Procedure for recovery of dv interim maintenance order

Originally posted by : LawsFight
	Dear Experts,   I need your guidence regarding procedure for recovery of DV interim maintenance order.   In my case Metropliten Magistrate has passed a DV Interim maintenance order u/s 23(1) and on appliying by applicant for the recovery of same u/s 125(3) of CrPc. MM while passing order for the recovery he has stated that he has no powers and jurisdiction to entertain application u/s 8(b) of family court act. However, taking into consideration applicant's application made u/s 125(3) of CrPc. He has passed order to issue warrant for the recovery of DV interim maintenance u/s 421 of CrPc.          So, Can he pass the order to issue warrant for the recovery of interim maintenance order u/s 421 of CrPc considering applicant's application made u/s 125(3) of CrPc when he has no powers and jurisdiction to entertain application u/s 8(b) of family court act ?   I may mention here that my wife left her matarimonial home at her own on will and volition. She has not been thrown away from her matarimonial home.     -- Thanks

Okay.

23 (1) of DV act what does it say?

It says this "Central Government Act Section 23(2) in The Protection Of Women From DomesticViolence Act, 2005 (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent"

What does this mean?

This means that the magistrate can pass an exparte order, whatever they [so called aggrieved party] have asked for as the judge deems fit, without listening to your side of the story.

Now you have not stated what actually the exparte order is, next time please give full details as to order so that reply can be precise.

Now, about noncompliance of exparte order, the  magistrate can issue warrant for noncomplaince of order.  

with regard to your wife stating that she has been thrown out of her  matrimonial home:-

Obviously your wife wont come with clean hands to the court, she would have lied that she has been thrown out of her matrimonial house and so please get me money, shelter, protection from my husband, hence the exparte order and so the trouble for you.

please feel free to contact via PM

Dear Experts,

           Thnx for the response given. Brief facts of my case is as below:

           My wife left her matrimonial home at her own will & volition. She has not been thrown out from her matrimonial home. She presented appln. before MM u/s 12 of DV Act. alleging false & friviolous allegations and seeking certain reliefs. She presented appln. to MM seeking interim maintenance u/s 23(1) of DV Act. which was granted to her. Then she presented appln. to MM for the recovery of interim maintenance u/s 125(3) of CrPc.

           Now, MM has passed order to issue warrant u/s 421 of CrPc read with section 431 of the code stating that he has no powers & jurisdiction to entertain application of chapter IX of CrPc, u/s 8(b) of the family court act. MM at one side states that he has no powers & jurisdiction as above and at the same time he passes order to issue warrant for the recovery entertaining her application u/s 125(3) of CrPc quoting section 28 of DV Act.

            My queries are:

           1. When MM has no powers & jurisdiction to entertain application under chapter IX of CrPc. Should he not have outrightly rejected her application u/s 125(3) of CrPc ?

           2. Can MM issue warrant for the recovery of DV Interim Maintenance u/s 421 read with section 431 of CrPc ?

                  Because, section 431 of CrPc clearly states that any money (other than fine) payable by virtue of any order made under this code (i.e. CrPc) shall be recoverable as if it were a fine.

                  Can he issue warrant for the recovery of DV interim maintenance u/s 421 read with section 431 of CrPc, when interim order has not been passed under CrPc and has been passed under DV Act. ?

           3. What is the remedy please ?

           4. I have filed appeal against this before session court that MM can't use powers both u/s 125(3) and 421 read with section 431 of CrPc simultanously. Can he ?

           I shall be grateful if you kindly guide me in the above matter.

--

Thanks

Originally posted by : LawsFight
	Dear Experts,                       1. When MM has no powers & jurisdiction to entertain application under chapter IX of CrPc. Should he not have outrightly rejected her application u/s 125(3) of CrPc ?   This had to be pressed by the lawyer, which I do not think the lawyer has done.  All laws ensure protection of women, even if as you say the MM could have outrightly rejected her application,  he did not do that, why? that is because, law gives first preference to women, their safety, you might go to sessions, HC for setting aside of such orders, but one should not say that women has been denied of her safety and protection.            2. Can MM issue warrant for the recovery of DV Interim Maintenance u/s 421 read with section 431 of CrPc ?                   Because, section 431 of CrPc clearly states that any money (other than fine) payable by virtue of any order made under this code (i.e. CrPc) shall be recoverable as if it were a fine.                   Can he issue warrant for the recovery of DV interim maintenance u/s 421 read with section 431 of CrPc, when interim order has not been passed under CrPc and has been passed under DV Act. ? How else will he recover money from you, if you are not paying it? Take you into judicial custody by issuing of warrant, that is initial, later on if you are not found, warrant gets turned into NBW.            3. What is the remedy please ?   Remedy? Pay money            4. I have filed appeal against this before session court that MM can't use powers both u/s 125(3) and 421 read with section 431 of CrPc simultanously. Can he ?   Good job there, you went for stay or set aside of exparte orders passed by MM to sessions court.  Now your lawyer should have asked for LCR, and again go bck to MM and ask him to stop issuing further warrants stating that you have approached the sessions court.  All this is lawyers duty.            I shall be grateful if you kindly guide me in the above matter. -- Thanks

.....................................................................