Victim of Greed (Worker) 04 August 2014

Final maintenance order and im order

Hello Experts,

She had filed false DV case against me and my parents after 3.5 years of living seperately. However, she is granted interim maintenance for which I had filed my appeal in Sessions court on the grounds that she is well educated and still employeed. Recently, she is awarded final maintenance u/s 125 Cr.P.C. (including interim order under DV act) and the Judge has told her verbally to withdraw DV case as final maintenance order is now passed u/s 125 Cr.P.C.

Just to add, she has not filed ANY evidence to prove any domestic violence has ever occured and as a matter of fact, no such violence existed at all.

Today, As per Sessions court judge, my appeal filed on interim maintenance order passed under DV act is not teenable as final order is now passed by the family court u/s 125 cr.p.c.

The respondent is ready to withdraw her DV case ONLY if i withdraw this appeal from the sessions court.

My questions are :-

1. Is it true that my appeal would stand dismissed as family court has already passed final maintenance order ?

2. IF she withdraw her DV case on her own, what charges can I file against her ? and will such charges be helpful to grant divorce ?

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2 Replies

great india (manager) 04 August 2014

How much is the amount awarded under both...??? Yes if 125 final order she can't resume multiple maint. As the law is settled now. If you willing to pay final maint. In 125 no need to go for dv appeal and let her withdraw the same ......good 4 u bro.... Seems judge wants to save your time money and energy......

Samir N (General Queries) (Business) 04 August 2014

Interesting procedural posture. Here's my take:

There is no question about your withdrawing the appeal as it will be dismissed as not tenable or infructuous because the appeal only concerns INTERIM order and becomes of no substance once a FINAL order is passed. You should file a new appeal on the final order. Check with an advocate if there is a procedural way to upgrade an appeal from an interim order to that of a final order. I doubt there is any provision under CPC or Cr.P.C. for doing this. In any event, do not expressly withdraw the appeal.

If she withdraws her DV case, then depending on the content of the Order granting her withdrawal application, you can use that Order against her if she makes the same allegations again. She would effectively be barred from reasserting them again unless the Judge expressly allows her to do so in his Order granting her withdrawal application. In any event, she will have to file an application to withdraw the DV case. You will have to reply and can ask for costs. Costs under the Indian legal system are nominal. Alternatively you can file a compensation case. I doubt that you can file any charges at this stage. If she has perjured during her testimony on in her affidavit, you can file an application to seek the initiation of perjury charges.

i also doubt that you can use the withdrawal to get divorce from her though you can use the withdrawal as a defense against any allegations made by her in the future. The concept of res judicata, constructive res judicata, estoppel, waiver and laches are very complex and fact sensitive. They provide defenses against the same claims/allegations brought in again through another proceeding. You need a good advocate to use them effectively.