Hi,

I would like to have suggestion from senior members in my case.

I had filed for Divorce under section 13. Later Bi*** has filed for CrPC 125.

I came to know that one judgement on case of "Jawaharlal dhawan" which says that "it is clear and unambiguous that once any petition is filed from section 9 to section 14 of HMA, interim maintenance will have to be under section 24".

Now, can I take a stand before the Judge in my CrPC 125 case to cancel the proceeding based on the above fact and the related judgement and ask them to claim the maintenance under sec 24 in my divorce case only????

Will It help?

No, this line refers to provisions of HMA, Sec 24 is maintenance-pendetelite......amount which one has to pay while these HMA cases are pending in the court.
Sec 125 CrPC is somewhat different, apart from being a criminal case, its :
* Stand alone case
* Other than wife, other relatives like ur children, parents can file it
* Grounds taken are different when they draft it.
But the silver lining is that amount taken by girl in one case is adjusted against the amount in the other one.
gal

Multiple maintenance not allowed SC_1

December 29, 2011Fighting Legal TerrorLeave a commentGo to comments
Equivalent citations: AIR 1999 SC 536, 1999 CriLJ 466, JT 1998 (9) SC 473
Bench: S Bharucha, F Uddin
Sudeep Chaudhary vs Radha Chaudhary on 31/1/1997
JUDGMENT
S.P. Bharucha, J.
1. Special leave granted.
2. The respondent-wife has been served by substituted service but does not appear.
3. The appellant-husband and the respondent-wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs. 350/- p.m. with effect from 3rd July, 1990, and was subsequently enhanced to Rs. 500/- p.m.
4. In proceedings under the Hindu Marriage Act the wife sought alimony. It was granted at the rate of Rs. 600/- p.m. on 11th August, 1987, and the amount, thereof was subsequently enhanced to Rs. 800/- p.m.
5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act.
6.We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however not inclined to go into any detailed discussion of the law.
7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks.
8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.
9. The appeal is disposed of accordingly.
10. No order as to costs.

Multiple maintenance not allowed SC_1

December 29, 2011Fighting Legal TerrorLeave a commentGo to comments
Equivalent citations: AIR 1999 SC 536, 1999 CriLJ 466, JT 1998 (9) SC 473
Bench: S Bharucha, F Uddin
Sudeep Chaudhary vs Radha Chaudhary on 31/1/1997
JUDGMENT
S.P. Bharucha, J.
1. Special leave granted.
2. The respondent-wife has been served by substituted service but does not appear.
3. The appellant-husband and the respondent-wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs. 350/- p.m. with effect from 3rd July, 1990, and was subsequently enhanced to Rs. 500/- p.m.
4. In proceedings under the Hindu Marriage Act the wife sought alimony. It was granted at the rate of Rs. 600/- p.m. on 11th August, 1987, and the amount, thereof was subsequently enhanced to Rs. 800/- p.m.
5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act.
6.We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however not inclined to go into any detailed discussion of the law.
7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks.
8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.
9. The appeal is disposed of accordingly.
10. No order as to costs.

Judgement on multiple maintainance
******************************************
1) In Ravinder Haribhau Karamkar V/s Shaila Ravinder Karamkar, 1992, Cr. L.J. 1845 (Bombay) – in this reference case, it was held that during the pendency of a filed regular civil court petition under Section 24 of HMA, wife also simultaneously filed a parallel petition under 125 Cr.P.C. of the Code. It was held that the petitioner wife could not be allowed to ride two different horses at the time (two simultaneous proceedings in two different courts) and could not be permitted to continue the maintenance proceedings under section 125 Cr. P.C. when she has already chosen the alternative remedy by filing first a regular civil court suit for maintenance. It is well established that the judgment of the civil court shall prevail over the judgment of the criminal court. The natural justice demands that parallel proceedings cannot be allowed to continue in different courts.

