail the means and methods to sustain her life.
Querist :
Anonymous
(Querist) 02 October 2011
Mr. Makkad,
You have a stupendous and excellent methodoloy I see. By the way do you have the SLP number against the judgement?
