Monday, May 11, 2009

Can she file both Section 24 of HMA and 125 Cr.P.C?

Another judgement : where wife already instituted maintenance proceedings and was awarded - no maintenance under PWDVA

Concealing income and job leads to contempt - see/click link below
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Rachna Kathuria vs Ramesh Kathuria on 30 August, 2010
Author: Shiv Narayan Dhingra
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
Ramesh Kathuria ... Respondent Through:Mr. S.S.Saluja, Advocate
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 Crl.M.C.No. 130/2010 Page 1 of 3 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 Crl.M.C.No. 130/2010 Page 2 of 3 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.
August 30, 2010 SHIV NARAYAN DHINGRA, J. vn
Crl.M.C.No. 130/2010 Page 3 of 3

If you know your wife is working and she is denying that she is earning then you just need to issue Witness Summons against payment of Bhatta. 

M.J. PETITION NO. ----- OF -----.

CCCCC … Petitioner
BBBB … Respondent



I, CCCC, the above named Petitioner, most respectfully hereby submit my application as under :-

As I want to examine the following witness towards his evidence to ascertain the fact of the gainful employment of the Respondent with ABC, summons as mentioned herein after may please be issued through the Hon’ble Court to this witness in the interest of the justice and equity because the Respondent has intentionally and knowingly concealed from this Hon’ble Court the material fact of her gainful employment.

I am ready to pay process against the same and Bhatta will be paid directly to the witness.

Name of witness with details is as under :

ABC, Full Address.
Telephone : 

He be directed to attend the Hon’ble Court himself personally or through authorized staff member with following details in writing.

Details and certified / authenticated copies of all the following documents in respect of BBBBB who joined your organization :

a) Date of joining and Date of resignation / termination, if any, or continued in service at present.
b) Copy of application for service, bio-data with all enclosures. 
c) Copy of appointment letter of service with terms & conditions.
d) Copy of resignation / termination letter, if any.
e) Copy of last salary slip, salary received by her with salary structure, mode of payment by cash / cheque / direct debit etc.
f) Details of Salary Bank Account with copy of all statements for the entire period of employment.
g) Copy of complete attendance record for entire service period.
h) Details of Job profile, designation and working hours.
i) Details of her all employment, may be intermittent, with the bank i.e. Date of joining & Date of resignation/termination with all salary details for the period commencing from 26.12.2008.
It is therefore prayed that summons with aforesaid details be sent to the witness.

Hence this application.


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.

Prayer me made as follows:
For the purpose of sparing the victim the ordeal of multiple trials and judicial economy - prayer be made to consolidate both trials in order to minimize prejudice with respect to potential antagonistic statements. For 2 trials would be cruel and relief sought under 2 trials would be inhuman and could turn into a logistical nightmare to comply with.
Here is an opportunity for the system and the court administrators to make a humane gesture and rule for one trial only.


  1. Useful. Thank U.

  2. How relevant it is today? Any SC order?


Related Posts with Thumbnails
The institution of marriage itself is gradually being put to test in contemporary Indian society with IPC 498A kind of laws, more so in urban pockets. More couples than before are opting not to tie the knot, preferring to simply live together instead. Cohabitation is common in a small number of advanced societies, some of which - like the Scandinavian countries - give live-in couples the same rights as those who are legally wed.

Marriage, therefore, is often a mere formality, or a matter of choice, in such societies. However, the reality in India is different. Due to a combination of social and religious factors, as well as the absence of safety nets and welfare, marriage is still an institution that is preferred over any other form of union. It is the fundamental relationship around which families are built and lend stability to social structures in India.

That said, it is crucial that we recognise the changes that are taking place. Instead of ruing the loss of old values, we would be better off gearing up for new realities. That includes updating our laws and social attitudes.
Add not fire to fire.
Do not throw the arrow that will return against you.
Beggars can never be bankrupt.
You can bear with your own faults, and why not a fault in your wife/husband?
Better an egg today than a hen tomorrow.
The child who gets a stepmother also gets a stepfather.
Where there is dowry there is danger.
Anger can be an expensive luxury.
The bachelors crave to get married, and the married ones regret why he got married.
O daughter, I’m telling you. O daughter-in-law, listen to this…..
Pray one hour before going to war, two hours before going to sea, and three hours before getting married.
Even the moon has spots.
It takes time to save time.
Comment is free but facts are on expenses.
It is wise to keep in mind that neither success nor failure is ever final.
Readers are plentiful, thinkers are rare.
It is not whether you get knocked down; it is whether you get up again.
There are times when silence has the loudest voice.
Do not wait for success, go ahead without it.
One does not learn anything that one does not love.
When there is no enemy within, the enemies outside can not hurt you.
Do not look where you fell, but where you slipped.
To know the road ahead, ask those coming back.
If you bow at all, bow low.
The day you decide to do it is your lucky day.
Proof rather than argument.
Where you cannot climb over, you must creep under.
Faults are thick where love is thin.
It is harder to kill a whisper than even a shouted calumny.