http://indiankanoon.org/doc/468335/******

Judgement on multiple maintainance
******************************************
1) In Ravinder Haribhau Karamkar V/s Shaila Ravinder Karamkar, 1992, Cr. L.J. 1845 (Bombay) – in this reference case, it was held that during the pendency of a filed regular civil court petition under Section 24 of HMA, wife also simultaneously filed a parallel petition under 125 Cr.P.C. of the Code. It was held that the petitioner wife could not be allowed to ride two different horses at the time (two simultaneous proceedings in two different courts) and could not be permitted to continue the maintenance proceedings under section 125 Cr. P.C. when she has already chosen the alternative remedy by filing first a regular civil court suit for maintenance. It is well established that the judgment of the civil court shall prevail over the judgment of the criminal court. The natural justice demands that parallel proceedings cannot be allowed to continue in different courts.

http://indiankanoon.org/doc/468335/******

Hello you all saviours of the race which is in trouble...A very warm regards from me and my family...
So its been a year and two months since i am fighting the DV case and Divorce as my wife has put those charges on me on the grounds of cruelty which she does better than any women or men on the planet... She filed for DV in the year 2011 November the 1st and followed by Divorce in December 2011 and claimed maintenance in dv 10000 rs and under under sec 24 HMA rs 9000 but she gave a breakup of rs 10000 in mm court...and in mm court she said that she doesnt earns and in petition of divorce she said she earns rs 10000 for which she didnt give any proof of so it was not liked by the Family court hence maintenace to her was denied though i was earning as family court said that it is the legal duty of the wife to show her income proof and also it mentioned that the court was surprised that she didnt even gave an estimated salary of the husband i.e; Myself so based on that court said that the petitioner has not come with clean hands at all so denying any maintenance to her bt court said since both the party work atleast hence rs.2000 be paid by me from the date of application to the minor child which i accepted happily...so my question is that i paid her 15000rs in advance to her directly in her bank a/c after the application was filed for DV and petition for Divorce so will it be adjusted in the family court...

Regards
Whats in the name
MEIN TOH BAS PHAS GAYA





***VICTORY ATTAINED THROUGH VIOLENCE IS TANTAMOUNT TO DEFEAT AS IT IS MOMENTARY*** By Gandhiji
but he also said ***ITS BETTER TO BE VIOLENT IF THERE IS VIOLENCE IN OUR HEARTS THEN TO PUT IT ON THE CLOAK OF NON-VIOLENCE TO COVER IMPOTENCE***

Multiple maintenance denied in many cases. search those citations.



Regards,

Shonee Kapoor
www.facebook.com/shoneekapoor
Handphone: +91-8010850498
Email: harassed.by.498a@gmail.com

Group: http://groups.yahoo.com/group/sahodar

phasgaya73,
.
An amount which was disallowed by the court is to be refunded to you be her.You need to move an application for refund or adjustment of the amount towards Rs 2000/-you have to pay her every monthin the same court

I paid this money before interim application was given by her but after the petition for divorce...so if i give an application will it be accepted and wat is the format of the application...and also that this was paid before the order of interim application and also at my own wish for my daughter... Also I want to know if wife has applied under sec. 12, 18, 20, 21 of the DV act then is there a chance that judge can pass interim orders even if the lady has not applied for the interim releif of the DV Act or other sections of the DV which she has not applied for...Also is there any provision for the deduction of the amount paid in advance to the wifet to be adjusted in the interim application orders...

Also I want to tell you people that it was the 4 or the 5 date of the MM DV Court that it directed us towards mediation and she demanded 30 lakhs from me in order to withdraw the DV case and she told that she wants this money for our child though she couldnt tell it to me and she told it to my lawyer so again one more question is that if she wants such a big amount from me which i dont have so how come she didnt claim interim maintenance in DV or CRPC 125 or why she didnt pulled my family member in the court and is it because my family members lived separately from us both and also apart from DV and DIVORCE HARRASSMENT she has not filed any other suit then how come that bitter half mine thinks that she will get the money i mean to ask you all people like whats her game plan because if she wants 30 lakhs from me then she should have harrased me more with many other false cases and i think its because she herself has not come with clean hands as also said by the family court and is that the reason...??? THROW SOME LIGHT PEOPLE...









