Scope of 125 crpc

1. Yes minor(s) are eligible for maintenance under S. 125 CrPC.

2. Concerned Court has not yet dismissed her Application under S. 125 CrPC ; right!
3. You saying that it is not maintainable before me does not count as no Order of concerned Court is mentioned herein.

4. To rest of your questions before me, first get your facts of the case right and then come here to seek reasoned replies.

I feel you just rushed to the forum with half idea of what is happening in various cases.

1, you have stated that Maintenance has been awarded under DV act . Than you must be having a copy of the order .  Take a certified copy of the order and submit it in your crpc 125 case .

Now go through the below mentioned judgement .

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 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 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.

SHIV NARAYAN DHINGRA, J.
August 30, 2010
vn

Source link:
https://lobis.nic.in/dhc/SND/judgement/31-08-2010/SND30082010CRLMM1302010.pdf

Before answering Tajobsindia, I wish to inform the forum members that, I was acquitted in 498a case which happened with only support of this forum.  

I specially thank Mr. Yogesh Nayyar who guided me very well in terms of preparing petitions and arguments.  This forum helped me in getting suitable judgments.  Thanks you very much for the support.

Now facts 125 CrPC case are:

My wife filed 125 CrPC petition after filing 498a and DVC respectively.  She did not leveled any allegations leveled in her complaint to police u/s 498a and alledged acts of Domestic Violence leveled in her application to Protection Officer under PWDV Act.

She filed her application for maintenance u/s 125 CrPC alledging the respondent frequently neglects by not providing food, shelter etc., which attracts section 125 CrPC. She not leveled any allegations relating to dowry harassment or show pendency  of 498a in her application.  She is not even leveled the allegations leveled in her application to PO under PWDVA nor mentioned pending before respective court.

In my counter i denied all allegations and mentioned that the inconsistent pleadings in her cases shows that the petitioner living seperately without sufficient reason and she is not eligible to receive maintenance u/s 125(4) CrPC.

Later during the trail she filed her chief evidence affidavit sidelining all her allegations leveled in her petitions u/s 125crpc. She mentioned her occupation as private service and the same is admitted in her  Even basic pleadings like I am not earning, unable to maintain etc.,  During the cross established all contradictions  and almost she admitted the inconsistencies.  Her evidence is only her sole testimony and there is no supporting evidence. Later my evidence also completed.

Now my question is Section 125 CrPC is saying:

1) If any person leaving sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

A Magistrate of’ the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate¹[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::

(4) No wife shall be entitled to receive an ⁴allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent.

When section is saying upon such proof of neglect, and absence of proof of neglect under Indian Evidence Act (her deposition) is petition is maintainable?

There is no special provision in this section for granting maintenance to children even in the absence of proof of neglect and refusal?

My point of argument in this case is, the above petition is not maintainable under above circumstances, the maintenance awarded in DVC is final even for children.

Please help in supporting my contention whether I am right or wrong.

1. Yes minor(s) are eligible for maintenance under S. 125 CrPC.

2. Concerned Court has not yet dismissed her Application under S. 125 CrPC ; right!
3. You saying that it is not maintainable before me does not count as no Order of concerned Court is mentioned herein.

4. To rest of your questions before me, first get your facts of the case right and then come here to seek reasoned replies.

Your questions and posts are too lengthy, though you are supposed to give details, it should be in brief form so that the experts will be able to give their opinion at a glance. Now, your queries have been addressed properly by TajobsIndia, your minor children are very well eligible for maintenance.