Maintainability of crpc 125 after filing same case under dv

@ Author 

After going through your post i have noticed that most probally you dont have childen and hence she has not asked for relief under section 21 of the Dv act . You have not conveyed the full facts and hence it is difficult to assume her  status .

a. Is the maintanence asked for any children you have or for your wife 

b. wether your wife is a working women and hence her  claim for maintanence u/s 20 of the Dv act was rejected . 

she can seek maintanence under several acts DV , 125 CRPC .. If she has been denied maintanence  in one case then certified copy of the same should be admitted in another case which is governed by same Code on very first opportunity.

@ Chandu with all due respect to you before you start fuming and grinding your teeth at my post  

Crpc 125 Process needs to be followed in DV

Section 28 of the Act and Rule 6 (5) of the Protection of Women from Domestic Violence Rules, 2006(hereinafter referred to as the “Rules”) and has submitted that the procedure for disposal of an application under Section 125 of Cr.P.C. ought to have been adopted by the learned Magistrate. Although the learned Magistrate is at liberty for laying down its own procedure under Sub-section (2) of Section 28 of the Act for disposal of such application, but not by excluding the procedure as laid down in Subsection (1) of Section 28 of the Act and Sub-rule (5) of Rule 6 of the Rules, which provides same procedure as is applicable to applications under Section 125 of Cr.P.C

Here is the judgement !!!!!!!!!!!!!

https://498afighthard.wordpress.com/2011/02/13/crpc-125-process-needs-to-be-followed-in-dv/

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

JUDGMENT

Gyan Chand

V/s.

Smt. Rekha

S.B. CRIMINAL REVISION PETITION No.1329/09

S.B. Criminal Revision Petition Under Section 397 read with

Section 401of Criminal Procedure Code

Date of Judgment :: 10.11.2009.

HON'BLE MR.JUSTICE R.S. CHAUHAN

Mr. Reashm Bhargava for the petitioner.

Mr. Naveen Sharma for the respondent.

The petitioner has challenged the order dated

03.07.2009 passed by the Judge, Family Court, Ajmer whereby

the learned Judge has directed that the maintenance of

Rs.1,000/- per month to be paid to the respondent.

In brief, the facts of the case are that on 15.12.2005

the petitioner and respondent were married in accordance with

the Hindu rites and customs in Ajmer. According to the petitioner,

on 30.03.2006 the respondent had left the matrimonial home

between 10 to 12 AM. He had tried to settle the problems. While

he failed to settle the problems and to bring back the respondent

wife, he had moved a petition on 04.12.2006 under Section 9 of

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the Hindu Marriage Act before the Family Court Ajmer. Thereafter

the respondent had registered a criminal case against the

petitioner through FIR No.8/2007 for offence under Section 498A

and 406 IPC. The respondent wife also filed an application under

Section 12 of the Protection of Women (from Domestic Violence)

Act, 2005 before the Judicial Magistrate No.6, Ajmer. The said

application has been rejected vide order dated 19.08.2008.

Thereafter, the respondent wife moved an application under

Section 125 Cr.P.C. seeking maintenance from the husband. The

learned trial Court after hearing the parties vide order dated

03.07.2009 granted Rs.1,000/- per month to the respondent as

maintenance. Being, aggrived from the said order, the petitioner

has preferred this petition.

Mr. Reashm Bhargava, the learned counsel for the

petitioner, has contended that prior to filing of an application

under Section 125 Cr. P.C. of the Act, the respondent had filed an

application under Section 12 read with Sections 17, 18, 19, 20, 22

and 23 of the Protection of Women From Domestic Violence Act,

2004. However, the learned Judicial Magistrate No.6, Ajmer, vide

order dated 19.08.2008, had rejected her application ostensibly

on the ground that she had not been able to prove either the

cruelty committed upon her, or to prove that she had sufficient

reasons for staying away from the husband. Although, the

respondent had challenged the said order before the Special

Court (SC/ST) Prevention of Atrocities Cases, Ajmer, but vide

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order dated 08.10.2009, the said appeal was dismissed and the

order dated 19.08.2008 was confirmed. Secondly, thus, a clear

cut finding was given by the learned Court that the respondent did

not have any sufficient reasons for staying away from the

petitioner. Thirdly, this judicial finding acts as an issue estoppel in

a petition under Section 125 Cr.P.C. However, the learned Judge

has observed that the dismissal of the petition under Section 12

of the Domestic Violence Act would not affect the finding of the

Court in a petition under Section 125 Cr.P.C. According to the

learned counsel, while making such an observation, the learned

Judged has erred in not granting the benefit of Section 125(4) of

Cr.P.C to the petitioner.