***VICTORY ATTAINED THROUGH VIOLENCE IS TANTAMOUNT TO DEFEAT AS IT IS MOMENTARY*** By Gandhiji
but he also said ***ITS BETTER TO BE VIOLENT IF THERE IS VIOLENCE IN OUR HEARTS THEN TO PUT IT ON THE CLOAK OF NON-VIOLENCE TO COVER IMPOTENCE***

PLEASE REPLY BROTHERS...

If she has not applied for interim she will not be given it.

If she wanna extract more from u, she could have filed other criminal cases on u as well as ur family members by this time. She may have thought she could use that as her future weapon/The time period after marriage might be more so the lawyer might have felt 498A package wont have much effect/She may feel u r having a good political or police connection/She may have any unmarried siblings/May be (very less oppertunity) ethical in approach.

Ur queries regarding adjustment in maintenance, seniors can share their views.

You should talk to the lawyer till the juridiction problem haven't solved, the maintenance case should be tempararily closed.

Wife cannot ask for maintenance in more than one suit. If so then the second one can be rejected under CPC 10.

Civil Procedure Code 1908


10. Stay of suit.


No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 1[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government] 3[***] and having like jurisdiction, or before 4[the Supreme Court].



Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in 1[India] from trying a suit founded on the same cause of action.



COMMENTS



(i) The language of section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute; National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR 2005 SC 242.



(ii) Two suits—Between same parties—Involving same subject‑matter and same questions—Held, subsequent suit should be stayed; Radhika Konel Parekh v. Konel Parekh, AIR 1993 Mad 90: (1993) LW 159: (1993) 1 Mad LJ 163.

phasgaya u have completely hijacked Dev's thread.
any ways Reply to ur queries:

1.Chk jurisdiction issue if it can b raised.
2.To prove that she has not come to court with clean hands/concealment show in dv case that she claims no earning while in divorce case she claims she is earning.
3.If she not asked for interim order so what? The moment she asks the judge will ask her to come thru proper channel and she will file sec 23 application with affidavit.
4.Now y she has not put 498a. She seems to be rightly guided. She will say in court that she doesn’t want to trouble u but wants to safeguard her and the small child future hence needs money. See how genuine she will sound lol.
5.However if she fails to get desired money in dv/her divorce as quickly as she wants then wait and see her true color with 498a and other add ons

All Of You Than you so much for giving me your valuable views , advice and suggestions today it was a nice day in the family court in as i presented the application for adjustment of Interim order as i had already paid some amount to her in advance and also bitter half was not there and not even her lawyer so judge said ok its adjusted and signed the application so is there a chance that it can still be not adjusted or the words and sign of the judge is patthar ki lakheer as i have also attached the copy of the deposit slips...plz tell me...

THANKS AND REGARDS
PHAS GAYA 73

ADDONS nice word instead it can be called GOVERNMENT HARRASSMENT APPS VERSION : 498, HMA, DV2005 the latest one

For now, its PATHAR PE LAKIR n the order is in ur favor (like exparte). If she is aggrieved by this, she has the right to appeal, but surely wil have to face uphill task to revert it! So congrats n apply certified copy asap.
gal

@GAL thanks for reading my post but am confused of one thing as u mentioned exparte or interim order in my favour but thats not true i beleive i have given u all the proper details as INTERIM ORDER WAS PASSED IN AUGUST 2012 ITSELF, but the judge told this to us later in november 2012 so how the question of exparte arises and the adjustment i am talkingt about is that since day of INTerim application till today the arrears is 18k and i have already paid her 20k after divoce petition was filed so i have given application to
adjust that 20k that means now my wife owes me 2k so that is why i gave application today which was accepted...so what exparte you are talking about and the certified copy of order is already with me so which certified copy u are talking about...sorry to be so dumb but please educate me...thanks for you time GAL and everyone else as well...

