Maintenance under dv / derogation of crpc 125
Querist :
Anonymous
(Querist) 05 April 2020
This query is : Resolved
Dear Advocates,
Can a woman invoke DV just for asking maintenance...if it is so then it derogates Crpc 125 as per Sec 36 of DV Act.
Crpc 125 states a woman staying away from matrimonial house with out any sufficient cause is not entitled for maintenance....
My doubt is my wife stays away from me last 16years...she tried Crpc 125 and herself withdrew... now 2 years back she filed DV stating we are in domestic relationship and she is aggrieved of violence by me and my family...DV is in counter stage.... what is the best way for me to conduct trial....shall i file Perjury petition as i have evidence that in her sworn affidavit in 125 she avers she is not in contact with me since 2005 where as in DV she avers on oath that she is in domestic relationship as recently as on date of filing of DV in 2018...
Kindly guide me Dear Advocates...
Thanking you,
With High Regards,
Ganesh
Raj Kumar Makkad
(Expert) 05 April 2020
You are misunderstood. Domestic relationship doesn't require living together at the time of the filing of the application rather it requires ;had lived any point of time;. Refer to following definition as given in section 2 (f) of DV Act:
(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
Raj Kumar Makkad
(Expert) 05 April 2020
You cannot deny such relationship as defined in the law and once it is established, your wife is entitled to move the mentioned application which ends the scope for filing the prejury proceedings against her.
Querist :
Anonymous
(Querist) 05 April 2020
Thanks to you Advocate Raj Kumar Makkad hi. For your explanation....my apprehension is about sec 36 of DV act, which stars DV act is an addition to other acts and DV act should not derogate other law.....as per your explanation a wife who lived with a man at any time she can file DV at her will even after 5 or 10 years of separation and claim maintenance.....but crpc 125 states wife living separately with no reason is not eligible for maintenance....now can you see DV and 125 are in conflict.....
Querist :
Anonymous
(Querist) 05 April 2020
Also is it not perjury to state in one affidavit no domestic relations for last 10years and another affidavit saying in relation continuosly without discontinuity...
P. Venu
(Expert) 06 April 2020
If the contents of the affidavit in the earlier case and the details in the present case are contradictory, this may be brought to the notice of the Court. It is essential there should be prima facie case, before the Court initiates action under DV Act.
Rajendra K Goyal
(Expert) 06 April 2020
Bring before the court the contradiction in her previous statement and present case, let the court arrive at a conclusion on the matter.
Querist :
Anonymous
(Querist) 06 April 2020
Thanks to you Advocate P. Venu Sir and Advocate Rajendra K. Goyal Ji
Rajendra K Goyal
(Expert) 06 April 2020
You are welcome, welcome for any other query / may revert in case of need.
Raj Kumar Makkad
(Expert) 06 April 2020
The fact of mentioning domestic relationship in the application under section 12 of DV Act is not contradictory to the averments of the petition filed by your wife under section 125 Criminal Procedure Code.
There is no chance of success of filing the prejury proceeding.
Dr J C Vashista
(Expert) 07 April 2020
What is your locus standi / concernin the question i.e., as a party (husband) or counsel for him ?
Dr J C Vashista
(Expert) 07 April 2020
Dear Mr. Ganesh,
You will agree provisions of Section 125 Cr PC is for the social security qua maintenance of wife, children and parents with the sole intention of legislators to avoid their vagrancy and destitution which can be amended u/s 127 Cr PC.
On the other hand provisions of Protection of Women from Domestic Violence, 2005 (particularly Section 19 of The Act) is for maintenance of aggrieved person, Since the couple is stated to be living separate for the last 16 years, which is quite a long time therefore, it is inapplicable in instant case.
Raj Kumar Makkad
(Expert) 08 April 2020
@ Dr. Vashishtha! The author has mentioned .....my wife ....which duly reflects that the author is not a lawyer having due locus standi accordingly.
T. Kalaiselvan, Advocate
(Expert) 08 April 2020
Domestic violence is a continuous offence.
She cannot file a DV case seeking any relief if the marriage between you both was dissolved by a decree of divorce.
Since there is a provision in law for claiming this relief she is utilising it.
If you have striking and strong evidences to prove her statements contradicting to her previous case to that of the present one, you may challenge her present case on the basis of the substantial evidences in your possession and get the case dismissed.
In my opinion a perjury case may not be maintainable.
Querist :
Anonymous
(Querist) 13 April 2020
Thanks to you Advocates, Raj Kumar Makkad Ji, Dr. Vashita Ji, and Kalaiselvan Sir,...
for your precise knowledgeable guidance