On the other hand, Mr. Naveen Kumar Sharma, the

learned counsel for the respondent, has strenuously argued that

the proceedings under Section 12 of the Domestic Violence Act

and under Section 125 Cr.P.C. are two distinct and unrelated

proceedings. Therefore, the finding given in a petition filed under

Section 12 of the Act would have no bearing on a proceeding

initiated under Section 125 Cr.P.C. Moreover, the respondent had

also filed a case under Sections 498A and 406 IPC which is still

pending. Thirdly, the respondent had clearly stated in her

testimony before the learned Judge that she had been subjected

to cruelty by the petitioner. Thus, she had shown sufficient

reasons for staying away from the petitioner. Hence, the learned

Judge was justified in not granting the benefit of Section 125(4)

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Cr.P.C. to the petitioner. Thus, the learned counsel has supported

the impugned order.

Heard the learned counsel for the parties and

perused the impugned order as well as the orders dated

19.08.2008 and 08.10.2009.

The proceedings under Section 12 of the Domestic

Violence Act and under Section 125 Cr.P.C. are similar in nature.

Both the proceedings are basically civil suit filed for seeking

maintenance from the spouse. The burden of proof in both the

cases is equally similar and the case has to be established by

preponderance of probabilities. In both the proceedings, unlike a

criminal trial, the case need not be proved beyond a reasonable

doubt. Lastly the issues which arise before the Court are identical

namely whether the petitioner was subjected to cruelty and

whether the wife has sufficient cause to stay away from the

matrimonial home or not. Under the doctrine of issue estoppel, if

a judicial finding has been given by a Court, then the same issue

cannot be agitated before another forum. Therefore, once the

finding has been given under Section 12 of the Domestic Violence

Act, the same issue cannot be agitated between the same parties

before another forum. Keeping in mind the doctrine of issue

estoppel, the learned Judge was certainly unjustified in observing

that the finding given by the learned Judicial Magistrate, vide

order dated 19th August, 2008, would not affect the proceedings

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under Section 125 Cr.P.C. Clearly, the learned Judge has ignored

the existence of the doctrine of issue estoppel.

While considering the petition under Section 125

Cr.P.C., the Court is required to also consider if the benefit of

Sub-Cluase (4) can be given to the husband or not. Therefore,

the court perforce would be concerned with the issue whether the

wife had sufficient cause to stay away from the husband or not.

Since, there was already a finding given by the learned Judicial

Magistrate, vide order dated 19.08.2008, the said finding would

be binding in a proceeding under Section 125 Cr.P.C. Hence, the

learned Judicial Magistrate should have given the benefit of

Section 125(4) to the present petitioner.

In this view of the matter, the present petition is,

hereby, allowed and the order dated 03.07.2009 is quashed and

set aside.

[R.S.CHAUHAN]J

A.Asopa/

very good jugement  all concerned to take advantage of the principles given by the High court.

two parallel proceedings cannot happen

https://www.indiankanoon.org/doc/468335/     

Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkarwhere its concluded that:

"The non-applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in
two different Coruts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C.
when they had already chosen the alternative remedy in Reg. C.S. No. 227/86. It is well settled law that the
judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that
parallel proceedings cannot be allowed to continue in different Courts.
18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the matter. Staying the proceedings pending in
the Court of J.M.F.C., Buldana, will not cause any pre-judice to the non-applicants because they are already
receiving the maintenance allowance @ Rs. 250/- p.m. for wife and Rs. 150/- p.m. for the daughter"

Dear LCI members, there is some development in my crpc 125 case.

I had moved an application for dismissal of crpc 125 case before the family court as allegations and maintenance asked is  same as DV case. I used the citation of the case gyan chand vs Smt Rekha  Rajasthan HC(posted on above on this page) and one more citation by Delhi HC (Renu mittal vs Anil Mittal). However Hon. Judge of family court rejected my application on the following grounds:

1.There is a citation from Bombay HC that wife can ask for maintenance in DV case in addition to the  amount awarded in crpc 125 case. My lawyer argued that our case is opposite of the case mentioned in the citation. My wife had already asked for relief under sections 12, 18, 19, 22, 23 etc which was totally rejected by JMFC court. Order of family court said that judgment of Bombay HC is a binding on family court as crpc 125 is running in Maharashtra and  Jaipur HC judgment is not a binding on the family court.