PHASGAYA73

@phasgaya73

U misunderstood what galsoberji said. He said the acceptance of the adjustment of the maintenance amount in the absence of ur Wife/Her concel is like an exparte order.

Exparte order and interim order are totaly different.

Exparte order - Allowing the prayer of the petitioner due to non availability of the respondent for a period of trials.

Interim order - Providing an interim relief to the petitioner till the case is settled by the court.

All right i understood bt sorry i thought i didnt explain my case properly to you all but now im relaxed so thanks to all of you... And NOW i got to understand everything wat GAL said...SO THANKS ONCE AGAIN...

NOW as Bitter half and her counsel didnt come yesterday and they were the one who were in such a hurry for money but any reasons comes in the mind of you all that why both didnt come as yesterday she was suppose to give me the bank a/c number to deposit the money in her a/c though the advance payment done by me is more than the interim order arrears...so whats their plan ahead... may be she wants me to know that i cant get releif with these small installments of chavanni and atthanni...any views...?

REGARDS
PHASGAYA73








***DO WHATEVER YOU LIKE IN LIFE AND DO IT SO WELL THAT THEY WANT TO SEE IT AGAIN AND NEXT TIME THEY BRING THEIR FRIENDS TO SEE IT*** - WALT DISNEY

Why you r bothered if they did not come. If they come there & do something, u r in mess. If they dont come, u r worried. AB KAYA JAAN LOGE BECHHARON KI! :-)
Meanwhile, what must be the reason, I tickled..........the best i cud get from my grey cells SHE MUST BE HAVING MENSES ; )

gal,

doctori mat kar yaar...

sorry for digression!

Gal absolutely correct why should i worry after all its not my concern...

Section 23 in The Protection Of Women From Domestic Violence Act, 2005
23. Power to grant interim and ex parte orders.-
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(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.

NOW my question is that if BITTER HALF DID NOT applied under sec 22 and 23 of the DV act then can the judge use his power to grant interim and exparte orders under sec 23 and compensation orders under sec 21 of the DV act... or she has to apply first under sec 22 and 23 of the DV ACT...

NOTE : ALSO AS I TOLD EARLIER MAINTENANCE 2000 ALREADY PASSED UNDER SECTION 24 of the HMA and that wife has only applied for sec 12 , 18 , 20 and 21 under DV ACT BUT ITS STILL PENDING... Advise please...

no relief under any sec if not applied.
But she can submit an application for relief under sec 23 any time.
Any relief provided is adjustible against other orders.

Alright so if even the judge considers mistakenly that the DV occured between the parties then for the judge to use his power under sec 22 & sec 23 of the dv act the bitter half should apply first, AM I CORRECT ???... just wondering because also heard about the judge in my case in DV court that if a woman cries in the court infront of him then he is known to pass extraordinary orders...

IN SIMPLE TERMS suppose she has not filed sec 23 and she asks for relief.....MM will say come to proper channel....means he is saying if u want relief ask for it in writing.

u can chk the judgements of that judge for last one year to know the trend whcih that MM has adopted in say las one year.
In my DV case MM is known for freebies at the throw of a hat......SCARY!!!!!!! :(((((((

IN LAST ONE YEAR SHE HAS GIVEN IO like 50k,65k Baap ka maal hai loota do

WHAT THE F*C*K,,, thats horrible dude...Even my lawyer says that this dv act is shit thing invented by a political party to attract women votes... but they forgot that even they have brothers, sons, father...shitty politics...

Sorry to spoil the party but bear with the truth......NO NEED FOR HER TO APPLY FOR SEC 23 IN MM NEEDS TO DECIDE IO WITHOUT THIS APPLICATION:
http://indiankanoon.org/doc/1580264/

@gal the link you provided in that application SECTION 23 OF DV WAS APPLIED hence granted...SEE BELOW...

2. The non applicant filed an application under Section 23 of the Protection of Women from Domestic violence Act, 2005 (hereinafter referred to as the 'said Act') in the Court of learned Chief Judicial Magistrate, Amravati (hereinafter referred to as learned 'trial Judge') for appropriate reliefs and in 2..........

CORRECT ME IF I AM WRONG...
REGARDS
PHASGAYA73

Gal,
I have seen judgements where she asked for relief and MM told indirectly ask for it to get it.

Lets say if MM can decide it without application and place order for sec 23 in dv then if order already passed in SEC 24 of HMA then even the judge in dv cannot pass sec 23 in dv as maintenance in dv comes under crpc 125 and justice dhingra said if maintenace passed in hma 24 or hindu adoptions act then no need of passing maintenance in crpc 125 am i correct ??? if not what about adjustments...

phasgaya dear:
Heve seen many IO order thrown at us, wen MM is at best of his/her imagination about what all husband can earn and the FAT lady can grab by doing nothing.
But always w/o exception they add a line adjustable against other orders if passed. They just dont bother wat has been passed in past under wat ever act (inact)

bye the way where is the guy who started this thread vanished which has been hijacked by phasgaya (ya us ko nikaal diya lol)

@accused and the rest of the the brothers,,,
I have seen in so many judgements copy attached on the internet in which same level of court higher or lower...judges have passed so many judgements that it is contradictory in itself...hell whats happenning to these judges what do they want and judges ne to article 14 constitution of india ki ma behen ek kar di which gives everyone equal rights and aisa lagta hai MM court and high court ab supreme court se bada hai ... BUT THANKS TO THOSE JUDGES WHO TAKE TIME AND DECIDE THE FLOW OF THE CASE...

Regards
PHASGAYA73 until next bombardment from bitter half...

See the highlighted part. It contains other citation which shud be dug, other wise operative part is here in it also:

JUDGMENT

1. Rule. Rule returnable forthwith. Mr. Bhattad, Advocate waives notice for non applicants. In the facts and circumstances of the case, the matter is taken up for final hearing forthwith.

2. The non applicant filed an application under Section 23 of the Protection of Women from Domestic violence Act, 2005 (hereinafter referred to as the 'said Act') in the Court of learned Chief Judicial Magistrate, Amravati (hereinafter referred to as learned 'trial Judge') for appropriate reliefs and in 2

particular getting some money towards maintenance. The learned trial Judge passed an order on 07.04.2008 in the said proceedings namely Misc. Criminal Case No. 365/2007 and directed the applicant to pay a sum of Rs. 1200/- per month by way of maintenance to non applicant no. 1-Kavita and a sum of Rs. 600/- per month by way of maintenance to son Atharva-non applicant no.2. The said order was challenged by the applicant in the District Court by way of Criminal Appeal and the learned Ad hoc Additional Sessions Judge-5, Amravati (hereinafter referred as Additional District Judge) by judgment and order dated 12.06.2008, dismissed the said appeal. Hence, the present criminal application is filed.

3. It was argued by learned Advocate Mr. Chawre, that order dated 07.04.2008 passed by learned trial Judge was without calling for report from the Protection Officer or Service Provider. He has drawn my attention to the provisions of Section 12 of the said Act which is as follows:- "12. Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such

application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1)

3

may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of

domestic violence committed by the respondent:

Provided that where a decree for any amount as

compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained int he Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of

hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. (5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing." According to him, no order under this Act can be passed in the absence of report from the Protection Office or Service Provider and that is how the impugned order is illegal. As against this, the learned Advocate Mr. Bhattad 4

had submitted that since the proceedings were initiated by non applicants directly, there was no need to obtain such a report.