2. The order of family court clearly says that my wife has failed to prove the domestic violence and therefore she is not entitled to any kind of relief . The judge of the family court says that the JMFC judgment does not mention anything about maintenance. Now as the DV case itself was dismissed, the JMFC judge did not mention about each and every section separately. The judgment says that as wife could not prove that she was subjected to any kind of physical, mental or economic violence, she is not entitled for any kind of relief under  DV act.

3. The order of the family court says that the judgment of DV case does not state that my wife is residing separately without any cause. My point is that as she failed to prove the domestic violence and negligence caused by me. In fact she tried to misguide the court that she did not come back to my home after pregnancy > In her crops examination she admitted that we lived together after birth of our daughter. She also admitted that she is residing at her parents’ house since she went there for a family function. Many people wonder why the DV case was completely dismissed even if I have a daughter. The reason for this is that the case is full of lies and my wife herself admitted the facts in her cross examination. Moreover the conduct of my wife and her father was really bad in the court.

My question to all the experts is that whether I should move to HC against the order of family court or should I contest the case on merits in family court only? Thanking you all in advance for you co-operation and suggestoions.

Originally posted by : DV victimmmm
	Dear LCI members, there is some development in my crpc 125 case. I had moved an application for dismissal of crpc 125 case before the family court as allegations and maintenance asked is  same as DV case. I used the citation of the case gyan chand vs Smt Rekha  Rajasthan HC(posted on above on this page) and one more citation by Delhi HC (Renu mittal vs Anil Mittal). However Hon. Judge of family court rejected my application on the following grounds: 1.There is a citation from Bombay HC that wife can ask for maintenance in DV case in addition to the  amount awarded in crpc 125 case. My lawyer argued that our case is opposite of the case mentioned in the citation. My wife had already asked for relief under sections 12, 18, 19, 22, 23 etc which was totally rejected by JMFC court. Order of family court said that judgment of Bombay HC is a binding on family court as crpc 125 is running in Maharashtra and  Jaipur HC judgment is not a binding on the family court. 2. The order of family court clearly says that my wife has failed to prove the domestic violence and therefore she is not entitled to any kind of relief . The judge of the family court says that the JMFC judgment does not mention anything about maintenance. Now as the DV case itself was dismissed, the JMFC judge did not mention about each and every section separately. The judgment says that as wife could not prove that she was subjected to any kind of physical, mental or economic violence, she is not entitled for any kind of relief under  DV act. 3. The order of the family court says that the judgment of DV case does not state that my wife is residing separately without any cause. My point is that as she failed to prove the domestic violence and negligence caused by me. In fact she tried to misguide the court that she did not come back to my home after pregnancy > In her crops examination she admitted that we lived together after birth of our daughter. She also admitted that she is residing at her parents’ house since she went there for a family function. Many people wonder why the DV case was completely dismissed even if I have a daughter. The reason for this is that the case is full of lies and my wife herself admitted the facts in her cross examination. Moreover the conduct of my wife and her father was really bad in the court. My question to all the experts is that whether I should move to HC against the order of family court or should I contest the case on merits in family court only? Thanking you all in advance for you co-operation and suggestoions.

Nowhere in your previous posts you have mentioned that you had a kid.

Now that you have already pleaded before judge to dismiss 125, and he has not obliged due to various facts, you can seek intervention of HC, but if the daughter is staying with you, the HC will dismiss the 125 crpc if you prove  that wife is working, capable of working etc.  But if daughter is with wife, then am pretty sure your application will again be dismissed, as you have to pay maintenance toward your kid atleast.

If wife & husband are earning equally (govt jobs). Child is with husband, can he put 125 case from child's side on wife as many judgments are there THAT BOTH PARENTS IF EARNING WELL HAVE TO CONTRIBUTE EQUALLY 2WARDS CHILD MAINT.

Wife does not want custody, she is enjoying visitation rights via DV interim orders.

@rajiv_lodha sir, please start a new thread for your question.

Hello, Dv Victim,

I have read all the averments above.

but is it really  happend in Indian Judiciary. that she can't file 2 maintenance case on the same ground.

you said "I had moved an application for dismissal of crpc 125 case before the family court as allegations and maintenance asked is  same as DV case."

what relef u got from the court.

plz share wd us also share ur possible grounds for this.

Regds..

Manoj Wadhwa