4. In order to test submissions advance by learned Advocate for the applicant, one will have to consider the nature of order, which was passed by learned trial Judge and perusal of the same would clearly go to show that order dated 07.04.2008 directed the payment of maintenance is interim order. This is being stated on account of use of the term "from 07.04.2008 till the decision of the main application" in the operative part of order dated 07.04.2008. The learned Additional District Judge has dismissed the appeal and, therefore, it is clear that order dated 07.04.2008 is an interim order. In this connection one can refer to the judgment delivered by this Court in Vishal Damodar Patil ..vs.. Vishakha Vishal Patil; 2008 (6) AIR Bom R 297 wherein it is observed that there is no need to file separate application for interim relief under Section 23 of the said Act. The only requirement is to hear the parties concerned. In the present case, the learned trial Judge has undoubtedly heard the applicant as well as non applicant and has passed an interim order. To that extent, in the absence of regular application for interim maintenance, passing of order dated 07.04.2008 cannot be faulted with.

5. The point as regards calling of the report from the Protection Officer or Service Provider is concerned one will have to interpret provisions of Section 5

12 of the Act and the said interpretation has to be in favour of the person, who is in need of maintenance and in particular interim maintenance. Report from the Protection Officer or Service Provider has to be gathered and it would assist the Court for the purposes of doing complete justice in the matter. At the same time, it is expected that the trial Court has to pass an interim order as early as possible. If the trial Court, who is required to pass an interim order, keeps on waiting to get the report of the Protection Officer or Service Provider, it would entail the delay and the idea of considering the case of a needy person at the interim stage will be actually defeated. Therefore, I am inclined to observe that it is not necessary in each and every case to obtain a report from the Protection Officer or Service Provider to decide application for interim relief. If on the basis of record before the Court, the Court is in a position to arrive at a just and proper conclusion, it will be open for the Court to do so and decide the matter accordingly. In the present case, the applicant had filed reply to the application filed by non applicants and, therefore, necessary material was before the learned trial Judge to decide the question whether interim relief should be granted. The record has been considered and order has been passed.

6. In view of above discussion, the argument advanced by Mr. Chawre, learned Advocate for applicant, as regard obtaining report from the Protection Officer or Service Provider cannot be accepted. Needless to mention that at the time of disposing of the application at final hearing, the trial Judge will have to comply with the provisions of Section 12 of the said Act. 6

7. The learned trial Judge has fixed the maintenance at the rate of Rs. 1200/- per month for non applicant no.1-wife and Rs. 600/- per month for the son-respondent no. 2. It has been the stand of the non applicants that the applicant is carrying on a business in the name and style as 'Nandan Cement Gruha Udyog' as well as 'Atharva S.T.D.' at Moti Nagar, Amravati. It is also claimed that the applicant does a business of daily collection in 'Samrudhi Pat Sanstha' and thus he earns a sum of Rs. 25,000/- per month. As against this, the applicant has come out with a case that he is working with a contractor as Labour and earns Rs. 50/- per day as and when the work is available and his monthly income is not more than Rs. 1,000/-. However, it is difficult to accept that he has been working with a contractor as labour. It was necessary for him to name the contractor and the designation held by him. The stand of the applicant that he earns daily wages of Rs. 50/- per day, cannot be believed and it also cannot be said that his monthly income is not more than Rs. 1000/-. If this is so, it is difficult for the applicant himself to sustain on day-to-day basis and it has not been stated by the applicant whether he seeks assistance of some other person for the purpose of meeting both the ends for himself alone. The stand taken by the applicant appears to be unjust and contrary to the facts. This aspect of matter of suppression of material facts has been rightly considered by learned trial Judge and in my view, he has rightly fixed a reasonable figures of Rs. 1200/- per month and Rs. 600/- per month respectively keeping in view the needs of non applicant no. 1 as lady and non applicant no. 2, 7

who is undertaking education. In my view, the learned trial Judge and the learned Additional District Judge have taken correct view of the matter and have fixed the figure of maintenance properly.

8. Before this Court, the learned Advocate for the applicant attempted to produce an information collected by him under the Right to Information Act wherein it is mentioned that respondent no. 1 works in the institution by name Krushi Vidhnyan Kentra, Selsura, Taluka Deoli, District Wardha in the name and style as ku. Kavita V. Ingale, as Junior Stenographer and earns a sum of Rs. 8000/- per month. Perusal of the impugned order, would go to show that this aspect was not made over to the learned trial Judge by documentary evidence and that is how the said aspect has not been considered by the learned trial Judge. Hence, the stand of the applicant that respondent no. 1 is gainfully employed and earns Rs. 8000/- per month prima facie could not have been accepted. Hence, the said stand cannot be considered while deciding correctness of the order passed by learned trial Judge as well as learned Additional Sessions Judge. Needless to mention that if the applicant has any material to make an application for modification of the order already granted, he would be able to do so by applying for modification of the order.

9. Keeping in view the aforesaid observations, following order is passed.

8

(a) Rule discharged.

(b) Order passed passed by learned Chief Judicial Magistrate referred to above and confirmed by learned Additional Sessions Judge referred to above is confirmed. No interference is required thereto.

(c) If the applicant wants to apply for modification of order dated 07.04.2008, he is free to do so provided provisions of the said Act do permit him to file such an application.

(d) Keeping in view the fact that the application pertains to the year 2008, it would be appropriate to direct the learned Chief Judicial Magistrate, Amravati to hear and dispose of this application on merits as expeditiously as possible.

(e) After aforesaid order is passed, learned Advocate invited my attention to the order passed on 25.03.2009 passed by this Court by which non applicant no. 1 was permitted to withdraw the Rs. 18,000/- by furnishing an undertaking that she will redeposit the money along with interest, if she loses in this matter. Now as this application is dismissed, the non applicant is absolved from the undertaking given by her pursuant to the order dated 25.03.2009. JUDGE

kahale

Very confusing thogh clears all my doubt now THANKS BUDDY!!! Will ask more questions...

In the above judgement the non applicant being the wife had already applied for interim maintenance under DV and hubby opposed it in high court saying that DIR was not filed so HC judge said court cant wait for such DIR as if the DIR never arrives then in that case it doesnt means that releif will not be given and then question of this act becomes useless hence as she has already applied for relief under section 23 of DV the application of the hubby the applicant is dismissed and order of the lower court remains reserved but my question was if sec 23 not applied for then it will not be granted but in this case sec 23 was applied for and the only dispute the applicants lawyer had is that as DIR was not filed interim relief cant be given bullshit i believe the lawyer forgot that he is dealing with DV where in the judhe has superworld power and that the wife already applied for sec 23 hence granted the same the lawyer in my opinion should have come up with some other ways to reduce maintenance and the ground that he used to save the husband absolutely baseless in my opinion...so what all you people say... share your views...

And the question still remains that if DV SEC 22 & 23 NOT APPLIED THEN IN THAT CASE WILL HE PASS SUCH ORDERS my answer is may be or may be not as if the judge thinks that aggreived person in need then he can use his super power and in my case sec 12, 18, 20, & 21 wife has applied i feel judge might not pass as INT ORDER IN SEC OF HMA ALREADY PASSED FOR KID BUT NOT FOR WIFE SO CAN ANY 1 has a judge in which it clearly states that MAINTENANCE IN DV LIES UNDER CRPC 125...

REGARDS AND
PHASGAYA73

No need to look for judgement dear.... PWDVA 2005 section 26 clearly gives permission to try criminal cases in accordance with law eventhough any relief is asked from section 18 to 22.

@ Phasgaya
As u urself noticed that DV act empowers MM to play the way he likes, the respondent shud be prepared with better arguments rather than questioning technicals of the case. And remember, IO is the cutting edge in DV case, put maximum effort for delaying it/winning it. Do not think that appeal will work wonders.

@ gal
thanks will keep it in mind now am just so confused abt everything...but after coming to this forum i have got a lot of peace though...
thanks to you all...

Regards,
Phasgaya73...